Opinion
B161211.
10-30-2003
ALICE KILJIAN, Plaintiff and Appellant, v. GARY THOMAS GRIMES, Defendant and Respondent.
Ourfalian & Ourfalian and Rafi Ourfalian for Plaintiff and Appellant. Bonne, Bridges, Mueller, OKeefe & Nichols, Mark B. Connely, Vangi M. Johnson and Matthew B. Cobb for Defendant and Respondent.
Plaintiff and appellant Alice Kiljian appeals from a summary judgment in favor of defendant and respondent anesthesiologist Gary Thomas Grimes, M.D., in this medical malpractice action. Plaintiff contends an expert declaration was not necessary to create a triable issue of fact as to lack of informed consent. We affirm.
FACTS AND PROCEDURAL BACKGROUND
On March 29, 2001, plaintiff sued Dr. Grimes and a hospital for personal injury damages arising out of a gall bladder operation performed under general anesthesia on May 5, 2000. Plaintiff alleged she had experienced surgical awareness during the operation and had suffered extreme pain and suffering. She alleged a single cause of action for medical negligence against Dr. Grimes. Specifically, she alleged Dr. Grimes had not obtained her informed consent for the operation under general anesthesia and had negligently provided medical treatment, as well as failed to inform her of the risks of the general anesthesia. On May 29, 2001, Dr. Grimes answered the complaint.
On January 4, 2002, Dr. Grimes moved for summary judgment on the ground he had not violated the standard of care and had obtained informed consent. The motion was supported by his declaration, as well as consent forms signed by plaintiff. As to the alleged surgical awareness, Dr. Grimes declared that an episode of surgical awareness is a known, but rare, complication of general anesthesia. Dr. Grimes did not declare that he had informed plaintiff of the complication of surgical awareness.
The hospital also moved for summary judgment. The hospitals motion was supported by a declaration of a physician expert, who declared that surgical awareness is a known, but rare, complication of general anesthesia that occurs without negligence.
Plaintiff opposed the motions supported by portions of the deposition testimony of plaintiff, Dr. Grimes, and the surgeon. Plaintiff testified she spoke to Dr. Grimes before the surgery and he advised her she would be unconscious during the surgery and would not feel it. Plaintiff did not present the declaration of an expert.
In reply, both Dr. Grimes and the hospital presented expert declarations that the incidence of surgical awareness is so rare that it need not be disclosed to, or discussed with, the patient in order to conform to the standard of care for informed consent.
The trial court granted the motions for summary judgment on the ground an expert declaration was required to establish that disclosure of the risk of surgical awareness was required by the standard of care. The trial court entered judgment for Dr. Grimes and the hospital on June 24, 2002. That same date, plaintiff moved for reconsideration. The motion was supported by her declaration that she had never been informed of any of the risks of general anesthesia and had she known of the risk of death or serious harm, she would have refused the surgery. Dr. Grimes opposed the motion for reconsideration, noting that both the anesthesia consent form and the surgical consent form, both signed by plaintiff, advised her of the risk of death. The trial court denied the motion for reconsideration as untimely and on the merits. Plaintiff appealed from both judgments, but subsequently dismissed the appeal as to the hospital.
DISCUSSION
Standard of Review
"`A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiffs asserted causes of action can prevail." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, citations omitted.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)" (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) "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.) We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579.) We exercise "an independent assessment of the correctness of the trial courts 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." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
Informed Consent
Plaintiff contends that, since triable issues of fact exist as to whether she was advised of any of the risks of general anesthesia, expert evidence was not required to establish that surgical awareness was a risk of which she should have been advised. We disagree.
"[T]he duty to disclose risks of death, serious injury, or significant complications is not defined by the custom or practice of the medical community. Instead, such a potential peril must be divulged if it would be material to the patients decision, regardless of the custom in the profession." (Spann v. Irwin Memorial Blood Centers (1995) 34 Cal.App.4th 644, 655.) These disclosures are referred to as the minimal requisite disclosures for informed consent. "In addition to these `minimal disclosures, the physician must also reveal to the patient `such additional information as a skilled practitioner of good standing would provide under similar circumstances." (Id. at p. 657.) "[A] physician is liable only where the failure to disclose causes the injury. [Citations.] `There must be a causal relationship between the physicians failure to inform and injury to the plaintiff. Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given. [Citation.] Moreover, causation must be established by an objective test: that is, the plaintiff must show that reasonable `prudent person[s] in the patients position would decline the procedure if they knew all significant perils." (Ibid.) A bald declaration of the patient that the patient would have sought other treatment had the patient been accurately informed of the risks is not sufficient to defeat summary judgment. (Id. at p. 659.)
The record reflects that plaintiff signed two consent forms in which she was advised of the risk of death from the surgical procedure. The consent form for the surgery expressly states that all operations and procedures involve risks of complications, injury, or death. Plaintiff has declared only that she was never advised of the specific risks of general anesthesia. She has also declared that had she known of the risk of death or serious injury from general anesthesia, she would have refused the surgery and sought alternative means of treatment.
The facts are undisputed that plaintiff was informed that the surgical procedure and operation carried with it a risk of death, serious injury, and complications. The facts are also undisputed that plaintiff was not advised of the risk of surgical awareness as to the general anesthesia. There are triable issues of fact as to whether plaintiff was advised of the specific risks associated with general anesthesia. However, Dr. Grimes presented evidence that the risk of surgical awareness is a very rare complication and the standard of care does not require disclosure of this risk. This is the complication that plaintiff suffered. Plaintiff was required to present expert evidence that disclosure of the risk of this rare complication was required by the standard of care. This she did not do. Moreover, her causation evidence is inadequate. It was untimely presented in an untimely motion for reconsideration. In addition, it creates no triable issue of fact as to objective causation. Moreover, there is no evidence of the necessity of the operation and the possibility of any feasible alternatives.
DISPOSITION
The judgment is affirmed. Dr. Grimes is awarded his costs on appeal.
We concur: TURNER, P. J. and MOSK, J. --------------- Notes: Plaintiff also signed a consent form for anesthesia, although she claimed she signed it but did not read it.