No Border Wall for Experts

Today in Borrayo v. Avery, A143765, the First Appellate District reversed a summary judgment in a medical malpractice action.  The plaintiff apparently had developed a repetitive work injury, and was examined in 2008 by a Dr. Pineda, a physician licensed in Mexico.  The next year, she was examined by a California physician, who recommended, and then performed, surgery on Borrayo.  The opinion notes she eventually “suffered adverse symptoms,” eventually filing a medical malpractice complaint against Avery.

Avery brought a summary judgment motion, supported by a physician’s declaration to the effect that defendant had appropriately performed the surgical procedure and had provided appropriate postoperative care.  Borrayo’s opposition relied on a declaration from Pineda, who opined, basically, that Avery had “destabilized plaintiff’s right sternoclavicular joint during her surgery. . . .”  Avery objected to Pineda’s declaration as lacking foundation, asserting “plaintiff had failed to establish that Pineda was sufficiently familiar with the applicable standard of care.”  The trial court granted summary judgment, sustaining defendant’s objection, “concluding Pineda had supplied ‘absolutely no information about the appropriate standard of care in the United States.'”

The Court of Appeal reversed, explaining the previous rule looking to a community or locality test has long fallen to the wayside, and, “while locality is a circumstance that may be considered, it is not determinative.”  The previous rule had been formed “‘when there was little intercommunity travel,'” so it was not fair to hold physicians in smaller communities with less resources to the same standard as, say a “big city” physician affiliated with a large teaching hospital.  The court looked to a 67-year old Supreme Court opinion which referenced “rapid methods of transportation and easy means of communication,” rendering the old rule outdated.  Therefore, a per se ruling a Mexican’ physician’s opinion was legally insufficient was error.  So, whatever the benefits or detriments of globalization in other fields, in the realm of expert opinion, our southern border is no barrier to admissibility of expert opinion, the analysis of which looks solely to the expert’s qualifications, without regard to locale.

Read the opinion:

http://www.courts.ca.gov/opinions/documents/A143765.PDF