Judge: John J. Kralik, Case: 20STCV31521, Date: 2022-12-09 Tentative Ruling

Case Number: 20STCV31521    Hearing Date: December 9, 2022    Dept: NCB

 

Superior Court of California

County of Los Angeles

North Central District

Department B

 

 

JASPER ROSE,

                   Plaintiff,

         v.

 

RAYMOND G. TATEVOSSIAN, et al.,

                   Defendants.

 

  Case No.:  20STCV31521

 

  Hearing Date:  December 9, 2022

 

[TENTATIVE] ORDER RE:

DEMURRER

 

BACKGROUND

A.   Allegations

Plaintiff Jasper Rose (“Plaintiff”) alleges that in 2017 and sometime prior, he was being treated for back pain by Defendant Raymond G. Tatevossian, M.D., stemming from a degenerative compression of the thorax spinal discs in his back.  Plaintiff alleges that Dr. Tatevossian prescribed opioids to lessen the pain and represented that Plaintiff could get off the pain medication if he utilized a neurostimulator, and that the neurostimulator from Defendant Nevro Corporation (“Nevro”) was safe and approved by the FDA.  On September 17, 2017, based on the representations of Dr. Tatevossian and Defendant Greg Khouganian, M.D., Plaintiff went forward with surgery to surgically implant into his back the Nevro neurostimulator model NIPG1500 (serial no. 47909).  From September 17, 2017 to December 21, 2018, Dr. Tatevossian and Dr. Khouganian stated that the intensity of the device signal had to be adjusted and that the reason the device did not work was because programming of the device had changed.  Plaintiff alleges that unbeknownst to him, Defendants had negligently or wrongfully implanted the device in the thorax area of his back instead of the upper buttock and that Nevro was aware that the device was not giving the desired result. 

The third amended complaint (“TAC”), filed July 6, 2022, alleges causes of action for: (1) medical malpractice (negligence) against the Doctor Defendants; (2) negligent misrepresentation against Nevro; and (3) failure to obtain informed consent against Dr. Khouganian.

B.    Demurrer on Calendar

On September 15, 2022, Dr. Khouganian filed a demurrer to 3rd cause of action in the TAC.

On December 2, 2022, Dr. Khouganian filed a notice of non-opposition stating that he is not in receipt of an opposition brief from Plaintiff.

DISCUSSION

         Dr. Khouganian demurs to the 3rd cause of action alleged in the TAC on the ground that it is a theory of medical malpractice liability contained in Plaintiff’s 1st cause of action.  He also argues that the 3rd cause of action alleging a medical battery – conditional consent fails because Plaintiff has not shown that Dr. Khouganian intended to perform the implantation of the neurostimulator with knowledge that Plaintiff had not consented to the surgery. 

         In the 3rd cause of action, Plaintiff alleges that Dr. Khouganian was negligent because he performed an implantation surgery of the Nevro neurostimulator on September 17, 2017 and did not tell Plaintiff the advantages and disadvantages of implanting the device and account for the risk of injury to Plaintiff.  (TAC, ¶69.)  Plaintiff alleges that Dr. Khouganian deprived him of providing his informed consent.  (Id.)  He alleges that Dr. Khouganian inserted the device into the mid-lumbar region of his back without Plaintiff’s informed consent for surgery in that manner.  (Id.)  Plaintiff alleges that inadequate facts and misleading representations were made to him about the efficacy of the device, the ability to easily remove it, the number of post-surgery trials, the pain Plaintiff would suffer, etc.  (Id.)  Plaintiff alleges that Dr. Khouganian performed the procedure/surgery without obtaining his informed consent and did not adequately inform Plaintiff of the risks of the procedure.  (Id., ¶70.)  Plaintiff alleges that he gave permission to Dr. Khouganian to perform one type of surgery – “implanting a neurostimulator that was going to be approved by the end of the year for MRI purposes and which could easily be removed if it was no efficacious.”  (Id.)  However, Dr. Khouganian performed another surgery – “implanting a Neurostimulator that was not going to be approved for MRI without color contrast for over two years and would never be approved for color contrast MRI purposes” and that Dr. Khouganian was unwilling or unable to remove the neurostimulator if it was not efficacious.  (Id.) 

         Dr. Khouganian argues that the lack of informed consent cause of action fails because it is essentially a part of a medical malpractice claim.  He relies on Cobbs v. Grant (1972) 8 Cal.3d 229 in support of his position.

         In Cobbs, the plaintiff was admitted to treatment of a duodenal ulcer and his family doctor concluded that surgery was necessary.  Defendant Dr. Grant (surgeon) was called and he examined plaintiff and agreed that surgery was indicated.  Dr. Grant explained the nature of the operation to plaintiff but did not discuss any of the inherent risks.  (Cobbs, supra, 8 Cal.3d at 234.)  No one had explained to the plaintiff that injuries to the spleen and/or that evolution of new ulcers were inherent risks to the type of surgery performed on the plaintiff.  After his initial surgery, plaintiff experienced pain and had his spleen removed and was also found to be developing a gastric ulcer. The plaintiff sued Dr. Grant for medical malpractice.  The California Supreme Court discussed the question of informed consent.  The Supreme Court discussed lack of informed consent as follows:

Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery. …

However, when an undisclosed potential complication results, the occurrence of which was not an integral part of the treatment procedure but merely a known risk, the courts are divided on the issue of whether this should be deemed to be a battery or negligence. [Citations.] California authorities have favored a negligence theory.  [Citations.] 

…

We agree with the majority trend. The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.

 

The facts of this case constitute a classic illustration of an action that sounds in negligence. Defendant performed the identical operation to which plaintiff had consented. The spleen injury, development of the gastric ulcer, gastrectomy and internal bleeding as a result of the premature absorption of a suture, were all links in a chain of low probability events inherent in the initial operation.

(Cobbs, supra, 8 Cal.3d at 239-241 [emphasis added].)  The Supreme Court then went on to discuss the duty of a doctor defendant to inform plaintiff of the inherent risks of surgery under a negligence theory.

         Based on Cobbs, Dr. Khouganian argues that the lack of informed consent element is merely a part of the medical malpractice/professional negligence claim and is not a separate tort cause of action. 

         There are also some issues with the 3rd cause of action to the extent that Plaintiff is attempting to allege a medical battery claim based on lack of informed consent.  Dr. Khouganian also argues that to the extent Plaintiff is attempting to allege a medical battery claim based on lack of informed consent or conditional consent, the cause of action would fail.  CACI 530B states the elements for medical battery – conditional consent as follows:

1. That [name of plaintiff] consented to a medical procedure, but only on the condition that [describe what had to occur before consent would be given];

2. That [name of defendant] proceeded without this condition having occurred;

3. That [name of defendant] intended to perform the procedure with knowledge that the condition had not occurred;

4. That [name of plaintiff] was harmed; and

5. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.

A patient can consent to a medical procedure by words or conduct.

(CACI 530B.) 

Plaintiff alleges in the TAC that upon information and belief, he gave permission to Dr. Khouganian to perform the implantation surgery for the device that would be approved by the end of the year and that would be easily removed if not effective.  (TAC, ¶70.)  However, Plaintiff alleges that Dr. Khouganian performed another surgery by implanting the device that eventually was not approved and Dr. Khouganian was unwilling to remove the device.  (Id.)

First, according to CACI 530B, an element of conditional consent involves a condition that has to occur before consent would be given.  As alleged by Plaintiff, the condition was that the device would be approved within a year of the surgery being performed.  However, this is not a condition that could occur prior to the date of the surgery.  In addition, Plaintiff only alleges upon information and belief that he gave permission to Dr. Khouganian to perform a type of surgery, but he has not definitely alleged whether he informed Dr. Khoguanian that he was placing conditions on his consent.  Thus, to the extent that Plaintiff is attempting to allege a medical battery claim based on lack of informed consent, this would be additional grounds to sustain the demurrer.

         To the extent that the lack of consent claim alleges medical negligence, Plaintiff will be granted leave to amend the TAC only to the extent that Plaintiff may allege the facts of the 3rd cause of action in the 1st cause of action for medical malpractice.  (See Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1197, fn.2 [stating that the plaintiff had filed an action for medical negligence, alleging the doctor’s liability under an informed consent theory for performing surgery without advising her of the risks].) 

The demurrer to the 3rd cause of action is sustained with leave to amend.  To the extent that Plaintiff is alleging a lack of informed consent claim based on medical malpractice, the Court will allow Plaintiff to allege the facts in the 3rd cause of action into the 1st cause of action for medical malpractice.  However, to the extent that Plaintiff is alleging a lack of informed consent claim based on medical battery, Plaintiff should consider whether he has additional facts to support a cause of action for medical battery (based on lack of informed consent or conditional consent) prior to amendment.  If Plaintiff intends to go forward with a medical battery claim, then additional facts must be pled to support this cause of action.

CONCLUSION AND ORDER

         Defendant Greg Khouganian, M.D.’s demurrer to the 3rd cause of action in the Third Amended Complaint is sustained with leave to amend.  Leave to amend shall be granted based on the limitations provided in the Court’s written order.

Defendant shall provide notice of this order.