Judge: Thomas S. Mcconville, Case: Gladstone v. Nguyen, Date: 2023-07-31 Tentative Ruling

Defendant Mission Hospital Regional Medical Center’s (Mission) motion for summary judgment is DENIED.

Mission has failed to meet its initial burden on this motion. (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [same].)

Mission does not dispute, and in fact affirmatively represents and admits in the first instance, that plaintiff Nikki Gladstone’s (plaintiff) medical negligence and wrongful death claims are based in part on the defendants’ alleged failure to obtain informed consent from the decedent. (Motion P&As at p. 5:6-11, 5:25-27, citing in part to Def. Index of Exhibits (IOE) at Ex. 2 [“Plaintiff alleges that defendants failed to appropriately consent decedent for the coronary angiogram, failed to advise or recommend a ‘minimally invasive alternative,’ negligently performed the angiogram, and failed to call the cardiac surgery team after decedent went into cardiac arrest.”]; Def. IOE at Ex. 2 [plaintiff’s response to special interrogatory No. 82]; see also Makkar Decl. ¶ 24.)

Specifically, plaintiff’s discovery responses reveal that she is claiming in part that Mission was directly negligent in the performance of the angiogram as follows: “Defendants did not properly obtain Ms. Whitener’s [i.e., the decedent’s] informed consent regarding all possible options available to her including, but not limited to, options during the procedure, the possibility of foregoing the procedure, and the associated risks of the procedure. It is [plaintiff’s] understanding that the consent forms originated, at least in part, from Mission Hospital. By failing to disclose all options to Ms. Whitener and obtain proper informed consent, Defendants fell below the standard of care.” (Def. IOE at Ex. 2 [plaintiff’s response to special interrogatory No. 82].)

On this issue, Mission’s separate statement of material facts (SSMF) at material fact No. 12, asserts that defendant Dr. Huy T. Nguyen obtained the requisite consent, as follows: “On 3/23/21, [decedent] presented to the catheterization lab at Mission Hospital for a diagnostic coronary angiogram, left heart catheterization, and percutaneous coronary intervention to the LAD [left anterior descending artery] performed by Dr. Nguyen. In his history and physical prepared the same day, Dr. Nguyen noted that the risks, benefits, and alternatives were discussed with the patient, and she was fully agreeable to the procedure. See Dr. Nguyen’s [3/23/21] History & Physical, attached to the separate exhibits as Exhibit 11.” (Def. SSUF No. 12.) Mission argues that “[f]urther, it is the role of the physician,” as opposed to the nursing staff, “to advise patients regarding the risk, benefits, and alternatives associated with these procedures.” (Motion P&As at p. 12; Makkar Decl. ¶ 26.)

The issue of whether Ms. Whitener gave adequate informed consent is disputed by plaintiff’s experts (Marmureanu Decl. ¶¶  25-27, 51, 54-55; Tankazyan Decl. ¶¶ 25-27, 52-53).  The court will not engage in credibility determinations at the summary judgment phase.   

As for Mission’s contention that “further, it is the role of the physician,” as opposed to its nursing staff, to obtain the requisite informed consent—Mission’s own evidence shows that regardless, it was Mission who prepared the consent form that decedent signed (see Def. IOE at Ex. 16 [Mission Hospital Conditions of Admission form, ¶ 1]); Mission itself attempted to obtain decedent’s consent to the procedure (see ibid.); and Mission further undertook, at least in part, the duty to obtain that consent, and shared in Dr. Nguyen’s duty to obtain informed consent. (See ibid. [Mission Hospital Conditions of Admission form, ¶ 10].)  Defendant’s expert does not address what the medical standard of care should be when the hospital inserts itself into the process of obtaining informed consent.

It is not disputed by the parties that the physician has a role in obtaining informed consent.  Cobbs v. Grant (1972) 8 Cal. 3d 229, 242.  The problem with this showing is that it does not foreclose the possibility the hospital may have shared in that role too. Wilson v. Merritt (2006) 142 Cal.App.4th 1125, 1128, 1135 [whether someone has a duty to obtain informed consent “is a question of fact for the jury to determine.”  . . . “[T]he Supreme Court has stressed the paramount role of the trier of fact in informed consent cases.” (internal quotations and citations omitted)]; Spann v. Irwin Memorial Blood Centers (1995) 34 Cal.App.4th 644, 656, fn. 11 [question of fact whether defendant had a duty to obtain informed consent where the defendant’s staff in fact attempted to obtain informed consent].

This also does not address the fact that the hospital actually did take part in that process here by attempting to obtain the decedent’s informed consent. It also fails to address whether the hospital did so competently/within the requisite standard of care, or why, having undertaken the task to obtain informed consent, it was not required to do so properly.  Having actually attempted to explain the risks of the procedure and obtain decedent’s consent, Mission fails to explain why it was not then required to do so properly with due care. Mission also fails to show it did in fact properly obtain decedent’s informed consent. (See Cobbs, supra, 8 Cal.3d at p. 242 [“the patient’s consent to treatment, to be effective, must be an informed consent”]; see also Paz v. State of California (2000) 22 Cal.4th 550, 558-559 [one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking]; McGuigan v. Southern Pac. Co. (1952) 112 Cal.App.2d 704, 718 [“It is elementary law that the voluntary assumption of a duty by affirmative conduct creates the duty to use due care in performing the assumed task.”].) 

Mission has therefore failed to establish the action has no merit, or that plaintiff will not be able to establish her claims based on the failure to obtain informed consent.

The court declines to rule on the objections, as they are not material to the disposition of this motion. (See Code Civ. Proc., § 437c, subd. (q) [“the court need rule only on those objections to evidence that it deems material to its disposition of the motion”].)

Mission shall give notice.