Judge: Walter P. Schwarm, Case: 30-2021-01198254, Date: 2023-05-18 Tentative Ruling

CONTINUED FROM 5-17-23 FOR THE COURT TO CONSIDER PLAINTIFF’S SUPPLEMENTAL BRIEF FILED ON 4-28-23 UNDER ROA No. 117.  THE COURT HAS MODIFIED ITS TENTATIVE RULING ISSUED ON 5-17-23 AS SET FORTH BELOW. 

Defendant’s (Stewart Elvis Rendon, M.D.) Motion for Summary Judgment (Motion), filed on 11-8-22 under ROA No. 75, is DENIED.

On 4-11-23, the court continued the Motion for supplemental briefing regarding causation as to the second cause of action. (4-11-23 Minute Order.)  Defendant filed a Supplemental Reply Brief (Supp. Reply) on 4-20-23 under ROA No. 115.  Plaintiff (Enriqueta Orozco) did not file a supplemental brief.

Defendant’s Objections to the declaration of Melissa Vargas Lopez filed on 4-6-23 under ROA No. 108:  The court DECLINES TO RULE on these objections because they are immaterial to the court’s ruling as set forth below. (Code Civ. Proc., 437c, subdivision (q).)

The court OVERRULES Defendant’s Objection No. 1 to the declaration of Enriqueta Orozco filed on 4-6-23 under ROA No. 109.

Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.  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 that cause of action or a defense thereto.” 

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, (Aguilar), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing.  A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]”  (Italics in Aguilar; Footnotes 13 and 14 omitted.) 

Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 874, 877, states, “And as in any medical malpractice action, the plaintiff must establish: ‘(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.]” 

Willard v. Hagemeister (Willard) (1981) 121 Cal.App.3d 406, 412, states, “Willard alleges that respondents Hagemeister, Hardin, and Waterman each committed malpractice in the diagnosis and treatment of her dental condition. She asserts that respondent Eichstaedt was negligent due to his employment of these three dentists. However, plaintiff’s failure to submit the declaration of an expert in opposition to either motion for summary judgment is fatal to this appeal from the negligence count. [¶] The preemptive weight of expert testimony in a malpractice action was described in Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999, 92 Cal.Rptr. 583: ‘Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony. (Citations.)’ The Supreme Court reiterated this well-established rule in Landeros v. Flood (1976) 17 Cal.3d 399, 410, 131 Cal.Rptr. 69, 551 P.2d 389, holding: ‘The question remains one of fact, to be decided on the basis of expert testimony: “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.” (Sinz v. Owens (1949) 33 Cal.2d 749, 753 . . . [citations].)’.” 

Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844, explains, “Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. [Citations.]”  Hanson v. Grode (1999) 76 Cal.App.4th 601, 607, states, “ ‘ “California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases.  When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” [Citations.]’ [Citations.]”

CACI No. 533 sets forth the elements necessary to establish a cause of action for lack of informed consent.  Betterton v. Leichtling (2002) 101 Cal.App.4th 749, 754-755 (Betterton), states, “ ‘In Cobbs [v. Grant (1972)] 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (Cobbs), the court rejected the rule that the scope of disclosure in informed consent cases is measured by the custom of the medical community. “Unlimited discretion in the physician is irreconcilable with the basic right of the patient to make the ultimate informed decision regarding the course of treatment to which he knowledgeably consents to be subjected.” [Citation.] Nevertheless, Cobbs fashioned a two-part test that links the duty to disclose some matters to the standard of professional practice. [¶] ‘First, a physician must disclose to the patient the potential of death, serious harm, and other complications associated with a proposed procedure. [Citation.] Expert testimony on the custom of the medical community is not necessary to establish this duty. [Citations.] Second, “[b]eyond the foregoing minimal disclosure, a doctor must also reveal to his patient such additional information as a skilled practitioner of good standing would provide under similar circumstances” [Citation.] Therefore, expert testimony is relevant and admissible to determine the duty to disclose matters other than the risk of death or serious harm and significant potential complications. [Citations.]”

Cobbs v. Grant (1972) 8 Cal.3d 229, 245, (Cobbs), states, “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. Here the record discloses no testimony that had plaintiff been informed of the risks of surgery he would not have consented to the operation. [Citations.] [¶] The patient-plaintiff may testify on this subject but the issue extends beyond his credibility. Since at the time of trial the uncommunicated hazard has materialized, it would be surprising if the patient-plaintiff did not claim that had he been informed of the dangers he would have declined treatment. Subjectively he may believe so, with the 20/20 vision of hindsight, but we doubt that justice will be served by placing the physician in jeopardy of the patient's bitterness and disillusionment. 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. [Citation.]”

Plaintiff’s (Enriqueta Orozco) First Amended Complaint (FAC), filed on 12-7-21 under ROA No. 17, alleges causes of action for Medical Malpractice and Lack of Informed Consent against Defendant.

The Motion states, “Dr. Candela details the treatment rendered by Dr. Rendon and the reasons for his opinions that Dr. Rendon complied with the standard of care in treating plaintiff Enriqueta Orozco. Dr. Candela’s declaration is entitled to dispositive consideration and in the absence of competent and admissible controverting evidence Dr. Rendon is entitled to summary judgment based on compliance with the standard of care.” (Motion; 11:4-9.)  Plaintiff’s Opposition to Defendant Stewart Elvis Rendon’s Motion for Summary Judgment (Opposition), filed on 3-28-23 under ROA No. 98, asserts, “There is sufficient evidence in this case to support a finding that Defendant RENDON’s conduct fell below the standard of care. Plaintiff had prior abdominal procedures which increased the risks of bladder perforation, and these risks were not disclosed to Plaintiff. Furthermore, Plaintiff’s hernia contained the left anterior bladder wall, and ultimately, this was perforated in the laparoscopic procedure. Given the totality of the circumstances, an open procedure was safer than a laparoscopic procedure. [¶] Plaintiff was not informed of all of the dangers associated with the procedure. She was not informed that the procedure could be a laparoscopic procedure or an open procedure. Defendant RENDON did not inform Plaintiff that her prior abdominal procedures and the location of the hernia increased the risk of bladder perforation with a laparoscopic. A reasonable person would proceed with the safer surgery, and in the present case that is the open procedure as opposed to the laparoscopic procedure.” (8:20-9:3; Uppercase in Opposition.)

Defendant provides the declaration of Frank C. Candela, M.D. in support of the Motion. Dr. Candela’s declaration provides the following evidence: (1) “. . . I am and was at all times mentioned herein familiar with the type of care, treatment, and surgical services provided by Stewart E. Rendon, M.D. to patients such as Enriqueta Orozco.” (Candela Decl., ¶ 1.); (2) “. . . I reviewed medical records of Enriqueta Orozco from Healthpointe Medical Group, Inc., Orangewood Surgical Center and Loma Linda University Health Care Clinics. I have also reviewed the first amended complaint. My opinions as expressed in this declaration are based on my review of these materials, in addition to my education, training and experience, and knowledge of evidence-based medicine.” (Candela Decl., ¶ 2.); (3) “All of the care and treatment provided by defendant Stewart E. Rendon, M.D. to plaintiff Enriqueta Orozco, including the surgery on January 27, 2020, was within the standard of care for the medical community.” (Candela Decl., ¶ 28.); (4) “Dr. Rendon’s approach to the hernia repair procedure was appropriate. He properly dissected to outline the Pfannenstiel recurrent incisional hernia before repairing the same. During dissection, the bladder injury was recognized and repaired.” (Candela Decl., ¶ 31.); and (5) “Within a reasonable medical probability, nothing that Dr. Rendon did or did not do in his care and treatment cause or contribute to any of Plaintiff’s injuries and damages claimed in this matter.” (Candela Decl., ¶ 38.)

Plaintiff provides a declaration from Plaintiff which states in part, “Dr. Rendon told me that the surgery included the risk of infection, intestinal injury, and death. [¶] Dr. Rendon did not mention any risks associated with my bladder. [¶]  Dr. Rendon did not tell me that there was less risk associated with an open procedure as opposed to the laparoscopic procedure. [¶] Dr. Rendon did not tell me that my prior abdominal procedures increased the risks associated with a laparoscopic procedure. [¶] Dr. Rendon did not tell me that the hernia contained the left anterior bladder wall.” (Orozco Decl., ¶¶ 8-12.)

As to the medical malpractice cause of action, the court finds that Defendant has carried his burden of proof of showing the nonexistence of a triable issue of material fact as to breach and causation based on the declaration from Dr. Candela. (Candela Decl., ¶¶ 30 and 38.)  Since Plaintiff has not providing a conflicting expert declaration, Plaintiff has not demonstrated a triable issue of material fact as to the medical malpractice cause of action.  Thus, summary judgment is appropriate as to the first cause of action.

As to the informed consent cause of action, Defendant’s Reply to Opposition for Motion for Summary Judgment (Reply), filed on 4-6-23 under ROA No. 106), states, “In the present case, moving defendants presented expert opinion evidence from Dr. Candela that addressed the issue of informed consent. At paragraph of his declaration, Dr.  Candela opined that, based upon the available records, the patient was given adequate informed consent concerning the risks of the procedure.”  (Reply; 5:7-10.)  Paragraph 30 of Dr. Candela’s declaration states, “The CT scan findings were positive for a left inguinal hernia and it was appropriate to recommend surgical repair. The records document that Dr. Rendon obtained informed consent for hernia repair procedure. The risks, benefits, expectations and complications of the proposed surgery were documented as discussed with the patient, including the risks of ‘infections, recurrence, death and other detailed complications which include but not limited to chronic pain, bowel obstruction, intestinal injury.’ Injury to the bladder is a known risk of the procedure.”

Paragraph 30 of Dr. Candela’s declaration does not express the opinion that Plaintiff received adequate informed consent.  Rather, Dr. Candela’s declaration acknowledges that an injury to the bladder is a known risk of the procedure.  Dr. Candela’s declaration does not reflect that Defendant discussed the risk of a bladder injury to Plaintiff. (Candela Decl., ¶ 30; Defendant’s Separate Statement (DSS) filed on 11-8-22 under ROA No. 69.)  Exhibit B attached to Defendant’s Exhibit List, filed on 11-8-22 under ROA No. 73 at pdf page 177, states, “All risks, benefits, expectations and complications of proposed surgery were discussed with patient including infections, recurrence, death and other detailed complications which include but not limited to chronic pain, bowel obstruction , intestinal injury. She was given opportunity to ask questions and they were answered, verbalized understanding of all that was discussed and verbalized satisfaction with discussion.”

Here, Defendant’s expert, a skilled practitioner (CACI No. 532), recognizes the risk of an injury to the bladder.  Defendant has not provided evidence that Plaintiff was advised of this risk.  Thus, the court finds that Defendant has not carried his burden of demonstrating the nonexistence of a triable issue of material fact as to whether disclosed the important potential risks of the laparoscopic procedure.

As to causation, however, Defendant has met his initial burden of showing the nonexistence of a triable issue of material fact as to causation.  Dr. Candela’s declaration states, “Within a reasonable medical probability, nothing that Dr. Rendon did or did not do in his care and treatment cause of contribute to any of plaintiff’s injuries and damages in this matter.” (Candela Decl., ¶ 38.)

Defendant’s Supplemental Reply Brief (DSupp.), filed on 4-20-23 under ROA No. 115, states, “In the present case, the record discloses no evidence that had plaintiff been informed of the risks alleged in her declaration at paragraphs 9, 10, 11, she would not have consented to the laparoscopic vs. open left inguinal hernia repair operation recommended and performed by Dr. Rendon.” (DSupp.; 2:3-6.)  Plaintiff’s Supplemental Brief (PSupp.), filed on 4-28-23 under ROA No. 117, responds, “This is an objective standard, and Plaintiff is not required to present any evidence that shows that she would not have consented to the operation if she had been informed of the risks.” (PSupp.; 2:4-6.)

Under the objective standard described in Cobbs and CACI No. 535, and liberally construing Plaintiff’s evidence, Plaintiff’s evidence is sufficient to create a triable issue of material fact as to whether a reasonable person would have consented to the procedure at issue had that person been adequately informed about risks to the bladder associated with the procedure at issue. (Orozco Decl., ¶¶ 9, 10, 11, 12, 13, 14, and 15.)  Since there is a triable issue of material fact as to the second cause of action, the court does have the authority to grant summary judgment.

Based on the above, the court DENIES Defendant’s (Stewart Elvis Rendon, M.D.) Motion for Summary Judgment filed on 11-8-22 under ROA No. 75.

Plaintiff is to give notice.