Judge: Salvatore Sirna, Case: 22STCV12956, Date: 2024-03-13 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 22STCV12956    Hearing Date: March 13, 2024    Dept: G

Defendants Keum Kang Choi, D.D.S. and Keum Kang Choi Dental Corporation’s Motion for Summary Adjudication

Respondent: Plaintiff Huizhen Meng

Defendants Keum Kang Choi, D.D.S. and Keum Kang Choi Dental Corporation’s Motion for Summary Judgment, or in the alternative, Summary Adjudication

Respondent: Plaintiff Huizhen Meng

TENTATIVE RULING

Defendants Keum Kang Choi, D.D.S. and Keum Kang Choi Dental Corporation’s Motion for Summary Adjudication is GRANTED IN PART as to the Second Cause of Action and DENIED IN PART as to the First and Third Causes of Action.

Defendants Keum Kang Choi, D.D.S. and Keum Kang Choi Dental Corporation’s Motion for Summary Judgment is DENIED.

BACKGROUND

This is a medical malpractice action. In April 2017, Plaintiff Huizhen Meng began visiting Defendants Keum Kang Choi, D.D.S.; Keum Kang Choi Dental Corporation (Dr. Choi Dental); Udream Dental; George Xenakis, D.D.S.; and George Xenakis, D.D.S., P.C. (Dr. Xenakis P.C.) for Meng’s dental hygienic needs. In January 2021, Defendants extracted six of Meng’s teeth and performed implants and grafts on Meng’s removed teeth. After the procedures, Meng developed a mouth infection and was hospitalized eleven days later for necrotizing fasciitis of the left parapharyngeal and submental space. As a result of the spreading infection, Meng suffered acute kidney failure and had to undergo myectomies. In February 2021, Meng was transferred to another hospital where Meng received postoperative treatment and reconstructive surgeries.

On April 18, 2022, Meng filed a complaint against Defendants and Does 1-20, alleging (1) medical negligence and (2) medical battery.

On June 8, 2022, Meng filed a First Amended Complaint (FAC) against the same defendants, adding a third cause of action for breach of fiduciary duty. On August 5, 2022, the court sustained Dr. Choi and Dr. Choi Dental’s demurrer to Meng’s FAC.

On September 6, 2022, Meng filed a Second Amended Complaint (SAC) against the same defendants alleging the same causes of action. On January 10, 2023, the court overruled Dr. Choi and Dr. Choi Dental’s demurrer to Meng’s SAC.

On November 15, 2023, Dr. Choi and Dr. Choi Dental (collectively, Dr. Choi) filed the present motion for summary adjudication. On November 20, Dr. Choi also filed the present motion for summary judgment.

A hearing on the present motions is set for March 13, 2024, with a final status conference on October 29, jury trial on November 12, and OSC Re: Dismissal on April 14.

EVIDENTIARY OBJECTIONS

Dr. Choi’s evidentiary objections to the declaration of Meng are OVERRULED as to Nos. 1, 2, 3, and 4. Objections not made in compliance with California Rules of Court 3.1354, subdivision (b), are not considered by the court.

ANALYSIS

Dr. Choi moves for summary judgment or adjudication of all three of Plaintiff Meng’s causes of action and on the ground that noneconomic damages should be reduced pursuant to the Medical Injury Compensation Reform Act (MICRA). For the following reasons, the court GRANTS Dr. Choi’s motion in part as to the second cause of action and DENIES Dr. Choi’s motion on all other grounds.

Legal Standard

A motion for summary judgment or adjudication provides “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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) It must be granted “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, quoting Code Civ. Proc., § 437c, subd. (c).) To establish a triable issue of material fact, the opposing party must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

Medical Negligence (First Cause of Action)

Dr. Choi argues summary judgment of Meng’s medical negligence claim is proper because Dr. Choi acted within the appropriate standard of care and was not the cause of Meng’s injuries. The court disagrees.

Legal Standard

A cause of action for medical negligence consists of the following elements: “(1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230, quoting 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 488 et seq., p. 2749.)

“In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [Citation], except in cases where the negligence is obvious to laymen. [Citation.]” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) And “[w]hen a defendant moves for summary judgment and supports [their] motion with expert declarations that [their] conduct fell within the community standard of care, [they are] entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985, quoting Hutchinson v. United States (9th Cir. 1988) 838 F.2d 390, 392.) Similarly, “[w]here the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation.” (Garbell v. Conejo Hardwoods, Inc. (2011) 193 Cal.App.4th 1563, 1569.) Plaintiffs must establish “that defendants’ breach of the standard of care was the cause, within a reasonable medical probability, of [their] injury.” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509.)

Discussion

In Meng’s SAC, Meng alleges Dr. Choi breached the applicable standard of the care in nine different ways by (1) failing to obtain informed consent, (2) failing to maintain adequate documentation of why Meng’s teeth were extracted, (3) failing to obtain an updated and accurate medical history from Meng prior to performing the procedures, (4) failing to identify and consider that Meng was a known diabetic, (5) failing to perform x-rays prior to the procedures, (6) failing to obtain periodontal probing charts and perform periodontal probing prior to the procedure, (7) failing to adopt a more cautious approach before performing the procedures, (8) failing to address Meng’s periodontal disease and diabetes before performing extractions and implants, and (9) failing to provide proper post-operation care. (SAC, ¶ 68, 71.) The court first addresses the issue of informed consent.

Informed Consent

“Because a patient relies upon her physician’s greater medical knowledge when seeking medical treatment, the physician has a fiduciary-like duty to obtain his patient’s informed consent regarding which course of treatment to pursue.” (Flores v. Liu (2021) 60 Cal.App.5th 278, 292 (Flores). Failure to do so constitutes negligence. (Ibid.) This duty requires a physician “to disclose to the patient all material information—that is, ‘information which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure’—needed to make an informed decision regarding a proposed treatment.” (Arato v. Avedon (1993) 5 Cal.4th 1172, 1186.)

Material information “include[s] (1) a ‘reasonable explanation of the [recommended] procedure[(s)],’ (2) the ‘likelihood of success’ of each recommended procedure, (3) ‘the risks involved in accepting [and] rejecting [each] proposed [procedure],’ particularly the ‘potential of death or serious harm’ and ‘the complications that might possibly occur,’ and (4) the physician's ‘personal interests’ that may affect his judgment, even if ‘unrelated to the patient's health.’” (Flores, supra, 60 Cal.App.5th at p. 293, quoting Cobbs v. Grant (1972) 8 Cal.3d 229, 243-245 (Cobbs).) Because “the duty to obtain informed consent is pegged to what a ‘reasonable person’ in the patient’s position would deem to be ‘material’ to her medical decision-making (rather than being pegged to customs for disclosure in the profession), the decision as to what information should be disclosed is entrusted chiefly to the trier of fact, and not to medical experts.” (Id., at p. 294.) Other disclosures “might be material if ‘skilled practitioner[s] of good standing’ would ‘provide’ those disclosures ‘under similar circumstances.’” (Id., at p. 293, quoting Cobbs, supra, 8 Cal.3d at p. 244-245.) This does require the opinion of medical experts. (Id., at p. 294.)

In this case, Meng first met Dr. Choi during a consultation on April 21, 2017. (Defendants’ Separate Statement (DSS), ¶ 3; MSJ, Ex. N, p. 141:13-16.) In deposition, Dr. Choi stated Dr. Choi recommended extraction of Meng’s teeth and dentures or implants. (DSS, ¶ 3; MSJ, Ex. N, p. 141:16-24.) But, Dr. Choi failed to state if Dr. Choi obtained Meng’s informed consent at the time. When Dr. Choi saw Meng again on January 5, 2021, Dr. Choi told Meng that Meng needed a new treatment plan and explained “why extraction, bone graft, and implant placement were needed.” (MSJ, Ex. N, p. 54:19-55:3.) Dr. Choi also explained how much time it would take and how many more times Meng had to visit Dr. Choi. (MSJ, Ex. N, p. 55:3-5.) After Meng had a deep cleaning done, Dr. Choi stated Meng asked for the tooth extraction procedure. (MSJ, Ex. N, p. 55:15-18.) After Dr. Choi asked Meng “[d]o you really want to do this today,” Meng answered in the affirmative and wanted all of the extraction, bone graft, and implant procedures to be done at once because Meng did not want to keep coming to the dental office. (MSJ, Ex. N, p. 55:19-24.) Dr. Choi then asked if Meng had any change in medical condition from 2017 and when Dr. Choi learned Meng had diabetes, Dr. Choi asked Meng if Meng’s disease was severe and if Meng could control Meng’s blood sugar. (MSJ, Ex. N, p. 56:9-17.) When Dr. Choi finished extracting Meng’s teeth, Dr. Choi stated Meng verbally agreed to have the implants done as well. (MSJ, Ex. N, p. 57:1-9.) Dr. Choi stated Dr. Choi did not obtain Meng’s written consent for the procedures but did obtain Meng’s verbal consent through a translator. (MSJ, Ex. O, p. 179:18-24.)

In Meng’s deposition, Meng was unable to remember if Meng asked for the implants or how Meng responded. (MSJ, Ex. L, p. 37:10-14, 38:4-7.) During the January 5, 2021 visit, Meng was also accompanied by Meng’s daughter, Guo Fang. (MSJ, Ex. M, p. 10:12-13, 74:19-75:11.) In a deposition, Fang stated Fang observed Dr. Choi and Sara Fang, a translator, showing a form with a diagram of teeth to Meng where they pointed to the teeth on the diagram and told Meng which ones needed to be extracted and where the implants would go. (MSJ, Ex. M, p. 75:19-76:19.) Fang also stated Meng asked Dr. Choi if Meng could have the extractions and implants as a diabetic and Dr. Choi responded “yes” and stated “Oh, you can do that. It’s not a problem.” (MSJ, Ex. M, p. 79:15-20, 81:5-10.)

In both Dr. Choi and Fang’s accounts of the January 5 visit, there is no evidence to suggest Dr. Choi went over any risks of the dental procedures or made any disclosures, even when Meng’s diabetes was mentioned. In arguing Meng gave informed consent, Dr. Choi points to a series of informed consent forms that Meng signed at the January 5 visit. (DSS, ¶ 6; MSJ, Ex. D, p. 14, 16-17.) But a signed consent form itself is not conclusive proof of informed consent, especially when questions of fact exist with regards to the patient’s ability to understand or read the form. (See Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95, 115-116.) Here, Meng stated Meng signed various forms on January 5 that were in English and that Feng, the translator, failed to translate or explain the forms. (Opp., Ex. A, ¶ 10.) Thus, the court finds that the signed consent forms are not sufficient to establish Meng gave informed consent as a matter of law.

“The law is clear in California that the existence of informed consent is an issue of fact for the jury. The question has been described as ‘a peculiarly fact-bound assessment which juries are especially well-suited to make.’” (Id., at p. 115, quoting Arato v. Avedon (1993) 5 Cal.4th 1172, 1186.) In this case, Dr. Choi failed to demonstrate the absence of a triable issue of fact with regard to the issue of informed consent as Dr. Choi’s own evidence fails to establish Dr. Choi made any disclosures or warnings of risk to Meng. Furthermore, “if multiple theories are pled, ‘the defendant has the burden of demonstrating there are no material facts requiring trial on any of them.’” (Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 662-663, quoting Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 163.) Thus, because Dr. Choi cannot establish grounds for summary judgment on the issue of informed consent, the court need not address the other theories of medical negligence raised by the parties.

Accordingly, Dr. Choi’s motion for summary adjudication on this cause of action is DENIED.

Medical Battery (Second Cause of Action)

Dr. Choi contends summary adjudication of Meng’s second cause of action for medical battery is proper because (1) Meng gave consent for the dental procedures at issue (2) Dr. Choi’s treatment was not substantially different from what Meng consented to, (3) Meng cannot show a clear or intentional deviation for the consent that was given, and (4) Meng cannot show an act or omission by Dr. Choi was the cause of or contributed to Meng’s injuries. The court agrees as the undisputed material facts establish that Meng consented to the dental procedures at issue.

Legal Standard

“It is well settled that a physician who performs a medical procedure without the patient’s consent commits a battery irrespective of the skill or care used.” (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266-1267.) In analyzing medical battery claims, “[o]ur Supreme Court has distinguished between ‘two qualitatively different types’ of medical battery. [Citation.] The first, an intentional tort, ‘occurs when a physician obtains the patient’s consent to perform one type of treatment, but performs a substantially different treatment for which the plaintiff gave no consent.’” (Burchell v. Faculty Physicians & Surgeons of Loma Linda University School of Medicine (2020) 54 Cal.App.5th 515, 523-524, quoting Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 349 (Larson).)

“The second type of battery is a technical battery, which occurs when a physician performs the treatment for which consent was obtained and an infrequent complication occurs that the physician failed to disclose when obtaining the patient’s consent. In that circumstance, the claim is based on professional negligence, not intentional misconduct, because the physician did not deliberately deviate from the consent, but merely failed to disclose all known potential complications.” (Larson, supra, 230 Cal.App.4th at p. 349.) As a result, our supreme court has held “[t]he battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented” while claims that a doctor “failed to meet his due care duty to disclose pertinent information. . . . should be pleaded in negligence.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 240-241.)

Discussion

In this case, Meng alleges Meng’s consent to the dental procedures at issue was subject to the condition that Dr. Choi would first treat Meng’s periodontal disease. (SAC, ¶ 93.) Meng alleges Dr. Choi exceeded the scope of that consent by performing the procedures without first addressing and curing Meng’s dental disease. (SAC, ¶ 92-94.) But the undisputed material facts establish that Meng’s consent was not limited by such a condition.

As noted in the previous section, Dr. Choi stated in deposition that Meng requested the procedures on January 5 and reaffirmed Meng’s request after Dr. Choi asked Meng if Meng was sure. (DSS, ¶ 5; MSA, Ex. N, p. 55:15-24.) According to Dr. Choi, Meng requested all of the procedures at once because Meng did not want to return to the dental office for multiple visits. (MSA, Ex. N, p. 55:19-24.) Dr. Choi then obtained Meng’s verbal consent to proceed with the extractions and received verbal consent to proceed with the implants after the extractions were completed. (MSA, Ex. N, p. 57:1-9; Ex. O, p. 179:18-24.) In depositions, both Dr. Choi and Guo Fang, Meng’s daughter, stated that they discussed Meng’s diabetic condition before the procedure. (MSA, Ex. M, p. 79:15-20, 81:5-10; Ex. N, p. 56:9-17.) But neither Dr. Choi nor Fang stated that the curing of Meng’s periodontal disease was discussed as a condition for Meng’s consent to the dental procedures. In Meng’s deposition, Meng stated Meng was unable to remember if Meng asked for the implants or how Meng responded. (MSA, Ex. L, p. 37:10-14, 38:4-7.)

In opposition, Meng provided a declaration that stated “[b]ecause I was concerned about how the dental procedures would affect my diabetes, my consent to have [Dr. Choi] extract my teeth and place implants in my mouth was conditioned on [Dr. Choi] first controlling the infections in my mouth.” (MSA Opp., Ex. A, ¶ 9.) But Meng fails to state how, when, and to whom Meng communicated this condition to. Thus, even if Meng had these concerns, there are no material facts establishing that Meng communicated this condition to Dr. Choi. As a result, it is undisputed that Dr. Choi acted within the scope of Meng’s consent.

Meng also contends that Dr. Choi failed to obtain Meng’s informed consent before proceeding with the dental procedures at issue. But “[o]ur 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 any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.) While the issues of informed consent are relevant to Meng’s first cause of action for medical negligence, they have no application to Meng’s cause of action for medical battery which requires Dr. Choi’s intentional deviation from Meng’s consent. Based on the undisputed material facts, Dr. Choi did not deviate from Meng’s consent by allegedly failing to treat Meng’s periodontal disease as there are no material facts to establish that Meng’s consent was conditioned on that treatment.

Accordingly, Dr. Choi’s motion for summary adjudication of this cause of action is GRANTED.

Breach of Fiduciary Duty (Third Cause of Action)

Dr. Choi maintains summary adjudication of Meng’s third cause of action for breach of fiduciary duty is proper because there is no evidence to support Meng’s claims. The court disagrees.

Legal Standard

“The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) With regards to patients and physicians, “in soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129 (Moore).) While these disclosures typically involve the medical risks of a certain procedure, physicians are also required “disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect his medical judgment.” (Id., at p. 131-132.)

Discussion

In this case, Meng alleges Dr. Choi failed to disclose economic interests that affected Dr. Choi’s professional judgment, including (1) providing minimal care by foregoing expansive and time-consuming diagnostic tests, (2) extracting Meng’s teeth all at once in order to make a profit from each tooth extraction, (3) extracting Meng’s teeth all at once in order to take on more patients, and (4) failing to provide post-operative care to Meng because post-operative care was not as profitable as other dental surgeries. (SAC, ¶ 129.)

Here, Dr. Choi maintains there is no evidence to support these alleged economic interests but fails to demonstrate such evidence is lacking. It is undisputed that Dr. Choi was compensated for dental services by Udream Dental in the greater amount of 30% of Dr. Choi’s production or $1,150. (PSS, ¶ 48.) It is also undisputed that Dr. Choi was not compensated for any postoperative treatment or follow-up appointments. (PSS, ¶ 49.) But neither of these undisputed material facts foreclose the possibility that Dr. Choi had an economic interest in extracting more of Meng’s teeth at once, foregoing expensive and time-consuming diagnostic tests, or failing to provide sufficient post-operative care.

Dr. Choi also points to the declaration of Dr. Choi’s expert, Mark Lieberman, D.D.S., who stated it was Dr. Lieberman’s opinion that Dr. Choi did not breach Dr. Choi’s fiduciary duty because the procedures rendered were necessary and not excessive. (PSS, ¶ 50; Lieberman Decl., ¶ 17.) But such an opinion is insufficient to defeat Meng’s cause of action. In Moore, our supreme court noted that even if the medical procedure at issue had a “therapeutic purpose,” the physician was still under a duty to disclose economic interests that may affect the physician’s judgment. (Id., at p. 133.)

Accordingly, because Dr. Choi failed to establish a lack of evidence supporting Meng’s cause of action, Dr. Choi’s motion for summary adjudication of this issue is DENIED.

MICRA

Dr. Choi argues that the court should adjudicate the issue of MICRA’s application to Meng’s alleged damages. Dr. Choi argues MICRA requires the court to cap Meng’s general damages at $250,000 and reduce Meng’s special damages by any amounts received from collateral sources. But summary adjudication is only proper “if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) Because Dr. Choi does not argue MICRA completely disposes of Meng’s requested damages, summary adjudication is not appropriate here.

Accordingly, Dr. Choi’s motion for summary adjudication of this issue is DENIED.

CONCLUSION

Based on the foregoing, Dr. Choi’s motion for summary adjudication is DENIED IN PART, GRANTED IN PART. The court GRANTS Dr. Choi’s motion for summary adjudication as to the second cause of action and DENIES Dr. Choi’s motion as to the first and third causes of action.

Dr. Choi’s Motion for Summary Judgment is DENIED.