Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC 859124. Joan M. Lewis, Judge.
AARON, J.
I.
INTRODUCTION
Plaintiff Kathleen Christie appeals from the judgment of the trial court in favor of defendant Stephen Krant, M.D., on her causes of action for medical negligence and breach of contract. Dr. Krant performed plastic surgery on Christie in October 2004. Unhappy with the results of the procedures, Christie filed suit against Dr. Krant in December 2005.
The trial court granted Dr. Krant's motion for summary judgment as to Christie's claims, concluding that Dr. Krant had presented uncontradicted evidence that he complied with the appropriate standard of care when performing the surgery, and that he had not breached any agreement with Christie.
On appeal, Christie makes a number of arguments, many of which involve the same general issue and either were not raised in the trial court or appear to be beyond the scope of the legal issues Christie raised in her lawsuit. Christie's main assertion is that she presented sufficient evidence to raise triable issues of material fact as to whether she consented to the removal of three pockets of herniated fat from her lower eyelid. We conclude that Christie has presented no admissible evidence to create a triable issue of fact, and that the trial court did not err in granting summary judgment in favor of Dr. Krant.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Christie sought consultations with Dr. Krant on four occasions, beginning in March 2003, regarding plastic surgery treatments for her neck, brow, earlobe and mid-face. In September 2003, after Christie had had two consultations with Krant, a different plastic surgeon performed an "open face neck lift and intraoral mid-face lift, as well as complete endo-brow lift" on her.
Christie returned to see Dr. Krant in early August 2004. Krant discussed a number of possible procedures with Christie, who was apparently unhappy with some of the results of her September 2003 surgery.
On September 21, 2004, Christie signed a number of documents that authorized Krant to perform multiple surgical procedures on her. One of the documents, entitled "Authorization for Surgery," authorized Krant to perform a "malar lift, canthopexy, secondary submental platysmaplasty w/ release at adhesion." Christie also signed a document entitled "Consent for Surgery/Procedure or Treatment." That document identified the treatment to which Christie was consenting as a "lower bleph." Included with this document was a three-page information packet entitled, "Blepharoplasty Surgery (Eyelid)." Christie initialed each of the pages of the information packet. In the first paragraph, the document provides, "Blepharoplasty is a surgical procedure to remove excess skin and muscle from both the upper and lower eyelids. Underlying fatty tissue that produces bagginess can be selectively removed or repositioned."
Christie signed a second "Consent for Surgery/Procedure or Treatment" for a "Direct brow lift." She also initialed each page of a three-page information packed entitled "Browlift." Christie signed a third "Consent for Surgery/Procedure or Treatment" which identified the treatment as, "possible: Limited SAL: neck/jowls." In connection with that consent form, Christie initialed all three pages of an information packet entitled "Liposuction-SAL (Suction-Assisted Liposculpture)."
On September 27, 2004, Christie signed a document entitled, "Authorization for Surgery" for "Release of R pre/postauricular scars[,] Left earlobe Release pre/postauricular Incision."
Dr. Krant performed the procedures on Christie on October 7, 2004. Christie visited Dr. Krant's office a number of times between October 2004 and June 2005 for "post-surgical follow-up." During this time, Christie expressed concerns that an "old scar was becoming adherent again," that she had "adhesions under her right jaw," and that the "submandibular area felt adherent." In March and June 2005, Christie consulted with Dr. Krant about additional surgery, including a "secondary release of her neck, a right medial malar release, and lateral brow lift," and a "revision of the malar blepharoplasty, [and] the submental scar . . . ." Christie did not return to see Dr. Krant after June 2005.
Christie initiated a lawsuit against Dr. Krant in late December 2005, in which she alleged causes of action for medical negligence and breach of contract. Christie filed an amended complaint in August 2006 in which she supplemented the allegations in the original complaint with additional facts and alternative theories to support her claims for medical negligence and breach of contract.
In September 2006, Dr. Krant moved for summary judgment. In support of the motion, Dr. Krant submitted the expert declaration of Garry S. Brody, M.D., a plastic surgeon. Christie opposed the motion and submitted her own declaration in support of her opposition. In November 2006, Dr. Krant replied to Christie's opposition papers and filed evidentiary objections to a number of statements in Christie's declaration.
On December 1, 2006, the trial court sustained Dr. Krant's evidentiary objections in full and granted Dr. Krant's motion for summary judgment. The trial court ruled that Dr. Krant had met his burden on summary judgment, thereby shifting the burden to Christie to demonstrate the existence of a triable issue of material fact. The court concluded that Christie failed to meet her burden, stating: "In opposing the motion Plaintiff simply offers no competent evidence to refute Dr. Brody's opinions or that any agreement had not been breached." Judgment was entered on January 25, 2007.
III.
DISCUSSION
In the amended complaint, Christie first alleged a cause of action for "Medical Negligence/Malpractice." Christie asserted that Dr. Krant had "removed too much fatty tissue from her jaw area," resulting in skin adhesions under her chin, and that Dr. Krant had removed fat from her cheeks without her consent, causing her cheeks to look "hollowed out." Christie alleged a second cause of action for "Breach of Oral and Written Contracts," in which she claimed that she had agreed to pay Dr. Krant $14,000 to perform surgery and that he had promised her specific results from the surgery. She contended that Dr. Krant failed to "provide the results promised" because her "cheeks were not lifted as shown when [Krant] taped them up in consultation," the "submental adhesions were not released," and because Dr. Krant did not correct the scars behind Christie's right ear.
On appeal, Christie focuses on the allegation that Dr. Krant improperly, and without her consent, removed fat from her lower eyelids. Dr. Krant urges this court to disregard Christie's arguments, both because she did not raise them in the trial court and because Christie "indiscriminately mingles the elements of negligence with the elements for breach of contract." Christie does appear to be asserting the existence of triable issues of fact as to a cause of action for a medical battery and/or medical negligence with regard to the removal of fat from her lower eyelid—a claim she did not specifically assert in the operative complaint, but did make reference to in the underlying proceedings. Because there is some question as to whether Christie's pleadings may be construed as setting forth this particular claim, we will exercise our discretion to address what appears to be Christie's main contention on appeal, i.e., that summary judgment was not appropriate because there remain triable issues of fact as to whether Dr. Krant "exceed[ed] the limited consent given for lower bleph when he removed fat from beneath appellant's lower eyelids." We conclude that Christie has not presented evidence sufficient to establish the existence of a triable issue of material fact as to this matter.
Christie asserts in her reply brief that she did raise this claim in the trial court, noting approximately three instances in which she raised the issue of "unauthorized removal of fat from her lower lids." Christie does appear to have challenged the expert's declaration with regard to this issue in (1) her opposition to Krant's motion for summary judgment, (2) her separate statement of material fact in support of her opposition to the motion for summary judgment, and (3) her declaration in support of her opposition to the motion for summary judgment. However, Christie specifically alleged in her complaint that Krant had removed fat from her cheeks—not from below her eyelids—asserting that Krant had completed an unauthorized "lipectomy during the malar lift surgery" involving "removal of fat from her cheeks." Dr. Brody's expert declaration conclusively established that Krant did not perform an "unauthorized lipectomy during the malar lift procedure." According to Dr. Brody, Krant "did not remove fat from MS. CHRISTIE'S cheek pads as she alleges," and opined that "[i]t would be an anatomic impossibility to remove fat from the cheek from this incision without destroying most of the nerve[s] to that side of the face . . . ." Both in response to Dr. Brody's uncontradicted statements and on appeal, Christie has changed her allegation regarding the removal of fat, and now appears to contend that Krant removed fat from her eye socket without her consent.
A. Legal Standards
A moving party is entitled to summary judgment when that party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant meets this burden by demonstrating that the plaintiff cannot establish one or more elements of its cause of action, or that the defendant has a complete defense to the cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)
"'[T]he 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. . . . There is a triable issue of material fact 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." (Aguilar v. Atlantic Richfield Co., (2001) 25 Cal.4th 826, 850, fns. omitted.) "[G]enerally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Ibid.)
On appeal, the reviewing court makes "'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]'" (Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1143, quoting Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.)
B. The trial court did not err in granting summary judgment because there is no triable issue of fact regarding Christie's implied claims for medical battery and/or negligence based on lack of informed consent
In support of his motion for summary judgment, Dr. Krant offered evidence that established, among other things, that Christie gave her consent for the lower blepharoplasty and that Dr. Krant met or exceeded the applicable standard of care in his treatment of Christie. Dr. Krant thus made a prima facie showing that Christie would be unable to establish claims for either medical battery or lack of informed consent based on Dr. Krant's removal of herniated pockets of fat from her lower eyelid. The burden then shifted to Christie to present admissible evidence showing the existence of a triable issue of material fact.
Christie's main contention on appeal is that there remains a question of fact as to whether she consented to the removal of lower eyelid fat or rather, whether she consented only to an incision in her lower eyelid for purposes of the malar lift. She states in her briefing that she did not discuss the removal of lower eyelid fat with Dr. Krant, and that she consented to a lower blepharoplasty only for what she believed was the limited purpose of making an incision. However, it is not enough for Christie to make these allegations in her briefing. She must also support these allegations with admissible evidence, but has failed to do so.
Christie does not clarify whether she is asserting that there are material facts in dispute as to whether Krant committed a medical battery, or alternatively, whether Dr. Krant negligently failed to obtain sufficient informed consent to perform the procedure by failing to warn Christie of all of the potential risks of the procedure. Because Christie uses language applicable to both types of claims, we address both legal theories.
"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. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed 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 (Cobbs).)
Courts typically apply a negligence theory in cases in which the defendant has "performed the identical operation to which plaintiff had consented" but is alleged to have failed to have informed the plaintiff of all the other options and inherent risks of the procedure. (Cobbs, supra, 8 Cal.3d at p. 241.) "[A]s an integral part of the physician's overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." (Id. at p. 243.)
We agree with the trial court that there was insufficient evidence to establish any triable issue of material fact as to Christie's claims, whether they involve a medical battery or negligence. The undisputed facts are as follows: Christie signed and dated a form entitled "Consent for Surgery/Procedure or Treatment" on September 21, 2004. Paragraph 1 of that document states, "I hereby authorize Dr. Stephen Krant and such assistants as may be selected to perform the following procedure or treatment: Lower bleph[.]" The next paragraph provides, "I recognize that during the course of the operation and medical treatment or anesthesia, unforeseen conditions may necessitate different procedures than those above. I therefore authorize the above physician and assistants or designees to perform such other procedures that are in the exercise of his or her professional judgment necessary and desirable. The authority granted under this paragraph shall include all conditions that require treatment and are not known to my physician at the time the procedure is begun." Paragraph 4 of the document states, "I acknowledge that no guarantee has been given by anyone as to the results that may be obtained." Christie signed the document just below the following statement: "I CONSENT TO THE TREATMENT OR PROCEDURE AND THE ABOVE LISTED ITEMS (1-9). I AM SATISFIED WITH THE EXPLANATION."
Christie also initialed all three pages of a document entitled "Blepharoplasty Surgery (Eyelid)," thereby indicating that she had read the contents of the document. The first paragraph of the document provides, "Blepharoplasty is a surgical procedure to remove excess skin and muscle from both the upper and lower eyelids. Underlying fatty tissue that produces bagginess can be selectively removed or repositioned."
In that document, Christie was also presented with the "Risks of Blepharoplasty Surgery," including the possibility of an unsatisfactory result: "There is the possibility of a poor result from eyelid surgery. Surgery may result in unacceptable visible deformities, loss of function, wound disruption, and loss of sensation. You may be disappointed with the results of surgery. Infrequently, it is necessary to perform additional surgery to improve your results. . . ."
In combination, these documents informed Christie that Dr. Krant would be performing a lower blepharoplasty on her, and also informed her that such a procedure might include the removal or repositioning of fat. Christie consented to Dr. Krant "perform[ing] such other procedures" as were, in his "professional judgment[,] necessary and desirable." Christie has provided no evidence that Dr. Krant exceeded the scope of this consent. On the contrary, the only expert declaration provided in this case indicates that Dr. Krant did not perform beyond the scope of the consent he obtained from Christie.
Additionally, Dr. Brody noted that his review of "the medical records of subsequent consulting plastic surgeons Dr. Ellenbogen, Dr. Gocken and Dr. Sherman of the Del Mar Cosmetic Medical Center, no notation was made in their medical records concerning excess removal of fatty tissue from the malar area or nerve damage to her face."
Christie contends that although the trial court sustained a number of Dr. Krant's objections to her declaration, there remains sufficient competent evidence, based on her declaration, to create a triable issue of fact. Specifically, Christie cites paragraph numbers 9, 21, 22, 24, 26, and 30 of her declaration as evidence establishing the existence of a triable issue of fact as to whether the removal of eyelid fat issue exceeded the scope of her consent. Our review of this evidence, however, leads us to the opposite conclusion.
Christie does not challenge the trial court's ruling sustaining Krant's objections to a number of statements in her declaration filed in opposition to the summary judgment motion. Christie has thus waived any issues concerning the correctness of the trial court's evidentiary rulings with respect to her declaration. (See Villa v. McFerren (1995) 35 Cal.App.4th 733, 739, fn. 4.)
In paragraph 9 of her declaration, Christie states, "Defendant told me that his procedure for a malar lift was to make an incision in the lower eyelid, reaching the cheek muscle through that incision. Brochures written by him which described his procedure for malar lifts I read in his waiting room." In paragraph 21, Christie states, "Defendant described to me how he would perform the malar (cheek) lift. Exhibit 1. His brochure, 'Bellezza' Exhibit 9, which I read in his waiting room, reads, 'The malar (mid-face) lift is performed thru a lower eyelid incision. Through this small inconspicuous approach, (right where your eyeliner would be), the entire midface is lifted and stabilized . . . .'"
In paragraph 22, Christie states, "My purpose for this malar lift was to restore fullness to my upper cheeks. Defendant pulled up my cheek with his fingers and taped it to my temple area, telling me this was how it would look. He describes this pulling up with fingers in Exhibit 9." In paragraph 24, Christie states, "Neither defendant nor I had noted any excess fat or bagginess under my eyes. A fat pad was visible above my right eye. Defendant quoted $500 to remove it. Exhibits 1, 3. I decided not to have it removed."
Paragraph 26 provides, "After surgery, my mid-cheeks seemed more hollow than before surgery. I have since been told that I must have artificial fillers or fat transfer to replace the lower eye fat pads removed by defendant." Christie states in paragraph 30, "My primary purpose for the mid-cheek lift was to plump up my upper face. Removing any fat at all would be contra-indicated. Gaunt, hollowed out under eyes are well known signs of aging. Under no circumstances would I knowingly have consented to hollowing out my under eye area. I had even declined to remove the one visible fat pad over my right eye."
Based on our review of the record, we suspect that Krant intended to object to this paragraph of Christie's declaration along with his objections to a number of other paragraphs. However, it appears that a numbering error occurred. As the objections were written, Krant appears to offer two separate statements of objections to Christie's paragraph 27. There is no statement of objections to paragraph 30. Our reading of the wording of the objections suggests that the "second" objection listed for paragraph 27 was intended to refer to paragraph 28 of Christie's declaration, the objection to paragraph 28 was intended to refer to paragraph 29, and the objection to paragraph 29 was intended to refer to paragraph 30. For example, Krant's 15th evidentiary objection, which purportedly refers to Christie's paragraph 29, states, "Incompetent expert testimony as to what should be done, what is contra-indicated, and what was actually done in the procedure." However, paragraph 29 in Christie's declaration does not use the word "contra-indicated." Paragraph 30, however, does include that term, suggesting that this objection was intended to relate to paragraph 30 of Christie's declaration. Nevertheless, because of the numerical errors in Krant's evidentiary objections, Christie had no notice that Krant intended to object to paragraph 30 of her declaration. Further, because of this numbering error, it appears that the court did not sustain an objection to that paragraph. For these reasons, we will consider Christie's statements in paragraph 30 of her declaration as evidence in support of her contention that she raised a triable issue of material fact sufficient to survive summary judgment.
None of these statements provides evidence sufficient to create a triable issue of fact with regard to the scope of Christie's consent to the lower blepharoplasty. It is clear that Christie did consent to undergo the lower blepharoplasty procedure, as evidenced by the consent forms. Christie nevertheless presents argument in her briefing that her consent to the blepharoplasty was limited to the making of an incision in her lower eyelid, through which the malar lift could be completed. However, there is no admissible evidence to support Christie's assertion that there was any oral agreement that limited the scope of the consent she gave by signing the consent forms.
The evidence Christie offers in support of her position establishes only that Dr. Krant told her that the malar lift would be performed by way of an incision in her eyelid. Her statements regarding having read documents in Dr. Krant's waiting room establishes only that she believed the malar lift would be completed by way of an incision in her eyelid. This does not negate the fact that Christie consented to a blepharoplasty procedure, including the possibility of the removal of fat. The fact that the malar lift was to be done by way of an incision in the eyelid does not indicate what was, or was not, to be done during the blepharoplasty.
None of this evidence establishes that the incision required for the malar lift is equivalent to a blepharoplasty procedure, or that Christie consented to the blepharoplasty solely to allow an incision in her lower eyelid for the malar lift. To the contrary, the consent forms established that the blepharoplasty was explained to Christie as "a surgical procedure to remove excess skin and muscle from both the upper and lower eyelids." This explanation encompasses more than the mere making of an incision. Christie acknowledged that she read this description of the procedure to which she consented by initialing that page in the consent documentation. Christie does not state in any of the admissible paragraphs of her declaration that Dr. Krant, or the articles she read in Dr. Krant's waiting room, indicate or suggest that the incision required for a malar lift is considered to be a blepharoplasty.
Even if there were admissible evidence that Christie consented to the blepharoplasty for the sole purpose of allowing Dr. Krant to make an incision to complete the malar lift, she also expressly authorized Dr. Krant to perform additional procedures that he deemed necessary and desirable. The expert's declaration indicates that herniated fat pockets "are what produce baggy lower eyelids" and that such pockets are "typically removed to improve the eyelid contour." Christie contracted with Dr. Krant to improve the look of her mid-face area, and authorized him to take steps necessary to try to create a good result. Removal of the herniated fat pockets in the lower eyelid, even if not expressly contemplated by the patient or doctor prior to surgery, was included among the things Christie was aware could occur during the blepharoplasty to which she consented, since she consented to a lower blepharoplasty and was informed that "[u]nderlying fatty tissue . . . can be selectively removed . . . ."
There is no evidence that Christie affirmatively rejected the removal of herniated fat deposits from her lower eyelid, unlike the situations in a number of other conditional consent cases. (See Conte, supra, 107 Cal.App.4th at p. 1269 [distinguishing plaintiff's theory that he consented to only surgery with repair, not surgery without repair, from other conditional consent cases], citing Keister v. O'Neil (1943) 59 Cal.App.2d 428, 434 [consent to operation but "'absolutely did not want . . . a spinal anesthetic'"]; Clark v. Miller (Minn.Ct.App. 1986) 378 N.W.2d 838, 847 [procedure authorized only if doctor discovered arthritis or malalignment]; Chambers v. Nottebaum (Fla.Dist.Ct.App. 1957) 96 So.2d 716, 717 [consent to operation but "would not permit a spinal anesthetic"]; Rolater v. Strain (1913) 39 Okla. 572, 574 [consent to operation with "express condition that no bone should be removed from her foot"].)
There is also no evidence that Christie was harmed by Dr. Krant's removal of the herniated fat pockets from her eye socket. Despite Christie's complaints about her mid-face area, Dr. Brody's review of the medical records of three other plastic surgeons Christie visited after Dr. Krant's surgery, established that none of the doctors had made any notation "concerning excess removal of fatty tissue from the malar area . . . ." Thus, through Dr. Brody's declaration, Dr. Krant provided evidence that Christie was not harmed by the removal of fat during the blepharoplasty, thereby shifting the burden to Christie to establish an issue of material fact as to whether she suffered any injury. Christie complains in her declaration that after the surgery, her "mid-cheeks seemed more hollow than before surgery." However, Christie presents no specific factual evidence to support her assertion. Further, the fact that her "mid-cheeks" may have "seemed more hollow" after the procedures were performed is not itself evidence of injury, damage, or harm, but is, rather, a suggestion that Christie was subjectively unhappy with the results of her surgery.
Christie asserts that in addition to her "mid-cheeks seem[ing] more hollow" after the surgery, she also was "told that [she] must have artificial fillers or fat transfer to replace the lower eye fat pads removed by defendant." However, Christie offers no expert opinion or medical records to support this assertion, and Dr. Brody's declaration in which he addresses the medical records of multiple doctors Christie visited after the surgery contradicts her on this point. Such vague and conclusory allegations, particularly in reference to matters that go beyond the general knowledge and understanding of a layperson, do not constitute sufficient evidence to successfully oppose summary judgment. (See Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014 [conclusory assertions insufficient to raise an issue of fact].)
Christie has not offered sufficient evidence to establish a triable issue of material fact as to whether she was injured by the allegedly unauthorized removal of fat under her eyes.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.