Hernandez v. Dignity Health CA3

Filed 3/13/15 Hernandez v. Dignity Health CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

JOSE J. HERNANDEZ, C074946

Plaintiff and Appellant, (Super. Ct. No. 39201100272644CUMMSTK) v.

DIGNITY HEALTH,

Defendant and Respondent.

The trial court granted a summary judgment to defendant Dignity Health, sued as St. Joseph’s Medical Center, because plaintiff Jose J. Hernandez, an in pro. per. litigant, failed to offer any expert testimony to substantiate his vague claim that the hospital’s negligence in treating him for chest pain caused the symptoms he experienced six months later and resulted in his permanent disability.1 On appeal, plaintiff attempts to enlarge

1 A party is entitled to act as his own attorney but is entitled to no greater consideration than other litigants or attorneys and is subject to the same restrictive procedural rules as an attorney. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 (Nwosu); Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193.)

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both the facts and his legal theories, neither of which he is allowed to do. We agree with the trial court that plaintiff’s failure to present expert testimony to create a triable issue of material fact regarding causation is fatal to his lawsuit and therefore affirm the judgment. Because this issue alone is dispositive, we need not address either the standard of care or the notion that the hospital may be liable under a theory of res ipsa loquitur. PLEADING, MOTION, EVIDENCE, AND RULING Plaintiff, a morbidly obese, diabetic smoker with hypertension, filed a medical malpractice lawsuit against the hospital and various doctors who treated him. He alleges a single cause of action for general negligence based on the following facts. On or about August 20, 2010, he was admitted to the hospital for “severe pain and uncontrollable shaking of the head.” The hospital staff administered a series of tests, stabilized him, gave him some medication, and released him. He went home, fainted, and returned to the emergency room. He alleges that a doctor in the emergency room asked him if he was “trying to kill himself by taking all of the medication.” He opines that because he is diabetic, he should have been monitored for a few hours after his medication was changed. He complained of weakness in his left side and some numbness. Once stable, he was again discharged. Again, he opines in his complaint, “An MRI conducted on a diabetic does not always show accurate results immediately should be conducted a second time between 24 and 48 hours which was not done, which was below the standard of care.” He further alleges that the pain persisted but he returned to work until February 4, 2011, when he was taken to St. Joseph’s again, complaining of severe pain in his legs and that he had “back and neck issues.” He was again given medication and discharged. Four days later he was taken to a different hospital. He alleges: “The doctors at Dameron [Hospital] sent him for an MRI and other tests which determined that he had suffered two strokes and that was why his left side was weak and numb.” He concludes: “Plaintiff believes that because he was not diagnosed properly and did not receive the