Judge: Gregory Keosian, Case: 20STCV27823, Date: 2023-10-24 Tentative Ruling
Case Number: 20STCV27823 Hearing Date: October 24, 2023 Dept: 61
Defendants Los Angeles
County University of Southern California Medical Los Angeles County, James
Leonard Buxbaum, M.D., Michael Andrew Quezada, Michael Kline, and Tracy Kim
Nguyen’s Motion for Summary Judgment or Adjudication is GRANTED as to the second cause of action for battery alleged
against Nguyen. The motion is otherwise DENIED.
I. OBJECTIONS
Defendants object to the
declarations of Plaintiff Jennifer Hung and Mark S. Kogan, M.D., submitted in
opposition to Defendants’ motion for summary judgment. Objection No. 10 to the
Hung declaration is SUSTAINED, as to Plaintiff’s testimony concerning the cause
of her blood loss and fainting after the endoscopic procedure, which is made
without foundation. The other objections to her declaration are OVERRULED.
Defendants’ objections to the Kogan declaration are OVERRULED.
II.
SUMMARY
JUDGMENT
A party may move for summary judgment “if it
is contended that the action has no merit or that there is no defense to the
action or proceeding.” (Code Civ. Proc.
§ 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences
reasonably deducible from the evidence and uncontradicted by other inferences
or evidence, 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,” the moving
party will be entitled to summary judgment. (Adler
v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for
summary adjudication may be made by itself or as an alternative to a motion for
summary judgment and shall proceed in all procedural respects as a motion for
summary judgment. (Code Civ. Proc. §
437c, subd. (f)(2).)
The moving party bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable
issue of material fact, and if he does so, the burden shifts to the opposing
party to make a prima facie showing of the existence of a triable issue of
material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850;
accord Code Civ. Proc. § 437c, subd. (p)(2).)
Once the defendant
has met that burden, the burden shifts to the plaintiff to show that a triable
issue of one or more material facts exists as to that cause of action or a
defense thereto. (Aguilar, supra, 25 Cal.4th at 850.)
The plaintiff may not rely upon the mere allegations or denials of its
pleadings to show that a triable issue of material fact exists but, instead,
shall set forth the specific facts showing that a triable issue of material
fact exists as to that cause of action or a defense thereto. (Ibid.)
To establish a triable issue of material fact, the party opposing the
motion must produce substantial responsive evidence. (Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
III.
MEDICAL NEGLIGENCE
“The elements of a cause of action for negligence are well
established. They are “(a) a legal duty
to use due care; (b) a breach of such
legal duty; [and] (c) the breach was the proximate
or legal cause of the resulting injury.” [Citation.]” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, emphasis in
original.)
In medical malpractice cases, expert testimony is required
to prove or disprove compliance with the standard of care. (See Landeros v. Flood (1976) 17 Cal.3d
399, 410; Garibay, supra, 161 Cal.App.4th at p. 741.) On a
summary judgment motion, expert testimony may be supplied through expert
declarations, and summary judgment is proper if plaintiff fails to submit any
opposing expert testimony. (See Curtis v.
Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 800; Willard v. Hagemeister (1981) 121 Cal.App.3d
406, 412.) Expert declarations may be based on hospital and medical records if
they are properly authenticated. (Garibay,
supra, 161 Cal.App.4th at pp.
742–743.)
Defendants Los Angeles County University of Southern
California Medical Los Angeles County, James Leonard Buxbaum, M.D., Michael
Andrew Quezada, Michael Kline, and Tracy Kim Nguyen (Defendants) here present
the declaration of Rudolph A. Bedford, M.D., a gastroenterology specialist with
34 years of experience. (Beford Decl. ¶ 3.) Based on his review of Plaintiff
Jennifer Hung’s (Plaintiff) medical records and case materials, he provides an
outline of the procedure that Plaintiff underwent on June 5, 2019, and
concludes that the care that Plaintiff received was within the standard of
care. (Bedford Decl. ¶ 7.) The placement of the IV in Plaintiff’s hand was
completed without complications, and the multiple biopsies performed during the
procedure were indicated by virtue of Plaintiff’s history of intestinal
metaplasia. (Beford Decl. ¶ 7c–7d.) The procedure was performed without
complications and minimal blood loss. (Bedford Decl. ¶ 7g.) Bedford further
opines that no act or omission on the part of Defendants caused or contributed
to Plaintiffs’ claimed injuries. (Bedford Decl. ¶ 8.)
Plaintiff in response presents her own declaration and the
declaration of Mark H. Kogan, M.D.. In her own declaration, Plaintiff takes
issue with descriptions in her medical records of abdominal pain that occurred
in the years preceding the procedure. (Hung Decl. ¶ 3.) She states that on May
13, 2019, Defendant Buxbaum told her he had previously performed an endoscopy
on her, and stated that he would be the one to perform the procedure on June 5,
2019. (Hung Decl. ¶ 5.) Plaintiff states that she told Buxbaum that she would
only undergo the procedure if he did it, and that she did not want a student or
fellow to operate on her. (Hung Decl. ¶ 5.) Plaintiff disputes that the IV was
placed in her hand without complications, stating that Defendant Nguyen
“stabbed” and “twisted” the IV into her hand, causing bleeding and pain that
soaked through her gauze. (Hung Decl. ¶ 6.) Plaintiff denies signing any
consent to have Defendant Quezada perform the procedure on her, and specifically
denies signing the consent form that Defendants point to in her medical
records, stating that at the time her hand was bandaged and she could not sign
any documents. (Hung Decl. ¶ 4.) Plaintiff contends that she would not have
consented to have Quezada perform the procedure on her. (Hung Decl. ¶ 4.)
Plaintiff states that after the procedure, she suffered fainting and blood
loss, which she had never suffered before as a result of an endoscopy or
biopsy. (HungDecl. ¶ 11.)
Kogan, meanwhile, is a gastroenterologist who has performed
at least 40,000 endoscopic procedures. (Kogan Decl. ¶ 5.) Kogan states that,
based on review of Plaintiff’s medical records and the declaration supplied in
this action, that Defendants failed to obtain Plaintiff’s informed consent to
the endoscopy procedure, based on Plaintiff’s testimony that she did not sign
the consent forms, that they did not explain the procedure to her before
beginning. (Kogan Decl. ¶¶ 12–15.) Kogan also claims that the internal bleeding
and dizziness that Plaintiff experienced after the procedure were the result of
the procedure. (Kogan Decl. ¶¶ 16–17.)
Triable issues of fact exist as to
Plaintiff’s medical negligence claim, because triable issues exist as to
whether Defendants secured her informed consent for the procedure. An action
for negligence may arise against a physician where an “undisclosed inherent
complication with a low probability occurs” during a medical procedure, and “the
doctor in obtaining consent may have failed to meet his due care duty to
disclose pertinent information.” (Cobbs v. Grant (1972) 8 Cal.3d 229,
240.) Here, Defendants rely on Plaintiff’s signature on a consent form to show
that shegave her informed consent to the procedure. (Motion at p. 14.) However,
Plaintiff denies that she signed the form, or was even able to sign it.
Plaintiff contends that the only questions or information provided to her about
the procedure, other than the false assurance that Dr. Buxbaum would be
performing it, came from a voice speaking Cantonese over a speakerphone, which
asked if and when she had had an endoscopy before, and whether she had suffered any pain as a
result. (Hung Decl. ¶ 7.) Although Defendants argue that Plaintiff’s
declaration is self-serving, they identify no basis upon which to find it
inadmissible. (Reply at p. 6.) “The law is clear in California that the
existence of informed consent is an issue of fact for the jury.” (Quintanilla
v. Dunkelman (2005) 133 Cal.App.4th 95, 115.)
Triable issues also exist as to
causation of Plaintiff’s damages. Plaintiff disclaims having any prior blood
loss as a result of an endoscopy, and Kogan states that the blood loss she
suffered after the endoscopy was a slow-moving result of the endoscopy itself,
which could not be discovered immediately, or days or weeks after. (Kogan Decl.
¶¶ 16–17.) Causation in a medical negligence case is also an issue of fact. (Romero
v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 568.)
Accordingly, the motion is
DENIED as to the first cause of action for medical negligence.
IV.
GOVERNMENT CODE § 945.4
Government Code § 945.4 states:
Except as provided
in Sections 946.4 and 946.6, no suit for money or damages may be brought
against a public entity on a cause of action for which a claim is required to
be presented in accordance with Chapter 1 (commencing with Section 900) and
Chapter 2 (commencing with Section 910) of Part 3 of this division until a
written claim therefor has been presented to the public entity and has been
acted upon by the board, or has been deemed to have been rejected by the board,
in accordance with Chapters 1 and 2 of Part 3 of this division.
“[A] claim need not contain the
detail and specificity required of a pleading, but need only ‘fairly describe
what [the] entity is alleged to have done.” (California-American Water Co.
v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1290–1291.) “As the
purpose of the claim is to give the government entity notice sufficient for it
to investigate and evaluate the claim, not to eliminate meritorious actions
(Blair v. Superior Court (1990) 218 Cal.App.3d 221, 225, 267 Cal.Rptr. 13), the
claims statute ‘should not be applied to snare the unwary where its purpose has
been satisfied.” (Id. at p. 1291.)
The claim . . . need not specify
each particular act or omission later proven to have caused the injury. A
complaint's fuller exposition of the factual basis beyond that given in the
claim is not fatal, so long as the complaint is not based on an entirely
different set of facts. Only where there has been a “complete shift in
allegations, usually involving an effort to premise civil liability on acts or
omissions committed at different times or by different persons than those
described in the claim, have courts generally found the complaint barred. Where
the complaint merely elaborates or adds further detail to a claim, but is
predicated on the same fundamental actions or failures to act by the
defendants, courts have generally found the claim fairly reflects the facts
pled in the complaint.
(Stockett v. Association of
Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447,
internal quotation marks and citations omitted.)
Defendants argue that
Plaintiff’s government claims do not correspond with her pleadings in this
matter. (Motion at pp. 17–22.) They argue that Plaintiff’s claims mentioned
only “[i]njury caused during medical procedure,” and that this was a “medical
malpractice claim,” not one for battery or intentional misrepresentation or
concealment. (Motion at pp. 18–19.)
Defendants’ characterization of
Plaintiff’s government claims is inaccurate. The first paragraph of Plaintiff’s
initial claim for damages stated that Dr. Buxbaum, the “promised physician,”
was not present in the operating room, and that, “after I awoke and the report
was explained to me, I discovered that the intern Michael Andrew Quezada
performed the procedure.” (Carson Decl. Exh. B, at p. 1.) These facts are
essentially the bases for Plaintiff’s claims for battery and fraud. But these
are not the only facts contained in Plaintiff’s claim form. She further alleged
that Quezada “violated patient consent ethical standards in which he operated
on me without consent.” (Carson Decl. Exh. B.) The claim states that “Dr. James
L. Bauxbaum [sic] promised that he would perform at the June 5th
appointment himself,” and that Plaintiff “specifically told him that [she]
strongly object[ed] to any intern performing the procedure.” (Ibid.)
Defendant Michael Kline is further listed as the attending physician for the
procedure. (Ibid.)
There is only one specific aspect in which
Plaintiff’s claims are defective in relation to their original government claim
forms: the inclusion of Defendant Tracy Kim Nguyen. The basis for liability
against Nguyen in the SAC is the allegation that Nguyen roughly handled Plaintiff
when inserting the IV into her hand, leaving the hand sore, bandaged, and
bleeding through the gauze. (SAC ¶¶ 24–25.) No mention is made of any such
injury in Plaintiff’s government claims, however, (Carson Decl. Exhs. A, B, D,
E.) This is akin to the fact pattern analyzed in Hernandez v. City of
Stockton (2023) 90 Cal.App.5th 1222, where a plaintiff filed a
claim for an injury resulting from an “uplifted sidewalk,” and later filed a
complaint without mentioning a sidewalk, “and the condition that was ultimately revealed to be the subject of the
lawsuit was a hole in an area devoid of cement sidewalk surface, in an
area clearly intended for a tree rather than for pedestrian traffic.” (Id.
at p. 1232.) As the court stated, “This is the type of factual variance that is
fatal to a civil action filed against a public entity following the rejection
of a government claim, since it amounts to a complete shift in allegations.” (Ibid.)
A similar factual variance exists between Plaintiff’s government claims and
their claim of battery against Nguyen.
The motion is therefore GRANTED as to the second cause of action for
battery alleged against Nguyen.
V.
BATTERY
Defendants
argue that Plaintiff cannot establish a claim for medical battery, as Plaintiff
underwent the endoscopy procedure which she had discussed with Buxbaum, not “a
substantially different treatment for which consent was not obtained,” as is
requisite for a medical battery claim. (Opposition at pp. 23–24; So v. Shin
(2013) 212 Cal.App.4th 652, 669.) But Plaintiff in opposition argues, as she
did in opposing Defendants’ earlier demurrers, that she alleges a claim for
civil battery rather than medical battery. (Opposition at pp. 15–16.) The
elements of civil battery are: “1. Defendant intentionally did an act which
resulted in a harmful or offensive contact with the plaintiff's person; [¶] 2.
Plaintiff did not consent to the contact; [and][¶] 3. The harmful or offensive
contact caused injury, damage, loss or harm to the plaintiff.” (Piedra v.
Dugan (2004) 123 Cal.App.4th 1483, 1495.) Plaintiff further argues that the
evidence shows that Defendant Quezada engaged in an offensive contact with
Plaintiff by performing the endoscopy, that Plaintiff did not consent to the
contact, and that Plaintiff was harmed as a result. (Opposition at pp. 15–16.)
Defendants in reply do not challenge Plaintiff’s reliance on the elements of
civil battery, but argue rather that Plaintiff’s declaration concerning lack of
consent, and Kogan’s declaration concerning causation of injury, are not
credible. (Reply at pp. 5–6.) However, the weight to be afforded Plaintiff’s
evidence is not to be decided on summary judgment. (Blue Mountain
Enterprises, LLC. v. Owen (2022) 74 Cal.App.5th 537, 549.)
The motion is therefore DENIED
as to the battery claim alleged by Defendants other than Nguyen.
VI.
INTENTIONAL MISREPRESENTATION, NEGLIGENT MISREPRESENTATION, FALSE
PROMISE, & CONCEALMENT
Defendants argue that
Plaintiff’s claims sounding in fraud or concealment cannot proceed, as there is
no evidence of a misrepresentation, or of an underlying intent to induce reliance.
(Motion at pp. 24–27.)
A claim for intentional
misrepresentation requires as elements the
defendant’s representation “that an important fact was true” and that
“the defendant intended that the plaintiff rely on the representation.” (Manderville
v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498.) The same
elements are included in a negligent misrepresentation claim. (National
Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group,
Inc. (2009) 171 Cal.App.4th 35, 50.) An action for promissory fraud lies
“where a promise is made without . . . intention [to perform].” (Lazar v.
Superior Court (1996) 12 Cal.4th 631, 638.) A concealment claim, meanwhile,
lies where a defendant with a duty to disclose a fact conceals or suppresses a
material fact. (See Hambrick v. Healthcare Partners Medical Group, Inc.
(2015) 238 Cal.App.4th 124, 162.)
Defendants argue that Plaintiff
has not shown a misrepresentation, a concealed fact, or a false promise.
(Motion at pp. 24–27.) They further argue that a plaintiff cannot transmute a
medical malpractice claim founded in the absence of informed consent into one
for fraud, citing Stone v. Foster (1980) 106 Cal.App.3d 334. (Motion at
p. 24.)
As discussed above, Plaintiff has shown the
existence of triable issues of fact as to whether Dr. Buxbaum represented that
he would perform the procedure. Plaintiff has therefore presented triable
issues as to whether Defendants misrepresented or concealed a material fact.
Moreover, Stone v. Foster does not assist Defendants, as that case held
that “where a physician fails to disclose low probability inherent risks and
subsequent complications arise due to those risks, the resulting cause of
action is one for negligence.” (Stone v. Foster (1980) 106 Cal.App.3d
334, 347.) Plaintiff’s fraud claims do not depend upon an alleged
misrepresentation of the inherent risks of the procedure, but rather of the
misrepresentation of the identity of the individual to be performing the
procedure. The Stone v. Foster court expressly disclaimed any holding “that a physician's preoperative
representations may never amount to fraud.” (Id. at p. 347.)
Accordingly, the motion is DENIED as to the fraud causes of action.