Judge Lisa K. Sepe-Wiesenfeld, Case Number: 21STCV34039, Date: 2024-02-29 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 21STCV34039, Date: 2024-02-29 Tentative Ruling

At the outset, the Court notes that it has not considered Defendant’s “Response to Plaintiff’s Separate Statement of Additional Material Facts,” as this document is a reply separate statement not authorized by statute, and Defendant failed to seek leave of court to file such a document. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [“There is no provision in the statute for” including a reply separate statement].)

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 (Avivi).)

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

“There are three elements to a claim for medical battery under a violation of conditional consent: the patient must show his consent was conditional; the doctor intentionally violated the condition while providing treatment; and the patient suffered harm as a result of the doctor’s violation of the condition.” (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269.)

In the first cause of action, Plaintiff alleges that Defendant had a duty to inform her and obtain her consent before performing the alleged medical procedure, specifically placing silicone implants instead of saline implants as Plaintiff requested and placing them in a flipped manner, and Defendant had a duty to disclose the material risks involved in the procedure, but Defendant failed to disclose the risks or obtain consent, and he performed a substantially different medical procedure than agreed to by Plaintiff. (SAC ¶¶ 19-21.) Plaintiff also alleges that Defendant knew or should have known that this procedure would cause Plaintiff distress because of her history with silicone implants. (SAC ¶ 23.)

Defendant presents evidence that Plaintiff knew Defendant would use Allergan silicone implants, as evidenced by the consent form she signed, the cost estimate, and the email sent to her by Katie Linter on September 14, 2020. (Def.’s UMF Nos. 5, 6, 9-14.) This evidence allows Defendant to meet his burden of showing no triable issue of material fact exists as to whether Defendant intentionally violated any condition placed on Plaintiff’s consent because Plaintiff was informed Allergan silicone implants would be used.

In opposition, Plaintiff provides evidence that she communicated to Defendant that she only wanted saline implants, Defendant informed Plaintiff the only consent form he had in the office mentioned silicone, Plaintiff did not initial or sign the first page of the consent form because it mentioned silicone gel, Defendant told Plaintiff he understood that she only wanted saline, and Defendant did not give Plaintiff the Allergan product information brochure to review or the Acknowledgement of Informed Consent form prepared by Allergan confirming that Defendant was using an Allergan silicone product on the day of the surgery. (Pl.’s UMF No. 6, 10, 11, 12, 20.)

Plaintiff has failed to create a triable issue of material fact as to whether Defendant is liable for battery. Plaintiff’s arguments and evidence may create a triable issue as to whether Defendant performed the procedure without informed consent, but this is not the standard for a battery claim. A battery claim requires showing that Defendant obtained no consent from Plaintiff, not that she was not aware of the risks, which would constitute a negligence claim arising out of lack of informed consent. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.) While Plaintiff did not initial the first page, she initialed later pages of the consent form referencing silicone implants, including a page with bold underlined text saying “Inherent Risks of Silicone Gel-Filled Breast Implants,” such that she consented to that procedure. (Def.’s Ex. F.) Again, it is possible that Plaintiff did not provide informed consent, but Plaintiff has failed to provide sufficient evidence that she provided no consent to the procedure and that Defendant intentionally violated any condition placed on Plaintiff’s consent because Plaintiff was informed silicone implants would be used. For this reason, Defendant’s motion for summary adjudication is GRANTED as to the first cause of action for battery.

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.)

Plaintiff alleges she had saline Mentor breast implants surgically placed in February 2013, and an ultrasound and MRI in July and August 2020 revealed evidence of a ruptured implant, which entitled her to two free replacements and $3,500 for surgical fees. (SAC ¶ 6.) On September 10, 2020, Plaintiff consulted with Defendant to discuss the replacement of her implants and to process the Mentor plan replacement warranty. (SAC ¶ 7.) On September 24, 2020, Defendant performed surgery to replace the implants, but Defendant allegedly concealed that he had not completed the Mentor saline implant replacement request process, and he concealed that the implants would be replaced with silicone implants, contrary to Plaintiff’s request. (SAC ¶¶ 9, 38.) Defendant stated that Mentor would not honor the warranty and saline implants were no longer available. (SAC ¶ 9.) Plaintiff later learned that Defendant had not completed the warranty process by failing to respond to communication from Mentor, and he misrepresented in Plaintiff’s records that she had consented to silicone implants. (SAC ¶¶ 10-11, 38.)

Defendant submits evidence that there was no rupture or deflation in Plaintiff’s right implant; Defendant’s operative report indicated the implant was intact with no leak, and Defendant’s expert, Robert Applebaum, M.D., who reviewed videotape of the procedure, opines that the right implant was not deflated in any way. (Def.’s UMF Nos. 17, 18.) Dr. Applebaum noticed no visible difference in size between the right and left implants, and no liquid could be seen dripping out of the implant, causing him to conclude that, to a reasonable medical probability, the right implant did not have any leakage or rupture, and any indications of a rupture or leak seen on prior radiology studies were caused by something other than a rupture or leak. (Mot., Applebaum Decl. ¶ 6.) By its terms, the Mentor warranty did not apply if there was no rupture or deflation. (Def.’s UMF Nos. 22, 24.) Further, the warranty would not apply because the warranty required replacement of Mentor implants with Mentor implants, and Plaintiff did not exchange her Mentor implants for other Mentor implants. (Def.’s UMF Nos. 19-23.) Defendant also provides evidence that Plaintiff was sent an email that the warranty would not apply, such that Defendant did not intend to defraud Plaintiff. (Def.’s UMF Nos. 13, 14.)

In opposition, Plaintiff’s expert, Hatem Abou-Sayed, M.D., does not render an opinion as to whether there was a deflation or leak in the right implant. Plaintiff also provides the deposition testimony of Ashley Leeser, Person Most Knowledgeable regarding Mentor implants, who testified that the warranty would apply if there was evidence confirming a deflation or rupture, but Leeser did not testify that there was a rupture or deflation here, or that the warranty would apply where there was no rupture or deflation; she testified only that if a surgery moved forward based on a belief of rupture or deflation while there was no actual rupture or deflation, the belief would be taken into consideration when determining if the warranty applied. (Opp’n, Ex. 3.) Plaintiff’s failure to provide a medical opinion that the radiology studies confirmed a rupture or deflation render it such that there is no basis to conclude the warranty would have applied in this case. Further, Plaintiff provides no evidence to refute a conclusion that the warranty would not have applied here because Plaintiff did not replace her Mentor implants with other Mentor implants. Thus, Plaintiff fails to create a triable issue as to her fraud claim because Defendant did not intend to deceive Plaintiff, and Plaintiff was informed that Allergan implants would be used and the warranty would not apply. Accordingly, Defendant’s motion to summary adjudication is GRANTED as to the third cause of action.