Rafferty v. Suess CA1/2

Filed 9/30/16 Rafferty v. Suess CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

SUSAN RAFFERTY,
Plaintiff and Appellant,
A142157
v.
DR. FRED SUESS, M.D. (Alameda County
Super. Ct. No. RG13668525)
Defendant and Respondent.

In March 2012, plaintiff Susan Rafferty (Rafferty) underwent two procedures to
reduce signs of aging on her face. The procedures were performed on the same day by
defendant Fred Suess, M.D. (Suess) at the offices of defendant East Bay Plastic Surgery,
doing business as Lifestyle Lift (Lifestyle Lift). The next day, Rafferty noticed a mark
on her right cheek. When the mark developed into a scar, Rafferty sued Suess and
Lifestyle Lift, alleging medical negligence. The trial court granted defendants’ motions
for summary judgment.
On appeal, Rafferty argues that the trial court erred in granting summary
judgment, claiming that the court erroneously struck her expert’s declaration, and that
even without the expert declaration there are still triable issues of fact. We conclude that
the trial court did not err, and we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Rafferty Undergoes Elective Medical Procedures
The following facts are undisputed. In late January 2012, after seeing an
advertisement for Lifestyle Lift procedures on television, Rafferty met with Suess for a

1
consultation about elective procedures to remove wrinkles from her face and neck. Suess
was to perform two procedures on Rafferty, a “Face and Neck Firming Procedure,” or
cervicofacial rhytidectomy (surgery), and a “Fractional CO2 Laser” Procedure on
Rafferty’s face and neck (laser procedure).
A staff member at Lifestyle Lift showed Rafferty with a mirror where incisions
would be made as part of the surgery, and then stood behind Rafferty, with hands on
either side of Rafferty’s face, pulling back Rafferty’s cheeks toward her ears to show her
what would be done. During the January consultation, Rafferty told Suess that she
smoked six cigarettes a day. Suess told her to quit smoking, and informed her that
smoking affected blood circulation and increased the risk of poor healing or scarring after
the procedures. Rafferty said that she could not quit smoking. Suess asked if she could
cut her smoking in half, and Rafferty said she could. Rafferty smoked about three
cigarettes a day from the day of the consultation through the weeks after her surgery. She
smoked a cigarette on the morning of her procedures, and smoked again a few hours after
them.
In February 2012, Rafferty signed two consent forms, one for the surgery and one
for the laser procedure. The surgery consent form explained that Rafferty would undergo
“a surgical procedure for the tightening of skin and deeper structures of the face.” It
explained that, “[a]lthough good wound healing after a surgical procedure is expected,
abnormal scars may occur on the skin and deeper tissues,” and that “[s]ome areas of the
face may not heal normally or may take a long time to heal.” It stated, “There is the
possibility of a poor result from Lifestyle Lift face- and neck-firming surgery. This
would include risks such as unacceptable visible deformities, loss of facial movement,
wound disruption and loss of sensation. You may be disappointed with the results from
surgery. You may need additional surgery. Surgery is not an exact science. Your
physician will attempt to give you the best results possible. However, you may not
receive the result you expect because individual results vary. Complications can develop
that are unexpected and are not even contemplated.” The form included a paragraph
captioned “Smokers”: “Smokers have a greater risk of complications because smoking

2
causes constriction of the blood vessels supplying the skin. Delayed wound healing, skin
loss (necrosis) and infection are all complications that can occur at a higher rate in
smokers. Also, if you are a heavy smoker who is unwilling or unable to quit, then your
surgeon may decide to perform a more limited lifting procedure to decrease these risks,
which are still higher than for a non-smoker. Since smokers have a higher rate of
respiratory complications and delayed wound healing, smoking is not recommended for
1-3 weeks before and after surgery.”
The consent form for the laser procedure stated that side effects could include
“temporary redness . . . and mild sunburn-like effects . . . . Pigment changes (light or dark
spots on the skin) lasting one to six months or longer may occur. . . . Other potential risks
include crusting, itching, pain, burns, infection, scabbing, scarring and swelling. No
guarantees or promises can be made concerning the results of the treatment.” In signing
the form, Rafferty affirmed that she understood that “not adhering to the post-care
instructions provided to me, may increase my chance of complications.”
At her deposition, Rafferty testified that she understood that Suess would make
incisions around her ears and under her chin. She understood that the surgical procedure
would affect her face, neck, and ears, and that her skin would be lifted. In particular, she
understood that the skin on her face would be pulled back toward her ears. She
understood that there was a risk of scarring to her face, that smoking caused a greater risk
of complications, and that smoking was not recommended.
On March 1, 2012, Suess performed the surgery and laser procedure on Rafferty’s
face and neck. Suess’s notes reported that Rafferty “tolerated the procedure well and left
the operation room in satisfactory condition.” Bandages were applied, and Rafferty was
sent home with instructions to ice the surgical incisions each hour that she was awake for
the next three days. Rafferty did not ice her incisions until the second or third day after
the procedures, and then did so only four or five times a day.

3
 On March 2, 2012, Rafferty returned to Suess’s office, where the bandages were
changed.1 That evening, when she removed the bandages to clean the incisions, she
noticed a mark on her right cheek—“a big brown mark” that “had like skin, just real
loose skin or something.” She testified that she “just thought it would go away,” and she
assumed that Lifestyle Lift knew about the mark, even though no one had mentioned it to
her at her appointment earlier that day. Rafferty did not contact anyone at Lifestyle Lift
about the mark, until her next visit to Suess’s office on March 12, when her sutures were
removed. During the period from March 2 to March 12, 2012, Rafferty could feel the
tissue under the mark “getting really soft.” At the March 12 visit, Suess told Rafferty to
apply antibiotic ointment to the mark and bandage it.
Rafferty saw Suess twice more that month, on March 19 and 26, 2012. During the
March 19 visit, Suess cleaned and bandaged the area of the mark, and told Rafferty to
continue applying antibiotic ointment and a bandage.2 Rafferty testified that she noticed
improvement in the mark starting about two or three weeks after March 19; she said it
“looked lumpy” on March 19, and later “looked better and better” and “wasn’t real lumpy
or anything.” A note from the March 26 appointment reads, “P[atien]t was seen by Dr.
Suess and p[atien]t is coming back on 4/2/12 to check healing on tissue n[e]crosis.”
Rafferty testified that the mark continued to improve, but developed some “hard skin or
something.” She testified that on two occasions Suess injected cortisone into the scar and
instructed Rafferty to rub it, and that the mark flattened as a result.
Rafferty saw Suess twice in April 2012. At the first visit, Suess noted that
Rafferty was “doing well” but “healing slowly.” At the second, he noted that Rafferty’s
skin had healed and that Rafferty continued to smoke. He recommended she use

1
A Patient Surgery Information Sheet from March 1, 2014, shows that a follow-up
appointment was made for March 2, but none of the records describes the March 2 visit.
2
Rafferty’s medical records reflect that Suess “de[b]rided [the] cheek.” Rafferty
testified that Suess “took Q-tips or something, I’m not sure, and cleaned it out. And did a
suction thing on it.”

4
sunblock, an over-the-counter scar treatment product, and makeup to reduce the
appearance of the scar.
Rafferty saw Suess twice more, once in May 2012, when Suess noted again that
she was healing slowly, specifically with respect to a scar on her right cheek, and then in
July 2012, when he inspected the scar and again recommended she use a scar treatment
product and sunscreen.
By Rafferty’s last visit with Suess, the mark looked red or pink, and at her
deposition, in September 2013, Rafferty agreed that the mark was whiter than the rest of
her skin. Except for the scar, Rafferty was satisfied with the results of the procedures.
B. Rafferty Files Suit
In February 2013, Rafferty sued Suess, alleging negligence, and later amended the
complaint to add Lifestyle Lift as a defendant. She alleged the defendants fell below the
standard of care in her treatment, the treatment “proximately caus[ed] a hideous and
permanent scar on [her] face where no procedure was contemplated and did not occur,”
and she would not have undergone the procedures if she had known “that she could be
scarred on her face where no procedure was to occur or that such a hideous scar could be
created.”
C. Defendants Move for Summary Judgment
In December 2013 and January 2014, Lifestyle Lift and Suess filed motions for
summary judgment arguing that Rafferty could not prove negligence or causation,
supported primarily by deposition testimony from Rafferty and a declaration from David
White, M.D. (White), a non-treating expert.
White, a board-certified plastic surgeon, reviewed Rafferty’s First Amended
Complaint, the medical records provided by Lifestyle Lift’s custodian of records, and the
transcript of Rafferty’s deposition, with exhibits. He summarized and analyzed the care
provided to Rafferty by Suess and Lifestyle Lift and concluded they acted within the
standard of care in treating her before, during and after the procedures; they acted within
the standard of care in informing her of the risks of the procedures, including the

5
enhanced risks to smokers of poor healing, not healing, scarring and infection; and her
scar was caused by her smoking before and after the procedures, not by defendants.
Defendants provided testimony from Rafferty’s deposition that Rafferty
understood that she would undergo treatment to her neck, face and around her ears and
that the procedure would involve making incisions and pulling the skin on each side of
her face back toward her ears. When Rafferty signed the consent forms, she understood
that she was representing that she had read them and had the opportunity to ask questions
about them.
D. Rafferty Opposes Summary Judgment
Rafferty’s primary argument in opposition was that defendants failed to meet their
initial burden of presenting evidence to make a prima facie showing of the nonexistence
of any triable issue of material fact.3 As authority, she cited the jury instructions for res
ipsa loquitur in the context of medical malpractice (CACI No. 518) and for informed
consent (CACI No. 532). In addition, Rafferty submitted declarations with the goal of
raising triable issues of fact with respect to the standard of care, res ipsa loquitur, and
informed consent.
Rafferty submitted a declaration from her expert, James Chao, M.D. (Chao),
which she characterizes as “supporting breach of duty with respect to the standard of care
as to each defendant,” specifically, “that Defendant’s [sic] breeched [sic] the standard of
care as to informed consent.” Chao, a board-certified plastic surgeon, reviewed
Rafferty’s deposition “in part, photos before and after, operative report of Dr. Fred Suess
and available Lifestyle Lift records.” He does not identify which parts of Rafferty’s
deposition he reviewed, which photos he reviewed, or which records were available to
him. The substantive portion of his declaration is reproduced here in full:

3
Rafferty’s responses to defendants’ separate statements included a few terse
objections to some of defendants’ evidence. The objections did not cite any supporting
authority, were not in the form required by California Rules of Court, rule 3.1354, and
were not raised “at the hearing” as required by Code of Civil Procedure section 437c,
subdivision (b)(5). The trial court declined to consider them. Rafferty does not contend
on appeal that her objections have been preserved and we do not discuss them further.

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 “Based on my review of these documents, my education and my experience and
personal knowledge of the standard of care of practicing plastic surgeons in California
Defendant’s [sic] fell beneath the standard of care in not having any post operative
notes.[4]
“Defendant’s [sic] fell beneath the standard of care in performing a face lift
procedure in combination with a laser treatment on a known smoker which caused the 3
inch by 1/2 inch mark on Plaintiff’s face.[5]
“Defendant also fell beneath the standard of care in not fully informing Plaintiff
the [sic] additional complications that could occur on her face as happened to Susan
Rafferty because of her continued smoking and going beyond the area of perioral
fractional CO2 treatment obtained [sic] in the informed consent process.
“It would have been within the standard of care to have Plaintiff sign a document
on the day of her surgery that she was advised that her continued smoking could cause
the mark on her face showing she made an informed decision.
“Defendant’s [sic] may have caused the mark on Plaintiff’s face by placing too
much tension on the facelift skin when closing the wound during the procedure or
wrapping the bandage too tight on her face after surgery which would have caused issues
with respect to blood flow to her face. If there had been post op notes, these issues could
have been examined in more detail.”
In addition to the declaration from Chao, Rafferty submitted her own declaration
in which she testified that if she had known that there was a risk of scarring from her
“limited smoking,” she would have cancelled the surgery. She also testified, “No one
. . . explained to me . . . that any scarring could happen on my face where no procedure
was to be performed. Where my scar is on the right side of my face there was no
4
Contrary to this statement, the medical records include post-operative records,
which White discusses in his declaration.
5
This is inconsistent with Chao’s subsequent opinions that in certain
circumstances it would not be below the standard of care to perform these procedures on
a known smoker, as well as his opinion that the scar may have been caused by tension on
the skin or by the wrapping of the bandages.

7
procedure to be performed. There were to be no incisions. The incisions were basically
behind my ears and under my chin. I accepted the risk that there could be complications
regarding healing above ears and scarring where the incisions were to be made. But I did
so because I knew no one would be able to see them.”
E. Defendants Reply
With their reply papers, defendants submitted detailed objections to the Chao and
Rafferty declarations. Relying on various authorities, including Bushling v. Fremont
Medical Center (2004) 117 Cal.App.4th 493 (Bushling), and Jennings v. Palomar
Pomerato Health Systems, Inc. (2003) 114 Cal.App.4th 1108 (Jennings), they argued that
Chao’s declaration was inadmissible as expert testimony because it lacked foundation,
and was conclusory and speculative. Defendants argued that Rafferty’s declaration was
inadmissible as irrelevant because it conflicted with her deposition testimony, and
therefore could not raise a triable issue of fact under authorities including D’Amico v.
Board of Medical Examiners (1974) 11 Cal.3d 1, and because Chao did not rely on it.
F. The Trial Court Grants Defendants’ Motions
The trial court issued a tentative ruling granting the motions for summary
judgment. The tentative ruling was uncontested; no hearing was held and the tentative
ruling became the order of the court. The court wrote, “The undisputed evidence
submitted by Defendants establishes that to a reasonable degree of medical certainty Dr.
Suess’s medical care and treatment of Plaintiff complied with the applicable professional
standard of care, that no act or omission of the Defendants’ agents caused or contributed
to Plaintiff’s alleged injuries, and further that the consents signed by Plaintiff had
adequate warnings regarding the increased risks of scarring to smokers. [Citations.] Dr.
David N. White has opined that ‘Plaintiff’s continued smoking both before and after the
surgery was, more likely than not, the cause of Plaintiff’s post-surgical scarring’ to her
cheek. [Citation.] [¶] In opposition, Plaintiff has submitted an expert declaration that
lacks foundation and offers no opinions as to causation within a medical degree of
certainty. Dr. Chao speculates as to the cause of the scar ‘[b]ut, “an expert’s opinion that
something could be true if certain assumed facts are true, without any foundation for

8
concluding those assumed facts exist,” has no evidentiary value.’ (Bushling[, supra,] 117
Cal.App.4th [at p.] 510 (internal citations omitted).”
The trial court sustained defendants’ objections to the entire declaration of Dr.
Chao, and cited Munro v. Regents of the University of California (1989) 215 Cal.App.3d
977, 985 (Munro) for the proposition that when a motion for summary judgment is
supported by expert declarations that defendant’s conduct fell within the standard of care,
defendant is entitled to summary judgment unless the plaintiff comes forward with
conflicting expert evidence. The trial court overruled defendants’ objections to
Rafferty’s declaration, on the grounds that the objections were “not targeted such that
only objectionable material is at issue.” The court concluded that Rafferty failed to meet
her burden to establish a triable issue of fact and defendants were entitled to judgment as
a matter of law.
Judgments of dismissal were entered on April 30, 2014. This appeal timely
followed. After the appeal was fully briefed, Rafferty asked to dismiss the appeal as to
defendant Lifestyle Lift, and we granted her request.
DISCUSSION
A. Standard of Review
A defendant is entitled to summary judgment “if all the papers submitted show
that there is no triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).6) “We review a grant
of summary judgment de novo; we must decide independently whether the facts not
subject to triable dispute warrant judgment for the moving party as a matter of law.”
(Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) The evidence must be viewed in
the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 768 (Saelzler).) In deciding whether a material factual issue
exists for trial, we “consider all the evidence set forth in the papers, except that to which
objections have been made and sustained by the court, and all inferences reasonably

6
All unspecified statutory references are to the Code of Civil Procedure.

9
deducible from the evidence.” (§437c, subd. (c).) “Pursuant to the weight of authority,
appellate courts review a trial court’s rulings on evidentiary objections in summary
judgment proceedings for abuse of discretion. [Citations.]” (Eisenberg, et al. Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group (2015) ¶8.168, p. 8-142.)
A defendant “moving for summary judgment bears the burden of persuasion that
there is no triable issue of fact and that [the defendant] is entitled to judgment as a matter
of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
A defendant can meet this burden by showing that plaintiff “has not established and
cannot reasonably expect to establish,” an essential element of plaintiff’s claim.
(Saelzler, supra, 25 Cal.4th at p. 768.)
A defendant’s initial burden in moving for summary judgment is to come forward
with evidence to make a prima facie showing that there is no triable issue of material fact
(Aguilar, supra, 25 Cal.4th at p. 850), where the material facts are determined by the
pleadings. (Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114
Cal.App.4th 309, 320.) If defendant meets that burden of production, the burden of
production shifts to plaintiff to make a showing that there is a triable issue of material
fact. (Ibid.)
B. Analysis
1. Negligence
Here, there is no dispute that Rafferty has a scar on her cheek, and that it arose
from a mark she first noticed the day after the procedures performed by Suess. To prove
her negligence claim at trial, Rafferty must prove that Suess was negligent, and that his
negligence caused her injury. (Uriell v. Regents of the University of California (2015)
234 Cal.App.4th 735, 744 (Uriell) [“medical negligence is fundamentally negligence”],
citing Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 999
(Flowers).) Rafferty must prove that Suess failed to use the level of skill, knowledge and
care in diagnosing and treating Rafferty that other reasonably careful professionals would
use in similar circumstances; as a specialist in plastic surgery, Suess is held to the
standard of other specialists in plastic surgery. (Neel v. Magana, Olney, Levy, Cathcart

10
& Gelfand (1971) 6 Cal.3d 176, 188 [“[T]he special obligation of the professional is
exemplified by his duty not merely to perform his work with ordinary care but to use the
skill, prudence, and diligence commonly exercised by practitioners of his profession. If
he further specializes within the profession, he must meet the standards of knowledge and
skill of such specialists” (fns. omitted)].)
The applicable principles are set forth in Flowers: “ ‘ “The standard of care against
which the acts of a physician are to be measured is a matter peculiarly within the
knowledge of experts; it presents the basic issue in a malpractice action and can only be
proved by their testimony [citations], unless the conduct required by the particular
circumstances is within the common knowledge of the layman.” [Citations.]’ The
‘common knowledge’ exception is principally limited to situations in which the plaintiff
can invoke the doctrine of res ipsa loquitur, i.e., when a layperson ‘is able to say that as a
matter of common knowledge and observation that the consequences of professional
treatment were not such as ordinarily would have followed if due care had been
exercised.’ [Citations.] The classic example, of course, is the X-ray revealing a scalpel
left in the patient’s body following surgery.” (Flowers, supra, 8 Cal.4th at p. 1001, fn.
omitted.) The conduct of a plastic surgeon in performing surgical or laser procedures is
beyond a layperson’s knowledge, and therefore expert testimony is required in order to
determine whether Rafferty’s treatment fell below the standard of care. (See Munro,
supra, 215 Cal.App.3d at p. 985.)
2. Defendant Met His Initial Burden
By presenting expert testimony that defendants met the standard of care, and that
Rafferty’s scar was caused by her smoking, Suess supported his motion with evidence
that Rafferty could not prove negligence or causation. (Uriell, supra, 234 Cal.App.3d at
p. 743.)
In her opening brief on appeal, Rafferty contends for the first time that White’s
declaration is “[i]rrelevant or inadmissible,” and that even though she did not object to it
below, it cannot sustain a judgment. She offers a string of four case citations to support
her statement, but fails to identify the pertinent pages of the cases she cites, or explain

11
why the cases support her position, and accordingly she has forfeited this argument.
(Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [“citing cases without any
discussion of their application to the present case results in forfeiture”].)
In her reply brief on appeal, Rafferty contends that Suess did not shift the initial
burden of production in his opening papers below, claiming that White’s testimony as to
the standard of care pertains only to Lifestyle Lift, and not to Suess. This argument has
no merit. Although Rafferty asserts that White’s declaration is “silent” as to the standard
of care with respect to Suess, the declaration on its face plainly discusses both Suess and
Lifestyle Lift.
We conclude Suess supported his summary judgment motion with evidence that
Rafferty cannot prove negligence or causation, thus shifting the burden to Rafferty to
present evidence showing the existence of triable issues of material fact as to negligence
and causation.
3. Rafferty Failed to Raise a Triable Issue of Material Fact
a. Rafferty Did Not Raise a Triable Issue as to Defendant’s
Undisputed Facts
In the trial court, Rafferty purported to dispute just one of defendants’ proffered
material facts, that “Plaintiff testified that she understood that the procedure would
involve her face, neck and ear regions.” In support of this fact, both defendants cited the
same evidence, including the following from Rafferty’s deposition:
“Q OK. So you understood that the procedure would involve your face, your
neck and your ear regions; is that right?
“A Yes.”
Rafferty responded to Suess’s enumerated fact and evidence with, “Yes behind her
ears and under her chin incisions were to be made, not on her face. The CO2 laser was
around mouth not on her check where the scar is,” followed by a general reference to
Rafferty’s multi-page declaration. Her response to Lifestyle Lift’s identical fact and
evidence was slightly different, though still supported only by a general reference to her
declaration: “Disagreed, the procedure was to improve her face, the procedures were

12
incisions behind the ears and under chin. Laser around mouth. None on face where scar
is.” These responses, which concede that the area around Rafferty’s mouth was to be
treated, along with Rafferty’s statement in her declaration and response to Lifestyle Lift
that “the procedure was to improve [Rafferty’s] face,” do not create a dispute of any
material fact.7
b. The Trial Court Did Not Err in Excluding Chao’s Testimony
Because the trial court’s exclusion of Chao’s declaration leaves Rafferty with only
her own declaration as evidence to oppose summary judgment, we begin by reviewing
Rafferty’s claim that the trial court’s exclusion of Chao’s testimony was error. Below,
both defendants objected that Chao’s declaration lacked foundation, and was conclusory
and speculative because it was not based on evidentiary facts and lacked reasoned
explanation. The trial court sustained the objections, ruling that Chao’s declaration lacks
foundation, “offers no opinions as to causation within a medical degree of certainty,” and
speculates as to the cause of the scar.
In this context, Jennings, supra, 114 Cal.App.4th 1108, which, as Rafferty
concedes, “set forth the limits on expert testimony,” is instructive. Jennings makes clear
that “an expert’s opinion based on assumptions of fact without evidentiary support
[citation], or on speculative or conjectural factors [citation], has no evidentiary value
[citation] and may be excluded from evidence. [Citations.] Similarly, when an expert’s
opinion is purely conclusory because unaccompanied by a reasoned explanation
connecting the factual predicates to the ultimate conclusion, that opinion has no
evidentiary value because an ‘expert opinion is worth no more than the reasons upon
which it rests.’ ” (Jennings, supra, 114 Cal.App.4th at p. 1117.)
This describes the Chao declaration. Chao does not identify the factual basis for
his conclusions, he provides no reasoned explanation of his opinions that defendants
violated the standard of care, and he provides no reasoned explanation of his various

7
Rafferty’s contentions and evidence as to the extent of the “procedures” to be
performed by Suess are discussed in more detail in Section B.3.c of the Discussion, post.

13
conclusions and speculations about what caused or might have caused Rafferty’s injury.
For example, he does not provide any basis for his opinion that performing the surgery
and laser procedure “on a known smoker” falls below the standard of care. He offers
several different explanations for Rafferty’s scar, none of which are tied to evidence: the
scar was caused by defendants’ performing the surgery and laser procedure on a smoker;
the scar was caused by Rafferty’s smoking and by laser treatment that went beyond the
designated area; the scar could have been caused by Rafferty’s continued smoking; and
the scar could have been caused by the amount of tension placed on the skin in closing
the wound, or by “wrapping the bandage too tight.” In these circumstances, there is no
abuse of discretion in the trial court’s exclusion of Chao’s declaration.8
Without Chao’s declaration, Rafferty cannot offer expert testimony to raise any
issues of fact as to the standard of care, dooming her theory that Suess fell below the
standard of care in performing the surgery and laser procedures. (Munro, supra, 215
Cal.App.3d at p. 985 [“ ‘When a defendant moves for summary judgment and supports
his motion with expert declarations that his conduct fell within the community standard
of care, he is entitled to summary judgment unless the plaintiff comes forward with
conflicting expert evidence’ ”].)
c. Res Ipsa Loquitur Does Not Apply
Rafferty contends that even without expert testimony, the doctrine of res ipsa
loquitur applies to the facts of her case and that her declaration is sufficient to defeat
summary judgment. We disagree.
“The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of
producing evidence.” (Evid. Code, § 646, subd. (b).) For the presumption to arise,

8
Even if Chao’s declaration were admitted in evidence, its deficiencies make it
insufficient to raise a triable issue of material fact. (Nardizzi v. Harbor Chrysler
Plymouth Sales, Inc. (2006) 136 Cal.App.4th 1409, 1415 [“In adjudicating summary
judgment motions, courts are ‘not bound by expert opinion that is speculative or
conjectural. . . .’ [Citation.] ‘The evidence must be of sufficient quality to allow the trier
of fact to find the underlying fact in favor of the party opposing the motion for summary
judgment’ ”].)

14
Rafferty must show that her injury ordinarily would not have occurred unless someone
was negligent, that she was under Suess’s care when the injury occurred, and that her
own voluntary actions did not cause or contribute to her injury. (Brown v. Poway Unified
School Dist. (1993) 4 Cal.4th 820, 825-826 (Brown); Blackwell v. Hurst (1996) 46
Cal.App.4th 939, 943.) “[I]t is common knowledge that leaving scissors in a patient’s
abdomen after surgery is an occurrence that is ordinarily the result of someone’s
negligence. [Citation.] Similarly, it is commonly understood that negligence would
ordinarily be suspected when a person sustains a shoulder injury during an
appendectomy. [Citations.] [¶] ‘Where the matter is regarded as within the common
knowledge of laymen, as where the surgeon saws off the wrong leg, or there is an injury
to a part of the body not within the operative field, it has been held that the jury may infer
negligence without the aid of an expert.’ (Prosser on Torts (4th ed. 1971) § 32, pp. 167-
168.)” (Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 801
(Curtis).)
Rafferty can defeat Suess’s motion by producing evidence of each of the three
elements of res ipsa loquitur. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 318.)
Rafferty, however, has not produced evidence to create a triable issue of fact as to even
the first of the three elements, that the harm would not have occurred absent negligence
(Brown, supra, 4 Cal.4th 820; CACI No. 518), so we do not reach the second and third.
Rafferty’s theory of res ipsa loquitur rests on her contention that a scar appeared
“on [her] face where no procedure was to be performed.” Her theory is defeated by her
failure to come forward with evidence to support the contention. Rafferty implies that
the “procedure” was limited to incisions at her ears and chin, and laser treatment around
her mouth, but the evidence is to the contrary. Rafferty’s declaration states that she
understood that incisions would be made at her ears and chin. But the incisions were not
the full extent of the surgical procedure to remove signs of aging on her face. This is
reflected in one of the forms that Rafferty signed, which states that the face-firming
procedure involves “tightening underlying structures and removing skin and fat from the
face.” And Rafferty testified at deposition that a staff member at Lifestyle Lift physically

15
pulled back Rafferty’s cheeks toward her ears in front of a mirror, to show Rafferty what
the upcoming surgical procedure would involve.9
Rafferty contends that it is common knowledge that a scar could not occur “where
no surgery was performed,” absent negligence, but this is not a case where a surgical
instrument or other object was left in a patient’s body after an operation or where a part
of the body outside the operative field was injured. (Curtis, supra, 110 Cal.App.4th at p.
801.) To the contrary, any claim that the scar was not within the operative field is
defeated by Rafferty’s testimony that after the procedure, bandages were applied below
her chin, up one side of her face, over the top of her head, and down the other side of her
face, covering her cheeks and the site of the scar.
d. Rafferty Has Not Raised a Triable Issue of Material Fact as to
Informed Consent
Below, Rafferty contended that testimony from her expert Chao raises an issue of
fact as to whether Suess breached the standard of care as to informed consent. That
argument is foreclosed by the exclusion of Chao’s testimony, and we are left with the
testimony of defense expert White that the forms, warnings and instructions provided to
Rafferty by Suess and Lifestyle Lift were well within the standard of care. On appeal,
Rafferty argues that even without expert testimony, she has raised a triable issue of
material fact as to whether “the informed consent forms . . . adequately informed
[Rafferty] that a scar could appear where no surgery or procedure was performed.” We
disagree.
In order to meet the standard of care, a physician must obtain a patient’s informed
consent before performing a medical procedure. (Cobbs v. Grant (1972) 8 Cal.3d 229,
243.) This means informing the patient of any risk that a reasonable person would
consider important in deciding to have the procedure, and providing any other

9
Even Dr. Chao, Rafferty’s proffered expert, did not limit “procedure” to the
making of incisions and the use of the laser around the mouth. Although Chao’s opinions
are inconsistent in several respects, they consistently associate the scar with the area of
the surgery and laser procedures and thus contradict Rafferty’s claim that the scar
occurred where no procedure took place.

16
information skilled practitioners would disclose to the patient under the same or similar
circumstances. (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343; CACI Nos. 532,
533.) To prove failure to obtain informed consent at trial, Rafferty must prove, among
other things, that Suess did not disclose important potential risks to her, and that she was
harmed by a result or risk that should have been explained. (CACI No. 533.)
As she did in connection with res ipsa loquitur, Rafferty implies that the
“procedure” was limited to incisions at her ears and chin, and laser treatment around her
mouth. She argues that she knew there was a risk of scars where the procedures took
place, but that the procedures did not include her cheek.
Rafferty’s informed consent theory, like her attempt to invoke res ipsa loquitur,
discussed above, is defeated by her failure to come forward with evidence to support her
characterization of the scar as having appeared “where no surgery or procedure was
performed.” Rafferty contends that “there is no evidence, expert or otherwise, that
plaintiff knew or consented to a skin lifting procedure on her cheek,” and that Suess “had
no permission to perform any procedure on her cheek where the scar is.” These
contentions do not suffice to raise a triable issue of material fact that an important
potential risk was not disclosed, or that Rafferty was harmed by an undisclosed risk, in
view of Rafferty’s testimony that a Lifestyle Lift staff member pulled Rafferty’s cheeks
back toward her ears, to show Rafferty what the surgical procedure involved.
In sum, Suess is entitled to summary judgment on Rafferty’s negligence claim.
Rafferty has not come forward with expert testimony to raise a triable issue of material
fact in the face of defense expert evidence that Suess did not breach the standard of care
in any respect. She has not come forward with evidence to show that the burden-shifting
doctrine of res ipsa loquitur applies, or that she was scarred where no procedure occurred.
DISPOSITION
The trial court’s judgment for defendant is affirmed. Respondent shall recover his
costs on appeal.

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 _________________________
Miller, J.

We concur:

_________________________
Kline, P.J.

_________________________
Richman, J.

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