Judge: Sandy N. Leal, Case: 2020-01167338, Date: 2023-08-31 Tentative Ruling

Motion for Summary Judgement and/or Adjudication

Defendants, Frank P. Hsu, M.D. and The Regents of the University of California’s (“Defendants”) Motion for Summary Judgment, or, In The Alternative, Summary Adjudication (“Motion”) is DENIED.

The Court OVERRULES Defendants’ Objections 1-6 to the Declaration of Vrijesh Tantuwaya, M.D. Objection 7 is sustained.

Plaintiff’s Objections to the Declaration of Sylvain Palmer, M.D. are overruled.

A motion for summary judgment shall be granted where there is no triable issue of any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “A defendant moving for summary judgment meets his burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. [Citation.] If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense… A triable issue of material fact exists ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.].” (Blue Shield of California Life & Health Ins. Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.)

Defendants move for summary judgment, or, in the alternative, summary adjudication as follows:

(1) There is no triable issue of material fact on Plaintiff’s first cause of action for “Medical Negligence” against Defendants.

 (2) There is no triable issue of material fact on Plaintiff’s second cause of action for “Medical Battery” against Defendants.

Admissibility of Defendants’ Evidence

Preliminarily, Plaintiff argues that Defendant has entirely failed to meet his burden of production because Defendant’s motion is not supported by admissible evidence, other than Plaintiff’s deposition excerpts and excerpts from the deposition of Dr. Michael Gordon. (Opposition, 4:18-6:8.) However, Plaintiff lodged objections to Defendant’s Separate Statement within her responsive separate statement, which does not comply with California Rules of Court, rule 3.1345.

California Rules of Court, rule 3.1354 provides in pertinent part about objections:

“(b) Format of objections

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:

(1)  Identify the name of the document in which the specific material objected to is located;

(2)  State the exhibit, title, page, and line number of the material objected to;

(3)  Quote or set forth the objectionable statement or material; and

(4)  State the grounds for each objection to that statement or material.”

Plaintiff’s responsive separate statement, filed under ROA 112, does not comply with the above emphasized portions of California Rules of Court, rule 3.1354 because Plaintiff responds to a vast majority of the facts with objections only. Plaintiff was required to separately state her objections and only did so with respect to the Dr. Palmer declaration at ROA No. 108.

Although Plaintiff’s objections are improperly stated, Plaintiff’s argument that Defendants should not have filed a Notice of Lodging as to Plaintiff’s UCI Medical Center records has merit.

According to the Notice of Lodging, filed 5-17-23 under ROA No. 76, Defendants have lodged Plaintiff’s medical records to comply with Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742 (Garibay). Garibay states:  “Although hospital and medical records are hearsay, they can be admitted under the business records exception to the hearsay rule. [citation] Such records, however, must be properly authenticated. [citation] .” (Id.)

Based on the above portion of Garibay, Defendants’ argument in the Notice of Lodging that they lodged Plaintiff’s medical records to comply with Garibay is not credible. Garibay stands for the argument that medical records have to be properly authenticated to be admissible and makes no mention of lodging medical records. Defendants could have filed a copy of the medical records along with the Declaration of Custodian of Records, which was included in the Notice of Lodging, and this would make the medical records admissible.

Defendants’ failure to file Plaintiff’s UCI Medical Center records also violates Orange County Local Rule 352, which requires that all documents be filed electronically. Local Rule 352 provides in pertinent part:

“Pursuant to Code of Civil Procedure Section 1010.6(d), documents filed by represented parties in all limited, unlimited, and complex civil actions must be filed electronically file documents electronically and allow for service electronically, unless the Court excuses parties from doing so.”

There is no evidence that the Court previously excused the parties from following this rule.

Further, Defendants’ failure to file the above medical records also creates a barrier to meaningful appellate review. Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962 states: “It is well settled that “in reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a 'triable issue' on appeal. [Citations.]”[citation]”

Based on the foregoing, the Court ORDERS Defendants to file a copy of Plaintiff’s UCI Medical Center Records.

First Cause of Action for Medical Negligence

Defendants move for summary adjudication as to the First Amended Complaint’s first cause of action for Medical Negligence. The elements of medical negligence are: ““(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.”[citation]” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2; see also CACI 500, citing Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

 It is well settled that Defendant moving for summary judgment on a medical malpractice claim is required to do so by submitting expert declarations.

“ “When a defendant moves for summary judgment on a claim for professional negligence and supports the motion with expert declarations that its conduct fell within the community standard of care, it is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” [citation]” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.) Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402 (Jones) states: “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.” “‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony (citations), unless the conduct required by the particular circumstances is within the common knowledge of the layman.’ [citation omitted]” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) Similarly, as to causation, “ “the plaintiff must offer an expert opinion that contains a reasoned explanation showing why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of plaintiff’s injury.” [citation]” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 781.)

Defendants contend that there is no triable issue as to Plaintiff’s first cause of action for the following reasons: (1) Plaintiff authorized Dr. Hsu to immediately attempt retrieval of the sheared catheter through the Consent Form, (2) immediately attempted retrieval was medically required to preserve Plaintiff’s health, (3) Dr. Palmer opined that Dr. Hsu’s care and treatment of Plaintiff was within the standard of care.

Defendants’ motion is also supported by the expert declaration of Sylvain Palmer, M.D. Dr. Palmer attests that she is a board certified neurosurgeon and is familiar with the standard of care for performing surgical procedures on patients “with neurological and spinal conditions and diseases, including lumbar drains and endoscopic repairs of encephalocele and unanticipated conditions that arise during such procedures, as well as the scope of consent to be obtained from patients prior to undertaking such surgical procedures.” (Dr. Palmer Decl., ¶ 3.) Dr. Palmer has reviewed Plaintiff’s medical records from UCI Medical Center. (Id.)

Based upon this review, Dr. Palmer opines:

•        “pre-operative informed consent was obtained from Plaintiff for the surgical procedure that involved placement of a lumbar drain and endoscopic resection and repair of the temporal lobe encephalocele, to be performed jointly by Drs. Hsu and Bhandarkar, and that consent encompassed the risk of a sheared and disconnected catheter and attempts to retrieve it.”

•        “the inadvertently sheared catheter constituted an unanticipated condition that arose during placement of the lumbar drain for which immediate attempts to retrieve were necessary prior to proceeding with placement of a lumbar drain and thereafter proceeding with endoscopic repair of the encephalocele.”

•        “attempts to retrieve the sheared catheter were simply an extension of the original surgical procedure and not a separate distinct procedure from the procedure to which Plaintiff had initially consented.”

•        “to a reasonable degree of medical probability, that the surgical procedures performed on Plaintiff by Dr. Hsu on August 1st and 4th, notwithstanding the sheared catheter which is not attributable to any surgeon’s wrongful act or omission to act, complied with the applicable standard of care, including obtaining Plaintiff’s pre-operative informed consent to perform the surgical procedures and performing the surgical procedures on Plaintiff. Additionally, it is my expert opinion to a reasonable degree of medical probability, that there was no act or omission to act, by Dr. Hsu during the pre-operative phase or operative phase on August 1st and 4th, that caused or substantially contributed to Plaintiff’s alleged injuries.”

•        “to a reasonable degree of medical probability, that removal of the retained catheter fragment is not necessary at this time. The retained catheter fragment does not result in any neurologic symptoms or neurologic signs. A retained catheter fragment can lead to infection, dural erosion, or nerve root/spinal cord symptoms; however, none of these consequences has arisen to date. Though the catheter can be removed with an elective surgery, the potential risks outweigh the potential benefits.”

(Palmer Decl., ¶¶ 5-9.)

Plaintiff’s Opposition is supported by a competing expert declaration from Dr. Vrijesh S. Tantuwaya (ROA 209). Dr. Tantuwaya attests that he is board certified in neurosurgery and that he is familiar with the standard of care for performing surgeries on “patients with neurological and spinal conditions and diseases, including lumbar drains and endoscopic repairs of encephalocele.” (Tantuwaya Decl., ¶¶ 1-7.) Dr. Tantuwaya has reviewed Plaintiff’s medical records and “deposition transcripts.” (Tantuwaya Decl., ¶ 8.)  Based upon this review, Dr. Tantuwaya opines:

•        “To a reasonably degree of medical probability, the Defendants actions fell below the standard of care for the following reasons: (1) the Procedure Form states that: “…Fellows and Residents, acting under the supervision of the primary surgeon/practitioner, may be performing important procedural tasks related to this surgery or procedure in accordance with hospital policy and based upon their skill set”; (2) Dr. Campos was an intern and not a “Fellow or Resident” as stated in the Procedure Form in accordance with hospital policy; Dr. Campos was being supervised by a third-year resident and not being supervised by the “primary surgeon/practitioner” Dr. Hsu in accordance with hospital policy, as stated in the Procedure Form; (3) Dr. Hsu was not present in the room when she was performing a procedural task related to the surgery in accordance with hospital policy, (4) Dr. Campos did not recall speaking with Dr. Hsu about the procedure prior to the insertion of the catheter on the incident date.”

(Tantuwaya Decl., ¶ 25.)

Based on the above, the Court finds Plaintiff has met her burden of demonstrating the existence of a triable issue with regard to the first cause of action. Specifically, while Dr. Palmer’s Declaration states that Dr. Hsu’s care and treatment of Plaintiff was within the standard of care, Dr. Tantuwaya offers a competing expert opinion that Dr. Hsu’s care and treatment was not within the standard of care because he allowed Dr. Campos, an intern doctor, to perform a surgical task while supervised by Dr. Ball, another resident, rather than himself, the “primary surgeon/practitioner.” Although the Court susatins Defendants’ objections to Dr. Tantuwaya’s Declaration, paragraph 26, this still leaves paragraph 25, which is sufficient to establish a triable issue as to whether Defendants’ conduct at the time of Plaintiff’s procedure fell below the standard of care.

Based on the foregoing, Defendants’ motion is denied as to the first cause of action.

Second Cause of Action for Medical Battery

Defendants contend that summary adjudication on the second cause of action is warranted because Plaintiff provided express consent to a surgical procedure which involved placement of a lumbar drain and endoscopic repair of the encephalocele, and that this consent included consent for Dr. Hsu to perform “additional services” as he deems necessary.  (Motion, 21:6-26.) As such, the attempted retrieval of an unanticipated sheared catheter is not a substantially different procedure from which Plaintiff gave consent such that it constitutes medical battery. (Id.)

The California Supreme Court explained the distinction between claims for battery and claims for negligence, in the medical context, within Cobbs v. Grant (1972) 8 Cal.3d 229 (Cobbs).

The Court in Cobbs explained: "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." (Id. at 239). “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.” (Id. at 240-41.)

Cobbs also provides the following guidance on informed consent: “In sum, the patient's right of self-decision is the measure of the physician's duty to reveal. That right can be effectively exercised only if the patient possesses adequate information to enable an intelligent choice. The scope of the physician's communications to the patient, then, must be measured by the patient's need, and that need is whatever information is material to the decision. Thus the test for determining whether a potential peril must be divulged is its materiality to the patient's decision…We point out, for guidance on retrial, an additional problem which suggests itself. There must be a causal relationship between the physician's failure to inform and the injury to the plaintiff. Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given…Thus an objective test is preferable: i.e., what would a prudent person in the patient's position have decided if adequately informed of all significant perils.” (Id. at 245.)

Although Cobbs offered several examples of medical battery based on a physician's performance of a substantially different procedure, the Court in Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 646 recognized that “[t]he examples do not seem to lend themselves to any overarching test for deciding at the margin whether a medical procedure is ‘substantially different’ from the authorized procedure, and Cobbs's description of them offers little guidance.” (Id.) Kaplan stated that unless there was definitive case law establishing whether the alleged conduct was a “substantially different procedure,” “the matter [was] a factual question for the finder of fact to decide.” (Id. at 647.)

Here, the Consent Form Plaintiff allegedly signed provided that Dr. Hsu was permitted “to perform a surgical procedure involving lumbar drain and endoscopic resection and repair of the temporal lobe encephalocele:” (Separate Statement in Support of Motion (UMF), No. 36.) Additionally, Defendants contend that the Consent Form includes authorization for “any additional services that were necessary during performance of such procedure.” (UMF No. 37.)

In Opposition, Plaintiff contends that summary adjudication on the second cause of action must be denied because the attempted retrieval of the catheter constituted surgery performed without consent and a substantially different surgery for the following reasons: (1) no consent was obtained from Plaintiff or her sister prior to the attempted catheter retrieval, (2) a third surgery, performed months after the second, was considered a “separate surgery,”, (3) Dr. Hsu testified that the surgery he performed was nice, but not necessary. (Opposition,9:8-11:10.); Separate Statement of Additional Facts in Support of Opposition (AMF), Nos. 20, 22-27.)

Here, Dr. Ball testified as follows regarding attempts to obtain consent:

Q: And at that point after the views were taken, that there was a decision to retrieve it?

A: So after we took the X-rays, Dr. Hsu also discussed with the patient’s family member. I don’t recalls which family member it was. But obviously the patient was intubated and asleep at this point so couldn’t consent herself. He went out to the waiting rom to talk to the family and let hem know what was happening and talk about the possibility of going in and trying to retrieve the catheter versus leaving the catheter alone. And we thought that it would – that he could hopefully get it without causing too much of an issue. The family agreed that that seemed reasonable.

Q: So Dr. – this was done – you said he went outside to talk to family members. That was done immediately upon discovery of the sheared catheter?

A: I suppose I don’t recall if he went right away or if he tried – if first we looked at the X-rays. I don’t recall if we did – if he talked to them first or if he looked a the X-rays. Because, you know, we manipulated the skin and saw if we could get to it superficially. But any sort of invasive procedure to retrieve a catheter would be something the patient wasn’t consented for before surgery, so that’s something that would need discussion with her family members since she couldn’t give consent.”

(Kwan Decl., Exhibit 2, 26:1-27:10.)

Further, Plaintiff’s sister, Elizabeth Ann Doughty, testified as follows regarding attempts to obtain consent:

Q: After you were put in the waiting room, how long were you in the waiting room before somebody came out and talked to you at all about your sister’s condition?

A: A good five hours.

Q: And during this five-hour period, did you have any interaction with anybody you understood to be affiliated with U.C. Irvine Medical Center?

A: No.

(see Kwan Decl., Exhibit 4, 20:21-21:15.)

Therefore, based on the testimony from Dr. Ball and Ms. Doughty, the Court finds that Plaintiff has demonstrated the existence of a triable issue exists with regard to whether Defendants obtained consent from Plaintiff or her sister prior to performing the attempted catheter retrieval procedure, and with regard to whether the procedure that was discussed with Ms. Doughty was a substantially different one than the one Plaintiff consented to. Dr. Ball testified that Dr. Hsu went out to talk to Plaintiff’s family before performing the procedure and Ms. Doughty also testified that she talked to someone after five hours in the waiting room, but that she did not understand them to be affiliated with UCI. Whether the procedure that was discussed was a substantially different procedure from the one Plaintiff initially consented to is a question of fact pursuant to Kaplan.

Based on the foregoing, the Court DENIES the motion as to the second cause of action.

Plaintiff is to give notice.