Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. CV154410
Mihara, Acting P.J.
Plaintiffs Linda Sante and Ronald Sante brought an action against defendant Steven L. Garner, M.D. for medical negligence. The trial court granted summary judgment in favor of Dr. Garner and denied the Santes’ motion for new trial. On appeal from the judgment, the Santes contend: (1) there is a triable issue of fact as to whether Ms. Sante gave her informed consent prior to surgery; and (2) the trial court erred in denying their motion for a new trial on the ground of untimeliness. For the reasons stated below, we affirm the judgment.
I. Background
The facts are based on the evidence introduced in connection with Dr. Garner’s motion for summary judgment.
After Ms. Sante had surgery performed on her right hand in 1969, a number of physicians told her never to have any further surgery on her hand. On April 19, 2005, Ms. Sante had an appointment with Dr. Garner for a matter unrelated to her right hand. According to Ms. Sante, Dr. Garner encouraged her to have surgery to increase her “sense of feeling in that hand.” It was her understanding that he would perform surgery on her right forearm.
After Ms. Sante executed the consent forms provided by Dr. Garner and the Santa Cruz Surgery Center, she underwent surgery on her right hand on April 28, 2005. Shortly thereafter, she noticed that her right thumb was “sticking out in an abnormal fashion.” She consulted another physician, who asked, “‘who would sacrifice the use of a thumb for a ring finger[?]’” Ms. Sante stated that she was “far worse off now than [she] was before [Dr. Garner’s] surgery,” because she had less feeling and strength in her right hand.
B. Complaint
On June 5, 2006, the Santes filed their complaint in which they alleged Dr. Garner failed to obtain Ms. Sante’s informed consent before performing surgery on her right hand and arm, and negligently performed the surgery. Mr. Sante sought damages for loss of consortium.
C. Motion for Summary Judgment
On February 16, 2007, Dr. Garner brought a motion for summary judgment or, alternatively, summary adjudication. Dr. Garner argued that the care and treatment that he provided to Ms. Sante was appropriate and met the standard of care, his conduct was not the legal or proximate cause of Ms. Sante’s injuries, and Ms. Sante gave her informed consent prior to the surgery.
Dr. Garner also argued that the statute of limitations barred the Santes’ claim, but he later withdrew this argument.
In a supporting declaration, Dr. Edward Damore stated that he had reviewed Ms. Sante’s medical records. Based on his training and experience, he concluded that “Dr. Garner met the standard of care in terms of his technical proficiency in the performance of the procedures listed in his operative report. Dr. Garner’s operative report is quite detailed, and the description of what he did is consistent with the standard approach for the condition with which he was presented.” In addition, Dr. Damore stated that “Dr. Garner’s proposed surgery and the discussion he had with [Ms. Sante] according to the medical records about surgical options, and the potential risks and benefits, all met the standard of care.”
Dr. Garner also submitted copies of three forms to support his motion. The “Elements of an Informed Consent” form, which was signed by Ms. Sante on April 26, 2005, stated that she authorized Dr. Garner to perform a “Right Ring Finger Flexor Tendon Reconst. with Hunter Rod Placement.” Ms. Sante also initialed the areas of the form to indicate that she had been informed of and understood: (1) the details of the procedure; (2) alternative methods and their benefits and disadvantages; (3) the most likely risks and complications; (4) less common complications, including death or serious disability; (5) there were no guarantees about the results of the surgery; and (6) Dr. Garner had answered all her questions about the procedure. In addition, Ms. Sante acknowledged that she had read and understood the form, and that all blanks on the form were filled in prior to her execution of the document.
On April 28, 2005, Ms. Sante signed two forms at the Santa Cruz Surgery Center. The admission form stated that the procedure would be a “RIGHT RING FINGER FLEXOR TENDON RECONSTRUCTION w/ HUNTER ROD PLACEMENT R.” The consent for surgery form stated that Ms. Sante authorized Dr. Garner to perform the following operation: “Right ring finger with possible tenolysis tendon transfer from middle finger. Hunter rod placement. Explore right forearm median nerve with possible neuroma revision or nerve repair.” This form also stated that “[t]he nature of the operation and the usual risks, complications and alternatives have been explained to me and no warranty or guarantee has been made as to the result or cure.” Ms. Sante then initialed the area of the form indicating that she agreed that the site of her surgery had been verified.
D. Summary Judgment Opposition
In the Santes’ opposition to the motion, they did not submit a declaration by a medical expert. However, they submitted a declaration by Ms. Sante in which she stated that she consented to surgery only on her right forearm, not her right hand. She also stated that Dr. Garner had told her that “there was no risk because if he encountered anything unusual or unduly complex, he would stop the procedure at such point.” She further stated that the consent form (Exh. C) did not have the words, “‘Right Ring Finger Flexor, Tendon Reconst. w. the Hunter Rod Placement,’” on it when she signed the document. Ms. Sante also stated that she was not wearing her glasses when she was asked to sign the forms at the Santa Cruz Surgery Center, and that the documents “were simply thrust at [her] and [she] was directed to sign them.” She then noted: “While I cannot be absolutely certain, because I was not wearing my glasses at the time, I am reasonably sure that the form, copy of which is attached . . . as Exhibit [E], did not contain the language in Paragraph 1 when I signed it.”
Ms. Sante’s declaration refers to Exhibit F. However, Exhibit F was a copy of an operative report, dated April 28, 2005.
Ms. Sante also submitted a declaration by James Black, an expert in the field of document examination. Since Black had not examined the original consent forms, he could not determine whether the documents had been altered. However, based on his examination of the copies of the consent forms, he stated that “substantial questions exist[ed] concerning the integrity” of these documents.
E. Trial Court’s Ruling
The trial court found that the Santes failed to submit competent evidence on the issue of whether Dr. Garner breached the standard of care in performing the surgery, and thus Dr. Garner was entitled to summary adjudication on this issue. Regarding the issue of informed consent, the trial court stated: “The basis of the plaintiff’s opposition is twofold: One, plaintiff’s declaration indicates that she was told there were no risks, which does not appear to be credible based on the forms that were submitted and, secondly, that she did not consent to surgery of her right hand but consented to surgery of her forearm. Again, this is contradicted by the forms that were attached to the moving papers and reply. [¶] Plaintiff has provided a declaration of James Black, who apparently has some credentials in the area of . . . [¶] . . . [¶] . . . the integrity of these documents . . ., however, his declaration doesn’t provide any facts to explain what questions he has or exactly why he has questions. He just has concerns regarding the document integrity, but he hasn’t even seen the original and does not appear without seeing the originals that he’d be able to give a definitive . . . judgment as to these documents.”
The Santes do not challenge this ruling in the present appeal.
The Santes’ counsel requested a continuance to allow Black the opportunity to conduct an analysis of the original documents. Dr. Garner’s counsel objected on the ground that the request was untimely, because it should have been made when the Santes filed their opposition to the motion for summary judgment. In response to questioning by the trial court, the Santes’ counsel stated that he did not have any reason for failing to make the request at that time. The trial court then granted the motion for summary judgment, and entered judgment in favor of Dr. Garner.
F. Motion for New Trial
On July 20, 2007, the Santes brought a motion for new trial. The motion was made on the following grounds: (1) Ms. Sante’s and Black’s declarations created a triable issue of fact on the issue of whether the documents had been altered; and (2) the trial court erred in denying the Santes’ request for a continuance.
On August 3, 2007, Dr. Garner filed his opposition to the motion. On September 20, 2007, Dr. Garner filed supplemental opposition papers, in which he argued that the new trial motion was untimely under Code of Civil Procedure section 660, because it had not been filed within 60 days from the date that the notice of entry of judgment was served.
In reply to Dr. Garner’s opposition, the Santes argued that Dr. Garner never informed her of the consequences of not proceeding with the surgery. They also argued that if their motion was untimely, they should not be penalized for the clerk’s error in setting the hearing date. In their supplemental reply, the Santes asserted that Ms. Sante had filed a complaint with law enforcement authorities.
The Santes have not addressed this issue in their appellate briefs.
The trial court found that the motion for new trial was untimely, and assuming that the motion was timely, it had no merit.
II. Discussion
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) To prevail on a motion for summary judgment, “[a]ll that the defendant need do is to show[] that one or more elements of the cause of action . . . cannot be established by the plaintiff.” (Aguilar, at p. 853, citations and quotation marks omitted.) The party moving for summary judgment bears “the burden of persuasion” that there are no triable issues of material fact and that the moving party is entitled to judgment as a matter of law. (Aguilar, at p. 850.) The moving party also “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 subject 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.” (Aguilar, at p. 851.)
The trial court cannot “weigh the credibility of a declaration submitted by the party opposing a summary judgment motion and then grant the motion, except where the declaration is facially so incredible as a matter of law that the moving party otherwise would be entitled to summary judgment.” (Estate of Housley (1997) 56 Cal.App.4th 342, 359-360 (Housley).) Our review of the trial court’s ruling on a motion for summary judgment or summary adjudication is de novo. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 316.)
The Santes contend that there is a triable issue of fact as to whether Ms. Sante gave informed consent before Dr. Garner performed surgery on her right hand. They contend that Dr. Garner “failed to disclose that the surgery would be a major ‘staged reconstruction’ [of her hand] and not the minor forearm surgery that had been described to” Ms. Sante.
“[T]he patient’s consent to treatment, to be effective, must be an informed consent.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 242 (Cobbs).) Thus, a physician has a duty to disclose all information material to a patient’s decision to undergo medical treatment when he or she is soliciting the patient’s consent. (Cobbs, at pp. 242, 246.) Generally, it is a factual question as to whether a physician has obtained a patient’s informed consent. (McKinney v. Nash (1981) 120 Cal.App.3d 428, 441.)
Here, Ms. Sante signed three forms that were almost identical in their description of the surgery to be performed. Each referred to surgery on her right hand, more specifically, her ring finger, flexor tendon reconstruction, and a Hunter rod placement. The April 26, 2005 consent form, which was prepared by Dr. Garner, and the April 28, 2005 consent form, which was prepared by the Santa Cruz Surgery Center, authorized Dr. Garner to perform the surgery. In addition, Ms. Sante initialed the section of the Santa Cruz Surgery Center consent form that stated that she had verified the site of the surgery to be performed.
To refute evidence that she had been informed of the nature and site of the injury and given her consent, Ms. Sante submitted Black’s declaration to show that the consent forms had been altered. Though Black’s declaration states that he had “serious questions concerning the integrity” of the copies of the documents, he could not express an opinion on whether they had been altered because he did not examine the original documents. Black also did not explain what his questions were regarding the copies. Thus, Black’s declaration does not support the Santes’ position.
We note that the Santes’ claim that Dr. Garner “steadfastly refuses to produce the original signed consent forms” is contradicted by their counsel’s statement that Dr. Garner’s “[c]ounsel has indicated a willingness [to provide the original documents] but we have not had the time to do that.”
We next consider whether Ms. Sante’s declaration created a triable issue of material fact as to whether the consent forms were altered. Her declaration states that the April 26, 2005 consent form did not have the quoted description of the procedure when she signed it. However, Ms. Sante signed three documents, two of which were presented to her by a third party. All three documents accurately described the same surgery on her right hand. The Santes fail to explain how the employees of the Santa Cruz Surgical Center listed the procedure to be performed in the same way as Dr. Garner did in the consent form that he gave to her. The Santes also fail to explain how she could not have known that the surgery was on her right hand, when she initialed the section of the form indicating that the site of the surgery had been verified by her. Ms. Sante’s declaration states that when she signed the admission and consent forms at the Santa Cruz Surgery Center, she was not wearing her glasses and did not have the opportunity of reading the forms prior to signing them. She then states that she was “reasonably sure” that the form did not contain the language describing the procedure, even though she “cannot be absolutely certain” because she was not wearing her glasses. “As Mr. Witkin states: ‘Ordinarily, one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it. If he cannot read, he should have it read or explained to him.’ [Citation.]” (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163.) Ms. Sante gave no explanation as to why she did not ask that the forms be read or explained to her. Thus, Ms. Sante’s claim that she could not read the Santa Cruz Surgery forms does not assist her position. In reviewing the record de novo, we conclude, as did the trial court, that Ms. Sante’s declaration was “facially incredible as a matter of law.” (Housely, supra, 56 Cal.App.4th at pp. 359-360.)
The Santes also contend that Dr. Garner failed to disclose that Ms. Sante risked the loss of function in her right hand, he did not know the state of her median nerve prior to the surgery, and she would experience severe pain, numbness, loss of muscle mass, and disfigurement.
“First, a physician must disclose to the patient the potential of death, serious harm, and other complications associated with a proposed procedure. Expert testimony on the custom of the medical community is not necessary to establish this duty. Second, [b]eyond 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. 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.” (Daum v. Spinecare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1301-1302, internal citations and quotation marks omitted.)
In the present case, the consent form lists the “most likely risks and complications” as “bleeding, infection, scarring” and the “less common complications” include “the remote risk of death or serious disability that exists with any surgical procedure.” Thus, Dr. Garner disclosed to Ms. Sante that there was a potential for death or serious bodily harm, and Ms. Sante has suffered serious bodily harm as a result of the surgery. However, beyond this minimal disclosure, expert testimony was required to establish any additional information, such as whether the risk of serious harm to her right hand was high. Here, Dr. Damore’s declaration states that Dr. Garner’s discussion with Ms. Santa “about surgical options, and the potential risks and benefits, all met the standard of care.” The Santes did not present any expert testimony that Dr. Garner’s failure to provide more specific information regarding the risks to her right hand was required. Accordingly, the Santes failed to carry their burden of producing evidence to make a prima facie showing that there was a triable issue of material fact.
The Santes also argue that Dr. Garner should have stopped the procedure as he had promised when he saw that the median nerve in her forearm had already been harvested. We disagree. Since the Santes did not submit the declaration of a medical expert in their opposition to the motion for summary judgment, the issue of whether Dr. Garner met the appropriate standard of care in performing the surgery was resolved by Dr. Damore’s declaration.
In their reply brief, the Santes contend that Dr. Damore’s opinion regarding the absence of Ms. Sante’s median nerve is contradicted by Dr. Garner’s admissions in his operative report. Dr. Damore’s declaration states: “While there is [a]n indication in the records that Ms. Sante believes Dr. Garner somehow injured the median nerve, it is my opinion to a reasonable degree of medical certainty that her median nerve had already been harvested at the wrist prior to Dr. Garner’s surgery, so he could not have injured the nerve as it was absent.” The Santes point out that Dr. Garner’s operative report states in relevant part that “[t]he contents of the carpal tunnel were encased in thick scar. Under meticulous loop magnification [a] medial neuroplasty was performed within the carpal tunnel. The nerve was diminutive and notably atrophied. Although there were distal branches noted, the nerve tapered into scar tissue as dissection was carried proximally.” Even assuming that this portion of Dr. Garner’s report was referring to the median nerve, that the median nerve was “diminutive and notably atrophied” suggests that the median nerve had been harvested, at least partially, during the prior surgery. Thus, the report was consistent with Dr. Damore’s declaration. In any event, any issues relating to the condition of the median nerve and the results of surgery performed by Dr. Garner related to the issue of the standard of care.
The Santes next contend that the trial court erred in denying their motion for a new trial on the ground of untimeliness, because it granted Dr. Garner’s untimely motion for summary judgment. There is no merit to this contention.
First, a party forfeits a claim of error when he or she fails to object before the trial court, and thus prevents the trial court from avoiding or curing any error. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) Here, the Santes did not object to the untimeliness of the motion for summary judgment at the hearing, and thus they have forfeited any issue on appeal relating to the timeliness of this motion. Second, the Santes seem to be suggesting that the trial court erred in denying the motion for a new trial as untimely, because it had previously erred in allowing Dr. Garner to file an untimely motion. They have cited no authority to support this position.
The Santes also argue that their motion for new trial was timely, because the trial court ignored the “entry of the judgment modified to include costs in its timeliness analysis.” Even assuming that the trial court erred in finding that the motion for a new trial was untimely, any error was not prejudicial. The trial court stated that even if it had ruled on the merits of the motion for a new trial, it would have denied the motion. The trial court noted that the Santes “really did not present any real issues or evidence of alteration. The expert, in this case James Black, declared only that he had serious and substantial questions concerning the integrity of the informed consent forms.” The trial court also acknowledged that the Santes had filed a crime report with the Santa Cruz County Sheriff’s Office in which they claimed that the documents had been altered, and that a court order had been requested for the original of the documents. However, the trial court pointed out that “[t]his does not suggest that the detective questions the authenticity of the documents, only that he is following up on the plaintiff’s report, so we’re still left with the same situation.” The trial court next considered its prior refusal to grant the Santes’ request for a continuance to allow for a review of the original documents. The trial court noted that the Santes’ counsel failed to submit an affidavit with the opposition papers that stated that facts justifying opposition might exist but could not then be presented to the court, and that counsel failed to explain why it could not have been presented at that time. Since the Santes had not presented any additional evidence that the documents had been altered, the record fully supported the trial court’s denial of the motion for a new trial.
III. Disposition
The judgment is affirmed.
WE CONCUR: McAdams, J., Duffy, J.