Judge Michael D. Washington, Case 37-2022-00037107-CU-MM-NC 2024-03-29 Tentative Ruling

Judge: Michael D. Washington, Case: 37-2022-00037107-CU-MM-NC, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - March 28, 2024

03/29/2024 10:30:00 AM N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited Medical Malpractice Summary Judgment / Summary Adjudication (Civil) 37-2022-00037107-CU-MM-NC HORN VS. OSORIO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 01/12/2024

The Motion for Summary Judgment brought by defendants BreakingThrough San Diego Physical Therapy P.C and Santiago Osorio D.P.T. (collectively, Defendants or the Physical Therapist) is OFF-CALENDAR as withdrawn.

The Motion for Summary Adjudication brought by Defendants is disposed as follows: --First Cause of Action (Professional Negligence) – OFF-CALENDAR as withdrawn --Second Cause of Action (Medical Battery) – DENIED Objections to Evidence The Objections to Evidence brought by plaintiff Leon Horn (Plaintiff) are disposed as follows: Objection No. 1: Overruled Objection No. 2: Overruled Objection No. 3: Overruled Objection No. 4: Overruled Objection No. 5: Overruled Objection No. 6: Overruled Objection No. 7: Overruled Objection No. 8: Overruled Objection No. 9: Overruled Merits of Motion Plaintiff presented to a physician with shoulder issues and was referred to physical therapy. The Physical Therapist obtained the patient's signature on a broad consent form that authorized the physical therapist 'to render to Patient physical therapy, occupational therapy, speech therapy or other related services that the Provider or Patient's treating physician determines may be necessary or advisable.' There is some dispute about this consent form because the patient does not read English. The patient's position is that he believed he was going to be receiving gentle motion therapy to his shoulder. During his time with the Physical Therapist, however, the Physical Therapist conducted a maneuver in which he pulling the patient's head away from his body in a way that stretched his neck. The patient claims he did not consent to any neck procedures. The Physical Therapist claims that the neck procedure he performed was within the purview of treating and/or diagnosing a shoulder issue and produced expert testimony to support this position: Calendar No.: Event ID: TENTATIVE RULINGS

3090867 CASE NUMBER: CASE TITLE: HORN VS. OSORIO [IMAGED] 37-2022-00037107-CU-MM-NC 14. Given that Plaintiff presented with complaints of radicular pain going down his arm, proper treatment necessarily included evaluation of the patient's neck, as standard treatment protocol requires a physical therapist to evaluate the joints above and below the affected body part, and which is within the standard of care. The tests Dr. Osorio performed on Plaintiff's neck are standard tools for assessment and evaluation of arm radiculopathy, and are not considered high-velocity manipulations. The standard of care does not require a separate informed consent discussion for assessment of each body part that is reasonably related to the patient's complaints, as Plaintiff's neck was in this case. A functional assessment of Plaintiff's neck, as was done here, is an integral component of evaluating radicular symptoms in his right arm.

(Notice of Lodgments, Ex. E, Herkimer Decl., ¶ 14.) This meets the doctor's initial burden to demonstrate that he obtained consent to conduct the neck procedure that is at issue.

The burden having shifted to Plaintiff to demonstrate a triable issue, produces expert testimony as to the following: 17. ... Santiago Osorio decided to 'evaluate' the neck or cervical spine, which was not identified in the referral and to which Dr. Horn had not consented and had not complained of neck pain.

18. During testing of the right shoulder and of the neck/cervical spine, Santiago Osorio failed to recognize the importance of using routine PT tests to screen for spinal cord, rootlet, spinal nerve, brachial plexus, and/or individual peripheral nerve compromise that would cause shoulder pain, when the shoulder pain is not coming from a problem in the shoulder joint. Failure to map the distribution of pain, tingling, and numbness in the right upper quadrant and to manual muscle test specific muscles to identify one or more myotomal, plexus, or individual peripheral nerve patterns, if they exist, constitutes failure to evaluate.

This is especially true in post-traumatic shoulder pain when nerves controlling the shoulder complex may have been injured as part of the trauma... (ROA 61, ¶ 18 (underline in original) (bold added).) This is a fairly thin reed upon which to establish a triable issue of fact as to the issue of consent. As worded, Plaintiff's expert testimony goes more to the medical judgment involved in how to evaluate the patient than to whether or not consent was obtained.

Our high court has made it clear that battery and lack of informed consent are separate causes of action.

A claim based on lack of informed consent – which sounds in negligence – arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining consent. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 (citations omitted) (emphasis added); see also CACI Nos.

530A and 530B with CACI No. 533.) As such, the 'failure to evaluate' as characterized by Plaintiff's expert does not quite seem to get at the issue of the scope of consent. However, there is a great deal of nuance in the scope of consent issue as it is being presented. 'Any doubts about the propriety of summary judgment... are generally resolved against granting the motion, because that allows the future development of the case and avoids errors.' Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839, quoting Henley, Action Guide, Making and Opposing a Summary Judgment Motion (Cont.Ed.Bar 1998) p. 15. While there is an argument to be made that '[s]ummary judgment is no longer regarded as a disfavored procedural shortcut...' the old rule that where there is doubt or a close call, the tie should go to the opposing party in order to allow for future development of the case and avoidance of errors remains a wise one. (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 10:278, citing Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542, also citing Montes v. Young Men's Christian Ass'n of Glendale, Calif. (2022) 81 Cal.App.5th 1134, 1139, also citing Duckworth v. Tri-Modal Distribution Services, Inc. (2020) 47 Cal.App.5th 532, 540 (reversed on other grounds by Pollock v. Tri-Modal Distribution Services, Inc. (2020) 47 Cal.App.5th 532).) However weak the claim of medical battery may be, there appears to be the slightest dispute of material fact that warrants denial of the motion in favor of allowing a fact-finder to pass on the issue.

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3090867 CASE NUMBER: CASE TITLE: HORN VS. OSORIO [IMAGED] 37-2022-00037107-CU-MM-NC Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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