The opinion
Filed 5/23/24 McKenzie v. Liu CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
RUSSELL MCKENZIE, B317858
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC691479)
v.
JOHN LIU et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael E. Whitaker, Judge. Reversed and
remanded.
Ivie McNeill Wyatt Purcell & Diggs, Byron Michael Purcell,
and Julio C. Navarro, for Plaintiff and Appellant.
Peterson, Bradford, Burkwitz, Gregorio, Burkwitz, and Su,
Avi Burkwitz, and Gil Burkwitz, for Defendants and
Respondents.
This case involves a needle lost in a patient’s body during
one surgery and the second surgery performed to retrieve it. In
October 2016, plaintiff Russell McKenzie (McKenzie) underwent
surgery to remove a cancerous tumor from his cervical spine. The
surgery was performed by John Liu, M.D. (Liu) and Patrick C.
Hsieh, M.D. (Hsieh) at the University of Southern California’s
(USC) hospital. During the procedure, Liu and Hsieh became
aware a 6-0 Prolene needle had been lost. The surgery was
completed with the needle still inside McKenzie. Two days later,
a second surgery was done solely to remove the needle. McKenzie
sued defendants Liu, Hsieh, and USC (collectively, defendants)
for professional negligence. Defendants filed a motion for
summary judgment, which the trial court granted. The court
found that although McKenzie raised a triable issue of material
fact as to whether defendants breached the standard of care,
McKenzie did not show defendants’ breach caused him any harm.
McKenzie appealed, arguing his expert declaration showed he
was harmed by having to undergo the second surgery to remove
the needle. We find McKenzie’s expert declaration was sufficient
to raise a triable issue of material fact as to causation. We
reverse the judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A. McKenzie’s Surgeries and Medical Malpractice
Action
In February 2016, McKenzie suffered a stroke and
subsequently experienced hand and foot numbness. The imaging
studies showed McKenzie had stenosis in the right vertebral
artery and a large tumor in the cervical region. In August 2016,
McKenzie met with Liu, a neurosurgeon at USC. Liu’s
2
impression was McKenzie’s pain and symptoms could be relieved
by surgical decompression in conjunction with a tumor resection.
On October 31, 2016, McKenzie underwent the tumor
resection, which was performed by Liu and Hsieh. There were no
medical complications during the surgery. However, a 6-0
Prolene needle used to stich the surgical site closed disappeared.
The surgical bed was inspected and when the needle was not
found, a magnet was used to search the operating room floor.
The needle was not located, so an x-ray was taken of the surgical
site, but radiology did not identify a retained object. Liu and
Hsieh felt comfortable the needle was not within the surgical site
and proceeded to complete the operation. McKenzie was
transferred to the post-anesthesia recovery unit in stable
condition.
The next day, McKenzie underwent an MRI, which
revealed a “metal artifact” (i.e., the missing needle) near the C5
vertebral body. Liu and Hsieh then met with McKenzie to
discuss removing the needle. Liu and Hsieh did not believe the
needle posed a danger to McKenzie but recognized leaving the
needle inside McKenzie would make it difficult to image him
effectively. Liu and Hsieh felt the best option was to remove the
needle so that future MRIs could be used to follow his tumor.
McKenzie agreed to proceed with its removal.
Two days after the first surgery, Liu performed a second
surgery to remove the retained needle. The needle was
successfully removed without complication.
In January 2018, McKenzie filed this action against
defendants. Following the sustaining of defendants’ demurrer to
a medical battery claim, McKenzie’s operative first amended
complaint asserted a single cause of action for professional
3
negligence against defendants. McKenzie alleged defendants
negligently failed to account for and remove a needle from his
body during the tumor resection. He asserted defendants’
negligence required him to undergo a second surgery to remove
the needle. McKenzie alleged he suffered mental anguish, pain
and suffering, and added medical expenses, among other
damages, as a result.
B. Summary Judgment Proceedings
1. Defendants’ Motion for Summary Judgment
In April 2020, defendants moved for summary judgment.
Defendants argued (1) the care and treatment provided to
McKenzie was at all times within the applicable standard of care,
and (2) to a reasonable degree of medical probability, no negligent
act or omission by defendants caused or contributed to
McKenzie’s claimed damages. The motion was supported by a
declaration from Dean Chou, M.D. (Dr. Chou), a neurosurgeon.
It was Dr. Chou’s opinion that Liu and Hsieh complied with
the applicable standard of care during the first surgery to remove
the tumor as there were no complications or issues with the
surgical procedure itself. Dr. Chou opined that although an MRI
later showed there was a needle left in McKenzie’s body, and Liu
and Hsieh were aware a needle was unaccounted for, there was
no risk of injury or harm because of the retained needle. He
opined that all reasonable steps that could be taken to locate the
needle prior to closing the surgical wound were taken.
Regarding the second surgery to remove the needle, Dr.
Chou opined the surgery was “uneventful, and the needle was
successfully removed.” With respect to causation, Dr. Chou said
there was no evidence that the retained needle, or its subsequent
4
removal, caused McKenzie any harm. In addition, Dr. Chou
stated that because there was no alleged wrongdoing by any
provider other than Liu and Hsieh, USC by extension also met
the standard of care and did not cause any of McKenzie’s alleged
injuries.
2. Hearing Date Continuances
Defendants’ motion for summary judgment was originally
set for hearing for September 2020. In August 2020, McKenzie
filed an ex parte application to continue the hearing, claiming a
continuance was necessary to depose Liu and Hsieh. McKenzie’s
counsel filed a declaration indicating that after it became
apparent McKenzie could not depose Liu and Hsieh in-person
because of the Covid-19 pandemic, McKenzie noticed Liu’s and
Hsieh’s depositions for August 2020. Defendants objected to the
notices and would not appear for the depositions. McKenzie
anticipated Liu and Hsieh would testify as to what occurred
when the needle was lost and planned to use their testimony to
oppose the motion for summary judgment. Defendants opposed
McKenzie’s ex parte application, arguing the request should be
denied because McKenzie was not diligent in seeking to depose
Liu and Hsieh. The trial court granted the ex parte application
and continued the hearing for the motion to November 2020. The
court later continued the hearing to May 2021 based on the
parties’ stipulation.
In April 2021, McKenzie filed an opposition to defendants’
motion for summary judgment. McKenzie requested the hearing
be continued because he had been unable to depose Liu and
Hsieh despite attempts to do so. McKenzie asserted his expert
needed Liu’s and Hsieh’s testimony to properly assess and opine
5
on liability and damages. Shortly after, McKenzie filed an ex
parte application seeking to continue the hearing on the same
basis. Defendants opposed the ex parte, arguing McKenzie did
not establish good cause warranting ex parte relief and did not
act diligently. The trial court granted the ex parte application
and continued the hearing date to September 2021. Additionally,
the court ordered the parties to meet and confer and complete the
depositions within 60 days. McKenzie deposed Liu and Hsieh in
June 2021.
Thereafter, in August 2021, McKenzie filed another ex
parte application to continue the hearing. McKenzie asserted a
continuance was necessary because his expert, John G. Frazee,
M.D. (Dr. Frazee), was experiencing Covid-19 symptoms and was
unable to complete his declaration by the deadline for filing an
opposition to the motion for summary judgment. Defendants
opposed the ex parte application again arguing McKenzie had
been dilatory in completing discovery. The trial court granted
the ex parte application and continued the hearing to November
2021.
3. McKenzie’s Opposition
In opposition to the summary judgment motion, McKenzie
argued there were triable issues of fact concerning the standard
of care and causation. McKenzie’s opposition was supported by
the declaration of Dr. Frazee, a physician and surgeon with
experience in the field of neurosurgery from at least 1977 to 2019.
Dr. Frazee opined: “Drs. Hsieh and Liu fell below the
standard of care by failing to find a lost needle, knowing that the
sponge and needle count was incorrect. They also knew that a
needle artifact could make the diagnosis of [a] recurrent tumor
6
difficult or even impossible as stated in the second operative
report by Dr. Liu. Proceeding with an emergent MRI to localize
the needle would have been appropriate, while the patient was
still under anesthesia. This would have avoided the risks of a
second surgery and anesthesia, and would have shortened the
hospital stay.” Dr. Frazee stated, “The failure to find the
retained needle at the first surgery, let [sic] to additional risks
and financial costs of a second anesthesia and surgery.” He noted
the second surgery was “successful in removing the retained
needle without further complications.”
4. Defendants’ Reply
In reply, defendants filed evidentiary objections to Dr.
Frazee’s declaration, including an objection on the ground he was
not qualified to testify regarding the standard of care for
neurosurgeons. Defendants further asserted Dr. Frazee’s
declaration failed to demonstrate that any alleged failure by
defendants to comply with the standard of care was the
proximate cause of any of McKenzie’s alleged injuries.
5. Trial Court’s Ruling
The trial court overruled defendants’ objections to Dr.
Frazee’s declaration. After finding defendants met their moving
burden on summary judgment, the court determined McKenzie,
through Dr. Frazee’s declaration, raised a triable issue of fact as
to whether defendants breached the standard of care. However,
the court found McKenzie did not meet his burden of production
as to the issue of causation.
Although Dr. Frazee opined the failure to find the retained
needle led to additional risks and financial costs of a second
7
anesthesia and surgery, the trial court noted Dr. Frazee
recognized the second surgery was successful without any
residual effects. Thus, the court found Dr. Frazee failed to link
the retention of the needle to any harm from the second surgery
or otherwise. Defendants’ motion for summary judgment was
granted.
McKenzie timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse its Discretion by
Continuing the Hearing for the Motion for Summary
Judgment
We first address defendants’ assertion that the trial court
abused its discretion by continuing the initial hearing date for
the motion for summary judgment. Defendants argue there was
not good cause for the continuances and the motion should have
been granted as unopposed. McKenzie argues defendants are
attempting to use their respondents’ brief to improperly appeal
the court’s orders continuing the hearing. We conclude
defendants’ challenge to the continuance orders is properly before
us, and the court did not abuse its discretion.
“‘As a general rule, respondents who fail to file a cross-
appeal cannot claim error in connection with the opposing party’s
appeal. [Citation.] A limited exception to this rule is provided by
[Code of Civil Procedure] section 906.’” (Khorsand v. Liberty
Mutual Fire Ins. Co. (2018) 20 Cal.App.5th 1028, 1034.) Code of
Civil Procedure section 906 states in pertinent part: “The
respondent . . . may, without appealing from [the] judgment,
request the reviewing court” review “any intermediate ruling,
proceeding, order or decision which involves the merits or
8
necessarily affects the judgment or order appealed from or which
substantially affects the rights of a party.” The court may review
such rulings or orders “for the purpose of determining whether or
not the appellant was prejudiced by the error or errors upon
which [the appellant] relies for reversal or modification of the
judgment from which the appeal is taken.” (Ibid.) Thus,
respondents need not cross-appeal to assert that alternative
grounds for affirmance exist or to establish lack of prejudice from
an alleged error. (California State Employees’ Assn. v. State
Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7; see also
Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 487
[intermediate ruling necessarily affecting a final judgment is
properly within scope of appellate review of the judgment without
the need for cross-appeal].)
Because the trial court’s ruling on the motion for summary
judgment turned on its determination that McKenzie’s expert
declaration failed to raise a triable issue of material fact, we
would necessarily affirm the judgment if we concluded the court
erred in continuing the hearing to allow McKenzie additional
time to file the expert declaration with his opposition. Because
defendants are seeking to advance an alternative ground in
support of the judgment, they are entitled to do so without filing
a cross-appeal. Furthermore, respondents who have ultimately
prevailed in the trial court are generally not “aggrieved” by the
judgment in their favor, and therefore have no basis to separately
appeal that judgment. (See Code Civ. Proc., § 902 [“Any party
aggrieved may appeal in the cases prescribed in this title”]; Mao’s
Kitchen, Inc. v. Mundy (2012) 209 Cal.App.4th 132, 137
[ordinarily if a judgment is in favor of a party, he or she is not
aggrieved and cannot appeal].) As to McKenzie’s assertion that
9
defendants forfeited this issue by failing to raise it in the trial
court, defendants opposed McKenzie’s ex parte applications for a
continuance on the same grounds they advance here.
Regarding continuing motions for summary judgment,
Code of Civil Procedure section 437c, subdivision (h), provides: “If
it appears from the affidavits submitted in opposition to a motion
for summary judgment or summary adjudication, or both, that
facts essential to justify opposition may exist but cannot, for
reasons stated, be presented, the court shall deny the motion,
order a continuance to permit affidavits to be obtained or
discovery to be had, or make any other order as may be just. The
application to continue the motion to obtain necessary discovery
may also be made by ex parte motion at any time on or before the
date the opposition response to the motion is due.” “The decision
to grant or deny a continuance request under section 437c,
subdivision (h), is vested in the trial court’s discretion [citation],
and the court’s ruling is reviewed for an abuse of discretion.”
(Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 152.)
“Given the high stakes involved in motions for summary
judgment and summary adjudication, continuances under
section 437c, subdivision (h), are ‘virtually mandated “‘upon a
good faith showing by affidavit that a continuance is needed to
obtain facts essential to justify opposition to the motion.’”’”
(Ibid.)
Defendants specifically argue the court abused its
discretion by granting the continuance in August 2020, when
McKenzie’s opposition was first due.1 They contend McKenzie’s
1 Defendants more generally assert that the “1.5-year continuance
of the hearing on the MSJ” was inappropriate. However, they do not
10
counsel’s declaration filed with the ex parte application was
insufficient to justify a continuance. McKenzie’s counsel stated
in his declaration that the summary judgment motion was filed
in April 2020. Counsel intended to depose Liu and Hsieh in
person, but when it became clear the COVID-19 pandemic would
prevent that, counsel noticed their depositions for August 2020.
Because the doctors refused to appear on the noticed dates,
counsel said additional time was required for the depositions. He
anticipated they would provide testimony regarding their conduct
when the needle disappeared. Counsel’s declaration, thus,
identified facts essential to opposing defendants’ motion for
summary judgment and stated the reasons they could not be
presented. While it is true McKenzie might have deposed the
doctors earlier in the case, and multiple ex parte requests to
continue hearings are not encouraged, it is also true the COVID-
19 pandemic created challenges to taking depositions during the
pendency of the motion.
Defendants suggest the continuances were unnecessary
because the depositions were not needed to oppose their motion
for summary judgment. However, this case revolves around the
actions or inaction of the doctors. Indeed, McKenzie submitted
excerpts from Liu’s and Hsieh’s depositions with his opposition.
sufficiently explain or support this argument. The hearing was
originally scheduled to occur in September 2020 and was continued to
November 2021, a period of 14 months. Of the 14 months, the parties
stipulated to continue the hearing for six months. Defendants make
passing critical references to other continuances in their Statement of
Facts, but do not specifically discuss them in arguing the overall
continuance of the hearing was an abuse of discretion. Further, the
record does not disclose the available dates on the calendars of the trial
court and counsel to which the hearing on the motion for summary
judgment could have been moved.
11
The trial court properly exercised its discretion in granting
McKenzie’s August 2020 continuance.
B. McKenzie Raised Triable Issues of Material Fact
McKenzie argues the trial court erred in granting the
summary judgment motion on the basis that the retained needle
did not cause him any harm. He argues his expert’s declaration
established that if defendants had not failed to find the needle
during the first surgery, he would not have had to undergo the
second surgery to remove it. Defendants, however, contend the
trial court correctly concluded McKenzie failed to raise a triable
issue of fact as to causation. Defendants contend the declaration
of McKenzie’s expert should have been excluded as it was
speculative and lacked foundation. We find McKenzie’s expert
declaration was properly considered and sufficient to raise triable
issues of material fact to preclude summary judgment of his
professional negligence claim.
1. Summary Judgment Standard of Review
“Summary judgment is appropriate only ‘where no triable
issue of material fact exists and the moving party is entitled to
judgment as a matter of law.’” (Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 618.) A
defendant moving for summary judgment must show that one or
more elements of the plaintiff’s cause of action cannot be
established or that there is a complete defense. (Code Civ. Proc.,
§ 437c, subd. (p)(2).) If the defendant meets this burden, the
burden shifts to the plaintiff to present evidence creating a
triable issue of material fact. (Ibid.) A triable issue of material
fact exists if the evidence would allow a reasonable juror to find
12
the underlying fact in favor of the party opposing summary
judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 850.) “We review the trial court’s ruling on a summary
judgment motion de novo, liberally construe the evidence in favor
of the party opposing the motion, and resolve all doubts
concerning the evidence in favor of the opponent.” (Grebing v. 24
Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.)
2. Expert Testimony in Medical Malpractice Cases
In any professional negligence (i.e., medical malpractice)
action, “‘the plaintiff must establish: “(1) the duty of the
professional to use such skill, prudence, and diligence as other
members of his profession commonly possess and exercise; (2) a
breach of that duty; (3) a proximate causal connection between
the negligent conduct and the resulting injury; and (4) actual loss
or damage resulting from the professional’s negligence.”’”
(Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) “‘“‘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 [citations]. . . .’ [Citations.]”
[Citations.]’” (Id. at pp. 606–607.) “When a defendant health
care practitioner moves for summary judgment and supports his
motion with an expert declaration that his conduct met the
community standard of care, the defendant is entitled to
summary judgment unless the plaintiff comes forward with
conflicting expert evidence.” (Borrayo v. Avery (2016) 2
Cal.App.5th 304, 310.)
“With respect to the element of proximate cause, ‘[i]n a
medical malpractice action, the evidence must be sufficient to
13
allow the jury to infer that in the absence of the defendant’s
negligence, there was a reasonable medical probability the
plaintiff would have obtained a better result.’” (Jameson v. Desta
(2013) 215 Cal.App.4th 1144, 1166 (Jameson).) “Generally
speaking, ‘“The law is well settled that in a personal injury action
causation must be proven within a reasonable medical
probability based upon competent expert testimony. Mere
possibility alone is insufficient to establish a prima facie case.
[Citations.] That there is a distinction between a reasonable
medical ‘probability’ and a medical ‘possibility’ needs little
discussion. There can be many possible ‘causes,’ indeed, an
infinite number of circumstances which can produce an injury or
disease. A possible cause only becomes ‘probable’ when, in the
absence of other reasonable causal explanations, it becomes more
likely than not that the injury was a result of its action. This is
the outer limit of inference upon which an issue may be
submitted to the jury.”’” (Ibid.)
3. The Trial Court Did Not Err by Considering Dr.
Frazee’s Declaration
Defendants argue McKenzie’s expert, Dr. Frazee, did not
demonstrate he was qualified to testify about the standard of care
for neurosurgeons so his declaration should have been
disregarded. The trial court overruled defendants’ objection
made on this basis. We find no error.
“A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his
testimony relates.” (Evid. Code, § 720, subd. (a).) “We are
required to uphold the trial judge’s ruling on the question of an
14
expert’s qualifications absent an abuse of discretion. [Citation.]
Such abuse of discretion will be found only where ‘“the evidence
shows that a witness clearly lacks qualification as an expert.”’”
(People v. Chavez (1985) 39 Cal.3d 823, 828.)
When he executed his declaration, Dr. Frazee stated he was
a licensed physician and surgeon in California. He completed a
neurosurgical residency from 1977 to 1982 and had been a
Diplomate of the American Board of Neurological Surgery since
1984. He also stated that from 1982 to 2019, he was an assistant,
associate, or clinical professor of neurosurgery at “UCLA school of
medicine,” the “Chief of Neurosurgery at Wadsworth VA Medical
Center,” and the “director of the UCLA Neurosurgery Residency
Training Program at West Los Angeles VA Medical Center.” His
curriculum vitae indicated that at the time of his declaration he
continued to serve as a Director of UCLA Neurosurgery
Residency Training. Dr. Frazee declared that based on his
education, training, and experience, he was “intimately familiar”
with the specific principals of medical causation applicable to this
case.
Defendants contend Dr. Frazee’s declaration should be
rejected because it appears he has essentially been retired since
2019 and does not state when he last performed a neurosurgical
procedure. But defendants do not cite any authority holding such
factors are dispositive in determining whether an expert is
qualified to testify. (Cf. People v. Singleton (2010) 182
Cal.App.4th 1, 21 [retired police officer qualified to testify as
expert where officer had considerable experience with relevant
subject matter].) Nor do defendants produce any evidence
showing a physician with approximately 40 years of experience in
the field of neurosurgery lacks the expertise necessary to
15
determine whether the care provided to McKenzie met the
standard for patients undergoing similar surgeries. Defendants
additionally assert not all records Dr. Frazee reviewed were
before the trial court, but they do not identify the records or
explain why their absence required striking Dr. Frazee’s
declaration.
Dr. Frazee’s qualifications are sufficient to demonstrate
skill and experience in the field of neurosurgery. (See Jeffer,
Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432, 1442
[“The determinative issue in each case must be whether the
witness has sufficient skill or experience in the field so his
testimony would be likely to assist the [finder of fact] in the
search for the truth”].) Further, “‘[w]hen a preliminary showing
is made that the proposed witness has sufficient knowledge to
qualify as an expert under the Evidence Code, questions about
the depth or scope of his or her knowledge or experience go to the
weight, not the admissibility, of the witness’s testimony.’”
(People v. Jackson (2016) 1 Cal.5th 269, 327–328.) The trial court
did not abuse its discretion in overruling defendants’ objection to
Dr. Frazee’s declaration.
4. Dr. Frazee’s Declaration Raises Triable Issues of
Material Fact
We begin by identifying the issues framed by the pleadings.
(Jameson, supra, 215 Cal.App.4th at p. 1163.) McKenzie’s
medical malpractice claim alleges defendants were negligent in
leaving a 6-0 Prolene needle in his body after the first surgery.
McKenzie alleges that as a direct result of defendants’
negligence, he was required to undergo the unplanned second
16
surgery to remove the needle, which caused him harm, including
mental anguish and the cost of the second procedure.
Defendants carried their initial burden of production by
supporting their motion for summary judgment with the
declaration of their medical expert, Dr. Chou. (See Jameson,
supra, 215 Cal.App.4th at p. 1168.) Dr. Chou indicated the 6-0
Prolene needle was “extremely small, thinner than a human
hair,” so it is very easy and not uncommon for the needle to
separate from the thread and get lost. He opined that defendants
complied with the applicable standard of care at all times because
Liu and Hsieh were aware the needle was unaccounted for, there
was no risk of injury or harm from the retained needle, and all
reasonable steps to locate the needle prior to closing the wound
that could be taken without exposing McKenzie to injury were
taken. Dr. Chou further opined to a reasonable degree of medical
probability that no negligent act or omission by defendants
caused or contributed to McKenzie’s alleged injuries, and that
there was no evidence the retained needle or its removal caused
McKenzie any harm.
In opposition, McKenzie raised a triable issue of fact as to
both the standard of care and causation. Dr. Frazee opined Liu
and Hsieh fell below the standard of care by failing to find the
lost needle, knowing that the sponge and needle count was
incorrect. Dr. Frazee stated Liu and Hsieh knew a needle
artifact could make the diagnosis of a recurrent tumor difficult or
even impossible based on Liu’s second operative report. Although
Dr. Chou stated there was nothing else that could have been done
to find the retained needle prior to completing the surgical
procedure, Dr. Frazee indicated that proceeding with “an
emergent MRI to localize the needle would have been
17
appropriate[ ] while [McKenzie] was still under anesthesia.”
According to Dr. Frazee, “This would have avoided the risks of a
second surgery and anesthesia, and would have shortened the
hospital stay.” Moreover, Dr. Frazee opined, “The failure to find
the retained needle at the first surgery, let [sic] to additional
risks and financial costs of a second anesthesia and surgery.”2
Liu admitted at his deposition that the second surgery was done
solely to remove the needle.
Dr. Frazee’s declaration is entitled to all favorable
inferences that may be reasonably derived from it. (Trop v. Sony
Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)
In liberally construing Dr. Frazee’s declaration, a jury could
reasonably find McKenzie was subjected to a surgery that would
have otherwise been unnecessary as a direct result of Liu’s and
Hsieh’s breach of the standard of care.
The reasoning of Tortorella v. Castro (2006) 140
Cal.App.4th 1 (Tortorella) is instructive on explaining the harm
McKenzie suffered. In Tortorella, a physician performed sinus
surgery on a patient. (Id. at p. 4.) The patient filed a medical
malpractice action alleging the physician was negligent in
examining, diagnosing, and treating her. (Id. at pp. 4–5.) The
physician moved for summary judgment, arguing he acted within
the standard of care and did not cause the patient harm. (Id. at
p. 5.) The patient opposed the motion and filed a declaration
2 Dr. Frazee also states in his declaration, “Hsieh fell below the
standard of care by dictating an incorrect operative report, stating that
the needle count was correct at the end of the surgery. It is very clear
from Dr. Liu’s operative report of the second surgery, that both
surgeons knew that the needle count was incorrect.” However, Dr.
Frazee does not offer any explanation as to how this conduct is
relevant to any harm McKenzie suffered.
18
from an expert who stated the physician acted below the
standard of care by performing an unnecessary surgery. (Id. at
pp. 5–6.) The trial court, however, granted the motion for
summary judgment, finding the patient failed to raise a triable
issue of fact as to causation. (Id. at p. 6.)
The Tortorella court found the trial court erred in granting
the motion. (Tortorella, supra, 140 Cal.App.4th at p. 10.)
“Although the trial court read [the patient’s expert] declaration
as being silent with respect to the issue of causation, it seems
self-evident that unnecessary surgery is injurious and causes
harm to a patient. Even if a surgery is executed flawlessly, if the
surgery were unnecessary, the surgery in and of itself constitutes
harm.” (Id. at p. 11.) “[A]ny unnecessary surgery is inherently
injurious in that the patient needlessly has gone under the knife
and has been subjected to pain and suffering.” (Id. at p. 13.)
Accordingly, the patient’s expert declaration to the effect the
surgery was unnecessary, was sufficient to raise a triable issue of
fact “not only as to whether the performing of said surgery was a
deviation from the standard of care, but also as to the presence of
a causal connection between the negligent conduct and injury to
the patient.” (Ibid., fn. omitted.)
As in Tortorella, McKenzie presented sufficient expert
testimony that Liu’s and Hsieh’s breach of the standard of care
caused him to undergo a needless second surgery, causing related
pain and suffering. (See Tortorella, supra, 140 Cal.App.4th at
p. 13; see also Jameson, supra, 215 Cal.App.4th at pp. 1167–
1168.)
Defendants focus on the fact Dr. Frazee recognized the
second “[s]urgery was successful in removing the retained needle
without further complications,” and they assert Dr. Frazee failed
19
to link the retention of the needle to any physical harm suffered
by McKenzie. However, Dr. Frazee opined Liu’s and Hsieh’s
negligence directly necessitated the second surgery, which
subjected McKenzie to additional invasions of his body, risks and
financial costs.3 Stated differently, the expert testimony
indicated McKenzie had to undergo an “‘inherently injurious’”
surgery and incur damages attendant thereto as a direct and
proximate result of Liu’s and Hsieh’s negligence.4 (See Jameson,
supra, 215 Cal.App.4th at p. 1168, citing Tortorella, supra, 140
Cal.App.4th at p. 13.)
Under these circumstances, McKenzie raised a triable issue
of material fact not only as to whether failing to find the needle
was a deviation from the standard of care, “but also as to the
presence of a causal connection between the negligent conduct
and injury to the patient.” (Tortorella, supra, 140 Cal.App.4th at
p. 13.) Because USC’s sole basis in moving for summary
3 Defendants contend Dr. Frazee did not identify the additional
financial costs McKenzie incurred as a result of the second surgery.
However, McKenzie’s billing records were submitted by defendants
with their motion for summary judgment. Defendants do not dispute
the billing records show McKenzie incurred expenses for the second
surgery.
4 To the extent McKenzie argues on appeal that an expert
declaration was not required to oppose the motion for summary
judgment because defendants’ negligence was obvious to a layperson,
as defendants contend, McKenzie failed to raise this theory for the trial
court to consider. It is not appropriate “to reverse a judgment on
grounds that the opposing party did not have an opportunity to argue
and the trial court did not have an opportunity to consider.” (JRS
Products, Inc. v. Matsushita Electric Corp. of America (2004) 115
Cal.App.4th 168, 178.) McKenzie, therefore, forfeited this argument.
20
judgment was that Liu and Hsieh were entitled to judgment in
their favor, the motion should have also been denied as to USC.
DISPOSITION
The judgment is reversed, and the matter is remanded for
further proceedings consistent with this opinion. McKenzie is
awarded costs on appeal.
MORI, J.
We concur:
CURREY, P. J.
ZUKIN, J.
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