Case Number: BC682310 Hearing Date: April 24, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT THE JOINT CORP.’S MOTION FOR SUMMARY ADJUDICATION

I. INTRODUCTION

Plaintiff Meggan Oksness (“Plaintiff”) filed this action on November 3, 2017. On March 19, 2018, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants The Joint Corp., Harkins Chiropractic Corp., and Jay Bystrom, D.C. (“Bystrom”) (collectively, “Defendants”) for medical malpractice and medical battery relating to chiropractic treatment given between June 17, 2016 and December 5, 2016. Defendants move for summary adjudication as to the second cause of action for medical battery.

II. FACTUAL BACKGROUND

On June 17, 2016, Plaintiff presented to The Joint Chiropractic, at which time she was a giving an informed consent document that stated, in part: “There are reported cases of stroke associated with neck movements including adjustments of the upper cervical spine. Current medical and scientific evidence does not establish a definite cause and effect relationship between upper cervical spiral adjustment and occurrence of stroke. Furthermore, the apparent association is noted very infrequently.” (Undisputed Material Fact “UMF” No. 1.) Plaintiff alleges she informed Defendants that she did not want to receive chiropractic manipulations and/or adjustments at her neck due to a family history of complications following neck manipulations by a chiropractor. (UMF No. 2.) Plaintiff also alleges Defendants failed to advise her regarding the risks and complications of chiropractic spinal manipulation therapy during her treatment. (UMF No. 3.) On December 5, 2016, Plaintiff presented to Defendants with mid back stiffness. Defendants recommended a chiropractic manipulation of her neck. Plaintiff alleges that as a result of the chiropractic neck manipulation, she sustained a dissection at her left vertebral artery, resulting in a stroke. (UMF No. 4.)

III. LEGAL STANDARDS

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

In reviewing a motion for summary judgment or summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

Generally, one who consents to touching cannot recover in an action for battery, and one who gives informed consent to a surgery cannot recover for resulting harm under a thoery of battery. (Ashcraft v. King (1991) 228 Cal.App.3d 604, 609.) “However, it is well-recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liaiblity for the excessive act.” (Id. at p. 610.) “There are three elements to a claim for medical battery under a violation of conditional consent: the patient must show his consent was conditional; the doctor intentionally violated the condition while providing treatment; and the patient suffered harm as a result of the doctor’s violation of the condition.” (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269.) The condition of consent must be specific. (See, e.g., Ashcraft, supra, 228 Cal.App.3d at p. 611 [consent to surgery specifically conditioned on using only family donated blood for transfusion]; Keister v. O’Neil (1943) 59 Cal.App.2d 428 [consent for operation given, but patient “absolutely did not want . . . a spinal anesthetic]; Conte, supra, 107 Cal.App.4th at pp. 1268-1269 [condition of consent not specific enough where plaintiff gave consent for his surgery with expectation that shoulder would be repaired, not for surgery for just diagnosis without repair].)

“‘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.’ [Citation.]” (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.) “The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undislcosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 240-241.)

Defendants argue Plaintiff’s claim lies in negligence rather than intentional tort. Bystrom performed chiropractic manipulations of Plaintiff’s neck on June 25, 2015 and on July 12, 2016. Before the treatment, Plaintiff signed a consent form specifically advising there are reported cases of stroke associated with neck movements including adjustments of the upper cervical spine. Plaintiff testified that she told Bystrom she was not comfortable with a cervical adjustment. She recalled that Bystrom did perform a “heavy adjustment” at her neck, that it was fast and was not comforable, and felt “a little weird.”

Defendants argue that based on her signature on the consent form, Plaintiff consented to the neck manipulations performed on her, including cervical adjustments, which she received and did not object to on June 25, 2015 or July 12, 2016. Defendants rely on CACI Jury Instruction 530b, stating that to prove medical battery based on a theory of conditional consent, the plaintiff must prove: (1) the plaintiff consented to a medical procedure, but only with a certain condition; (2) the defendant proceeded without this condition having occurred; (3) the defendant intended to perform the procedure with knowledge that the condition had not occurred; (4) plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 530b.) Defendants interpret this jury instruction as requiring a condition precedent, but cites to no legal authority for the position. Case law recognizes that “conditional consent” means limited consent. (Piedra, supra, 123 Cal.App.4th at 1495 [batter occurs “[w]here 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].)

The Court finds Defendants have not met their initial burden of showing there is no triable issue of fact as to Plaintiff’s cause of action of medical battery. Even if they did, Plaintiff presents evidence showing a triable issue of fact.

A triable issue of fact exists as to whether Plaintiff gave conditional consent to the neck manipulations and adjustments. Plaintiff argues she gave conditional consent to receive only “gentle” or “very light” adjustments to her neck. Plaintiff advised Defendants that she did not wish to receive chiropractic manipulations and/or adjustments to her neck due to a family history of complications following chiropractic neck treatment. A note in Plaintiff’s medical records state, “Note: Activator or very gentle div [manipulation] on neck. Pt has hx [history] of family blood relative having an aneurysm psoy CMT.” (Plaintiff’s Additional Material Facts “PMF” No. 4.) At his deposition, Bystrom testified he had a discussion with Plaintiff regarding her apprehension regarding neck adjustment and her family history. Bystrom testified he told Plaintiff he understood her apprehension because of her family history and that they could “go really light” and that he would leave it up to her whether she wanted to receive the adjustment or not. (Bystrom Depo., 43:2-44:8.) This testimony supports Plaintiff’s contention that he discussed light neck manipulations and that he left it up to her to decide whether to receive the adjustment or not.

Defendant argues that regardless of whether an adjustment is “harsh” or “gentle” it is still the same procedure and therefore, negligence, rather than medical battery applies. But, a reasonable trier of fact could conclude that a “gentle” versus “harsh” neck adjustment is a subtantially different procedure, especially where Bystrom offered the option. Therefore, a reasonable trier of fact could conclude Plaintiff gave consent to receive the neck adjustment on the condition that the adjustment be gentle or very light and that any harsh or aggressive adjustment given by Bystrom would exceed the scope of her consent.

V. CONCLUSION

In light of the foregoing, the Motion for summary adjudication is DENIED.

Moving party to give notice.