Guarino v. Tauber CA2/7
B331372
| Cal. Ct. App. | Nov 17, 2025|
Check TreatmentFiled 11/17/25 Guarino v. Tauber CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SEAN GUARINO, B331372
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV19926)
JACOB TAUBER,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Frank M. Tavelman, Judge. Affirmed.
SLC Law Group and Louis F. Teran for Plaintiff and
Appellant.
Schmid & Voiles, Denise H. Greer, Rodney G. Tomlinson
and Adam R. James for Defendant and Respondent.
______________
Sean Guarino appeals from a judgment entered after the
trial court granted Jacob Tauber, M.D.’s motion for summary
judgment. Guarino sued Dr. Tauber for medical malpractice with
respect to Dr. Tauber’s performance of a full right hip
replacement. Guarino later underwent a “revision” hip surgery
with another doctor, replacing the prosthetic implant Dr. Tauber
placed during the earlier surgery.
Guarino contends the trial court erred in finding the
medical expert declaration Dr. Tauber submitted with his
summary judgment motion met Dr. Tauber’s initial burden with
respect to his alleged breach of the standard of care. Guarino
also contends the court erred in finding Guarino did not meet his
burden to create a triable issue of fact without an expert
declaration, and further, the court abused its discretion in
excluding Guarino’s declaration (stating his right leg shortened
by two inches following Dr. Tauber’s surgery) and the second
surgeon’s operative report. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Guarino’s Injuries and Treatment Before Dr. Tauber’s
Surgery
In 2005 Guarino underwent two surgeries to address a
right hip fracture he suffered after a motorcycle accident. Among
other things, the surgeries involved placement of prosthetic
metallic pins and other metallic hardware in Guarino’s hip and
its surrounding bone.
On June 8, 2017 Guarino was in a high-speed car accident
that exacerbated his pre-existing hip condition, causing severe
and constant pain to his right hip. For approximately the next
2
nine months, Guarino received chiropractic treatment and steroid
injections from a pain specialist to treat his hip pain.
In March 2018 Guarino consulted with Jeffrey Olsen, M.D.
At the time of his visit, Guarino was walking with a severe limp.
He reported his hip pain had become “‘out of control’” since the
2017 accident. Dr. Olsen recommended Guarino continue his
current pain medication regimen and seek a surgical evaluation
and treatment for a revision or reconstruction of the metallic
hardware that had been placed in his right hip following the 2005
accident.
B. Dr. Tauber’s Surgery
On April 17, 2018 Guarino had a consultation with
orthopedic surgeon Dr. Tauber. Dr. Tauber observed that
Guarino experienced “[p]ain with internal rotation about the
right hip.” He also observed a “[p]ositive Trendelenburg,”1 a
positive straight leg raise, “right hip retained hardware,” and an
“irregularity [of the] femoral head.” Dr. Tauber discussed with
Guarino surgical intervention on his right hip.
Guarino returned to Dr. Tauber on August 16, 2018 for a
re-evaluation. Dr. Tauber noted Guarino’s continued pain when
moving his right hip, and X-rays of Guarino’s hip revealed
“retained hardware” and “bony prominences.” Dr. Tauber also
noted that a CT scan documented “arthritic disease of [Guarino’s]
1 “A positive Trendelenburg sign usually indicates weakness
in the hip abductor muscles . . . . A contralateral pelvic drop
during a single-leg stance defines a positive sign.” (Gogu
& Gandbhir, Trendelenburg Sign (Nov. 14, 2022) National
Institute of Heath: National Library of Medicine
<https://www.ncbi.nlm.nih.gov/books/NBK555987> [as of Nov. 14,
2025].)
3
hip.” Dr. Tauber recommended arthroscopic hip surgery with
hardware removal to reduce the pain from the retained
hardware. Dr. Tauber recommended Guarino obtain a second
opinion from Jonathan Nassos, M.D., who performs arthroscopic
hip surgery.
On October 9, 2018 Guarino visited Dr. Nassos. Dr. Nassos
observed that Guarino experienced pain when rotating the right
hip. He noted “[m]ild to moderate hip joint arthritic changes,”
“[c]ystic formation . . . in the femoral head,” and “[o]steophyte
formation . . . in the femoral head.” Dr. Nassos concluded that
“[d]efinitive management would include removal of hardware and
right total hip arthroplasty,” and referred Guarino back to
Dr. Tauber.
On November 28, 2018 Dr. Tauber performed a right total
hip replacement surgery on Guarino at Silver Lake Medical
Center. The surgery entailed replacing Guarino’s natural hip
with a metallic hip prosthetic and removing embedded hardware
and extensive heterotopic bone (formation of bone in a joint).
Dr. Tauber’s operative report stated that as part of the procedure,
“[a] size 3 stem, short neutral neck, 38[-millimeter] ceramic head,
and extra-long sleeve would be used to provide restoration of leg
length and excellent stability.” Dr. Tauber noted that “[a]t the
completion of the procedure, range of motion and stability
appeared to be excellent.”
C. Follow-up to Dr. Tauber’s Surgery and Dr. Snibbe’s
Revision Surgery
On December 18, 2018 Guarino returned to Dr. Tauber
complaining of calf pain. Dr. Tauber obtained X-rays
documenting the position of the hip replacement and referred
Guarino for a duplex venous study to rule out a deep venous
4
thrombosis (a blood clot). An ultrasound revealed Guarino had a
deep venous thrombosis, and Guarino was treated with blood
thinners and discharged. He started physical therapy in
January 2019.
On January 9 and February 6, 2019 Guarino received
treatment from California Back and Pain Specialists and began
physical therapy. On February 19 he returned to Dr. Nassos for
a follow-up. Guarino was walking with a cane and complained of
continued significant pain in his right hip. Dr. Nassos referred
Guarino to a total joint specialist.
On February 26, 2019 Guarino returned to Dr. Tauber for a
further orthopedic consultation. Guarino was still using a cane.
Dr. Tauber noted apparent “shortness of the right lower
extremity” and stated Guarino had started therapy late due to
the deep venous thrombosis. Dr. Tauber recommended Guarino
continue with physical therapy and “return to his office in one
month.” This was Guarino’s last visit to Dr. Tauber.
On May 13, 2019 Guarino visited orthopedic surgeon
Jonathan Frank, M.D., who ordered additional X-rays to evaluate
the prosthesis and other possible complications. The doctor who
reviewed the X-rays noted Guarino’s “[r]ight total hip prosthesis
[was] satisfactorily position[ed] without loosening.” On June 25
Dr. Frank noted the X-rays “show[ed] what appear[ed] to be
shortening compared to the contralateral unaffected side. There
is potential for the stem to have resulted in some subsidence
since the initial surgery, which may have resulted in [Guarino’s]
leg length discrepancy.” Dr. Frank further stated Guarino would
need a revision hip replacement to address the leg discrepancy
and continued pain. He recommended Guarino see a surgeon
who performed revision hip replacements.
5
On July 25, 2019 Guarino met with orthopedic surgeon
Jason Snibbe, M.D. Dr. Snibbe noted that X-rays taken that day
revealed “vertical alignment [of the] acetabular component and
subsidence of [the] femoral component leading to shortening of
[Guarino’s] right leg in comparison to his left.” Dr. Snibbe
ordered a right hip CT scan and bone scan to evaluate Guarino
for “mechanical loosening.” He recommended Guarino undergo
another revision right total hip arthroplasty. The doctor who
reviewed the August 22, 2019 CT scan noted with respect to the
status of Guarino’s December 2018 hip replacement: “normal
alignment, intact hardware, unchanged when compared to right
hip radiographs on 6/12/2019.” Dr. Andy Wang’s reading of the
August 7, 2019 bone scan stated the findings in the scan were
“compatible with loosening of the distal tip of the femoral stem
part of the right hip prosthesis.”
On October 2, 2019 Dr. Snibbe performed a revision total
hip replacement surgery on Guarino at DOCS Surgical Hospital.
Dr. Snibbe’s October 14, 2019 operative report noted Guarino’s
previous “implant with the femoral stem subsided, which caused
significant shortening of his leg and was complicated. This was
not addressed by the initial surgeon properly and was allowed to
heal in a poor position. He ultimately has chronic pain . . . due to
this improper alignment of the leg. After analyzing him with a
bone scan, it . . . showed that his femoral stem was grossly loose
and also he had a shortening of his leg . . . .” Dr. Snibbe further
stated, “It is my opinion that need for this revision surgery is
directly related to his accident.”
Reports from Guarino’s postoperative visits with Dr. Snibbe
noted Guarino was doing well with his recovery. By February 7,
6
2020 Guarino was walking without pain, and he continued with
range of motion strengthening and movement exercises.
D. The Complaint and Guarino’s Discovery Responses
Guarino filed this action against Dr. Tauber on May 26,
2020, alleging causes of action for medical malpractice and lack of
informed consent.2 Guarino alleged that between approximately
September 2018 and May 2019, Dr. Tauber negligently and
carelessly examined, evaluated, diagnosed, treated, “care[d] for,
observe[d], . . . attend[ed] to, follow[ed] up, and control[led]
[Guarino]” with respect to his hip and hip replacement, which
failed to conform to the standard of care normally practiced by
medical professionals. Guarino further alleged that, as a direct
and proximate result of Dr. Tauber’s conduct, he sustained
personal injuries, was required to obtain additional medical care,
and would need to obtain further care in the future.
On July 22, 2021 Guarino served responses to Dr. Tauber’s
first set of special interrogatories. Special interrogatory Nos. 23
and 25 asked Guarino to state each fact and contention
supporting his allegations of professional negligence. To each
question, Guarino responded that Dr. Tauber “improperly
performed full hip replacement surgery,” and that “the hip
prosthetic implanted in [Guarino by Dr. Tauber] was improperly
2 In his responsive separate statement filed in the trial court,
Guarino did not dispute he signed an informed consent form for
Dr. Tauber’s surgery, and he did not oppose the summary
judgment motion on this cause of action. Guarino likewise does
not raise informed consent on appeal, thereby forfeiting any
challenge to the grant of summary judgment on this cause of
action. We therefore only address the medical malpractice cause
of action.
7
aligned, the wrong type and size, grossly loose, and had other
issues” to be disclosed in further discovery. Guarino stated in
response to special interrogatory No. 24 that Dr. Tauber
committed professional negligence on or around November 28,
2018 (the date of Dr. Tauber’s surgery).
E. Dr. Tauber’s Motion for Summary Judgment
On October 18, 2022 Dr. Tauber filed his motion for
summary judgment. Dr. Tauber argued Guarino could not
demonstrate a triable issue of material fact regarding breach of
the standard of care or causation to support Guarino’s medical
malpractice cause of action. Dr. Tauber submitted the
declaration of orthopedic surgeon Stephen A. Mikulak, M.D., who
was familiar with the standard of care for treating patients like
Guarino who undergo a total hip replacement surgery.
Dr. Mikulak reviewed the office charts from Paul Chiu, M.D.
(Guarino’s 2017 pain management specialist), Dr. Tauber, and
Snibbe Orthopedics and medical records from UCLA Medical
Center (where Guarino was treated in 2006), Silver Lake Medical
Center (where Dr. Tauber performed the 2018 surgery), and
DOCS Surgical Hospital (where Dr. Snibbe performed the 2019
surgery). Dr. Mikulak also reviewed the radiographic studies
(including X-rays and CT scans) performed from 2018 to 2019.
Dr. Mikulak further reviewed Guarino’s responses to special
interrogatories and requests for production, and the transcripts
from the depositions of Guarino and Dr. Tauber.
Dr. Mikulak opined Dr. Tauber complied with the
applicable standard of care in treating Guarino. Dr. Mikulak
noted Guarino had a “7 [-millimeter] displacement based upon
his initial 2005 surgery and the car accident of June 8, 2017.”
Dr. Mikulak concluded Dr. Tauber’s “workup for the surgery was
8
proper” when Guarino presented to his office on April 17, 2018.
Further, Dr. Tauber’s operative report noted Guarino’s range of
motion and stability appeared to be excellent when the procedure
was complete. Dr. Mikulak noted the postoperative X-ray showed
anatomic alignment of the implanted prosthetic, and that
“subsequent studies of December 18, 2018, June 12, 2019, and
August 22, 2019” confirmed this alignment and showed there was
no loosening, change in the implant itself, or change in the
implant’s subsidence from Dr. Tauber’s surgery. Based on the
radiographic imaging and Dr. Snibbe’s subsequent surgery,
Dr. Mikulak concluded Dr. Tauber appropriately selected the
proper type and size of implant for Guarino’s right total hip
replacement. Dr. Mikulak noted Guarino had a 10-millimeter leg
length discrepancy following Dr. Tauber’s procedure, but he
opined this discrepancy was within the acceptable limits
following a procedure and not a breach in the standard of care.
F. Guarino’s Opposition
In his opposition, Guarino argued Dr. Tauber failed to meet
his burden of proof because Dr. Mikulak’s opinion that Guarino
had a postoperative leg length discrepancy of 10 millimeters
(approximately .4 inches) lacked a sufficient factual basis.
Guarino further argued triable issues of material fact existed
with respect to Dr. Mikulak’s opinions that (1) Guarino’s
postoperative X-ray showed anatomic alignment of his prosthetic
implant, and (2) Guarino’s postoperative radiographic images
confirmed there was no loosening or change in subsidence of the
implant. To support his opposition, Guarino submitted
Dr. Snibbe’s October 14, 2019 operative report (attached to an
attorney declaration) and Guarino’s own declaration. Guarino
averred, “After [Dr. Tauber’s] surgical procedure, my right leg
9
began shortening in length slowly over time. A few months after
the surgical procedure I was forced to use a cane due to the
shortening of my leg. [¶] . . . [¶] On October 2, 2019, Dr. Snibbe
removed the hip prosthetic implanted by Defendant in its
entirety and implanted a new hip prosthetic. By this time, my
leg had shortened by over 2 inches or 50 [millimeters].”3
G. Dr. Tauber’s Reply
In his reply, Dr. Tauber argued Guarino did not create a
triable issue of fact because he did not present expert testimony
regarding the standard of care or causation, which was necessary
to show professional negligence. Dr. Tauber also filed an
evidentiary objection to Guarino’s declaration, arguing the
declaration contained inadmissible hearsay under Evidence Code
section 1200. Dr. Tauber asserted that Guarino’s declaration
lacked foundation and evidentiary value because Guarino was
not a medical expert, yet he purported to opine on the standard of
care and causation.
3 In his opposition Guarino requested a continuance of
Dr. Tauber’s motion pursuant to Code of Civil Procedure
section 437c, subdivision (h), which the trial court denied.
Guarino has forfeited any challenge to denial of the continuance
by not raising the continuance in his appellate briefs. (RAR2
Villa Marina Center CA SPE, Inc. v. County of Los Angeles (2023)
91 Cal.App.5th 1050, 1070, fn. 13; Golden Door Properties, LLC v. County of San Diego (2020)50 Cal.App.5th 467
, 555 [“‘“Issues not
raised in an appellant’s brief are deemed waived or
abandoned”’”].)
10
H. The Trial Court’s Ruling and Entry of Judgment
After a hearing, on May 23, 2023 the trial court granted
Dr. Tauber’s summary judgment motion. The court sustained
Dr. Tauber’s objection to Guarino’s declaration. With respect to
Guarino’s medical malpractice cause of action, the court
explained a defendant is entitled to summary judgment based on
an expert declaration opining that the conduct at issue fell within
the community standard of care, unless the plaintiff provides
conflicting expert evidence. The court considered Dr. Snibbe’s
October 14, 2019 operative report submitted by Guarino and
concluded it was insufficient to create a triable issue of fact as to
Dr. Tauber’s alleged breach of the standard of care. Although the
report stated the “initial surgeon” (presumably Dr. Tauber) did
not properly address Guarino’s femoral stem subsidence, this did
not constitute Dr. Snibbe’s professional medical opinion on
whether Dr. Tauber’s surgery was performed within the standard
of care. Further, despite stating that Guarino’s femoral stem was
grossly loose, Dr. Snibbe’s report did not address what caused the
loosening.
On May 26, 2023 the trial court entered judgment in favor
of Dr. Tauber. Guarino timely appealed.
DISCUSSION
A. Standard of Review on Summary Judgment
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618; Doe v. Roman Catholic Archbishop of Los Angeles (2021)70 Cal.App.5th 657
, 668.) “‘“‘We review the trial
11
court’s decision de novo, considering all the evidence set forth in
the moving and opposing papers except that to which objections
were made and sustained.’” [Citation.] We liberally construe the
evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.’”
(Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39; accord, Doe, at p. 669; Sabetian v. Exxon Mobil Corporation (2020)57 Cal.App.5th 1054
, 1068.)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 853; Sabetian v. Exxon Mobil Corporation, supra,
57 Cal.App.5th at p. 1068.) If the defendant satisfies this initial
burden, the burden shifts to the plaintiff to present evidence
demonstrating there is a triable issue of material fact. (Code Civ.
Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Sabetian, at
p. 1069.)
We review a trial court’s ruling on a motion for summary
judgment by “decid[ing] independently whether the facts not
subject to triable dispute warrant judgment for the moving party
or a determination a cause of action has no merit as a matter of
law.” (Soria v. Univision Radio Los Angeles, Inc. (2016)
5 Cal.App.5th 570, 582; accord, Campbell v. FPI Management, Inc. (2024)98 Cal.App.5th 1151
, 1161.) “‘In performing an
independent review of the granting of summary judgment, we
conduct the same procedure employed by the trial court. We
examine (1) the pleadings to determine the elements of the claim,
(2) the motion to determine if it establishes facts justifying
12
judgment in the moving party’s favor, and (3) the opposition—
assuming movant has met its initial burden—to “decide whether
the opposing party has demonstrated the existence of a triable,
material fact issue.”’ [Citation.] ‘We need not defer to the trial
court and are not bound by the reasons in its summary judgment
ruling; we review the ruling of the trial court, not its rationale.’
[Citation.] Thus, a reviewing court ‘will affirm a summary
judgment if it is correct on any ground that the parties had an
adequate opportunity to address in the trial court, regardless of
the trial court’s stated reasons.’” (Martin v. Board of Trustees of
California State University (2023) 97 Cal.App.5th 149, 160-161; accord, Murchison v. County of Tehama (2021)69 Cal.App.5th 867
, 881-882.)
B. Dr. Tauber Met His Initial Burden on Summary Judgment
Guarino contends Dr. Mikulak’s expert declaration was
insufficient to shift the evidentiary burden on summary
judgment. “The elements of a claim for professional negligence
are ‘“(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.”’” (Paul v. Patton (2015)
235 Cal.App.4th 1088, 1095; accord, Powell v. Kleinman (2007)151 Cal.App.4th 112, 122
.) “Medical providers must exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances.” (Powell, at p. 122; accord, Barris v. County of Los Angeles (1999)20 Cal.4th 101, 108, fn. 1
.)
13
“‘In professional malpractice cases, expert opinion
testimony is required to prove or disprove that the defendant
performed in accordance with the prevailing standard of care.’”
(Ryan v. Real Estate of Pacific, Inc. (2019) 32 Cal.App.5th 637,
644-645; accord, Webster v. Claremont Yoga (2018)26 Cal.App.5th 284, 288
.) Further, “‘“[t]he 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], 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
; accord, Lattimore v. Dickey (2015)239 Cal.App.4th 959, 968
.) Competent expert testimony is similarly required to show the element of causation for a medical malpractice cause of action. (San Antonio Regional Hospital v. Superior Court (2024)102 Cal.App.5th 346
, 350 [Proving the third element, causation, also requires “‘“competent expert testimony”’”]; accord, Salasguevara v. Wyeth Laboratories, Inc. (1990)222 Cal.App.3d 379, 385
.)
Experts may base their opinions on any matter reasonably
relied upon by experts in forming opinions about the subject
matter at issue, except where the law precludes consideration of
the matter. (Evid. Code, § 801, subd. (b).) “‘[T]he opinion of any
expert “is only as good as the facts and reasons on which it is
based,”’” and the trial court may properly exclude expert
testimony that lacks foundation or is speculative or conclusory,
even if it is unopposed. (Zaragoza v. Adam (2025)
109 Cal.App.5th 113, 119; accord, Lynn v. Tatitlek Support Services, Inc. (2017)8 Cal.App.5th 1096, 1115-1116
.)
14
Guarino contends Dr. Tauber failed to meet his initial
burden of proof to show there is no factual basis for relief, and the
burden never shifted to him. (See Doe v. Good Samaritan
Hospital (2018) 23 Cal.App.5th 653, 662[“[E]ven if [plaintiff] did not present competing expert testimony, it remained [defendant]’s burden to . . . show there was no factual basis for relief on any theory presented by [plaintiff].”]; see also McAlpine v. Norman (2020)51 Cal.App.5th 933
, 938-939 [because defendant’s expert declaration was insufficient to meet initial burden on summary judgment, trial court erred in granting summary judgment despite absence of competing expert testimony].) Although the trial court erred in not addressing Dr. Tauber’s initial burden, we independently review the sufficiency of Dr. Mikulak’s declaration to shift the burden. (See Salasguevara v. Wyeth Laboratories, Inc., supra,222 Cal.App.3d at p. 384
[independently reviewing defendant’s medical expert evidence where trial court erred in focusing solely on plaintiff’s burden on summary judgment]; see also Martin v. Board of Trustees of California StateUniversity, supra,
97 Cal.App.5th at
pp. 160-161.)
Dr. Mikulak’s declaration was sufficient to shift the
evidentiary burden to Guarino. By the time Dr. Tauber filed his
summary judgment motion, Guarino in his discovery responses
had limited his medical malpractice cause of action to one theory
of liability—negligent performance of the surgery. (See Burke v.
Superior Court of Sacramento County (1969) 71 Cal.2d 276, 281
[“‘To the extent that interrogatories are used to clarify the
contentions of the parties, they are an adjunct to the
pleadings. . . . Liberal use of interrogatories for the purpose of
clarifying and narrowing the issues made by the pleadings should
15
be permitted and encouraged by the courts.’”]; Vera v. REL-BC,
LLC (2021) 66 Cal.App.5th 57, 65, fn. 2 [court could preclude a plaintiff from relying on a theory not stated in response to a relevant interrogatory]; Jacobs v. Coldwell Banker Residential Brokerage Co. (2017)14 Cal.App.5th 438, 445-446
.) Guarino’s
discovery responses made clear that his theory of liability was
based on Dr. Tauber’s November 28, 2018 performance of the full
hip replacement surgery, including his choice of implant type and
size and attachment of the implant.
Dr. Mikulak was a board-certified orthopedic surgeon
familiar with the standard of care applicable to the hip
replacement surgery performed on Guarino. Dr. Mikulak
reviewed Guarino’s relevant medical records, including from
Guarino’s pre-2017 hip surgery and treatment, and the
subsequent surgeries and treatment by Dr. Tauber and
Dr. Snibbe, and he accurately recounted Guarino’s extensive
medical history. Dr. Mikulak opined Dr. Tauber complied with
the applicable standard of care in performing Guarino’s hip
replacement surgery because radiographic images and medical
reports within the nine months following the surgery depicted or
described Guarino’s femoral implant as stable, anatomically
aligned, not loose, and not having subsided. Based on the
consistency of these records, Dr. Mikulak further concluded
Dr. Tauber selected the proper type and size of femoral implant
and properly performed the surgery. This showing was sufficient
to shift the evidentiary burden to Guarino with respect to
Dr. Tauber’s alleged breach of the applicable standard of care.4
4 Because we conclude Dr. Tauber met his evidentiary
burden with respect to breach of the standard of care, we do not
reach whether he met this burden as to causation.
16
(See Wicks v. Antelope Valley Healthcare Dist. (2020)
49 Cal.App.5th 866, 879 [expert’s accurate recounting of relevant facts and his opinion that doctor’s conduct was appropriate in light of those facts was sufficient to shift evidentiary burden]; Avivi v. Centro Medico Urgente Medical Center (2008)159 Cal.App.4th 463, 468
[defendants shifted evidentiary burden
where their expert was familiar with the standard of care and
opined the defendants acted appropriately within the standard of
care].)
Guarino argues Dr. Mikulak’s declaration failed to shift the
evidentiary burden because he ignored Dr. Snibbe’s October 14,
2019 operative report, which stated Guarino’s leg was
“improper[ly] align[ed]” and had experienced “significant
shortening,” and Guarino’s femoral implant was “grossly loose”
and “not attached” to the bone. Although Dr. Mikulak did not
specifically address Dr. Snibbe’s operative report in reaching his
conclusion that Dr. Tauber performed Guarino’s surgery within
the standard of care, Dr. Mikulak reviewed the DOCS Surgical
Hospital records, which included Dr. Snibbe’s operative report.
Further, Dr. Mikulak acknowledged that Dr. Snibbe noted at
Guarino’s July 25, 2019 visit that the X-ray reflected subsidence
of the femoral component “leading to shortening of the right leg
in comparison to the left.” Dr. Mikulak reached his opinion after
reviewing these documents and Guarino’s extensive medical
records, including radiographic images and studies for the nine
months following Dr. Tauber’s surgery. These reports included
the August 22, 2019 report from the CT scan stating the
hardware was intact and had normal alignment as of that date.
17
Absent an expert opinion stating Dr. Mikulak’s review was
inadequate, we have no basis to conclude it was unreasonable for
Dr. Mikulak to rely on the records reflecting Guarino’s condition
during the nine months immediately following the surgery
without crediting the statements in Dr. Snibbe’s subsequent
operative report.5 (See Evid. Code, § 801, subd. (b) [the basis of
expert testimony is matter “that reasonably may be relied
upon . . . in forming an opinion”]; see also Johnson v. Superior
Court (2006) 143 Cal.App.4th 297, 306-307 [rejecting as
insufficient an expert declaration based on an evaluation well
after the surgical procedure at issue].)
Guarino also contends there is no factual basis for the
statement in Dr. Mikulak’s declaration that Guarino had only a
10-millimeter discrepancy in the length of his legs following
Dr. Tauber’s surgery. Guarino is correct that Dr. Mikulak does
not specify the basis for this statement, nor does Dr. Tauber in
his respondent’s brief clarify what the basis is. Even without this
factual assertion, however, Dr. Mikulak’s declaration provided a
sufficient foundation for his conclusion based on his education,
training, and experience that Dr. Tauber performed Guarino’s
hip replacement within the standard of care. Dr. Mikulak cited
specific radiographic images taken after the surgery that showed
Guarino’s right hip was anatomically aligned and post-operative
medical reports stating Guarino’s femoral implant was stable
without loosening or subsiding of the implant.
For example, according to Guarino’s records, X-rays
conducted on June 12, 2019 showed Guarino’s “[r]ight total hip
prosthesis [was] satisfactorily position[ed] without loosening.”
5 We discuss further Dr. Snibbe’s operative report below.
18
Dr. Michael Im similarly concluded, based on his review of the
August 22, 2019 X-rays, that Guarino’s right hip replacement
demonstrated “normal alignment, intact hardware, [and was]
unchanged compared to right hip radiographs on 6/12/2019.”
Dr. Mikulak properly relied on his training and experience, as
well as these radiographic studies. (See Fernandez v. Alexander
(2019) 31 Cal.App.5th 770, 780-781[orthopedic surgeon could rely on extensive experience in the field to assert factual proposition]; Bushling v. Fremont Medical Center (2004)117 Cal.App.4th 493, 509
[“To state that one has experience in
certain medical procedures and has reviewed pertinent medical
records and that based on that experience and that review, the
declarant has found nothing to support a claim of medical
malpractice and therefore concludes that there was none is not
an improper conclusion for an expert witness.”].)
Guarino cites no authority for the proposition that a
medical expert’s opinion is not sufficient to meet a party’s initial
burden on summary judgment where one fact relied on by the
expert lacks a factual basis but the expert relied on multiple
other facts in the record to support the opinion. Although an
opposing expert could have challenged Dr. Mikulak’s opinion
based on lack of foundation for the 10-millimeter statement
(potentially creating a question of fact), Dr. Mikulak’s
declaration, even absent the specific measurement, was sufficient
to meet Dr. Tauber’s initial evidentiary burden on summary
judgment. (See Code Civ. Proc., § 437c, subd. (e) [with limited
exceptions, “summary judgment shall not be denied on grounds of
credibility . . . of witnesses furnishing affidavits or declarations in
support of summary judgment”].) Accordingly, Dr. Tauber
19
shifted the burden to Guarino to present a triable issue of fact as
to his medical malpractice cause of action.
C. The Trial Court Did Not Err in Finding Dr. Snibbe’s
Operative Report Failed To Raise a Triable Issue of Fact
Guarino contends Dr. Snibbe’s October 14, 2019 operative
report created a triable issue of material fact. The trial court
correctly concluded it did not. “‘“California courts have
incorporated the expert evidence requirement into their standard
for summary judgment in medical malpractice cases. When a
defendant moves for summary judgment and supports his motion
with expert declarations that his conduct fell within the
community standard of care, he is entitled to summary judgment
unless the plaintiff comes forward with conflicting expert
evidence.”’” (Powell v. Kleinman, supra, 151 Cal.App.4th at
p. 123; accord, Hanson v. Grode (1999)76 Cal.App.4th 601, 607
.)
Guarino cites no authority (and this court has found none),
stating a plaintiff may rely on medical records without expert
testimony to prove professional negligence in a medical
malpractice case.
Dr. Snibbe’s operative report did not create a triable issue
of fact with respect to Dr. Mikulak’s opinion that Dr. Tauber’s
performance of Guarino’s hip replacement was within the
standard of care. As discussed, Dr. Snibbe stated in his report
that the “implant with the femoral stem subsided, which caused
significant shortening of his leg and was complicated.” As an
initial matter, Dr. Snibbe does not state what he meant by
“significant shortening.” In reaching his opinion, Dr. Mikulak
was aware that as of February 26, 2019, when Guarino visited
Dr. Tauber, “there appeared to be shortness of the right lower
20
extremity,” and as of July 25, 2019, Dr. Snibbe noted “subsidence
of [the] femoral component” and “shortening of the right leg.”
The fact there was subsidence of the femoral stem and, according
to Dr. Snibbe, “significant shortening” of Guarino’s leg following
the surgery does not, without more, show that Dr. Tauber did not
perform the hip replacement surgery within the standard of care.
Likewise, Guarino points to the comment in Dr. Snibbe’s report
that the femoral stem “was grossly loose,” which he states was
shown by the August 7, 2019 bone scan. Dr. Snibbe added that
“about 75-80% of the stem was grossly loose.” However, as
discussed, the radiologist who reviewed the bone scan stated only
that the scan was “compatible with loosening” of the distal tip of
the femoral stem, not that it was “grossly loose” or 75 to
80 percent loose. Dr. Snibbe’s characterization of the bone scan
results does not, without some foundation for his interpretation
of the radiologist’s report, create a triable issue of fact.
Nowhere in his operative report did Dr. Snibbe state
Dr. Tauber failed to perform the surgery within the standard of
care. Rather, Dr. Snibbe surmised that the subsidence of
Guarino’s femoral stem and shortening of Guarino’s leg following
the surgery “was not addressed by the initial surgeon properly
and was allowed to heal in a poor position.” However, Guarino’s
medical malpractice case was based on Dr. Tauber’s alleged
negligent performance of the surgery. As discussed, Guarino
stated in his response to Dr. Tauber’s interrogatories that
Dr. Tauber committed professional negligence on or around
November 28, 2018 (the date of the surgery), and that Dr. Tauber
“improperly performed full hip replacement surgery” on Guarino
in that the prosthetic hip implant “was improperly aligned, the
wrong type and size, [and] grossly loose.” Further, Dr. Snibbe’s
21
statement in his report that the need for revision surgery was
“directly related to [Guarino’s] accident” undermines any
inference that Dr. Snibbe was attributing the observations in his
report to Dr. Tauber’s surgical performance.
Moreover, to the extent Dr. Snibbe was expressing an
expert opinion on Dr. Tauber’s post-surgical care, Dr. Snibbe did
not provide a foundation for his statement that Dr. Tauber failed
to provide proper care, for example, by explaining what
Dr. Tauber did (or did not do) during the period from
November 28, 2018 (the date of the surgery) to February 26, 2019
(Guarino’s last visit with Dr. Tauber). Rather, Dr. Snibbe’s
report was based only on his observations of Guarino 10 months
after Dr. Tauber’s surgery. Dr. Snibbe’s operative report does not
state whether Dr. Snibbe reviewed Guarino’s medical records to
determine if Dr. Tauber’s treatment of Guarino following the
surgery was not “proper” or otherwise did not fall within the
standard of care. (See Doe v. Good Samaritan Hospital, supra,
23 Cal.App.5th at p. 656 [“It is well settled that, where an expert
declaration does not provide the facts upon which its conclusions
are based and a reasoned explanation of how such facts led to the
conclusions, it ‘does not establish the absence of a material fact
issue for trial, as required for summary judgment.’”]; accord,
McAlpine v. Norman, supra, 51 Cal.App.5th at p. 939 [same].)
Accordingly, Dr. Snibbe’s report did not create a triable
issue of fact sufficient to defeat summary judgment. (See, e.g.,
Fernandez v. Alexander, supra,31 Cal.App.5th at pp. 781-782 [summary judgment was proper where medical expert’s opinion neither challenged defense expert’s opinion nor provided reasoned explanations for its conclusions]; Alexander v. Scripps Memorial Hospital La Jolla, supra,23 Cal.App.5th at p. 229
22
[“Without at least some minimal basis, explanation, or reasoning,
[medical expert’s] conclusions . . . in his . . . declaration had no
evidentiary value.”].)
D. Guarino’s Declaration Did Not Create a Triable Issue of
Fact
Guarino contends the trial court erred in sustaining
Dr. Tauber’s evidentiary objection to Guarino’s declaration, and
the declaration created a triable issue of fact. Even if the trial
court erred in excluding the entirety of Guarino’s declaration, the
declaration did not create a triable issue of fact.
As discussed, professional negligence in a medical
malpractice action can only be proven with expert testimony. A
layperson may provide testimony in a medical malpractice action
only under the “common knowledge” exception to this rule, “i.e.,
when a layperson ‘is able to say as a matter of common
knowledge and observation that the consequences of professional
treatment were not such as ordinarily would have followed if due
care had been exercised.’” (Lattimore v. Dickey, supra,
239 Cal.App.4th at p. 968, fn. 3; accord, Flowers v. Torrance Memorial Hospital Medical Center, supra,8 Cal.4th 992 at p. 1001
.) “This exception is . . . a limited one. It arises[, for example,] when a foreign object such as a sponge or surgical instrument, is left in a patient following surgery,” an injury occurs to a body part not slated for medical treatment, or an incorrect limb is amputated. (Scott v. Rayhrer (2010)185 Cal.App.4th 1535, 1542
; accord, Ewing v. Northridge Hospital Medical Center (2004)120 Cal.App.4th 1289, 1302-1303
; Curtis v. Santa Clara Valley Medical Center (2003)110 Cal.App.4th 796, 801
.)
23
Guarino declared his right leg began shortening after his
surgical procedure and it “had shortened by over 2 inches or
50 [millimeters]” by October 2, 2019. Even if the trial court erred
in excluding the entirety of Guarino’s declaration,6 this statement
regarding the shortening of Guarino’s leg by the time of
Dr. Snibbe’s surgery—10 months after the surgery—does not
create a triable issue of fact without an expert opinion stating
that this amount of shortening shows Dr. Tauber performed the
surgery below the standard of care, or that the surgery caused
the shortening. Guarino does not state when he took the initial
measurement or what interim measurements, if any, he took
during the 10-month period between the two surgeries in which
his leg “began shortening in length slowly over time.” As
discussed, there was no basis for Dr. Mikulak’s statement
Guarino’s leg had shortened by 10 millimeters. But the fact that
Guarino’s 50-millimeter measurement was greater than the 10-
millimeter discrepancy Dr. Mikulak noted does not, absent an
opinion as to the significance of Guarino’s measurement, create a
triable issue of fact.
6 We agree with Dr. Tauber that hearsay statements in
Guarino’s declaration, including his description of Dr. Snibbe’s
opinion in paragraph 8, are inadmissible. By contrast, Guarino’s
statement from personal knowledge that he used a cane a few
months after the surgery (paragraph 6) was admissible.
24
DISPOSITION
We affirm the judgment. Dr. Tauber is entitled to recover
his costs on appeal.
FEUER, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
25