Case Number: BC596749 Hearing Date: May 15, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

KATHY JAHAGANI,

Plaintiff(s),

vs.

GEORGE H. SANDERS, ET AL.,

Defendant(s).

Case No.: BC596749

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

May 15, 2019

Allegations of the Complaint

Plaintiff, Kathy Jahagani filed this action against Defendants, George Sanders and the Encino Surgical Center for professional negligence and lack of informed consent. Plaintiff alleges she had brachioplasty/revision surgery performed by Sanders at the Center. She alleges she experienced numbness and weakness, followed by extreme pain and discomfort, after the surgery. She alleges Sanders admitted the surgery was “botched” and refunded her money. Her arm has not healed properly and she has scars and disfigurement as a result of the surgery. She also alleges Defendants failed to inform her of the potential complications of the surgery.

Motion for Summary Judgment

On 1/31/19, Defendants filed this motion for summary judgment, setting it for hearing on 5/15/19. Defendants contend they are entitled to judgment as a matter of law on the first cause of action because they did not breach any standard of care in connection with Plaintiff’s surgery. They contend they are entitled to judgment as a matter of law on the second cause of action because Sanders obtained informed consent to perform brachioplasty revision surgery and lipectomy. They move, in the alternative, for summary adjudication of each of the two causes of action alleged against them.

Evidentiary Objections

Defendants submitted evidentiary objections with their reply papers. There are no declarations submitted with the opposition, and therefore none of the opposition is based on admissible evidence. The objections are sustained.

First Cause of Action, Medical Malpractice/Negligence

General Law Governing Summary Judgment in Malpractice Actions

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id.

A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

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. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘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.’“ (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

Moving Burden

Defendants support their motion with the Declaration of James Wethe, M.D. Dr. Wethe sets forth his expert credentials, indicates he reviewed Plaintiff’s medical chart, details Defendants’ care and treatment of Plaintiff, and ultimately concludes Defendants’ care and treatment of Plaintiff complied with the standard of care. This is sufficient to meet the moving burden on summary judgment.

Opposing Burden

Because Defendants met their moving burden to show they are entitled to judgment as a matter of law, the burden shifts to Plaintiff to raise a triable issue of material fact.

Plaintiff argues the motion should be denied as premature because Defendants have not conducted discovery. Plaintiff filed this case on 10/05/15. The case has been pending for three and a half years. Defendants, of course, have possession of Plaintiff’s medical chart as it relates to the procedure that forms the basis of this action. Defendants also have personal knowledge concerning the facts of the case. It is not clear what discovery Plaintiff contends Defendants failed to do. Plaintiff was free to conduct any discovery she desired to conduct, and cannot place blame on Defendants for failing to conduct discovery.

Plaintiff next argues the motion should be denied because it is an improper attempt to delay the trial in the action. Trial is currently scheduled for 8/06/19. Trial was continued to permit Defendants to file this motion and have the motion heard; this is a very typical procedure in civil courtrooms. There is no reason to deny summary judgment on this ground.

Plaintiff next argues the informed consent form she signed does not negate the medical malpractice cause of action, as it does not relieve Defendants of their obligation to perform their medical duties with due care. This is correct; the informed consent form is only relevant to the second cause of action, which will be discussed below. Defendants, however, move for summary judgment on the first cause of action on the ground that they complied with the standard of care, not on the ground that the informed consent form obviates the cause of action.

Plaintiff next argues Dr. Wethe did not observe the procedure that forms the basis of the action and cannot form an opinion. Defense experts typically, if not always, form their opinions in medical malpractice cases based on review of the plaintiff’s medical chart. This is an established and proper method of reviewing the facts of the case and forming an expert opinion.

Plaintiff failed to provide any expert declaration in support of her opposition to the motion for summary adjudication of the cause of action for medical malpractice. Pursuant to Jambazian, supra, the motion for summary adjudication of the cause of action for medical malpractice is therefore granted.

Second Cause of Action, Lack of Informed Consent

Law Governing Informed Consent

A patient’s right of self-decision is the measure of the physician’s duty to disclose the risks and dangers of the procedure involved. 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. There must also 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. 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 she may believe so, with the 20/20 vision of hindsight, but justice would not 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. Cobbs v. Grant (1972) 8 Cal.3d 229, 244-245.

The burden of going forward with evidence of nondisclosure rests on the plaintiff. Once such evidence has been produced, then the burden of going forward with evidence pertaining to justification for failure to disclose shifts to the physician. Cobbs v. Grant, supra, at 245.

It is the physician’s duty to disclose to the patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment. Material information is information which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure. To be material a fact must also be one which is not commonly appreciated. There is no duty to make disclosure of risks when the patient requests that he or she not be so informed or where the procedure is simple and the danger remote and commonly understood to be remote. Likewise, there is no duty to discuss minor risks inherent in common procedures, when such procedures very seldom result in serious ill effects. However, when a procedure inherently involves a known risk of death or serious bodily harm it is the physician’s duty to disclose to the patient the possibility of such outcome and to explain in lay terms the complications that might possibly occur. Even though the patient has consented to a proposed treatment or procedure, the failure of the physician to inform the patient before obtaining such consent is negligence and renders the physician subject to liability for any injury proximately resulting from the treatment or surgery if a reasonably prudent person in the patient’s position would not have consented to the treatment or procedure if he or she had been adequately informed of all the significant perils. CACI 532, 533.

Four fundamental postulates underpin a physician’s duty to obtain the patient’s informed consent in connection with upcoming procedures or surgeries. The first is that patients are generally persons unlearned in the medical sciences and therefore except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity. The second is that a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment. The third is that the patient’s consent to treatment, to be effective, must be an informed consent. And the fourth is that the patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the physician that transcends arms-length transactions. Arato v. Avedon (1993) 5 Cal.4th 1172, 1183 citing Cobbs v. Grant (1972) 8 Cal.3d 229, 244-245; Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1200.

When a given procedure inherently involves a known risk of death or serious bodily harm, a medical doctor has a duty to disclose to his patient the potential of death or serious harm, and to explain in lay terms the complications that might possibly occur. Beyond 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. Cobbs v. Grant, supra, at 242; Schiff v. Prados (2001) 92 Cal.App.4th 692, 701; Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844–845.

The test for determining whether a potential peril must be divulged is its materiality to the patient’s decision and a two-tier approach has been applied to determine what information the physician must provide: (1) what every patient, as measured by the standard of a reasonable person, would wish to know; and (2) what, beyond that, the standard of care requires. Cobbs v. Grant, supra, at 243-244; Daum v. SpineCare Medical Group (1997) 52 Cal.App.4th 1285, 1301–1302. A lay standard controls the quantum of information needed to satisfy tier one; plaintiff need not provide expert testimony, as to it, to show that a lack of informed consent has occurred. Expert testimony must support tier two. The existence or sufficiency of an informed consent, in either case, is usually a question of fact.

Moving Burden

As noted above, Plaintiff’s complaint alleges she suffered “pain, discomfort, disfiguration, scarring, discoloration and a different texture” on her arm as a result of the surgery. Complaint, ¶14. She alleges the risks of these complications were not discussed with her prior to the surgery, and therefore Defendants did not obtain her informed consent to the procedure.

At ¶7C and D of Dr. Wethe’s declaration, he discusses the informed consent discussion Plaintiff and Defendant had, as well as the informed consent form Plaintiff signed. At ¶7C, Dr. Wethe declares Defendant’s notes indicate he discussed risks including numbness, weakness, irregularities, asymmetries, need for revision surgery, and other problems with Plaintiff prior to surgery. At ¶7D, Dr. Wethe declares Plaintiff signed an informed consent form, which indicates she understands the risks of the procedure include, but are not limited to, “discomfort (pain and sensitivity), numbness, lumps, irregularities, asymmetry, restricted activity, unattractive scars, waviness-surface irregularities, pigmentation, and altered sensation.”

This is sufficient to meet the moving burden to show Plaintiff acknowledged the risk of each of the complications of surgery about which she complains in her complaint.

Opposing Burden

Plaintiff argues, in opposition to the motion, that she did not consent to the procedure. She fails, however, to provide any evidence in this regard. There is no declaration from Plaintiff or any other person negating the showing made in the moving papers. Plaintiff does include various exhibits with her opposition, but they are not authenticated. As noted above, Defendants’ objections to the evidence submitted with the opposition are sustained. Absent any evidence in support of her contentions, Plaintiff necessarily failed to meet her burden to raise a triable issue of material fact.

Conclusion

Defendants met their moving burden to show they are entitled to judgment as a matter of law on the negligence and lack of informed consent causes of action asserted against them. Plaintiff failed, through admissible evidence, to raise a triable issue of material fact concerning either cause of action. The motion for summary judgment is therefore granted.

Defendants are ordered to give notice.