Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC094088, Jacqueline A. Connor, Judge.
Morris S. Getzels Law Office and Morris S. Getzels for Plaintiff and Appellant.
Law & Brandmeyer, Kent T. Brandmeyer; and David J. Ozeran for Defendant and Respondent.
KRIEGLER, J.
Plaintiff and appellant Giannina Toaxen appeals from the judgment in favor of defendant and respondent Dennis P. Thompson after summary judgment was granted in this medical malpractice action. Plaintiff argues the trial court erred in granting summary judgment because there are disputed material facts as to whether she gave informed consent to breast augmentation surgery. We affirm, holding that if the complaint is construed to allege a lack of informed consent based on a theory of negligence, plaintiff failed to present the required expert testimony establishing the standard of care in disclosing the risks of breast augmentation surgery.
BACKGROUND
The Complaint
Plaintiff filed a complaint alleging the following facts. She employed defendant on May 25, 2006, to perform breast enhancement surgery. Defendant rendered professional medical and surgical services in the diagnosis, treatment, and care of plaintiff. Defendant failed to exercise the proper degree of knowledge and skill in examining, diagnosing, treating, and caring for plaintiff, causing her to suffer injury, including unsightly and uneven breasts necessitating corrective surgery resulting in great physical and emotional pain and suffering.
On November 2, 2006, defendant performed additional surgery on plaintiff for the purpose of correcting the May 2006 surgery. The second surgery was performed in a negligent manner, causing plaintiff to continue to suffer from uneven and misshapen breasts, which will require additional corrective surgery. Plaintiff suffered injury as a result of defendant’s negligence and continued to suffer great mental, physical, and nervous pain and suffering.
The Summary Judgment Motion and Expert’s Declaration
After filing an answer, defendant moved for summary judgment on the ground that his conduct was not negligent and did not cause injury. Defendant’s summary judgment motion was based primarily upon the expert opinion of Dr. Jed H. Horowitz.
Plaintiff has attempted to argue, in both a supplemental brief and at oral argument, that there was an inadequate foundation for Dr. Horowitz’s opinion, citing Garibay v. Hemmat (2008) 161 Cal.App.4th 734. We rejected filing the supplemental brief, as it was served after briefing had been completed and Garibay was decided before plaintiff’s opening brief had been filed. In any event, Dr. Horowitz’s expert declaration reasonably relied upon plaintiff’s medical records as prepared by defendant. (Evid. Code, § 801, subd. (b).)
Dr. Horowitz’s declaration reviewed the history of plaintiff’s treatment with defendant. Plaintiff saw defendant in July 2005, complaining of the appearance of her breasts, which had been surgically enhanced in 1994. Defendant told plaintiff he could not guarantee that surgery would remedy her complaint. They discussed replacement of her saline implants with gel implants.
Defendant next saw plaintiff on May 19, 2006. He received approval to use gel implants because of unsatisfactory results from saline implants in plaintiff’s earlier surgery. On May 25, 2006, defendant removed plaintiff’s saline implants and replaced them with gel implants. The procedure went without complication and plaintiff tolerated the procedure well.
After an examination on May 31, 2006, defendant noted an “excellent result,” although there was a minor dimple that was probably due to a suture and which should resolve itself with time. Plaintiff was concerned with wrinkling, which was almost imperceptible to defendant.
Plaintiff returned to defendant on June 19, 2006, expressing disappointment that her nipples were not of equal height and her left breast was lower than the right. Defendant showed plaintiff her pre-operative photographs depicting the same conditions.
On August 29, 2006, plaintiff returned to defendant, concerned that her left breast was smaller than the right and her left nipple was lower than the right. She wanted to look more symmetrical. The examination revealed the right breast was approximately one-half inch lower than the left and slightly larger. Her left nipple was lower than the right, as had been her condition before the operation.
Defendant discussed an additional procedure, but told her it would not alter the relative position of the nipples and she would never have “identical twin breasts.”
On November 2, 2006, defendant performed surgery again on plaintiff, removing the left breast implant and replacing it with a larger implant. Plaintiff tolerated the procedure well. She was seen by defendant on November 6, 2006. She was very pleased with the results and the breasts were more symmetrical. On November 16, 2006, plaintiff was seen by defendant and was very pleased with what defendant described as an excellent result.
On December 6, 2006, plaintiff telephoned defendant, complaining of numbness and pain. Defendant told her he felt these issues would resolve themselves with time. At an examination on January 5, 2007, defendant noted the numbness was almost gone, although plaintiff noticed intermittent numbness in the lower left breast and discomfort in her left arm. The right breast looked excellent, but plaintiff noticed a significant displacement in the left breast.
On January 31, 2007, plaintiff informed defendant she had spoken with a plastic surgeon in Beverly Hills who felt the left implant needed to be removed and left out for three months, at which time it would be replaced with a new implant.
Dr. Horowitz expressed the opinion that defendant complied with the standard of care at all times during both surgeries. The asymmetry after the first surgery was a common complication from this type of procedure and did not constitute a breach of the standard of care. Follow-up care was appropriate, and the second surgery was within the standard of care. Plaintiff was an appropriate candidate for the second surgery and informed consent was given. The displacement following the second surgery is a known complication.
Opposition to Summary Judgment
Plaintiff filed an opposition to the motion for summary judgment, arguing there were material issues of disputed facts pertaining to whether having one breast three and one-half inches below the other is a known complication of corrective surgery, Dr. Horowitz’s declaration was not based on personal knowledge, there was no informed consent, and the doctrine of res ipsa loquitur applied.
To contradict defendant’s undisputed material facts, plaintiff set forth the following in her own declaration. Plaintiff was upset on May 31 and June 19, 2006, that her nipples pointed in two different directions, the left breast looked unhealthy, and the right breast was lower than the left. As of August 7, 2006, plaintiff’s nipples pointed in two different directions, which was not the same as before the first operation. Defendant agreed to perform the second surgery without charge. Defendant did not discuss the risks and complications of the second surgery and had she known of a risk that one breast would be three and one-half inches lower than the other, she would not have agreed to the second operation.
On November 6, 2006, plaintiff was immediately dissatisfied with the results. The left breast was one-half inch below the right. Defendant told her she was too much of a perfectionist. She was not at all pleased with the results on November 15, 2006, and complained the left breast was lower than the right.
On December 6, 2006, plaintiff complained that her left breast was three and one-half inches lower than the right. The same problem existed when she consulted with another surgeon in January 2007. She lost confidence in defendant. Plaintiff disputed that defendant’s conduct in the May 2006 surgery was within the standard of care, since her nipples pointed in opposite directions and one breast was one-half inch lower than the other. She disputed that this occurrence is common in that defendant agreed to perform the second surgery without charge. She disputed that she was satisfied with the procedures because defendant ignored her complaints. He should not have used a larger implant in the second operation, as that contributed to the left breast being three and one-half inches lower than the right. She also disputed receiving informed consent, as defendant refused to discuss the risks of the second operation with her. He should not have used a larger implant in the second operation, and the result was a complete surprise to the doctor. Having one breast three and one-half inches lower than the other is not a known complication, as defendant had never seen anything like it in more than 30 years of practice and he wanted to present the result to his colleagues.
As additional material disputed facts, plaintiff set forth that two surgeries were necessary to correct what defendant did wrong. Plaintiff paid cash for all four surgeries, including the last two to correct defendant’s errors. On January 31, 2007, defendant noticed the left breast was “even lower than in the pictures.”
Defendant’s Reply
In defendant’s reply, he argued plaintiff could not defeat summary judgment by relying on informed consent, as that theory was not pled in her complaint. She was adequately informed of the operation and could not establish a lack of informed consent. Plaintiff presented no evidence she would not have consented to the second operation had she been given the same information as in the first operation. She failed to raise a triable issue of fact as to the standard of care because she did not have an expert’s declaration.
DISCUSSION
Plaintiff argues that she was not required to present expert opinion to establish a disputed fact that there was a lack of informed consent. Plaintiff therefore contends the trial court erred in granting summary judgment on the basis that she failed to present an expert opinion. According to plaintiff, defendant’s own notes establish that plaintiff was not given informed consent prior to the second operation. No one disclosed to plaintiff that a breast three and one-half inches longer than the other was a possible complication of the surgery.
Defendant argues that because the complaint did not allege a lack of informed consent, summary judgment could not be denied on that basis. Defendant further argues plaintiff cannot prevail on the theory of lack of informed consent because she failed to present an expert declaration. We need not address defendant’s first argument, because assuming plaintiff pled a lack of informed consent as a theory of negligence, her failure to present expert testimony on the applicable standard of care is fatal to her contention.
Standard of Review
“The rules governing a motion for summary judgment are well known and we need not set them out in detail. A defendant seeking summary judgment must either prove an affirmative defense, disprove at least one element of the plaintiff’s cause of action, or show that some such element cannot be established. [Citation.] The opposing party need not prove his or her case; it is enough to show that a triable issue of material fact exists. [Citation.] The evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. [Citation.] Our review of the trial court’s decision is de novo. [Citation.]” (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 100.)
Equally well established is the rule that summary judgment may not be granted or denied based upon an issue not raised in the complaint. “A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]” (Government Employees Ins. Co. v. Superior Court, supra, 79 Cal.App.4th at p. 98, fn. 4.)
“To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party’s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion. [Citations.]” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265; accord, Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1104, fn. 22.)
Battery and Negligence Based on Lack of Informed Consent
The concepts of negligent medical care and lack of informed consent are separate and distinct bases for liability. (Cobbs v. Grant (1972) 8 Cal.3d 229, 238 (Cobbs).) As explained in Cobbs, an action should be plead in negligence when a doctor performs an operation to which the patient consents, but the patient contends the doctor failed to adequately disclose the risks inherent in the surgery. (Id. at pp. 240-241.) Battery, on the other hand, is a theory employed where the doctor performs a surgery to which the patient has not consented. (Id. at p. 240; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [“Our high court has made it clear that battery and lack of informed consent are separate causes of action. A claim based on lack of informed consent—which sounds in negligence—arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.”].)
The Requirement of an Expert Declaration to Establish Negligence
Plaintiff’s complaint contains no suggestion that plaintiff did not consent to both surgeries. As such, the complaint does not allege a battery, and if it encompasses an informed consent theory of liability, it must be on the basis of negligence. Although the complaint in negligence contains no hint of reliance on a lack of informed consent, we need not base a holding on that deficiency. Instead, we hold that summary judgment was properly granted after plaintiff failed to present an expert’s declaration on the applicable standard of care for negligence in the obtaining of informed consent.
Generally, expert testimony is not required on the issue of informed consent as to issues relating to the risk of death or serious injury and significant potential complications. (Arato v. Avedon (1993) 5 Cal.4th 1172, 1191 (Arato); Betterton v. Leichtling (2002) 101 Cal.App.4th 749, 754.) However, there are situations in which the testimony of a medical expert is appropriate to establish what disclosures, if any, should be given “in addition to those relating to the risk of death or serious injury and significant potential complications posed by consenting to or declining a proposed treatment....” (Arato, supra, at p. 1191.) In those situations, the adequacy of the disclosure “may turn on the standard of practice within the relevant medical community. In such instances, expert testimony will usually be appropriate.” (Ibid.; Betterton v. Leichtling, supra, at p. 755 [aspirin use creating a risk of surgical complications was a subject beyond the general knowledge of lay people]; Jambazian v. Borden (1994) 25 Cal.App.4th 836, 848-849 [whether the plaintiff suffered from diabetic condition posing risks in surgery was subject to proof only through experts].)
In this case, defendant’s summary judgment motion was supported by the expert declaration of Dr. Horowitz, which was sufficient to demonstrate the lack of merit to the negligence claim, thereby shifting the burden of proof to plaintiff. If plaintiff’s negligence theory was that disclosure of the possibility of substantially uneven breasts after augmentation surgery is within the standard of care, and such disclosure was not provided by defendant, she was required to present expert testimony to establish the point, as it is a matter beyond the knowledge of lay witnesses. In the absence of a declaration establishing the standard of care, summary judgment was properly granted on the negligence claim.
DISPOSITION
The judgment is affirmed. Defendant is awarded costs on appeal.
We concur: ARMSTRONG, Acting P. J., MOSK, J.