Purnell v. Cedars-Sinai Medical Center , B188780 (Cal. App. 10/10/2007)
| Decision Date | 10 October 2007 |
| Docket Number | B188780 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DEBORAH A. PURNELL, Plaintiff and Appellant, v. CEDARS-SINAI MEDICAL CENTER et al., Defendants and Respondents. |
Appeal from a judgment of the Superior Court of Los Angeles County, No. BC319741, Michael Stern, Judge. Affirmed.
Deborah A. Purnell, in pro. per., for Plaintiff and Appellant.
LaFollette, Johnson, DeHaas, Fesler & Ames, Louis H. DeHaas, Gillian N. Pluma, David J. Ozeran for Defendants and Respondents.
This appeal of a medical malpractice case involves the requirement that an expert witness establish that a healthcare provider's recommendation or rendering of medical care fell below the standard of care. It also involves the validity of the patient's informed consent when there is a signed consent form. Finally, it addresses which persons or entities have a duty to obtain the patient's informed consent. We find that respondent Cedars-Sinai Medical Center (Cedars) was entitled to summary adjudication as to all causes of action and that there was no prejudicial error in granting summary judgment as to respondent Frances Lineback, M.D. (Dr. Lineback).
At the time of surgery, appellant was a 46-year-old woman who had undergone two ectopic pregnancies more than 18 years prior. For over a year, appellant experienced irregular menses with heavier than normal bleeding, which became constant during the final three months before surgery. Bruce McLucas, M.D., diagnosed appellant with fibroid tumors three months prior to surgery. His records show he explained the risks and benefits of undergoing a hysterectomy, and appellant elected not to undergo the procedure at that time. Arthur Johnson, M.D. (Dr. Johnson), later counseled appellant in the outpatient department of Cedars, where she elected to undergo the hysterectomy. At that time, Dr. Johnson was an independent physician with privileges to utilize the hospital facilities.
Appellant was admitted to Cedars on May 6, 2003, where she signed a surgery consent form recognizing that training physicians and nurses may take part in her surgery. Dr. Johnson, assisted by resident Dr. Lineback, performed a total abdominal hysterectomy on appellant. The surgery was complicated because the doctors had to break up extensive abdominal adhesions and remove a large fibroid before the actual hysterectomy could be performed. The doctors did not close the inner abdominal wall at the conclusion of surgery.
Dr. Lineback assisted in surgery primarily by holding and suturing but stated she probably did perform a portion of the hysterectomy. Approximately eight months after the surgery, Dr. Johnson took an early retirement after being diagnosed with primary progressive aphasia, a disease which slowed his motor skills and made him incapable of performing surgery.
Appellant experienced postoperative bowel obstruction due to the combination of adhesions resulting from the surgery and preexisting adhesions which may have reformed during surgery. Surgeon Kenneth Adashek, M.D., consulted appellant a week after her surgery. As a result of the blockage, appellant began to vomit, which necessitated the pumping of appellant's stomach from the time of consultation until Dr. Adashek performed corrective surgery seven days later. Dr. Adashek initially attempted to correct the bowel obstruction using nonsurgical decompression, but he eventually had to perform two surgeries, removing approximately 12 inches of appellant's intestine, which had been cut off from a blood supply, to correct the obstruction. There was no evidence the intestine had been cut during the hysterectomy.
Appellant, in propria persona, filed a complaint in Los Angeles Superior Court on August 6, 2004, against Dr. Johnson as an individual and corporation, Cedars, and unknown employees of Cedars. The complaint alleged medical negligence, professional negligence, lack of informed consent, contributory negligence, and fraud. Appellant sought compensatory damages, exemplary damages, and punitive damages. The proceedings against Dr. Johnson as an individual and corporation were stayed as the parties entered into binding arbitration. Neither is a party to this appeal.
Cedars demurred on the grounds that causes of action for lack of informed consent, contributory negligence, and fraud failed to state a cause of action, and the causes of action for compensatory and exemplary damages failed to state sufficient facts to constitute a cause of action. Cedars also made a motion to strike the portions of appellant's complaint relating to punitive and exemplary damages and attorney fees on the grounds that they violated Code of Civil Procedure sections 425.13 and 1021. The court sustained the demurrer and motion to strike but granted appellant leave to amend the complaint within 30 days.
Appellant retained counsel, who submitted the first amended complaint alleging medical malpractice against all original defendants. The amended complaint asserted an Elam claim1 against Cedars for negligence in allowing Dr. Johnson to perform appellant's surgery while he was suffering from a debilitating condition. It also asserted negligence for "failure to properly test and evaluate whether plaintiff was a proper candidate for the prescribed course of medical care and/or surgery, failure to obtain appropriate consent prior to and during the conduction of the prescribed course of medical/nursing care and/or surgery, failure to follow the prescribed course of medical care and/or surgery when appropriate, failure to correctly administer medications, and failure to diagnose and properly treat plaintiff as her condition warranted."
Appellant dismissed her counsel and substituted herself in propria persona. During discovery, appellant learned that Dr. Lineback was the assisting doctor in her surgery and thus amended the complaint to include Dr. Lineback as a defendant in place of Doe 1.
Cedars filed a motion for summary judgment on April 7, 2005, supported by the declarations of Amy Rosenman, M.D. (Dr. Rosenman), that the surgical care and treatment of appellant was appropriate and not the proximate cause of her injuries, and Linda Leon, R.N. (Nurse Leon), that the nursing care and treatment was appropriate.
In her declaration, Dr. Rosenman asserted the recommendation of the hysterectomy was within the standard of care, given appellant's abnormal bleeding and the presence of fibroid tumors. She described the procedures involved in conducting a hysterectomy and found that the standard of care was met at all times during appellant's surgery. Dr. Rosenman explained that appellant's injuries were the result of the accepted risks and complications of the procedure and they did not imply negligence. She found there was no evidence that appellant's intestines had been injured during the hysterectomy. Finally, Dr. Rosenman was of the opinion that Cedars had no duty to inform appellant of the risks of the surgery because it is not the hospital's function to obtain informed consent.
Nurse Leon asserted in her declaration that appellant made no complaints of bruising or soreness in her skin during her stay at the hospital. She further asserted that any potential bruising or scarring from nurse-administered injections were accepted risks and complications of the injections and did not indicate that the injections were performed below the standard of care.
Based on these declarations and appellant's lack of an expert opinion to create an issue of material fact, Cedars moved for summary judgment. Cedars claimed Dr. Rosenman's declaration established that the recommendation, care and treatment were within the standard of care. Cedars asserted that this removed any causation linking Dr. Johnson's medical condition and appellant's injuries necessary to establish negligent medical treatment, which is required for an Elam claim. Cedars further asserted that the hospital had no duty to obtain informed consent. Finally, Cedars claimed the declaration of Nurse Leon established the nursing care and treatment were within the standard of care.
The motion for summary judgment was initially scheduled to be heard on June 24, 2005, but appellant was granted three separate continuances to file an opposition. In granting the final continuance, the court clearly told appellant that there would be no further continuances if she failed to produce an expert's opinion regarding the standard of care. The hearing was eventually held on November 9, 2005.
Appellant filed an amended opposition to the summary judgment motion on October 26, 2005, supported by the expert opinion of Simon Henderson, M.D. (Dr. Henderson). The amended opposition alleged that Dr. Johnson negligently recommended appellant undergo the surgery, that Cedars should not have allowed Dr. Johnson to perform surgery in Dr. Johnson's condition or allowed Dr. Lineback to assist, that Dr. Rosenman based her opinions on flawed information, and that appellant did not give informed consent to the hysterectomy or to having Dr. Lineback assist in the operation.
The amended opposition also included the declaration of appellant's expert, Dr. Henderson, stating that he disagreed with and would not have made the recommendation to undergo the hysterectomy, feeling it was not necessary and not worth the risk. Dr. Henderson further declared that he saw no evidence Dr. Johnson had informed appellant of the potential risks and complications of undergoing a hysterectomy.
Cedars argued in its reply that the declaration of appellant's expert did not create a material issue of fact regarding negligent treatment, that appellant signed a form consenting to Dr. Lineback's involvement in the surgery, that Dr. Lineback...
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