Kelley

Summary

In a medical negligence action a defendant doctor is not entitled to obtain summary judgment based on a conclusory expert declaration which states the opinion that no malpractice has occurred, but does not explain the basis for the opinion.

Facts and Proceedings Below

At midnight on Thursday, November 24, 1994, appellant Kelley lacerated his forearm on broken glass. He bled profusely. He went to the emergency room, where the laceration was stitched. He was discharged at 2 a.m. and given Tylenol and codeine for pain.

The following day, Ward, a friend of Kelley’s, spoke with respondent Dr. Trunk. Trunk was taking calls for Kelley’s primary care physician, Dr. Berkowitz, who was temporarily unavailable. Ward told Trunk that Kelley had run out of pain medication and was “in a lot of pain.” Trunk suggested that Kelley see Berkowitz when he returned on November 28 or 29. When Ward persisted, Trunk phoned in a prescription for the same medication Kelley had received the night before. Trunk did not inquire about Kelley’s symptoms and did not suggest that he return to the emergency room or immediately see a physician.

Later that day or the next, Kelley himself called…