Opinion
B157764
7-31-2003
JENIK NAZARIAN, Plaintiff and Appellant, v. VAHAN ANANIAN, Defendant and Respondent.
Mohammad Nadim for Plaintiff and Appellant. Carroll, Kelly, Trotter, Franzen & McKenna, Richard D. Carroll, David P. Pruett and Lori A. Conway for Defendant and Respondent.
Jenik Nazarian appeals from summary judgment in favor of respondent Dr. Vahan Ananian in her action for medical malpractice. She argues the trial court erred in granting summary judgment because: the expert witness declaration in support of respondents motion did not establish that he was entitled to judgment on the standard of care issue; there are triable issues of material fact as to whether appellant gave informed consent to the surgical procedure
on which her claim of malpractice is based; the trial court should have granted her a further continuance to conduct additional discovery. We conclude there are triable issues of material fact as to whether appellants treatment came within the standard of care and as to whether she gave informed consent to the procedure. We reverse the judgment. In light of this conclusion, we do not reach appellants argument that a further continuance should have been granted.
FACTUAL AND PROCEDURAL SUMMARY
Appellant consulted respondent on September 21, 1999, complaining of hoarseness of her voice. She was diagnosed with bilateral vocal cord polyps and surgical removal was suggested. According to respondent, he discussed the risks and complications of the surgery with appellant and her son, Serjik Abrahami, on October 27, 1999 and again on November 1, 1999. Appellant, who does not speak English, contends that respondent failed to read any consent form either to her or to her son. Nor did respondent explain the procedure, alternative treatments, or risks. Appellant declares that respondent never asked her if she understood what she was asked to sign.
Surgery was performed on November 6, 1999. Later that day, appellant noticed a problem with her voice, but over the course of several visits, respondent assured her that her voice would be fine.
When her voice did not improve, appellant sued Temple Community Hospital and respondent for medical malpractice. In her first amended complaint, she added Dr. Rahim Shapoory as a defendant.
Appellant also filed two separate actions against Dr. Shapoory: one for battery and emotional distress, and the other for medical malpractice.
Respondents motion was for full summary judgment; he did not seek any summary adjudication of an issue in the alternative. The motion was filed on October 10, 2001. The hearing was continued at appellants request from November 13, 2001 to December 12, 2001, in order to provide her an opportunity to depose respondents expert, Dr. Dale Rice. Appellant filed her amended opposition on November 30, 2001, asking that the hearing be continued because the deposition of Dr. Shapoory had not yet been taken. She also sought to depose a Dr. Shamloo. She claimed she was unable to provide essential evidence in opposition to the summary judgment because the deposition of her son had been improperly and prematurely terminated by respondent. Respondent filed his supplemental reply on December 7, 2001.
At the December 12 hearing the trial court found that appellant had not justified a further continuance. The trial court found triable issues of material fact regarding the statute of limitations which precluded summary judgment on that ground. It overruled appellants objections to the declaration of Dr. Rice and ruled that appellant had failed to raise a triable issue of material fact as to the standard of care. It granted summary judgment to respondent. The trial court denied appellants motion for reconsideration because of a failure to show new facts that were not previously available or a change in the law. Appellant filed a timely notice of appeal from the ensuing judgment.
DISCUSSION
I
Summary judgment is proper when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We exercise our independent judgment in reviewing an order granting summary judgment, applying the same analysis as the trial court. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 981 P.2d 79.) A moving defendant has the initial burden of showing that one or more elements of each cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 853-854.)
II
Appellant argues the trial court erred in granting summary judgment because the declaration of the defense expert, Dr. Dale Rice, is too conclusory. We need not resolve that issue because appellant presented conflicting evidence regarding the standard of care, raising triable issues of material fact which preclude summary judgment.
In her amended opposition to the summary judgment motion, appellant submitted the declaration of Dr. J. James Shamloo. Her counsel explained that she elected not to depose Dr. Rice and to rely instead on the declaration of Dr. Shamloo. Dr. Shamloo, a maxillofacial surgeon, had examined appellant. He also examined her medical records, including the videotape of the surgery. Based on these materials, essentially the same materials relied upon by Dr. Rice (with the addition of a physical examination of appellant), Dr. Shamloo concluded: "Based on my viewing of the video tape of the actual performance of the procedure [on appellant], it cannot be said whether the procedure was performed properly or improperly or . . . within the standard of care." He also concluded that her pain was the result of the 1999 surgery, and that respondents acts caused or contributed to appellants injuries.
Appellant also presented her own declaration in which she states that respondent admitted he committed a mistake during her surgery. She declared: "On March 14, 2000, Defendant Ananian specifically and clearly, and in the presence of my son, admitted to me that he in fact had made a mistake and had scraped too much from my throat." A declaration from appellants son, Serjik Abrahami, corroborated this statement. The trial court acknowledged having read and, presumably, considered the new declarations.
From this, we conclude there was a triable issue of material fact as to whether respondents treatment of appellant was within the standard of care in the community, precluding summary judgment for respondent.
Because appellant presented sufficient evidence to raise a triable issue of material fact, we need not address the parties contentions regarding the availability of Dr. Rahim Shapoory, another expert who had been sued by appellant, to provide evidence in support of appellant.
III
Appellant also argues there is a triable issue of material fact as to whether she gave informed consent to the surgery performed by respondent. Respondent claims this issue is not properly before us because the charging pleading, the second amended complaint, does not allege a lack of informed consent in so many words.
We agree with appellant that the issue is properly before us. The second amended complaint alleges a single cause of action for "medical negligence." Appellant relies on the allegation that "From approximately several months prior and up to November 6, 1999, Plaintiff placed herself in, and remained under the sole and exclusive control of Defendant Ananian for the purpose of obtaining examinations, diagnosis, prognosis, care, treatment, advise [sic] and other health care and medical treatments, pre-operation in preparation for surgery . . . ."
We conclude this is broad enough to encompass the issue of informed consent. At any rate, respondent addressed informed consent in his Separate Statement of Undisputed Material Facts in support of the summary judgment motion. Paragraph 5 states that the risks and complications of the procedure were discussed with appellant before the surgery, and that he "appropriately obtained plaintiffs informed consent for surgery which was performed on November 6, 1999." In addition, Dr. Rices declaration addressed the standard of care issue. Based on the chart notes written by respondent, Dr. Rice opined that respondent had "appropriately discussed the complications of the surgery, including bleeding, infection, recurrence, voice getting worse and anesthesia with [appellant]." The chart notes that on November 1, 1999, respondent again discussed the risks and complications with appellant. In Dr. Rices opinion, "based upon the above, it is my expert opinion that [respondent] appropriately obtained [appellants] informed consent for surgery . . . ."
Appellant controverted these facts in her separate statement. In her deposition testimony, she stated that the consent to surgery she signed was neither explained nor read to her or to her son. Citing to this deposition testimony, appellants separate statement says: "Defendant Ananian repeatedly stated and represented it was a simple procedure with no risk whatsoever, a representation he had made previously on repeated occasions during preoperative visits."
Appellant submitted a declaration in support of her amended opposition to the motion which stated that respondent never explained the risks of surgery, the alternatives, and the consent form. Nor did he ask whether appellant understood the consent form. She also submitted the declaration of her son, Serjik Abrahami, who also denied that respondent had obtained appellants informed consent to the surgery.
The principles concerning the scope of disclosure required to ensure that a patient has given informed consent to a medical procedure or treatment are well established. "First, a physician must disclose to the patient the potential of death, serious harm, and other complications associated with a proposed procedure. (Cobbs [v. Grant (1972)] 8 Cal.3d [229,] 244.) Expert testimony on the custom of the medical community is not necessary to establish this duty. (Spann v. Irwin Memorial Blood Centers (1995) 34 Cal.App.4th 644, 656 ; Willard v. Hagemeister (1981) 121 Cal. App. 3d 406, 418 .) Second, beyond the foregoing minimal disclosure, a doctor must also reveal to his patient such additional information as a skilled practitioner of good standing would provide under similar circumstances. (Cobbs, supra, at pp. 244-245.) Therefore, expert testimony is relevant and admissible to determine the duty to disclose matters other than the risk of death or serious harm and significant potential complications. (Arato [v. Avedon (1993)] 5 Cal.4th [1172] at p. 1191; Spann v. Irwin Memorial Blood Centers, supra, at p. 657, fn. 13.)" (Daum v. SpineCare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1301-1302, italics added.)
In Daum, the court held a jury instruction that required the jury to consider only medical expert testimony in deciding whether the plaintiff had given informed consent. It concluded: "This is not a matter beyond the understanding of lay people; on the contrary, the medical profession must conform its methods of disclosure to the needs and understanding of patients. Allowing physician experts to provide the only evidence for the jurys deliberations on this issue would be inconsistent with the cardinal principle guiding the Supreme Court in Cobbs—the patients right of self-determination prevails over the medical professions discretion on the basic elements of disclosure. (See Cobbs, supra, 8 Cal.3d at pp. 242-244.)" (Daum v. SpineCare Medical Group, Inc., supra, 52 Cal.App.4th at p. 1304.)
Thus, the declarations of appellant and her son are admissible on the issue of informed consent. We are satisfied that the conflicting evidence presented raised triable issues of material fact regarding informed consent, precluding summary judgment for respondent.
DISPOSITION
The judgment is reversed. Appellant is to have her costs on appeal.
We concur: VOGEL (C.S.), P.J. CURRY, J.