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Failure to Refute Expert Testimony Warrants Summary Judgment Against California Prisoner Suing for Medical Malpractice

In an unpublished opinion, the California Court of Appeal affirmed a trial court’s grant of summary judgment against a prisoner who sued a surgeon for medical malpractice, but then failed (due to limited resources) to refute the expert testimony submitted on behalf of the surgeon, which established that the treatment provided was within the professional standard of care.

In 2001, California state prisoner Lorenzo Cunningham had surgery intended to alleviate the back pain he had suffered for nearly 20 years. The surgery was not successful; Cunningham’s pain increased over time.

In 2007, Cunningham consulted with surgeon Jason Huffman, who performed additional surgery. Although he initially recovered well from the surgery, Cunningham experienced incremental increasing pain. After receiving follow-up care in 2008, Cunningham sued Huffman for medical malpractice.

Huffman moved for summary judgment in 2010, arguing that his treatment complied with the accepted standard of care. In support of his motion he submitted a declaration from a board-certified orthopedic surgeon, who concluded that Huffman’s treatment decisions were competent.

In response, Cunningham moved for appointment of counsel and an expert to assist him, arguing that the issues were too complex for him to litigate alone. The trial court denied Cunningham’s motion, then granted Huffman’s motion for summary judgment on the ground that Cunningham had failed to present expert testimony refuting the opinions of Huffman’s expert.

On appeal, Cunningham argued that the trial court had erred in failing to appoint counsel and an expert for him. Canvassing the applicable case law, the Court of Appeal found that a prisoner’s right (under state law) to meaningful court access to pursue civil lawsuits includes the right to have accommodations made to ensure that the restrictions of incarceration do not deprive the prisoner of an opportunity to prosecute his or her case.

However, Cunningham, the appellate court found, had sought more than that – the trial court’s assistance in prosecuting his case – something the court was simply not obligated to provide. Accordingly, the trial court’s summary judgment order was affirmed. See: Cunningham v. Huffman, Cal. Court of Appeal, First App. District, Div.1, Case No. Al29273; 2011 WL 140301 (unpublished).

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Cunningham v. Huffman


 

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