Case Name: Stephanie Drewsen and Ron Drewsen v. Stanford Hospital & Clinics
Case No.: 2014-1-CV-268292

Motion for Summary Adjudication to the Fourth and Fifth Causes of Action in the Second Amended Complaint by Defendant Stanford Hospital & Clinics

Factual and Procedural Background

This is an action for medical negligence and battery. Defendant Stanford Hospital & Clinics (“SHC”) is a health care provider rendering licensed medical services in Santa Clara County. (See Corrected Second Amended Complaint [“SAC”] at ¶ 2. ) Plaintiff Stephanie Drewsen (“Plaintiff”) became a patient of defendant SHC in January 2013. (Id. at ¶ 7.) Dr. David W. Lowenberg (“Dr. Lowenberg”) was Plaintiff’s physician and an employee of defendant SHC. (Id. at ¶ 2.) Eric Sundberg, M.D. (“Dr. Sundberg”) and Varun Gajendran, M.D. (“Dr. Gajendran”) (collectively, “the residents”) were employed by defendant SHC as assistant resident surgeons. (Ibid.)

On April 29, 2013, Plaintiff was scheduled to receive a posterior iliac crest harvesting surgery. (SAC at ¶ 8.) The purpose of the surgery was to harvest iliac, cancellous bone and place it in the Plaintiff’s tibia, which had earlier suffered the effects of osteomyelitis. (Ibid.) Dr. Lowenberg, at a pre-op conference with both Plaintiff and her husband, Ron Drewsen (collectively, “Plaintiffs”), previously stated he would perform Plaintiff’s surgery. (Id. at ¶ 6.) Dr. Lowenberg claimed he had performed hundreds of these surgeries and thus Plaintiff should expect everything to go well. (Ibid.)

Just prior to the operation, without informing Plaintiff that he would not perform the surgery, Dr. Lowenberg left the operating room. (SAC at ¶ 10.) In doing so, the residents were left in the room to perform the surgery without supervision. (Ibid.) The residents had little or no experience in performing the surgery and received little or no instruction from Dr. Lowenberg. (Id. at ¶ 11.) In addition, Plaintiff did not assent to having untrained residents perform her surgery and was never told that residents would be assisting her surgery prior to the operation. (Id. at ¶ 13.) During surgery, the residents operated on the wrong bone which led Plaintiff to suffer permanent damage to the S1 nerve. (Id. at ¶ 12.) As a result of this conduct by defendant SHC and its agents, Plaintiff suffered personal injuries and emotional distress.

The operative SAC sets forth causes of action for: (1) health care provider negligence; (2) loss of consortium; (3) strict liability; (4) battery from a lack of informed consent; and (5) fraud.

Motion for Summary Adjudication

Currently before the Court is the motion for summary adjudication to the fourth and fifth causes of action by defendant SHC. (Code Civ. Proc., § 437c, subd. (f).) Plaintiffs filed written opposition. Both parties filed requests for judicial notice in conjunction with the motion. SHC filed reply papers and objections to evidence. Trial is set for June 3, 2019.

SHC’s Request for Judicial Notice

In support of the motion, defendant SHC requests judicial notice of the Declaration of Dr. Sundberg previously filed in opposition to Plaintiffs’ Motion for Leave to File a SAC. (See Request for Judicial Notice [“RJN”] at Ex.1. ) While courts may take judicial notice of the existence of court records, they cannot take judicial notice of the truth of matters asserted in declarations that may be reasonably subject to dispute. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 (Lockley) [courts may not take judicial notice of allegations in affidavits or declarations because such matters are reasonably subject to dispute and therefore require formal proof].) “The underlying theory of judicial notice is that the matter being judicially noticed is a law or fact that is not reasonably subject to dispute.” (Ibid.)

Here, defendant SHC requests judicial notice of the truth of matters stated in the Declaration of Dr. Sundberg. In particular, SHC intends to show that Dr. Lowenberg was present during Plaintiffs’ surgery, a disputed factual issue in this case. (See RJN at Ex. 1 [Dr. Sundberg Decl. at ¶ 3].) The Court may consider this declaration as evidence in support of the motion for summary adjudication but cannot take judicial notice of matters contained therein.

Accordingly, SHC’s request for judicial notice is DENIED.

Plaintiffs’ Request for Judicial Notice

In opposition, Plaintiffs request judicial notice of the Declaration of Edward J. Nevin, Plaintiffs’ former counsel, filed in support of their motion for leave to file a SAC. (See Request for Judicial Notice at Ex. A.) While the Court may take judicial notice of its own records (see Evid. Code, § 452, subd. (d)), it may only take notice of matters which are relevant to the issue at hand. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [a “precondition” to the taking of judicial notice is that the documents “must be relevant to a material issue”]; see also Best Buy Stores, L.P. v. Super. Ct. (2006) 137 Cal.App.4th 772, 779 [refusing to take judicial notice of documents not relevant to any issue on appeal].) Plaintiffs do not explain why the subject declaration is relevant to issues raised in the motion for summary adjudication. Nor is it appropriate for the Court to take judicial notice of hearsay statements within the declaration. (See Lockley, supra, 91 Cal.App.4th at p. 882 [court may not take judicial notice of the truth of hearsay statements in court files].)

Consequently, Plaintiffs’ request for judicial notice is DENIED.

SHC’s Evidentiary Objections

In reply, SHC filed objections to Plaintiffs’ evidence submitted in opposition to the motion. The Court SUSTAINS Objection Nos. 1, 2, 4, 7, 9, 10, 13, and 14. The Court declines to rule on the remaining objections which are not material in resolving issues raised by the motion for summary adjudication. (See Code Civ. Proc., § 437c, subd. (q) [in granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion].)

Legal Standard

“The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. A party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630 (California Bank & Trust) [internal citations and quotation marks omitted].)

“Summary adjudication is proper if the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to prevail on a cause of action as a matter of law. A defendant moving for summary adjudication bears the initial burden to show the cause of action has no merit, i.e., that one or more elements of the cause of action…cannot be established, or that there is a complete defense to that cause of action. If the defendant meets this burden, the burden shifts to the plaintiff…to show that a triable issue of one or more material facts exists…” (Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377, 1386-1387 [internal citations and quotation marks omitted].)

“A triable issue of material fact exists if, and only 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. Thus, a party cannot avoid summary [adjudication] by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (California Bank & Trust, supra, 222 Cal.App.4th at p. 631 [internal citations and quotation marks omitted].)

The Motion for Summary Adjudication to the Fourth Cause of Action (Battery from a Lack of Informed Consent) is GRANTED

The fourth cause of action is a claim for medical battery.

“A battery is an intentional and offensive touching of a person who has not consented to the touching. [Citations.] Although typically a battery is a violation of a person’s wishes to avoid bodily contact that is hostile, aggressive or harmful, the tort is committed if there is unwanted intentional touching of any kind. [Citation.] … Thus, lack of consent is an essential element of battery. [Citation.]” (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266 (Conte).) To prevail on a claim for civil battery, the plaintiff must prove: (1) the defendant intentionally acted in a manner that resulted in a harmful or offensive contact with the plaintiff; (2) the plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to the plaintiff. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.)

“A typical medical battery case is where a patient has consented to a particular treatment, but the doctor performs a treatment that goes beyond the consent.” (Conte, supra, 107 Cal.App.4th at p. 1267.) “ ‘The scope of the defendant’s protection is the scope of the consent. If his conduct would be tortious except for consent and his conduct goes beyond the consent…, he is subject to liability.’ [Citation.] In the medical battery context, the scope of the consent is important because the gist of such battery is that the doctor has intentionally touched the patient without consent or in a manner that exceeds the consent and without justification. [Citations.]” (Id. at p. 1268.)

“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.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 240-241.)

The determination of a summary judgment or summary adjudication motion circumscribed by the issues framed by the pleadings, “since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief…” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.)

The medical battery claim arises from the expectation and assurance that Plaintiff’s surgery would be performed by Dr. Lowenberg, not the two inexperienced residents. (SAC at ¶ 34.) Plaintiff was never told the role of residents during her upcoming operation or of the interaction of Dr. Lowenberg and his fifth year resident, Dr. Gajendran. (Id. at ¶ 36.) Plaintiff was unaware that Dr. Lowenberg would either leave the operating room or stop proctoring the resident surgeon. (Ibid.) Had Plaintiff known that the residents were going to perform the surgery, she would not have consented to the surgery. (Id. at ¶ 35.) In addition, Plaintiff’s consent, if any is vitiated by the fact that it was never disclosed to her that the residents, not Dr. Lowenberg, would perform the surgery. (Ibid.)

Defendant SHC argues that Plaintiffs cannot maintain a cause of action for medical battery. In doing so, SHC submits undisputed evidence showing that Plaintiff underwent a total of three surgeries to heal and repair her left tibia. (See SHC’s Separate Statement of Undisputed Facts at No. 3.) For each surgery, Plaintiff signed a consent form which, in part, advised her of potential risks and complications associated with the operation. (Id. at No. 4; Hilleary Decl. at Ex. C.) The consent forms also advised her that residents may participate in aspects of the operation under the supervision of the attending doctor. (Ibid.) The relevant portion of the consent form addressing the role of residents provides:

“As part of the medical education and training program, postgraduate fellows, residents, medical students, surgical assistants and approved health care practitioners may observe care, and if appropriately trained, participate in aspects of the operation or procedure. These practitioners will be under the supervision of the attending doctor.”

(Ibid.)

SHC also submits evidence that, before Plaintiff’s surgery on April 29, 2013, Dr. Lowenberg advised her of the risks, benefits, goals and possible complications of anesthesia and surgery. (See SHC’s Separate Statement of Undisputed Facts at No. 5.) Also, contrary to the allegations, SHC provides evidence demonstrating that: (1) Dr. Lowenberg performed Plaintiff’s surgery on April 29, 2013; (2) he was present for the entire surgery; (3) he never left the operating room; and (4) no unsupervised residents were left alone to perform the surgery. (Id. at Nos. 10, 12; Dr. Lowenberg Decl. at ¶¶ 10, 11.) The SAC specifically alleges that Dr. Gajendran (not Dr. Sundberg) was unsupervised when he performed Plaintiff’s surgery ultimately resulting in her injury. (See SAC at ¶¶ 36-37.) Defendant SHC however provides evidence showing that Dr. Gajendran only held retractors during the surgery and did not perform any harvesting. (See SHC’s Separate Statement of Undisputed Facts at No. 11; Dr. Gajendran Depo at p. 30:10-23.) Based on this evidence, defendant SHC has met its initial burden on summary adjudication in showing that Plaintiff consented to a surgery performed by Dr. Lowenberg and not the residents. Having done so, the burden shifts to Plaintiffs to raise a triable issue of material fact.

In opposition, Plaintiffs do not submit any direct evidence that (1) Dr. Lowenberg did not perform the surgery; and/or (2) unsupervised residents performed her surgery. Plaintiffs instead rely on circumstantial evidence in attempting to raise a triable issue of material fact. (See Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838-1841 [triable issue of fact exists where plaintiff submitted circumstantial evidence that landlord’s assertion of lack of knowledge of dog’s dangerous propensities was not credible, including his admission that a prior exculpatory statement was false].)

Plaintiffs’ primary evidence is a declaration from Vikram Talwar, M.D. (“Dr. Talwar”), an orthopedic surgical expert. According to his declaration, Dr. Talwar opines that Dr. Lowenberg did not perform Plaintiff’s operation, nor did he observe the operation, and failed to fulfill his duties as a teacher to ensure the surgery was being performed in the correct manner. (Dr. Talwar Decl. at ¶¶ 4, 8, 9, 10.) This declaration however is inadmissible as Dr. Talwar fails to state he has personal knowledge of matters contained within. (See SHC’s Evidentiary Objection at No. 2; Code Civ. Proc., § 437c, subd. (d) [opposing declaration shall be made by a person on personal knowledge].) In addition, “[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) This declaration fails to set forth facts establishing Dr. Talwar’s qualifications, skill, experience or training with respect to Plaintiff’s surgery in this case and thus is inadmissible. (See SHC’s Evidentiary Objection at No. 1.) Furthermore, the opinions expressed by Dr. Talwar appear to be improperly based on speculation and conjecture. (See SHC’s Evidentiary Objection at No. 4; Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1458 [“Evidence that leads only to speculation or conjecture does not create a triable issue of fact.”].) This expert declaration therefore fails to raise any triable issue of material fact.

The balance of Plaintiffs’ evidence is also subject to objections and thus fails to raise a triable issue of material fact. Plaintiffs submit a declaration from their counsel, Marvin Lewis (“Lewis”), who, relying on a report from Dr. Robert Corn (“Dr. Corn”), states that Dr. Lowenberg did not perform the first part of the surgery and that the procedure was likely performed by a resident. (See Lewis Decl. at ¶ 9.) Such testimony however constitutes inadmissible hearsay without any recognized exception. (See SHC’s Evidentiary Objection at Nos. 7, 9, 10; Evid. Code, § 1200, subds. (a), (b) [“Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. Except as provided by law, hearsay evidence is inadmissible.].) Attorney Lewis also submits reports from Dr. Brian Carrier (“Dr. Carrier”), an expert in diagnostic radiology. (See Lewis Decl. at ¶ 10, Exs. 6-7.) These reports are inadmissible for lack of authentication and hearsay. (See SHC’s Evidentiary Objection at Nos. 11-12; Evid. Code, §§ 1200, 1400.) Nor does attorney Lewis even address how Dr. Carrier’s reports are relevant to the cause of action for medical battery in this case. (See Evid. Code, § 210 [relevance means the evidence has a tendency to prove or disprove any disputed and material fact].)

Plaintiffs also submit a declaration from Saul Rosenberg, M.D. (“Dr. Rosenberg”), a clinical and forensic psychologist. Dr. Rosenberg spends much of his declaration addressing Plaintiff’s psychological and emotional state following her surgery which is within his area of expertise. (Dr. Rosenberg Decl. at ¶¶ 4, 6.) However, to the extent that Dr. Rosenberg claims that Dr. Lowenberg did not perform Plaintiff’s surgery, any such opinion lacks foundation, personal knowledge and relies on hearsay materials such as the report prepared by Dr. Talwar. (See SHC’s Evidentiary Objection at No. 13.) This declaration therefore fails to raise a triable issue of material fact.

Finally, Plaintiff submits her declaration, relying on Dr. Corn’s statements, to claim that Dr. Lowenberg could not have performed her surgery. (See Plaintiff’s Decl. at ¶ 8.) Dr. Corn’s statements to Plaintiff however are inadmissible as hearsay without any recognized exception. (See SHC’s Evidentiary Objection at No. 14.) Furthermore, Plaintiff herself admits she does not know whether the residents performed her surgery and whether Dr. Lowenberg was in in the surgical room for any part of the operation. (Plaintiff’s Decl. at ¶ 8.) This concession makes it even more apparent that Plaintiffs lack sufficient evidence to legally maintain a claim for medical battery.

Plaintiffs therefore fail to raise a triable issue of material fact with admissible evidence to defeat the motion. Accordingly, the motion for summary adjudication to the second cause of action is GRANTED. Having granted the motion on this ground, the Court declines to address the alternative argument based on the statute of limitations.

The Motion for Summary Adjudication to the Fifth Cause of Action (Fraud/Concealment) is DENIED

The fifth cause of action is a claim for fraud. “The necessary elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239.)

The claim for fraud and fraudulent concealment is based on the following facts: (1) On or about March 27, 2013, Dr. Lowenberg represented to Plaintiff that he was an experienced surgeon who had performed this type of surgery hundreds of times and would be performing her surgery on April 29, 2013 and supervising any assistants; and (2) Based on Plaintiff’s preference for a material other than cadaver bone, Dr. Lowenberg represented to Plaintiff that he would not use cadaver bone. (SAC at ¶ 39.) These representations were allegedly false and Plaintiff was ignorant of the falsity of these representations at the time of her surgery. (Id. at ¶¶ 40, 44.)

On summary adjudication, defendant SHC argues (1) there is no evidence to support the fraud cause of action and (2) the claim is barred by the three-year statute of limitations.

Legal Sufficiency of the Fraud Claim

Defendant SHC argues Plaintiffs cannot maintain their fraud cause of action as a matter of law. In support, SHC relies upon the same material facts and evidence offered in connection with its motion for summary adjudication of the medical battery claim. (See SHC’s Separate Statement of Undisputed Facts at Nos. 20-40.) In doing so, defendant SHC argues there is no evidence of false representations or concealment as Dr. Lowenberg performed Plaintiff’s surgery, did not leave the residents alone to perform the surgery, and that Plaintiff gave him permission to use allograft bone (cadaver bone) during the operation. (Id. at Nos. 30, 32, 37, and 39; Dr. Lowenberg Decl. at ¶¶ 10, 11, 15.) The fraud cause of action however also appears to be based on written representations contained in Dr. Lowenberg’s operative report. (See SAC at ¶ 41.) Defendant SHC fails to address these written representations in support of its motion for summary adjudication to this claim. Therefore, defendant SHC fails to demonstrate that the fraud cause of action fails as a matter of law. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 251 [“Summary adjudication must completely dispose of the cause of action to which it is directed.”].)

Statute of Limitations

“Statute of limitations is the collective term applied to acts or parts of acts that prescribe the periods beyond which a plaintiff may not bring a cause of action.” (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509.) “A plaintiff must bring a claim within the limitations period after accrual of the cause of action. In other words, statutes of limitation do not begin to run until a cause of action accrues. Generally speaking, a cause of action accrues at the time when the cause of action is complete with all of its elements.” (Id. at pp. 509-510 [internal citations and quotation marks omitted].)
A fraud claim is subject to a three-year statute of limitations under Code of Civil Procedure section 338. Subdivision (d) of that section provides such a cause of action is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud. (Code Civ. Proc., § 338, subd. (d).)

“While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)

Defendant SHC argues the three year statute began to run as early as June 19, 2013 or in September 2013 when Plaintiff discovered the negligent cause of her severe sciatica and learned that the wrong bone had been operated on. (See SHC’s Separate Statement of Undisputed Facts at Nos. 41A, 41B [SAC at ¶¶ 25, 50].) SHC contends Plaintiff had at least of suspicion of wrongdoing at these times to put her on inquiry notice of facts supporting the fraud claim. (See Casualty Ins. Co. v. Rees Inv. Co. (1971) 14 Cal.App.3d 716, 720 [when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation, the statute commences to run].) SHC asserts the three year statute began to run no later than April 25, 2014, the date of Plaintiff’s Notice of Intent to Sue. (See SHC’s Separate Statement of Undisputed Facts at No. 41.) As the operative SAC was not filed until February 13, 2018, defendant SHC claims the fraud cause of action is time barred.

This contention is not persuasive as none of these dates specifically address the discovery of facts giving rise to Plaintiff’s fraud claim. If anything, such dates may support discovery of facts relating to the first cause of action for medical negligence. Defendant SHC concedes and the SAC alleges that facts giving rise to fraud were a result of Plaintiff’s consultation with Dr. Corn in 2017. (See SAC at ¶ 19; SHC’s Memo of P’s & A’s at p. 23:5-6.) Plaintiff thereafter alleges she became aware of such facts in support of her fraud claim around the end of February 2017. (See SAC at ¶ 38; see also Plaintiff’s Decl. at ¶¶ 7-8.) The fraud claim, having been filed on February 13, 2018, therefore appears to be timely. At a minimum, the statute of limitations issue remains a factual matter that cannot be determined on a motion for summary adjudication.

Accordingly, the motion for summary adjudication to fifth cause of action is DENIED