Judge John J. Kralik, Case 20STCV31521 2023-04-14 Tentative Ruling

Plaintiff Jasper Rose (“Plaintiff”) alleges that in 2013 to 2019, 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 2019, 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 action was commenced on August 18, 2020. The fourth amended complaint (“4AC”), filed January 10, 2023, alleges causes of action for: (1) negligent misrepresentation against Dr. Khouganian; (2) negligent misrepresentation against Nevro; and (3) failure to obtain informed consent against Dr. Khouganian.

On February 7, 2023, Dr. Khouganian filed a demurrer to 3^rd cause of action in the 4AC. Concurrently, he filed a motion to strike portions of the 4AC.

On April 6, 2023, Dr. Khouganian filed a reply brief to the opposition to the demurrer. Dr. Khouganian filed a notice of non-opposition to the motion to strike, stating that he was not in receipt of an opposition brief from Plaintiff.

Dr. Khouganian demurs to the 3^rd cause of action alleged in the 4AC. The caption of the 4AC states that the 3^rd cause of action is for failure to obtain informed consent, but the 3^rd cause of action in the body of the 4AC states that it is a claim for medical battery. (See 4AC at pp.1 and 19.)

In the 3^rd cause of action, Plaintiff alleges that Dr. Khouganian was negligent because he performed an implantation surgery of the Nevro neurostimulator by “not following the map that had been constructed by Doctor Tatevossian, and implanting paddle leads improperly, implanting the battery where it was sure to aggrevate [sic] muscle tissue by Plaintiff’s movements and not tell Plaintiff the advantages and disadvantages of implanting the neurostimulator and accounting for the risk of injury to Plaintiff in implanting the neurostimulator, without first obtaining Plaintiff’s consent.” (4AC, ¶84.) He also alleges that Dr. Khouganian implanted the neurostimulator without first explaining to Plaintiff that it was likely he would need additional surgery to address the degeneration of L3 to SI of the spine and not obtaining Plaintiff’s consent with the indication of such knowledge. (Id.) Plaintiff alleges that Dr. Khouganian did not inform Plaintiff that there was an appreciable difference between the percutaneous leads (inserted by a small cut in the back and fished up the spine to the correct nerve) which were discussed with Plaintiff and the paddle leads that were implanted into Plaintiff’s body (implanted by using a fluoroscope and after the leads are fished up the spine, the back is opened up and paddles are screwed down on the spine, which produced a risk of ionizing radiation to the patient).[1] (Id., ¶85.) Plaintiff alleges he had been diagnosed with cancer and was not told of the risks of radiation, such that Dr. Khouganian deprived him of informed consent. (Id.) Plaintiff alleges that Dr. Khouganian inserted the neurostimulator into the mid-lumbar region of Plaintiff’s back and that he suffers from debilitating intermittent pain to this day due to over-stimulation. (Id., ¶86.) He alleges that Dr. Khouganian intentionally concealed material information from Plaintiff and he did not give his informed consent to undergo the operation. (Id., ¶87.)

Dr. Khouganian argues that the 3^rd cause of action fails to state a medical battery claim because it only states a claim for negligent failure to obtain informed consent. He relies on Cobbs v. Grant (1972) 8 Cal.3d 229 in support of his demurrer argument.

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 and 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 Plaintiff’s claim for lack of informed consent and medical battery do not show that this is a situation where the surgery was performed without any consent. He cites to paragraphs 84 and 87, which allege that Dr. Khouganian was negligent in performing the surgery and that he intentionally concealed information. Dr. Khouganian argues that his alleged actions were not battery and that to the extent Plaintiff was misinformed about the surgery, this refers to a negligent failure of full disclosure. (Dem. at p.7 [citing Freedman v. Superior Court (1989) 214 Cal.App.3d 734, 740 (“The Cobbs court concluded that a patient whose consent had been exceeded by a well-meaning physician attempting therapeutic treatment should be relegated to a negligence cause of action. Our conclusion is that a patient whose consent has been obtained by a well-meaning deception as to the precise medical effect of the treatment should also be relegated to a negligence action.”)].)

The Court previously sustained with leave to amend Plaintiff’s cause of action for lack of informed consent in the TAC, stating that: (a) to the extent Plaintiff was alleging a lack of informed consent cause of action based on medical malpractice, the Court would allow Plaintiff to allege the facts of the claim in the medical malpractice cause of action in the TAC; and (n) to the extent Plaintiff was alleging a lack of informed consent claim based on medical battery, Plaintiff should consider whether he did have additional facts to support such a claim and to allege medical battery in a separate cause of action upon amendment. The Court granted leave to amend based on the limitations in its written order. (See 12/9/22 Minute Order at p.5.)

After reviewing the allegations of the 3^rd cause of action, the Court finds that the failure to obtain informed consent cause of action is one sounding in medical malpractice and not a claim for medical battery. Although Plaintiff alleges in the 4AC that there was an appreciable difference between implantation by percutaneous leads and paddle leads, Plaintiff is essentially alleging that he was not informed about each step or the risks of the procedure, as opposed to allegations that he consented to one type of procedure but Dr. Khouganian happened to perform a different type of procedure.

Interestingly, the 1^st cause of action for medical malpractice in the TAC was omitted from the allegations of the 4AC. Although the 4AC only alleges a cause of action for lack of informed consent based on medical battery, the Court may disregard the heading of the causes of action. “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Thus, the Court will overrule the cause of action so that the lack of informed consent cause of action may proceed as a medical malpractice cause of action only. However, the Court, in its discretion, strikes without leave to amend the heading and the allegations of the 3^rd cause of action to the extent that it is attempting to allege a medical battery claim. (CCP § 436.)

Dr. Khouganian moves to strike the new cause of action of negligent misrepresentation (4AC, ¶¶29-50) and the new “Facts Relevant to All Cases” allegations (4AC, ¶¶9-28). Dr. Khouganian argues that these new allegations were added beyond the Court’s order allowing leave to amend the lack of informed consent/medical battery cause of action based on the ruling on the prior demurrer to the third amended complaint. (12/9/22 Order.) Specifically, the Court stated in its December 9, 2022 written order on the demurrer to the TAC: “Leave to amend shall be granted based on the limitations provided in the Court’s written order.” Leave to amend was only granted with respect to the 3^rd cause of action depending on whether Plaintiff was attempting to allege a lack of informed consent claim as a medical malpractice claim or as a medical battery claim.

The Court grants the motion to strike the new cause of action for negligent misrepresentation. Plaintiff’s amendment to include the new 1^st cause of action in the 4AC was beyond the Court’s grant of leave to amend the 3^rd cause of action for informed consent/medical battery from the prior demurrer. The Court also notes that the motion to strike is not opposed and thus Plaintiff does not raise any objections to the motion to strike.

Next, Dr. Khouganian moves to strike the allegations in paragraphs 9-28, which include allegations regarding the background of the neurostimulator (¶¶9-17: FDA regulation of medical devices, how the HF10 NPIG1500 neurostimulator is supposed to work, tests prior to implantation, the components of the neurostimulator, implantation set up), the nature of Plaintiff’s complaint (¶¶18-19), doctor as fiduciary to a patient (¶20), false claims by Plaintiff’s doctors and Nevro (¶¶21-22), and delayed discovery (¶¶23-28). As stated in its December 9, 2022 order on the demurrer to the TAC, the Court only granted limited leave to amend as to the lack of informed consent cause of action to the extent Plaintiff intended to allege a medical battery claim. Plaintiff’s additions go beyond this order. Further, on March 24, 2023, the Court denied Plaintiff’s motion for leave to file the fifth amended complaint, which was filed while Dr. Khouganian’s demurrer to the 4AC had already been filed and scheduled. The Court found that Plaintiff’s proposed amendments were not modest and that the 5AC included 5 new pages of allegations, which are the allegations cited above in paragraphs 9-28 of the 4AC. It may be that some of the allegations of the 4AC have reworded the background facts of the TAC, but at this point, Plaintiff and his counsel have clouded the record by amending the pleading beyond the Court’s order and without asking the Court for leave to amend prior to making those changes, and demonstrating good cause for such late amendments. Thus, the motion to strike these allegations is granted. As noted above, Plaintiff has not opposed the motion to strike and thereby has not justified these additions or shown whether the additions were proper. As such, the motion to strike is granted without leave to amend.

Defendant Greg Khouganian, M.D.’s demurrer to the 3^rd cause of action in the Fourth Amended Complaint is overruled to the extent that the 3^rd cause of action may only proceed as a failure to obtain informed consent cause of action based on medical malpractice. Pursuant to CCP § 436, the Court in its discretion strikes without leave to amend the heading and the allegations of the 3^rd cause of action to the extent that it is attempting to allege a medical battery claim.

Defendant Greg Khouganian, M.D. is ordered to answer the operative complaint within 10 days of this order.

[1] In the opposition brief, Plaintiff argues that the 3^rd cause of action is based on “newly discovered evidence” and that Plaintiff’s counsel discovered new evidence only after filing the 4AC. (Opp. at pp. 1 and 3.) In reply, Dr. Khouganian argues that allegations regarding percutaneous leads versus paddle leads was not newly discovered evidence and that Plaintiff has alleged facts about these different leads in the 4AC. Dr. Khouganian argues that the complaint was filed on August 18, 2020 and to now allege these facts nearly 2 years and 6 months later is a delay. However, to the extent that Dr. Khouganian is arguing such allegations are time barred, no such arguments were made in the demurrer papers.

Superior Court of California

County of Los Angeles

Department B