Lopez v. Narayanan Nair MD CA5
F087238
Cal. Ct. App.May 29, 2025Background
- Serena Lopez sued Dr. Narayanan Nair MD, Inc. for alleged medical malpractice following surgery to repair a hernia.
- Lopez asserted Dr. Nair did not repair the ventral hernia as requested and instead performed an umbilical hernia repair with a large, unsightly incision.
- Lopez had corrective surgery by Dr. Phillips, who found and repaired the original ventral hernia Dr. Nair allegedly failed to address.
- Dr. Nair moved for summary judgment, submitting an expert declaration that his care met the standard of care.
- Lopez opposed summary judgment, submitting Dr. Phillips’s expert opinion (also her treating surgeon) that Dr. Nair violated the standard of care—but the declaration lacked attached records.
- The trial court excluded Dr. Phillips’s declaration for lack of foundation and granted summary judgment for Dr. Nair; Lopez appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of Expert Declaration | Dr. Phillips’s opinion was based on reviewed medical records | Phillips’s declaration lacked foundation without attachments | Dr. Phillips’s opinion relied on court-admitted records; exclusion improper |
| Existence of Triable Fact on Malpractice | Multiple breaches of care by Dr. Nair were identified | No triable issue since standard of care not breached | Lopez’s expert created triable fact; summary judgment improper |
| Requirement for Attachment of Records | Not required if records already before the court | Required for foundation, following Garibay | Not necessary when records already admitted (following Shugart) |
| Timeliness of Opposition | Opposition was only one day late and not prejudicial | Declaration should be excluded as untimely | Overruled; court should decide on merits |
Key Cases Cited
- Sanchez v. Kern Emergency Medical Transportation Corp., 8 Cal.App.5th 146 (expert opinions must rest on proper foundations)
- Powell v. Kleinman, 151 Cal.App.4th 112 (requirements for admissible expert opinions in summary judgment)
- Shugart v. Regents of University of California, 199 Cal.App.4th 499 (expert need not attach medical records if already before the court)
- California Medical Assn. v. Aetna Health of California Inc., 14 Cal.5th 1075 (summary judgment is reviewed de novo)
- Regents of University of California v. Superior Court, 4 Cal.5th 607 (summary judgment standard)