Fernandez v. Alexander

243 Cal. Rptr. 3d 196, 31 Cal. App. 5th 770
CourtCalifornia Court of Appeal, 5th District
DecidedJanuary 28, 2019
DocketB283949
StatusPublished
Cited by20 cases

This text of 243 Cal. Rptr. 3d 196 (Fernandez v. Alexander) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fernandez v. Alexander, 243 Cal. Rptr. 3d 196, 31 Cal. App. 5th 770 (Cal. Ct. App. 2019).

Opinion

GRIMES, Acting P. J.

*772SUMMARY

*198Plaintiff Victoria Fernandez sued defendant Charles Alexander, an orthopedic surgeon, for medical malpractice in connection with his treatment of her fractured wrist. The substance of her claim was that defendant failed to recommend, encourage and perform surgery on plaintiff's wrist, instead ordering a cast, and this course of treatment increased the severity of the injury to plaintiff's wrist.

Defendant moved for summary judgment. The trial court found triable issues of material fact on the standard of care. But, because plaintiff's expert did not explain the basis for, or state any facts or reasons to support, his opinion that defendant's conduct caused plaintiff's injury, the trial court granted summary judgment.

We affirm the judgment.

*773FACTS

1. Plaintiff's Fractured Wrist and Treatment

Plaintiff fell and fractured her left wrist on November 7, 2014. At an emergency room, an X-ray was taken and plaintiff's hand was placed in a splint cast. Plaintiff was referred to her primary physician, who in turn referred her to defendant.

Plaintiff's daughter accompanied her to see defendant on November 17, 2014. Defendant examined plaintiff's wrist and noted soft tissue swelling, tenderness and decreased range of motion. Defendant examined the X-rays plaintiff brought with her; they showed "an impacted distal radius fracture with dorsal angulation." Defendant opened the X-ray images on a computer and described them to plaintiff. He assessed plaintiff with "left distal radius fracture and left ulnar styloid fracture."

The parties disagree on the extent of any discussion of surgery as a treatment option, but it is undisputed that defendant recommended placing the wrist in a cast, and his physician's assistant, Daniel Rivas-Tejeda, did so. Plaintiff was provided with pain medication and instructed to return in three weeks.

On December 8, 2014, plaintiff went to defendant's office and was treated by Mr. Rivas-Tejeda, who removed the cast and examined the patient's hand. (Defendant was not present.) When the cast was removed, plaintiff's hand looked deformed. (Plaintiff's daughter testified that her wrist looked "still swollen" and "[s]lightly malformed," "[j]ust a little to the right." Mr. Rivas-Tejeda said that "[i]t looks a little off," and "mention[ed] that a brace would help with that.") X-rays were taken that showed "some callous formation with dorsal angulation of hand."1 Plaintiff's wrist was placed in a "freedom splint,"

*199physical therapy was prescribed, and plaintiff was instructed to return in six weeks. Plaintiff underwent physical therapy visits between December and January 23, 2015 "that helped somewhat."

Plaintiff visited defendant's office for the third and last time on January 23, 2015. Defendant examined plaintiff and made notes on the condition of *774plaintiff's wrist. (These observations are undisputed; they are incomprehensible to the lay reader, but apparently the condition was not good.)2 According to Norma Fernandez, defendant was "visibly concerned and a little surprised at how [the hand] was," and called the office of plaintiff's physical therapist. Ms. Fernandez's impression was that defendant "wanted to make sure they were doing the right types of things." Defendant said "something to the effect that the way her hand looked wasn't important, what was important was getting the function back in her hand." Plaintiff was instructed "to use alternating heat and ice and it was noted that if there was no improve[ment] ORIF [open reduction and internal fixation, a surgical procedure] could be considered."

Plaintiff did not return to defendant for any further treatment. Eight months later, in October 2015, Dr. Milan Stevanovic performed a surgical procedure involving a bridge plate,3 and in January 2016 he performed a further procedure to remove the plate and screws.

2. The Complaint

Plaintiff filed this lawsuit in January 2016. The operative first amended complaint alleged a single cause of action for professional negligence against defendant and Mr. Rivas-Tejeda. The complaint alleged that the X-rays taken on December 8, 2014 showed "a positive ulnar variance." Further diagnostic testing in February 2015 (after plaintiff's final visit to defendant) "continued to show a distal fracture but now with displacement and dorsal angulation. The left ulnar styloid also continued to show as a fracture," and "the left wrist now suffered from edema and ligamentous injury."

The complaint alleged defendants "failed to inform or advise[ ] [plaintiff] that she could suffer and incur a permanent left wrist injury including the dorsal angulation and ligament damage as a result of their treatment." Further, she "did not consent to [defendants'] poor casting of the left wrist." Defendants "breached their legal duty ... when the left wrist was casted in an improper manner."

*7753. The Motion for Summary Judgment

a. Defendant's evidence

Defendant moved for summary judgment in March 2017, contending that defendant's treatment was within the standard of care, and that no act or omission on defendant's part caused or contributed to plaintiff's injuries.4

*200Defendant submitted a declaration from Dr. Charles T. Resnick, a board-certified orthopedic surgeon specializing in hand and wrist surgery. Dr. Resnick reviewed plaintiff's medical records, the imaging of plaintiff's wrist, the depositions of plaintiff and her daughter, and discovery responses to interrogatories and other discovery requests by the parties. Dr. Resnick opined that the medical care and treatment rendered by defendant and Mr. Rivas-Tejeda complied with the applicable standard of care at all times; that the standard of care permitted either the performance of surgery and/or casting; that plaintiff was properly advised of her treatment options; that defendant supervised Mr. Rivas-Tejeda in keeping with the standard of care; and that plaintiff did not suffer any adverse complications during the casting.

Dr. Resnick further opined that "nothing [defendant and/or Mr. Rivas-Tejeda] did or failed to do caused plaintiff any harm or injury. The callous formation and dorsal angulation of the patient's hand seen on imaging on 12-8-14 was a potential outcome of both casting and/or surgical intervention. [Plaintiff] understood that casting her hand could result in continued hand deformity and the patient agreed to proceed with casting after receiving an informed consent of her options."5

b. Plaintiff's opposition

Plaintiff opposed defendant's motion, contending that defendant "failed to supervise Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
243 Cal. Rptr. 3d 196, 31 Cal. App. 5th 770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fernandez-v-alexander-calctapp5d-2019.