The Court of Appeal in Borrayo v. Avery, A143765 (San Francisco County Super. Ct. No. CGC12525769) recently held that a physician licensed to practice medicine in Mexico was qualified to provide an opinion about the standard of care to which defendant physician was held.
Dr. Abraham Castrejon Pineda, a physician licensed in Mexico, performed orthopedic examinations of Plaintiff Borrayo. A year later, Plaintiff sought treatment from Defendant Dr. Avery, who performed surgery which involved the removal of the right first rib. Plaintiff had adverse symptoms and filed a complaint for medical malpractice.
Dr. Avery filed a motion for summary judgment. In opposition to the motion, Plaintiff submitted a declaration from Dr. Pineda. Dr. Avery’s reply and evidentiary objections argued that Dr. Pineda’s declaration should be excluded on the grounds that his opinions were speculative and lacked foundation and that Plaintiff had failed to establish that Pineda was sufficiently familiar with the applicable standard of care. The trial court sustained the evidentiary objection on grounds that Pineda had supplied no information about the appropriate standard of care in the United States. Judgment was entered for Defendant.
In reversing the trial court’s judgment, the Court of Appeal relied heavily on Avivi v. Centro Medico Urgente Medical Center, (2008) 159 Cal.App.4th 463, in which the Court of Appeal concluded that an orthopedist who lived and practiced in Israel was sufficiently qualified to provide an opinion on the standard of care in Southern California for the treatment of an arm fracture. The Borrayo Court noted that historically, in medical malpractice cases, the standard of care required that an expert witness have the degree of learning and skill ordinarily possessed by practitioners in the same locality. The idea was that a doctor in a small community or village, not having the same opportunity or resources for keeping abreast of the advances in his profession, should not be held to the same standard of care as doctors in large cities. Given the evolution of transportation and means of communication, horizons have been widened and the Borrayo Court stated that it is not unreasonable to extend them across international boundaries.
Importantly, the Court noted that the Dr. Avery did not suggest that the standard of care in Mexico is higher than the standard of care in the United States. As such, there was no inherent unfairness in allowing Dr. Pineda to offer his opinion on Dr. Avery’s conduct. Dr. Avery failed to show how conditions or circumstances of Plaintiff’s treatment in California would differ from those in Mexico.
Given the Court’s holding in Borrayo, an expert can no longer be excluded simply on grounds that the expert is licensed and/or practicing outside the United States. To challenge such an expert, one must show that the standard of care is higher in the location where the expert practices or that the circumstances of care and treatment by the defendant are materially different than that of the proffered expert. In other words, the standard of care is that of physicians in similar circumstances rather than similar locations. The Court of Appeal concluded that the trial court abused its discretion in relying solely on the locality factor.
California Code of Civil Procedure section 437c subdivision (d) provides: “Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. An objection based on the failure to comply with the requirements of this subdivision, if not made at the hearing, shall be deemed waived.” The Borrayo holding emphasized that the burden to disqualify an expert under this section falls on the objecting party. The focus is whether the medical expert has sufficient skill or experience in the field of medical practice such that his/her testimony will assist the trier of fact in the determination of the dispositive motion.
This document is intended to provide you with information about trending legal developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.