Case Number: BC636171 Hearing Date: October 01, 2018 Dept: 2

Motion for Summary Judgment by Defendant, Jason Morris, D.P.M., filed on 7/18/18 is DENIED. Defendant has not met his burden of establishing that he is entitled to judgment in his favor based on the undisputed material facts proffered. Cal. Code Civ. Procedure 437c(p)(2).

The unopposed Motion for Summary Judgment by Defendants, Foundation Physicians Medical Group, Inc. and Hany C. Fouad, M.D. filed on 7/18/18 is GRANTED. Defendants have met their burden of establishing that they are entitled to judgment in their favor based on the undisputed material facts proffered. Cal Code Civ Procedure 437c(p)(2).

Motion for Summary Judgment by Defendant, Jason Morris, D.P.M.

To support a claim for medical malpractice, Plaintiff must establish 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.’” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607.

The required standard of care is a matter peculiarly in the knowledge of experts. Id.

While a claim for lack of informed consent also sounds in negligence, it arises when a doctor performs a procedure without first adequately disclosing the risks and alternatives to the patient. Saxena v. Goffney (2008) 159 Cal. App. 4th 316, 324.

A physician owes a duty to disclose information that is material to Plaintiff’s decision making. This is different from the duty to adhere to the required standard of care in performing a procedure. Cobbs v. Grant (1972) 8 Cal.3d 229, 243.

Defendant is correct that the complaint does not expressly allege a claim based on lack of informed consent. Instead the Judicial Council Form Complaint alleges that Defendants breached their duty of care and were negligent in providing health care services by failing to exercise the degree of care, skill, ability and/or learning expected of them when Defendants failed to properly diagnose, care for and treat Plaintiff’s right ankle. Reply Declaration of Greer, Ex. A., page 4.

On a motion for summary judgment, the material issues are determined by the allegations of the pleading. Plaintiff cannot resist summary judgment on a theory not pleaded. Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 1576.

Notwithstanding the foregoing, Defendant has identified the issue of lack of informed consent as a material issue to be adjudicated by asserting that Plaintiff signed an informed consent form on 2/13/15, that specific risks were identified, that Defendant returned for evaluation on 2/20/15 with Dr. Morris where Defendant again discussed the risks, complications, and post-operative course. Facts 4-5.

Defendant asserts that Defendant properly obtained informed consent from Plaintiff to perform the 2/26/15 procedures, which Defendant contends is consistent with the standard of care. Fact 16. Defendant’s expert opines that Defendant properly obtained informed consent. Rothstein Declaration, ¶ 31.

Thus, Defendant acknowledges, despite the allegations of the pleading, that Plaintiff’s claim is based in part on a lack of informed consent and has affirmatively sought its adjudication.

The motion is DENIED as triable issues of fact remain as to whether Defendant adequately disclosed the risks and alternatives to Plaintiff. Plaintiff’s expert opines that the standard of care required disclosure of four other issues that were not disclosed to Plaintiff. Facts 4, 5, 16, 17 remain in dispute.

Whether Defendant’s conduct caused or contributed to Plaintiff’s injuries remains in dispute as supported by the conflicting opinion of Plaintiff’s expert. Fact 18 is disputed.

Defendant argues in Reply that in a claim for lack of informed consent, the physician does not bear responsibility for hazards the patient has already discovered. Reply, 4:5-7. Defendant then argues that Plaintiff did not declare that he was not already aware of certain matters. Id.

Since Defendant is the moving party, it is Defendant’s threshold burden to negate the essential elements of Plaintiff’s claim. Plaintiff has no obligation “to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element … necessary to sustain a judgment in his favor… .” Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.

It is not Plaintiff’s burden in defeating a motion for summary judgment to “assert facts necessary to support a claim for lack of informed consent.” Reply 3:19-20.

Moving party is ordered to give notice.

Motion for Summary Judgment by Defendants, Foundation Physicians Medical Group, Inc. and Hany C. Fouad, M.D.

The unopposed Motion for Summary Judgment by Defendants, Foundation Physicians Medical Group, Inc. and Hany C. Fouad, M.D. filed on 7/18/18 is GRANTED. Defendants have met their burden of establishing that they are entitled to judgment in their favor based on the undisputed material facts proffered. Cal. Code Civ. Procedure 437c(p)(2).

Plaintiff does not dispute the course and care of medical treatment to Plaintiff’s right foot and ankle, which was injured in an industrial accident in 2010. UF 4-59.

In a medical malpractice action, proof of the standard of care and of causation require expert testimony. Landeros v. Flood (1976) 17 Cal.3d 399, 410; Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402.

There is no dispute that Defendants acted within the applicable standard of care during Plaintiff’s office visits from 12/18/15 through 6/2/16. UF 60-68.

It is undisputed that Defendants did not cause or contribute to Plaintiff’s injuries. UF 69-80.

Moving party is ordered to give notice.