2013-00141723-CU-PO

William C. Hill vs. David M. Follette, M.D.

Nature of Proceeding:    Motion for Summary Judgment and/or Adjudication

Filed By:  McPherson, Dennis P.

Defendant Follette’s Motion for Summary Judgment, or in the Alternative for Summary
Adjudication of Issues is GRANTED.

The Court rules on defendant’s Evidentiary Objections as follows:  objections to
plaintiff’s evidence in opposition to Hill’s separate Statement nos. 1-19 are
SUSTAINED; objections to plaintiff’s evidence in plaintiff’s separate statement nos. 1-
23 are SUSTAINED.

Plaintiff’s “ex parte” application for appointment of a medical expert witness is
DENIED.  That application fails to comply with C.R.C., Rules 3.1201 and 3.1204.  The  same request was previously denied by J. Vasquez on April 18, 2013.   The Court
does not generally appoint expert witnesses for civil litigants. A self-represented
litigant, such as plaintiff herein, does not have a constitutional right of access to the
public purse for legal [or factual] assistance to pursue or defend all types of legal
claims. See, e.g. Knop v. Johnson (1992) 977 F. 2d 996. Fiscal madness would result.

Plaintiff William C. Hill’s form complaint alleges a single cause of action against
Defendant Dr. Follette for negligence (medical malpractice) based on the care and
treatment rendered to Hill in connection with a bronchoscopy and mediastinoscopy
procedure performed on February 16, 2012.

Hill specifically alleges Dr. Follette was negligent with respect to the following: (1) Dr.
Follette, while performing a cervical mediastinoscopy, punctured Mr. Hill’s trachea; (2)
Dr. Follette, without being aware of the puncture, closed up the point of entry; (3) Dr.
Follette should have discovered the punctured trachea in a postoperative examination;
and (4) Mr. Hill’s injuries would not have been so severe if Dr. Follette had provided
adequate and sufficient treatment.

A cause of action for medical negligence must demonstrate a breach of the standard
of care. See Landeros v. Flood (1976) 17 Cal.3d 399. California Civil Jury Instructions
501 and 502 require the standard of care of a medical practitioner in a medical
malpractice case be “based only on the testimony of the expert witnesses”. When a
defendant introduces expert testimony negating a triable issue of fact, the plaintiff must
introduce contradictory expert testimony in order to avoid summary judgment. See
Mann v. Cracchiolo (1975 ) 38 Cal.3d 18, 41; see also  Osborne v. Irwin Memorial
Blood Bank (1992) 5 Cal.App.4th 234, 273. The test for medical negligence is whether
the conduct was reasonable under the circumstances. See CACI No. 505. Of course,
where negligence on the part of a doctor is demonstrated by facts which can be
evaluated by resort to common knowledge, expert testimony is not required since
scientific enlightenment is not essential for the determination of an obvious fact. (Hurn
v. Woods (1982) 132 Cal.App.3d 896, 901). The presented facts show that common
knowledge would not inform the Court or trier of fact as to the medical issue presented
(see, infra.).

Here, moving party has submitted the Declaration of Barry N. Gardiner, M.D. who is
Board Certified in general surgery, and  routinely sees and treats patients with
sarcoidosis, general surgery, such as William Hill, and is familiar with their course of
treatment and the practice of performing bronchoscopy and mediastinoscopy such as
undergone by William Hill.  In his professional opinion, at all times in the treatment of
Hill, in undertaking and performing the bronchoscopy and mediastinoscopy Dr. Follette
met and adhered to the standard of care.  The development of a trachea-cutaneous
fistula is a known risk of the mediastinoscopy, and Dr. Follette returned plaintiff to
surgery and identified and repaired the fistula within the standard of care.  (McPherson
Dec., Exh. F.)

Moving party has therefore met his burden of proof on summary judgment.

In opposition, plaintiff has no expert witness testimony to identify a disputed issue of
material fact as to the standard of care.

‘The standard of care against which the acts of a physician are to be measured is a
matter peculiarly within the knowledge of experts; it presents the basic issue in a             malpractice action and can only be proved by their testimony, unless the conduct
required by the particular circumstances is within the common knowledge of the
layman. Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal. 4th 992,
1001.

Evidence Code, sec. 646 (b), provides that the judicial doctrine of res ipsa loquitur is a
presumption affecting the burden of producing evidence.” The foundational or basic
facts of the res ipsa loquitur presumption are well established. They are that “the injury
(1) is of a kind that ordinarily does not occur in the absence of someone’s negligence;
(2) is caused by an agency or instrumentality within the exclusive control of the
defendant; and (3) is not due to any voluntary action or contribution on the part of the
plaintiff . . . .” Frantz v. San Luis Medical Clinic (1978) 81 Cal. App. 3d 34, 43.

In res ipsa cases, it was a matter of common knowledge that “the consequences of
professional treatment were not such as ordinarily would have followed if due care had
been exercised.”  Leonard v. Watsonville Community Hospital (1956) 47 Cal.2d 509,
514 (leaving clamp in the abdomen after surgery); Ales v. Ryan (1936) 8 Cal.2d 82
(leaving a sponge in the abdomen during surgery); Ybarra v. Spangard (1944) 25
Cal.2d 486, 488-489 (sustaining a shoulder injury during appendectomy).

The complexity of the medical procedure is a factor in determining the necessity of
expert testimony. The more complex or unusual the medical process, the more likely it
is that expert testimony will be required to establish whether or not the injury was the
result of negligence. Only in those situations where common knowledge can determine
whether a medical practitioner is “negligent” can such “negligence” be found to exist as
a matter of law. See, Barton v. Owen (1977) 71 Cal.App.3d 484, 494-495.

Here, the Court does not find that this is an appropriate case for the application of the
doctrine of res ipsa loquitur, as the complexities of performing bronchoscopy and
mediastinoscopy are beyond the common knowledge of a layperson.

Summary judgment is therefore granted.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.