Kearns

*1327 Opinion

Walter Kearns, M.D., one of the defendants in a medical malpractice action, is petitioning for a writ of mandate directing the respondent court to enter an order granting summary judgment and/or summary adjudication of issues as to whether a medical emergency existed when he responded to a request for intraoperative assistance in an unexpectedly difficult surgical procedure. Given the conditions under which Kearns rendered medical assistance, we conclude that it is not reasonably inferable that an emergency did not exist and grant the writ insofar as the respondent court’s order denying Kearns’s motion is based on a finding that a triable issue exists as to the existence of an emergency.

Discussion-

In November 1984, Malverse Martin, M.D., a codefendant in this action but not a party to this writ proceeding, performed surgery upon plaintiff Von Rader to remove a malignant ovarian tumor. During surgery, Martin determined he could not remove the tumor without additional assistance and requested the assistance of Kearns in order to complete the surgery. It is undisputed that Kearns had never treated, diagnosed, consulted or in any matter participated in the treatment…