Court: California Courts of Appeal
Docket: C090663(Third Appellate District)
Opinion Date: June 11, 2021
Judge: Andrea Lynn Hoch
Areas of Law: Civil Procedure, Medical Malpractice, Personal Injury
Plaintiff Darren Hulbert, a self-represented indigent inmate, appealed the dismissal of his medical malpractice suit Richard Cross, M.D. Dr. Cross performed a radial head resection and arthroplasty on Hulbert’s right elbow. Hulbert alleged that Dr. Cross negligently failed to tighten a screw in the implant, which resulted in the screw coming loose and damaging Hulbert’s elbow joint, cartilage, and surrounding tissue. To help establish his claim, Hulbert filed a motion for the appointment of legal counsel and a medical expert. The trial court denied the motion and subsequently found that Hulbert could not rebut the declaration of Dr. Cross’s medical expert without providing medical expert evidence of his own. On this basis, the trial court granted Dr. Cross’s motion for summary judgment. On appeal, Hulbert contended: (1) he was deprived of meaningful access to the courts because the trial court denied him the assistance of a medical expert while requiring a medical expert to establish a triable issue of material fact; (2) the trial court failed to exercise its discretion by considering all of the remedies available to ensure that he had meaningful access to the courts; (3) the trial court erred in determining there was no triable issue of material fact because the loose screw itself did not prove medical negligence; (4) the trial court erred in refusing to appoint legal counsel; (5) Dr. Cross did not provide informed consent prior to the procedure; (6) the declaration by Dr. Cross’s medical expert was insufficient to overcome a presumption of negligence because Dr. Cross’s operation notes failed to show compliance with the implant manufacturer’s instructions. After review, the Court of Appeal concluded the trial did not properly exercise informed discretion with respect to ensuring access to the courts when it denied Hulbert’s motion for appointment of a medical expert. The trial court’s statement that it lacked authority to appoint legal counsel required to remand to allow the trial court to consider and clarify which remedies were appropriate in this case to protect Hulbert’s right to meaningful access to the court.
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