Filed 6/23/20 Hicks v. McLean CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

XIAO HUI GAN HICKS,

  

Plaintiff and Appellant,

  

v.  

  

MICHAEL McLEAN, M.D.,

  

Defendant and Respondent.

         B298800

      (Los Angeles County

       Super. Ct. No. BC670934)

  

APPEAL from a judgment of the Superior Court of Los Angeles County, David Sotelo, Judge. Affirmed.

Xiao Hui Gan Hicks, in pro. per., for Plaintiff and Appellant.

Schmid & Voiles, Jennifer K. Villebro, Deborah S. Taggart and Denise H. Greer for Defendant and Respondent.

Appellant Xiao Hui Gan Hicks appeals from summary judgment granted in favor of her former physician, respondent Dr. Michael McLean, on Hicks’s claims for medical negligence/abandonment and battery arising out of varicose vein surgery Dr. McLean performed on Hicks. We affirm.

BACKGROUND

Hicks’s allegations and contentions are difficult to decipher. To the extent we can ascertain Hicks’s contentions from the second operative complaint (SAC) and record, they are as follows: in July 2016, Hicks consulted Dr. McLean, a cardiothoracic surgeon, regarding a diagnosis of varicose veins causing pain in her legs. On October 18, 2016, at his Los Angeles office, Dr. McLean performed surgery on Hicks’s left leg after which that leg ceased to hurt.

The incidents at issue here began on December 8, 2016. On that day, Hicks returned to Dr. McLean’s office and signed a written consent for surgery to treat varicose veins in her right leg. As Hicks was awaiting surgery, Dr. McLean notified Hicks for the first time that “a new medicine [was] going to be tested on [her] left leg” and, if “all went well, then they would undergo surgery on [Hicks’s] right leg with the new medicine later.” Jose Hernandez, Dr. McLean’s physician assistant, then “injected the new medicine four to five times into [Hicks’s] left leg” and, because “there [was] still some medicine left,” administered a single injection of the same medication to Hicks’s right leg. Hicks does not know and was not told the name of the “medicine . . . administered on [sic] her legs.”

A week later Hicks “noticed and felt unusual changes to [her] legs including more noticeable blood vessels, intense pain, tightness, heaviness, and . . . hardening in certain locations.” She returned to Dr. McLean on December 13, 2016. He evaluated Hicks’s legs, told her “it [sic] looked better and that they would undergo surgery on [her] right leg with the new medicine in four weeks.” Thereafter, Hicks’s scheduled appointments “were suddenly canceled,” and she was unable to schedule an appointment to see Dr. McLean until January 12, 2017. Prior to that appointment, Hicks wrote to Dr. McLean, informed her that her “legs were in worse condition” and she thought “something was wrong,” and that no surgery should be performed on her right leg with the new medicine at her upcoming appointment.

Hicks visited Dr. McLean at his Lynwood office on January 12, 2017. Dr. McLean performed an ultrasound on both her legs, after which he told Hicks he had “covered all of the varicose veins and that [the] job was done.” Hicks was also told that Dr. McLean’s office in Lynwood would be closing at the end of the month. This “news frightened [Hicks] as [her] legs had worsened, [and she] still did not know what medicine had been administered on [her] legs.” Hicks claims that, after December 8, 2016, her “left leg became worse.” She alleges she suffered “very serious side-effect, panic attacks [and] fears” as a result of the new medicine Dr. McLean tested on her leg, and his purported refusal to continue treating her after January 12, 2017.

Hicks, who has consistently been self-represented, filed this action on August 2, 2017. After one or more demurrers and motions to strike punitive damages, Hicks filed the SAC on May 29, 2018. Although it understandably found the SAC to be “poorly written and hard to follow,” the trial court concluded Hicks adequately pled causes of action for (1) medical malpractice/abandonment, and (2) medical battery.

Summary Judgment Motion

In due course, Dr. McLean moved for summary judgment. He argued he had satisfied the appropriate standard of care, had not caused Hicks’s injuries, had not acted with intent to harm Hicks, did not abandon or withdraw from medical treatment of his patient and had not concealed or misrepresented information from or to Hicks. The motion was supported by, among other things, declarations from Dr. McLean, Hernandez, Dr. McLean’s expert witness, Dr. Vincent Rowe, an experienced vascular surgeon and professor, and Hicks’s medical records, deposition testimony and other exhibits.

According to Dr. McLean and Hernandez, on December 8, 2016, after explaining the procedure to Hicks and obtaining her written consent, Hernandez (under Dr. McLean’s supervision) performed sclerotherapy (a medical procedure used to eliminate varicose veins) on Hicks’s right leg. Neither Hernandez nor Dr. McLean said anything to Hicks about administering a new or experimental medication for the procedure. Rather, “polidocanol,” the usual medication used for such procedures, was used on the right leg. Hicks tolerated the procedure well and experienced no complications. No procedure was performed on, nor was any medication administered to, Hicks’s left leg on December 8, 2016. Hernandez and Dr. McLean declared that Hicks’s medical records for December 8, 2016, submitted in support of the motion for summary judgment, were complete and unaltered, and no procedure, care or treatment not identified in those records was administered to Hicks nor was any information omitted from the records. When Hicks returned the following week for a post-procedure follow up she did not report any concerns and her legs showed no edema, tenderness, erythema or discoloration. After discussing the procedure with Hernandez, Hicks scheduled an appointment for January 12, 2017, for sclerotherapy to be performed on previously inaccessible veins in her right leg.

When Hicks returned on January 12, 2017, she informed Hernandez she did not wish to proceed with the scheduled sclerotherapy. Rather, Hicks complained she had new varicose veins in both legs, which she believed had been caused by the previous sclerotherapy. An examination and ultrasound revealed no new varicose veins in or other injury to either of Hicks’s legs, and she did not report any pain, discomfort, swelling or redness. When questioned about her concern, Hicks said the new varicose veins appeared primarily at night. Hicks was given and instructed to continue to wear compression stockings and to return to Dr. McLean for a follow-up appointment in four weeks. Hicks did not schedule that follow-up appointment, and never returned to see Dr. McLean. Dr. McLean and Hernandez declared they had not withdrawn from Hicks’s care, had not refused to see her and did not cancel (or instruct anyone not to schedule) any appointment with Hicks after January 12, 2017.

In support of his motion, Dr. McLean submitted the declaration of his medical expert, Dr. Rowe, a double board-certified general and vascular surgeon with over 20 years of experience. Dr. Rowe is also a professor of clinical surgery at USC medical school, and chief of vascular surgery for L.A. County/USC Medical Center. Dr. Rowe testified he was familiar with the standard of care for vascular surgeons practicing in Southern California at relevant times.

Based on his review of Hicks’s medical records and deposition testimony, and his education and professional experience as a vascular surgeon, Dr. Rowe opined that Dr. McLean and Hernandez met the standard of care in connection with their medical care and treatment of Hicks. Dr. Rowe opined that the December 8, 2016 procedure was performed in the standard, customary manner after discussing the procedure with Hicks and obtaining her informed consent. The medication and dosage used was standard, appropriate and customary for such sclerotherapy. Dr. Rowe saw no evidence to indicate that any medication other than polidocanol was used, or that any injection at all was administered to Hicks’s left leg on December 8, 2016. Dr. Rowe opined that, to a reasonable degree of medical probability, neither Dr. McLean’s actions nor those of his physician’s assistant were a substantial factor in causing or contributing to Hicks’s alleged injuries. Indeed, an ultrasound performed by Dr. McLean on January 12, 2017, reflected that Hicks had no new post-surgical injuries. In Dr. Rowe’s professional opinion, no negligent act or omission by Dr. McLean or Hernandez caused Hicks’s alleged injuries or damages.

As for the claim of medical abandonment, Dr. Rowe opined there was no evidence Dr. McLean refused to see Hicks or withdrew from her care and treatment after January 12, 2017. Dr. Rowe opined that it was appropriate and within the standard of care for Dr. McLean to have instructed Hicks to return four weeks after January 12, 2017 for a follow-up evaluation.

Finally, with regard to Hicks’s allegation of medical battery, Dr. Rowe opined there was no evidence any unconsented surgery was performed. Nor was there any indication that any new or experimental medication, or anything other than polidocanol, used on December 8, 2016, or that any medication at all was administered to Hicks’s left leg that day.

Hicks’s declaration and opposition to the motion for summary judgment were procedurally inadequate and as unintelligible as the SAC and her other papers. Hicks objected to medical records upon which Dr. Rowe relied, claiming the records were false, but provided no evidence to support that claim. Hicks also failed to present competent (or any) evidence to refute Dr. Rowe’s expert medical opinion that the medical treatment she received from Dr. McLean fell within the community standard of care.

The court found that Dr. McLean satisfied his initial burden on summary judgment, and that Hicks failed to establish a triable factual issue as to her claims for medical malpractice/abandonment or battery. Summary judgment was granted.

DISCUSSION

Governing Law and the Standard of Review for Motions for Summary Judgment

A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has the burden to show that “one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant makes that showing, the burden shifts to the plaintiff to show by admissible evidence that a triable issue of material fact exists as to the cause of action or defense. (Ibid.)

We review an order granting summary judgment de novo, employing the same three-step process as the trial court. (Manibog v. MediaOne of Los Angeles, Inc. (2000) 81 Cal.App.4th 1366, 1369.) First, we identify the issues framed by the pleadings. Next, we determine if the defendant has made an adequate factual showing to justify judgment in his favor. (Code Civ. Proc., § 437c, subd. (p)(2).) Finally, if the defendant has satisfied his initial burden, we determine whether the plaintiff raised at least one material factual issue. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1153–1154.) To satisfy this burden, the plaintiff must “‘set forth the specific facts showing that a triable issue of material fact exists . . . .’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477; Foltz v. Johnson (2017) 16 Cal.App.5th 647, 653–654.) Our review is guided by the same principles applicable to the trial court: we strictly construe the movant’s papers and liberally construe the opposition, viewing the latter in the light most favorable to the party against whom summary judgment was entered. We resolve any doubt about the propriety of granting the motion in favor of a denial of the motion. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717; Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181.)

In this appeal, Hicks has failed to identify (let alone tailor her arguments to) the applicable standard of review. This is a fundamental error. The “threshold issue” in every appeal is the governing standard of review. (Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 611.) Necessary corollaries to this rule require that an appellant comply with the applicable procedural rules and provide an adequate record establishing error. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu) [the “‘appellate court is not required to search the record on its own seeking error.’ [Citation.]”.) Hicks failed to satisfy these requirements in several respects.

First, she failed to articulate a “pertinent or intelligible legal argument.” (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117.) Second, Hicks failed to support her contentions with appropriate citations to the record or governing authority. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [failure to provide an adequate record on a disputed issue requires that the issue be resolved against appellant]; American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 284 [an appellant must support its assertions with accurate record references]; Cal. Rules of Court, rules 8.204(a)(1)(B) & 8.204(a)(1)(C).) Finally, Hicks improperly attempts to introduce as evidence extraneous material attached to her opening brief which was not presented to the trial court or post-dates the judgment on appeal. (Cal. Rules of Court, rule 8.204(d).)

That Hicks is self-represented does not exempt her from the foregoing rules. (Nwosu, supra, 122 Cal.App.4th at pp. 1246-1247.) Hicks is entitled to “‘the same, but no greater consideration than other litigants and attorneys.’” (Id. at p. 1247; Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1271 [appellants are required affirmatively to demonstrate error using reasoned argument and proper citations to the appellate record and legal authority].) Like attorneys, pro. per. litigants must adhere to the rules of appellate procedure. (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party “held to the same restrictive procedural rules as an attorney”].) The record and arguments presented by Hicks fail these requirements in virtually every respect. Although that failure alone would justify our refusal to consider Hicks’s appeal, we have not chosen that path. Nevertheless, Hicks’s arguments, to which we now turn, lack merit.

Dr. McLean’s Motion for Summary Judgment was Properly Granted

The trial court had difficulty ascertaining the precise nature of the SAC’s allegations against Dr. McLean. Read generously, the court found that Hicks pled causes of action for professional negligence (i.e., medical malpractice and abandonment) and medical battery.

A. Medical Negligence
B.
1. Legal Standard
2.
“‘The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.’ [Citation.]” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) The first element (standard of care) “is the key issue in a malpractice action and can only be proved by expert testimony, unless the circumstances are such that the required conduct is within a layperson’s common knowledge.[ ] [Citations.]” (Ibid.) “Both the standard of care and a defendant’s breach must normally be established by expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th at p. 467.) Accordingly, Dr. McLean had an initial duty in his motion for summary judgment to provide competent evidence that he exercised the skill, prudence, and diligence commonly possessed and employed by members of the medical profession under similar circumstances. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

To establish medical abandonment, a patient must show her physician withdrew from the patient’s course of treatment without providing due notice and ample opportunity for the patient to secure the services of another physician. (See Payton v. Weaver (1982) 131 Cal.App.3d 38, __ [concluding a kidney specialist did not abandon and had no legal obligation to continue to treat an uncooperative patient after providing her sufficient notice that her dialysis treatment would be terminated, and providing a list of other local dialysis providers and the clinic with which he was associated].) Having undertaken a patient’s treatment, the physician must continue that treatment so long as necessary, unless the parties terminate the physician-patient relationship by mutual consent, or the patient dismisses the physician. (Taylor v. De Vaughn (1928) 91 Cal. App. 318, 321–322.) A claim for premature cessation of medical services usually is provable only by expert testimony, regardless of whether the cessation is considered abandonment or lack of due care. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.)

3. Analysis
4.
In a declaration submitted in support of the motion for summary judgment, Dr. McLean testified that, on December 8, 2016, he and his physician’s assistant explained to Hicks the sclerotherapy procedure Dr. McLean proposed to use on one of Hicks’s legs to eliminate varicose veins. Dr. McLean declared (and presented documents reflecting) that he obtained Hicks’s written consent to perform sclerotherapy on her right leg. Supervised by Dr. McLean, Hernandez performed the procedure on Hicks’s right leg. The medication polidocanol was used during the procedure, which Hicks tolerated well. Hicks was scheduled to and did return for a post-surgical evaluation on January 12, 2017. However, on that date, Hicks complained of new varicose veins in both legs. An ultrasound revealed no new varicose veins or new injury to Hicks’s legs. Dr. McLean declared that he remained committed to providing medical assistance to Hicks after January 12, 2017, and asked Hicks to return in one month for the next follow-up. Hicks did not return for that appointment, nor did she schedule or attempt to schedule any further appointments, and never returned to see Dr. McLean.

Dr. McLean also submitted a declaration by his expert, Dr. Rowe. Based on his review of the relevant evidence, and his knowledge, training and experience, Dr. Rowe opined that Dr. McLean appropriately explained and discussed the sclerotherapy procedure with Hicks prior to performing that surgery and obtained her informed consent to proceed. Accordingly, Dr. McLean met his initial burden on summary judgment by establishing that only the standard drug was used in the sclerotherapy to which Hicks consented.

Dr. Rowe also opined that the medication and dosage Dr. McLean used to treat Hicks are standard for sclerotherapy surgery. He testified there was no evidence that any drug but polidocanol was administered during the procedure on December 8, 2016, or that anything was injected into Hicks’s left leg on that date. He further opined that sclerotherapy was performed on Hicks in the usual and customary manner, and Dr. McLean satisfied the standard of care in the community. Dr. Rowe stated that, in his opinion and to a degree of medical probability, nothing Dr. McLean did—or, by extension, no act performed by Hernandez under Dr. McLean’s supervision—was a substantial factor in causing or contributing to Hicks’s alleged injuries. Finally, Dr. Rowe stated that the January 12, 2017 ultrasound showed Hicks had not suffered any new, post-surgical leg injuries, and the procedures performed by Dr. McLean had been effective in addressing Hicks’s varicose veins. He opined that there was no indication Dr. McLean withdrew from or abandoned his patient’s care or treatment.

Based on this evidence the trial court found Dr. McLean met his initial burden on summary judgment by “showing that the care rendered to Hicks complied with the applicable standard of care and did not cause or contribute to [Hicks’s] injuries.” As to the allegations of medical abandonment, the court found Dr. McLean satisfied his burden by showing he “did not withdraw from treating Hicks,” and Hicks provided “no evidence that [she] attempted to seek treatment from McLean after January 12, 2017 but [was] denied access.”

Hicks objected to Dr. Rowe’s declaration, claiming it was false, but provided no evidence of its falsity in any respect. The court found that Dr. McLean had provided competent expert opinion that his actions fell within the relevant standard of care. And, despite the fact that this is not a case in which the circumstances would fall within common knowledge, Hicks failed to provide the requisite expert opinion to contradict Dr. Rowe to establish the existence of a material factual dispute. Similarly, the court found Dr. McLean had met his initial burden to show he did not abandon his patient, but Hicks failed to provide evidence to the contrary, i.e., that she attempted but was unable to obtain treatment from Dr. McLean after January 12, 2017. Accordingly, judgment was granted in Dr. McLean’s favor on the claim for medical negligence or abandonment.

In a further effort to raise a triable issue in her opposition, Hicks claimed Dr. McLean altered her medical records or created false ones. Hicks’s “proof” of this claim consisted of an incomplete and seemingly irrelevant March 2017 letter from the Social Security Administration containing some notes by a different physician (Dr. Gabriel Carabello) regarding pain in Hicks’s foot (and noting there were no venous issues to address). Hicks failed to explain how this incomplete document was relevant to her claims against Dr. McLean.

C. Judgment was Properly Granted on the Claim of Medical Battery/Lack of Informed Consent
D.

Hicks contends that Dr. McLean (through Hernandez) committed medical battery by injecting an unknown medicine into both her legs without consent. Hicks concedes she consented to surgery (sclerotherapy). However, she claims that, in the course of performing that surgery, Dr. McLean administered several injections of a new medicine to her left leg, then used what was left of that new medication to administer a “one-time” injection to her right leg, injuring both legs.

Although the trial court proceeded on the basis that the almost incomprehensible SAC alleged intentional medical battery, we find the allegations actually more closely approach, or at least overlap, those necessary to plead a claim of lack of informed consent, a different cause of action sounding in negligence.

Medical battery occurs in circumstances where “a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which [the patient’s] consent was not obtained,” or intentionally exceeds the terms or conditions of consent. (Cobbs v. Grant (1972) 8 Cal.3d 229, 239 (Cobbs); Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1497–1498.) To establish such a claim, the patient must show: (1) the defendant performed a medical procedure without her consent, or that she consented to one medical procedure, but the physician intentionally performed a substantially different procedure; (2) the patient suffered harm; and (3) defendant’s misconduct was a substantial cause of that harm.) (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269.) A “battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324; see Cobbs, supra, 8 Cal.3d at pp. 241–242.)

A claim for lack of informed consent, on the other hand, is a separate tort and arises when the doctor performs a procedure without adequately disclosing the risks and alternatives. Perry v. Shaw (2001) 88 Cal.App.4th 658, 661-662 (Perry) illustrates the distinction between the torts. In Perry, the plaintiff went to a surgeon to have excess skin removed. During that surgery the doctor performed a breast augmentation procedure (despite plaintiff’s instructions not to do so). (Id. at pp. 661–662.) Perry involved a complete lack of consent to a particular surgery. By contrast, this case involves a lack of informed consent regarding the drug used during a surgery to which Hicks consented. Hicks has not identified, and we are not aware of, any authority extending the theory of intentional medical battery to encompass facts like those at hand.

In his motion for summary judgment, Dr. McLean established that the only procedure performed on Hicks was sclerotherapy on her right leg, to which she consented. Dr. McLean presented evidence in the form of authenticated medical records, his own declaration and that of Hernandez showing that nothing other than polidocanol, the standard medication used in sclerotherapy, was administered to Hicks’s right leg on December 6, and no procedure was performed on, nor medication injected into, Hicks’ left leg at all. Both Hernandez and Dr. McLean declared that none of the records regarding the procedure Hicks to which Hicks consented and underwent on her right leg December 8, 2016, or any aspect of her medical care were altered, and no information was missing from her chart.

The trial court correctly found Hicks failed to demonstrate by admissible evidence any material factual issues as to her claims. The motion for summary judgment was properly granted.

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DISPOSITION

The judgment is affirmed. Respondent Dr. McLean is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.