Judge: Glenn R. Salter, Case: 21-1181537, Date: 2022-10-20 Tentative Ruling

The motion of defendants Michael Sheety and Michael Sheety, M.D., Inc., dba OC Surgical Center and Sierra Eye & Laser Institute for summary adjudication of issue as to the Second Cause of Action for battery is DENIED.

Procedural Issues

There are numerous procedural problems with the motion and the other papers.  For example:

The notice of motion focuses on whether consent was given for the procedure performed.  The first paragraph in the notice is non-specific:  It says the plaintiffs “are unable to evidence the requisite elements of their claim,” without specifying any issue to be decided.  That is insufficient to put the opposing party on notice of the precise issue to be resolved.  The second paragraph is specific:  It says the two procedures—LASIK and PRK—are not “substantially different” and therefore the consent plaintiff gave for the one procedure constitutes consent for the other.  However, the points and authorities raise other issues that are not specifically noticed.  Although the court may in some circumstances consider these other points (see, e.g., Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125), here defendants are seeking summary adjudication of a cause of action and the purpose of the notice is to specify the precise grounds raised for such relief.  Neither the opposing party nor the court should be placed in the peculiar situation of having to sort through the points and authorities and exhibits to find out what is truly at issue.  (See, e.g., Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 974, fn. 4.]

The reply poses additional problems.  A purported “reply separate statement” has been filed.  But such a filing is not allowed.  (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.)  Further, a late declaration is filed, which violates the procedural requirements set by Code of Civil Procedure section 437c.

Given the above (and the other problems with the papers), the court limits its analysis and ruling to the issue of consent.

Merits

It is undisputed a consent for surgery was signed.  The consent form indicates that the patient is granting consent for the LASIK or the PRK procedure.

The responding parties indicate that the defendants spoke about, and consent was given, only as to the LASIK procedure.  They also assert the defendants performed the PRK procedure, and the two procedures are substantially different.

Whether consent was given for a particular medical procedure is generally a question of fact.  The consent form presented is insufficient to authorize consent to the alternate procedure merely because both procedures are mentioned in it by name.  (See Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95, 115.)  Moreover, nothing in the consent form suggests a patient is allowing the surgeon to perform either surgery in his or her sole discretion.  It is simply a convenient form that grants consent to the procedure authorized by the patient.

Moreover, there is evidence that the only surgery talked about with the surgeon was LASIK.  There are also competing expert declarations as to whether the two procedures are “substantially similar.”  Given there is good faith disagreement between the experts on this issue, whether the procedures are substantially similar such that consent for one is also consent for the other is a question of fact for the trier of fact.

Notice

The plaintiffs shall give notice.