Case Number: BC670934 Hearing Date: June 18, 2019 Dept: 40

MOVING PARTY: Defendant Michael McLean

OPPOSITION: Plaintiff Xiao Hui Gan Hicks

Plaintiff Xiao Hui Gan Hicks (“Hicks”) sues defendant Dr. Michael Keith McLean (“McLean”) for damages based on allegations that he performed medical procedures on her, without her informed consent. Hicks is self-represented.

Hicks alleges that she was diagnosed with varicose veins in both legs. (SAC, Pg. 3, ln. 2.) On October 18, 2016, McLean conducted surgery on Hicks’s left leg, after which the pain went away in the left leg (SAC, Pg. 3, ¶ 2.) On December 8, 2016, Hicks signed a document allowing surgery on her right leg. (SAC, Pg. 3, ¶ 3.) As she was lying down on the surgery bed, McLean suddenly notified her that “a new medicine was going to be tested on my left leg first” and that if it “all went well then they would undergo surgery on my right leg with new medicine later.” (Id.) McLean’s assistant then injected the new medicine “four to five” times in her left leg and one time in her right leg. (Id., ¶ 4.) In the following days Hicks observed “more noticeable blood vessels, intense pain, tightness, heaviness, and [her] legs hardening in certain locations.” (SAC, Pg. 4, ¶ 6.) Hicks did not know what medicine had been administered on her legs. (Id., ¶ 10.) Hicks also alleges “very serious side-effect, panic attacks, fears” as a result of the new medicine being tested. (SAC, Pg. 15, lns 9-10.)

On August 2, 2017, Hicks filed a complaint, then on May 29, 2018, the complaint was amended, alleging:

1) Medical Malpractice/Abandonment

2) Battery

On March 29, 2019, McLean filed this opposed motion for summary judgment.

Pro Per Standard: Hicks is self-represented. Self-represented litigants are held to the same standards that apply to licensed attorneys. Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056; see Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209 (stating that self-represented litigants are “restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.”)

Summary Judgment Standard: “The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Id.

Where a defendant seeks summary judgment or adjudication, it must show that either 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. (Code Civ. Proc., § 437c, subd. (p)(2).) A defendant may satisfy this burden by showing that the claim cannot be established because of the lack of evidence on some essential element of the claim. Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.

Once the defendant meets this burden, the burden shifts to plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto. Id. If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. Id.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

First Cause of Action, Medical Malpractice: GRANTED

The elements of medical malpractice are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of [their] 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.” Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696, 701-02 (citations omitted). “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” Avivi v. Centro Medico Urgente Medical Center, supra, 159 Cal. App. 4th at p. 467.

Thus, in a medical malpractice case, “[w]hen 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 (citations omitted). An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. Starr v. Mooslin (1971) 14 Cal. App. 3d 988, 999.

McLean states that on December 8, 2016, a sclerotherapy, a medical procedure used to eliminate varicose veins, was performed on Hicks’ right leg. McLean states that he and Jose Hernandez (“Hernandez”), their physician’s assistant, informed Hicks about the procedure and obtained her signature on a consent form. McLean oversaw the sclerotherapy performed by Hernandez. During the procedure a medication, polidocanol, was used on Hicks’ right leg. After completing the procedure, Hicks was scheduled for a follow-up examination on January 12, 2017. On that date Hicks complained of new varicose veins in both her legs and an ultrasound was taken. The ultrasound indicated no new varicose veins or injury to Hicks’ legs. Hicks was asked to return in four weeks for a follow-up visit. McLean states that Hicks never returned or schedule an appointment.

In support of their initial burden, McLean provides the declaration of Dr. Vincent Rowe (“Rowe”), a physician and surgeon who specializes in vascular surgery. Rowe states that based upon his knowledge, training, experience, and the records reviewed, to a reasonable degree of medical probability, McLean and Hernandez’s care and treatment of Hicks was appropriate and met the standard of care in the community. (Decl. Rowe, ¶10.) Rowe states that the sclerotherapy was performed in a standard and customary manner. (Decl. Rowe, ¶9(h).) Rowe also states that the medication and dosage used by McLean and Hernandez are the standard used for sclerotherapy. (Decl. Rowe, ¶10.) Rowe states that McLean appropriately discussed the procedure and obtained Hicks’ informed consent for the procedure. Ibid. It is also Rowe’s opinion that to a degree of medical probability, McLean’s actions were not a substantial factor in causing or contributing to Hicks’ alleged injuries. (Decl. Rowe, ¶11.) Rowe states that an ultrasound taken on January 12, 2017, indicated that Hicks did not have any new injuries post-procedure. Ibid. Rowe opines that there was no abandonment of Hicks by McLean.

The Court finds that based on Rowe’s declaration, McLean has upheld his initial burden in summary judgment, showing that the care rendered to Hicks complied with the applicable standard of care and did not cause or contribute to her injuries. The burden shifts to Hicks to raise a triable issue of material fact regarding the professional negligence cause of action.

Hicks objects that the medical record relied upon by the expert was false. (Oppo., Pg. 30.) No evidence of falsity is provided. Regardless, in a medical malpractice action, a defendant is entitled to summary judgment where he or she presents competent expert declaration that his or her actions fell within the community standard of care and plaintiff fails to present contrary expert opinion. Munro, supra, 215 Cal.3d at pp. 984-985. A narrow exception to this rule exists where “[t]he conduct required by the particular circumstances is within the common knowledge of the layman. This exception is, however, a limited one. It arises when a foreign object such as a sponge or surgical instrument, is left in a patient following surgery and applies only when the plaintiff can invoke the doctrine of res ipsa loquitur.” Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542. (internal quotations and citations omitted.) This case does not fall within the exception to the rule and therefore expert testimony is required.

Hicks has failed to present a contrary expert opinion and therefore McLean’s motion for summary judgment is GRANTED.

Medical Abandonment: GRANTED

To plead a cause of action for abandonment, plaintiff must demonstrate that the physician withdrew from their course of treatment without due notice and an ample opportunity to secure the services of another physician. Taylor v. De Vaughn (1928) 91 Cal.App. 318, 321-322.

Here, the facts establish that McLean saw Hicks as late as January 12, 2017. Hicks states that McLean informed her that his job was done and that his Lynwood office would be permanently closed on January 31, 2017. (Complaint, Pg. 4.) McLean contends that he remained committed to providing additional services to Hicks following the January 12th appointment, even scheduling another appointment in a month, but he did not receive further word from Hicks. McLean has met their initial burden by showing that they did not withdraw from treating Hicks. The burden shifts to Hicks to demonstrate that McLean withdrew. Hicks fails to meet this burden as they provide no evidence that they attempted to seek treatment from McLean after January 12, 2017 but were denied access. Accordingly, the motion for summary judgment is GRANTED.

Second Cause of Action, Medical Battery: GRANTED

“Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.” Cobbs v. Grant (1972) 8 Cal.3d 229, 239.

To establish a cause of action for medical battery, the plaintiff must prove: (1) defendant performed a medical procedure without plaintiff’s consent or plaintiff consented to one medical procedure but defendant performed a substantially different medical procedure; (2) plaintiff was harmed; and (3) defendant’s conduct was a substantial factor in causing plaintiff’s harm. CACI 530A.

Hicks argues that Hernandez injected a new drug into both her legs, without her consent.

McLean contends that the only procedure performed on Hicks was the procedure she consented to. McLean has attached Hicks’ signed consent to the sclerotherapy to their motion. (Ex. D, Pg. 21.) McLean states that polidocanol, the standard drug used for the sclerotherapy, was used only on Hicks’ right leg. McLean has met their initial burden for summary judgment by demonstrating that polidocanol is the standard drug used in the procedure Hicks consented to. The burden shifts to Hicks to provide evidence to raise a triable issue of material fact.

Hicks alleges that McLean made a fake medical record to conceal the fact that a new medicine was tested on her legs. (Oppo., Pg. 27.) Hicks states that McLean provided the fake record to the Social Security Administration (“SSA”) and attaches a letter from them as Exhibit 11 to her opposition. Exhibit 11 is a letter from the SSA, which is missing pages and the relevant page provided appears to be notes from a medical provider name Gabriel Carabello. The Court finds that there is no context to this exhibit and thus it is insufficient for Hicks to establish that there is a triable issue of material fact as to battery. Even reviewing Hicks’ opposition in the light most favorable to her, it merely repeats the allegations in the complaint and provides no relevant evidentiary support for them.

Therefore, Hicks is unable to meet her burden and the motion for summary judgment is GRANTED.

Conclusion: McLean’s motion for summary judgment is GRANTED.