Jambazian v. Borden

• Decision Date: 07 June 1994
• Docket Number: No. B077655,B077655
• Citation: 30 Cal.Rptr.2d 768,25 Cal.App.4th 836
• Court: California Court of Appeals Court of Appeals
• Parties: Harry JAMBAZIAN, Plaintiff and Appellant, v. Joseph BORDEN, Defendant and Respondent.

Page 768

30 Cal.Rptr.2d 768

25 Cal.App.4th 836

Harry JAMBAZIAN, Plaintiff and Appellant, v. Joseph BORDEN, Defendant and Respondent.

No. B077655.

Court of Appeal, Second District, Division 5, California.

June 7, 1994.

Loyd W. Reed, Glendale, for plaintiff and appellant.

B. Elliot Johnson & Associates, Donna Vasseghi, Encino, for defendant and respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

Plaintiff, Harry Jambazian, appeals from a summary judgment in favor of defendant, Joseph Borden, D.P.M., on a complaint for medical malpractice. We conclude plaintiff's failure to present legally admissible opinion testimony to controvert that submitted by defendant warranted summary judgment be granted on the medical negligence and informed consent claims. In so concluding, we determine that plaintiff had a responsibility to present opinion testimony that he suffered from diabetes by a properly qualified medical witness in his summary judgment opposition to controvert defense evidence that he had no diabetic condition. Further, plaintiff had a duty to present properly qualified medical opinion evidence that his alleged diabetic condition created surgical risks other than those related by defendant prior to the procedure. This is because the existence of a diabetic condition was a factual predicate of plaintiff's claim he was not properly informed of the effect of surgery because he had diabetes. We affirm.

II. BACKGROUND

The complaint sought damages for causes of action for negligence (first) and lack of informed consent (second) for injuries plaintiff allegedly suffered as a result of surgery performed on October 27, 1989, at Northridge Hospital and for failure to fully inform him of the consequences of the procedure. ¹ Defendant answered the complaint and moved for summary judgment on the grounds the action lacked merit and contained no triable issues of material fact.

A. The Moving Papers

In support of the motion, defendant presented: plaintiff's deposition testimony; exhibits; defendant's declaration; and the declarations of two other physicians. Defendant declared that he has been a board certified podiatric surgeon since 1982. He initially saw plaintiff on June 23, 1989, for a callous formation at the base of the fourth metatarsal on his right foot. Plaintiff made four office visits to see defendant between June 27 and September 28, 1989, for conservative care of the condition. On October 26, 1989, defendant met with plaintiff and "explained the procedures and risks involved with an ostectomy...." Defendant obtained written consent to perform an ostectomy of the fourth metatarsal head of plaintiff's right foot. Defendant and plaintiff discussed the possibility that a post-operative infection might result.

On October 27, 1989, defendant performed an ostectomy of the fourth metatarsal head of the right foot. The surgery was uneventful and plaintiff was discharged October 29, 1989. On November 1, 1989, plaintiff went to defendant's office with redness and symptoms which indicated a post-operative infection had developed. Defendant took X-rays and prescribed Cipro, an appropriate antibiotic for osteomyelitis. Plaintiff returned to the office the following day still showing signs of infection. He was then sent to Northridge Hospital where Dr. Dreyer, an infectious disease specialist, ordered intravenous antibiotics and a sterile dressing was placed on plaintiff's foot. According to defendant, "[m]arked improvement was clinically demonstrated within 24 hours." Plaintiff was transferred to Glendale Adventist Hospital for further treatment under a board certified orthopedist. Defendant examined plaintiff last on February 28, 1990. At that time, there was no infection and a bone scan was normal. Doctors at UCLA had discontinued antibiotics. According to defendant, he exercised the degree of medical skill and care established for practicing podiatric surgeons in Los Angeles County when treating plaintiff. He thoroughly explained to plaintiff the procedures and risks involved.

Jay Shuken, D.P.M., a physician and surgeon, board certified in podiatric surgery and orthopedics, declared: "The consensual discussions indicated in the medical records and the written consent signed by [plaintiff] on October 26, 1989, demonstrate that full consent was obtained, adequate to satisfy the standard of care in the community." He further declared that based on the pertinent medical records, the surgery performed on plaintiff, the post-operative diagnosis, referral, and follow-up were within the standard of care in the community. Further, plaintiff testified at his deposition defendant informed him of the risks and hazards of having surgery including the possibility of an infection. Defendant advised him there "could be some bleeding ... and some infection." Plaintiff further testified he voluntarily signed the consent form after being advised of all risks and hazards of the surgery. The consent form stated in part: "[p] 5. The nature and purpose of the operations, possible alternative methods of treatment, the risks involved, and the possibility of complications have been fully explained to me. I acknowledge that no guarantee or assurance has been given by anyone as to the results that may be obtained." The consent forms contained checks indicating the following complications or affects might occur: swelling, injury, suture reaction, recurrence, stiffness, delayed healing, scar, operate again, numbness, flail toe, medication reaction, infection, and rotation.

B. The Opposition

In opposition to the motion, plaintiff declared he is a diabetic. He had been advised that the diabetic condition impaired circulation of blood and compromised the body's ability to heal wounds. Plaintiff's declaration did not identify the health care professional who made the diabetes diagnosis. Plaintiff's declaration did not state defendant ever made a diabetes diagnosis. Although plaintiff stated in his first office visit that he was a diabetic, his medical records failed to note the condition. Defendant did not advise plaintiff that the proposed surgery was made more hazardous by virtue of the diabetic condition or that if there was an infection there was a danger of having his leg amputated. There was no notation in the consent form about diabetic condition and risks. If plaintiff had been advised about the risks associated with being a diabetic, he would not have consented to surgery. He denied that his condition improved at Northridge Hospital. Plaintiff was advised at Glendale Adventist Hospital that his leg would probably have to amputated. Although the leg was not amputated, the fear of having it done aggravated an existing manic-depressive disorder. The opposition did not contain any evidence which indicated what additional risks should have been imparted by defendant to plaintiff prior to the surgery.

C. Defendant's Reply

In reply, defendant asserted he established the absence of a breach of duty of care. Further, the reply argued plaintiff failed to provide opinion testimony that defendant's conduct fell below the standard of care with respect to the negligence cause of action. As for the lack of informed consent, defendant claimed there was no causation and the evidence established that plaintiff was informed of the risk of post-operative infection and gave his consent to surgery. Defendant also presented the declaration of Russell A. Klein, M.D., an infectious disease specialist who had reviewed plaintiff's medical records from several sources, including those kept by defendant, U.C.L.A., Brotman Memorial Hospital, and several other physicians and hospitals. Dr. Klein declared: "A post-operative infection is a risk inherent in any surgery. That [plaintiff] had a borderline diabetic condition does not contraindicate the surgery performed by [defendant] whatsoever. In fact, review of medical records indicated [plaintiff] had multiple normal blood sugars and no evidence of any diabetes. The records indicate that informed consent was properly obtained from [plaintiff], and all relevant risks and hazards of the procedure of October 27, 1989, including infection, were explained to the [plaintiff]. Furthermore, [plaintiff] was examined by an independent doctor for the specific purpose of being cleared for the surgery, prior to the ostectomy, at Northridge Hospital. Again, [plaintiff] was cleared for surgery, with no contraindications present, by Dr. Madhu Mody on October 27, 1989." In Dr. Klein's opinion, defendant acted at all times within the standard of care and did not cause or contribute to any of plaintiff's injuries. To sum up, defendant's evidence demonstrated plaintiff did not have diabetes and all of the risks of the surgery were related to him.

D. The Ruling

In the summary judgment opposition, plaintiff declared he suffered from diabetes. As noted previously, this existence of this illness was essential to his informed consent theory. In the reply, defendant objected to any opinion testimony by plaintiff, a layperson, concerning his medical condition. In its written analysis as to why the summary judgment motion was granted, the law and motion judge indicated plaintiff had failed to present a "counter declaration from [an] expert." The formal order granting summary judgment indicated the court relied on the declarations filed by defendant and two other doctors.

III. DISCUSSION

A. Standard of Review

A motion for summary judgment will be granted if the moving papers establish that 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).) ² The law, as it was in effect in 1993 when the summary judgment motion was filed and granted, ³ described how a trial court was to consider such a request by a defendant as follows: "For purposes of motions for summary judgment ...: [p] (2) A defendant or cross-defendant has met his or her...