Foreign Medical Expert Wrongly Excluded: Calif. Appeals Ct.

An expert witness is not required to have practiced in a particular locality in order to render an opinion in an ordinary medical malpractice case, the California Court of Appeal has ruled.

In Borrayo v. Avery, Cal. App. 1st Dist., Div. One, Aug 10, 2016), the expert witness, Dr. Abraham Castrejon Pineda, an orthopedic surgeon expert witness in Tepic, Mexico, was excluded by the trial court which concluded that Pineda had supplied "absolutely no information about appropriate standard of care in the United States." No evidence was supplied as to whether Pineda had spoken with American doctors or reviewed American publications regarding the plaintiff, Lidia Borrayo's, treatment by the defendant, Dr. G. James Avery, III.

In May 2008, Pineda had examined Borrayo, who had worked for many years, from eight to 10 hours, a day in silk-screen production, in a job of repetitive motions, pushing her right arm back and forth and lifting fabric up and down, some 600 times per day, producing 200 canvasses per day.

In March 2009, Avery examined Borrayo, who was complaining of longstanding intense pain in her right shoulder and scapula, among other symptoms. Avery diagnosed her as having severe thoracic outlet syndrome (TOS) and recommended surgery, which he performed in September 2009.

A year later, Borrayo began suffering pain when moving her right arm and difficulty in swallowing food.  She saw Avery again, who referred her to Dr. James D. Kelly, an Orthopedic Surgeon, but no surgery or treatment was recommended.

In November 2012, Borrayo filed a complaint against Avery for malpractice. In June 2014, Avery filed a motion for summary judgment, asserting Borrayo could not establish an essential element of her claim because the treatment he had provided fell within the standard of care.

In August 2014, Borrayo filed an opposition to Avery's motion, submitting a declaration by Pineda, who opined that Avery had destabilized Borrayo's right sternoclavicular joint during her surgery when Avery removed the first rib by carelessly or unskillfully cutting or disrupting ligaments that hold the right sternoclavicular joint in place.

Avery filed a reply brief contending Pineda's opinions "… were speculative and lacked foundation. He also asserted plaintiff had failed to establish that Pineda was sufficiently familiar with the applicable standard of care." His reply was supported by a declaration from Dr. Jason T. Lee, a vascular surgery expert.

The trial court agreed with Avery and granted summary judgment. The court found that, as Pineda had not shown that he knew the standard of care in the United States, Borrayo could not establish that Avery had breached the standard of care.

The California Appellate Court disagreed. The Court noted that, while medical malpractice cases at one time required that physicians have the degree of learning and skill of those in the same locality in matters of standards of care, "… neither the Evidence Code nor Supreme Court precedent requires an expert witness to have practiced in a particular locality before he or she can render an opinion in an ordinary medical malpractice case."

The Appellate Court noted the precedent in Avivi where the appellate court found that an Israeli orthopedist was qualified to opine on the standard of care in Southern California, despite never being board certified in the United States or practicing in the United States.

As in Avivi, the Appellate Court found that, "… while locality is a circumstance that may be considered, it is not determinative." Historically, locality could be determined because in the past doctors in a small community or village did not have the same opportunity and resources for keeping abreast of the advances in their profession, and providing the same standard of care as those in large cities. Today, with easy means of communication and transportation, locality is not of the same importance.

As well, the Appellate Court noted that Avery did not suggest that the standard of care in Mexico was higher than that of the United States, nor did he offer to explain how the conditions or circumstances of treatment would differ in California from those in Mexico.

Further, Pineda was a licensed orthopedic suregon who had been in practice for more than 30 years, and had performed over 500 orthopedic surgeries, including approximately 10 to 12 TOS surgeries, and he had attended at least one professional conference in the United States.

The trial court abused its discretion, the Appellate Court ruled, reversing its decision of summary judgment.