Garibay

INTRODUCTION

Plaintiffs Alejandra Garibay (Garibay) and Toby C. Barron, Jr., appeal from a judgment entered after the trial court granted summary judgment on plaintiffs’ claim for medical malpractice arising from surgery performed on Garibay by defendant Mehdi Hemmat, M.D. (Dr. Hemmat). Defendant’s summary judgment motion relied solely on the opinion of a medical expert witness that Dr. Hemmat did not commit medical malpractice. The medical expert witness based his opinion on facts derived from his review of hospital and medical records. These records were not properly admitted into evidence under the business records exception to the hearsay rule, however, and did not accompany the declaration or the summary judgment motion. We find that the defendant moving for summary judgment failed to meet his burden of production of evidence, and reverse.

The summary judgment motion was insufficient because there were no facts before the court on which the expert medical witness could rely to form his opinion. The expert was not a percipient witness to and could not testify about what happened during the surgery. A proper method for producing these facts would have been, for…