Avivi v. Centro Medico Urgente Medical Center
Filed January 14, 2008, modification ordered January 24, 2008
Division Four, Cite as 2008 SOS 688

Ruling Reversed on the Admissibility of Expert Witness’ Opinion

Nurit Avivi was a visiting tourist from Israel when she fell and injured her arm in Southern California. She sought treatment for her injuries from the Centro Medico Urgente Medical Center, where physician assistants applied a splint to her arm.

The following days and three days thereafter, Avivi returned to the center for follow-up examinations. On both occasions, she complained of continued pain and swelling. She was given additional pain medication and instructed her to keep wearing the splint.

On her return to Israel, Avivi had her arm examined by orthopedist Arieh Arielli who discovered that the splint was too tight and had caused permanent injury to Avivi’s arm.

As a result, Avivi filed a malpractice claim against the center for her injuries.

In response, the center filed a petition for summary judgment. In support of its motion, the center submitted the declaration of surgeon Charles Lane, who a known hand surgery practitioner and expert in the Los Angeles area, who stated that the center’s treatment of Avivi’s injury was “reasonable and within the standard of care in the local medical community”.

In opposition, Avivi offered the declaration of Dr. Arielli, which disputed Lane’s declaration. He stated further that he had treated thousands of fractures during his career, and had spoken with American doctors and reviewed American publications regarding the treatment of fractures in the United States.

The center objected to Dr. Arielli’s declaration, noting his failure to state that he was familiar with the local standard of medical care in southern California where Avivi was treated.

The trial court granted summary judgment in favor of the center on the basis that Dr. Arielli’s declaration is inadmissible due to his lack of familiarity with the standard of care in Southern California.

On appeal, the Second District appellate court reversed the ruling, holding that the trial court erred in deciding Dr. Arielli’s declaration to be inadmissible.

Further, the appellate court explained that the standard of care for physicians is “the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances”.

Further, the court held that geographical location, by itself, does not provide a practical basis for measuring similar circumstances.

Moreover, the court noted that Avivi sought to have Dr. Arielli’s declaration deemed admissible on the basis of his familiarity with the standard of care not in Israel, but in the United States.

As proof of this, the appellate court noted that Dr. Arielli established his qualification by the following declarations:

• that he had practiced orthopedics for 27 years


• had treated thousands of patients with injuries similar to appellant’s


• had numerous contacts with doctors from the United States regarding treatment of injuries similar to appellant’s


• had reviewed many publications on treatment of fractures in the United States


• had concluded that treating a fracture would be handled similarly in Israel as in the United States.

With these assertions, the court held that it was not necessary that he also state familiarity with the standard of care in Southern California.

On the contrary, it pointed out that the center did not even assign a physician to treat it, delegating the task instead to physician assistants. In addition, the center did not present any evidence tending to show that the standard of treatment for such injury in Southern California would be different from standard practice anywhere else in the United States.

In ruling, the Second District court of appeals therefore reversed the judgment. The court held that a qualified medical expert should not be required to “demonstrate familiarity with the standard of care in the particular community” to make his statements admissible as evidence in the alleged medical malpractice claim.