2012-00120854-CU-MM

Karen Valdez vs. Sutter Health Inc

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Deering, Robert R.

***If any party requests oral argument, then the hearing will be held at 9:00AM in
this department on Tuesday, March 11, 2014–not March 10, 2014.*** Defendant Paul Axtell, M.D.’s (“Dr. Axtell”) motion for summary judgment / summary
adjudication is DENIED.

Background Facts/Procedure

This is a medical malpractice case arising from a fall that resulted in an ankle fracture.
Dr. Axtell treated Plaintiff Karen Valdez (“Valdez”) in the emergency room and
performed surgery to repair the fracture. He also saw her at follow-up visits.

During preparation for the surgery, Valdez suffered a cardiac event and stopped
breathing. She was resuscitated, but she allegedly experienced neurological
impairments post-surgery.

Valdez alleges that Dr. Axtell failed to obtain her informed consent during treatment,
and that he

failed to reasonably and timely and properly diagnose and treat and care
for and refer for timely diagnosis and treatment, including but not limited
to overdosing Plaintiff on prescription drugs, causing an anoxic and
hypoxic event and brain damage, and proceeding with surgery when
Plaintiff was not stable and when it was dangerous to do so.

(Compl. at 1st C/A, p.1.) Valdez’ complaint contains a single cause of action
denominated “General Negligence.” Dr. Axtell now moves for summary judgment on
grounds that Valdez cannot establish the elements of breach of the standard of care or
causation. In addition, Dr. Axtell moves for summary adjudication on the issue of
informed consent.

Discussion

Preliminarily, the court rejects Dr. Axtell’s notion that the issue of informed consent is
somehow separate from Valdez’ negligence cause of action. “A medical act performed
without a patient’s informed consent…is medical negligence… .” (Massey v. Mercy
Med. Ctr. Redding (App. 3 Dist. 2009) 180 Cal.App.4th 690, 698 [citation omitted]
[ellipses added].) Thus, Valdez’ allegations that Dr. Axtell failed to obtain her informed
consent is simply another allegation of the manner in which he breached the standard
of care. In other words, Valdez’ allegations about informed consent do not present a
discrete issue for summary adjudication. (See CCP § 437c(f)(1) [a party may one
move for summary adjudication of an entire cause of action, an issue of duty, and
affirmative defense or a claim of damages].) Instead, in order to obtain summary
judgment, Dr. Axtell must demonstrate that there is no triable issue whether (1) he
obtained Valdez’ informed consent or (2) any failure to do so did not cause her alleged
injuries. This is the same initial burden that Dr. Axtell must meet in relation to Valdez’
other allegations of negligence.

Dr. Axtell’s motion is based primarily on the expert testimony of Eric Giza, M.D. (“Dr.
Giza”). Dr. Giza opines that Dr. Axtell abided by the standard of care and did not
contribute to any of Valdez’ alleged injuries.

Assuming Dr. Giza’s testimony enables Dr. Axtell to meet his initial burden of
production and shift the burden to Valdez, Valdez has demonstrated the existence of
triable issues of material fact. Among other things, Valdez has produced the
declaration of John F. Toton, M.D. (“Dr. Toton”). Dr. Toton, who is an experienced
orthopedic surgeon, opines that Dr. Axtell fell below the standard of care by
proceeding with surgery after Valdez had suffered cardiac and pulmonary arrest and
without having first determined the cause(s). He also faults Dr. Axtell for failing to
consult a cardiologist or neurologist before proceeding with surgery. Dr. Toton’s
opinions demonstrate the existence of triable issues of material fact on the issue of
breach.

Dr. Toton further opines that the subject breaches contributed to Valdez’ neurological
impairments. Thus, his testimony demonstrates the existence of a triable issue on the
question of causation as well.

In denying the motion, the court is aware of Dr. Axtell’s argument that the court should
disregard Dr. Toton’s opinions because the medical records and deposition transcripts
upon which his opinions are based were not submitted with his declaration. The court
rejects this argument because Dr. Axtell himself submitted substantial portions of
these documents. Because the documents are before the court, Dr. Toton’s failure to
submit the same documents does not require the court to disregard his testimony.
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(See Shugart v. The Regents of the Univ. of Calif. (2011) 199 Cal.App.4 499, 506.)

The court likewise rejects Dr. Axtell’s argument that, on the issue of causation, Dr.
Toton’s opinion lacks sufficient reasoning to demonstrate the nonexistence of a triable
issue. There is no dispute that an expert opinion is only worth as much as the reasons
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upon which it rests. (See Kelley v. Trunk (1998) 66 Cal.App.4 519, 524.) Here,
however, Dr. Toton has provided a reason for his opinion that Dr. Axtell’s conduct was
a factor contributing to Valdez’ alleged injuries. He reasons that, by proceeding with
Valdez’ ankle surgery after her cardiac/pulmonary event, Dr. Axtell contributed to her
alleged neurological impairments by “add[ing] to her post-operative obtunded
state… .” (Toton Decl., ¶ 15.) Although Dr. Toton might have provided more detail
about the relationship between a patient’s obtunded state and her subsequent
neurological impairments, his reasoning is not so undeveloped that the opinion is
inadmissible. The fact that more reasoning might have been provided goes to the
opinion’s weight. Because this court has no authority to weigh the evidence at this
juncture, ( City of San Diego v. Haas (2012) 207 Cal.App.4th 472, 487), and because
Dr. Toton’s opinion about causation is admissible, the opinion creates a triable issue of
material fact that precludes summary judgment.

Finally, the court rejects the argument that Dr. Toton’s opinion that additional
anesthesia time “likely” added to Valdez’ alleged impairments is too speculative to
demonstrate the existence of a triable issue. Although Dr. Toton initially asserts that
injury was “likely,” he explains later in his declaration that Dr. Axtell’s conduct added to
Valdez’ alleged neurological problems “to a reasonable medical probability.” (Toton
Decl., ¶¶ 15, 17.) Because Valdez is opposing summary judgment, the court is
required to construe her witnesses’ declarations liberally. (See Nativi v. Deutsche
Bank Nat’l Trust Co. (2014) 223 Cal.App.4th 261, 288.) Consequently, the court
concludes that Dr. Toton’s opinion about causation has been made to the requisite
degree of medical certainty.

Because the court denies the motion for the reasons above, it need not address and
does not address Valdez’ argument that application of the res ispa loquitur
presumption independently requires the motion to be denied. Similarly, the court does not address whether the Fleming Declaration, which Valdez purported to incorporate
by reference into her Opposition without filing it with her Opposition papers,
demonstrates a triable issue of material fact.

Dr. Axtell’s evidentiary objections to the Fleming Declaration are SUSTAINED. His
objections to the Toton Declaration are OVERRULED with the exception Objections
Nos. 2 and 4, which are SUSTAINED.

Conclusion

The motion is denied.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.