The Court of Appeal of the State of California Second Appellate District Division Two (“California Appellate Court”) affirmed summary judgment granted by the trial court to the medical malpractice defendant, in an unpublished opinion filed on December 15, 2017, holding that the California medical malpractice plaintiff did not plead lack of informed consent and therefore summary judgment was properly granted by the trial court.
The California medical malpractice plaintiff had robotic-assisted laparoscopic radical hysterectomy and right salpingooophorectomy, along with a bilateral pelvic lymphadenectomy, on April 24, 2012, to treat her cervical cancer. The California Appellate Court stated that the defendant surgeon had extensively counseled the plaintiff on the options available to her as well as the advantages and disadvantages of treatment options, including the risks, benefits, and alternatives. On the same date as the surgery, the plaintiff signed a consent for hysterectomy.
During the surgery, the plaintiff’s right obturator nerve was identified and noted to be partially transected. Neurosurgery was consulted, and the nerve was repaired during the surgery.
The plaintiff filed her first amended medical malpractice complaint against several defendants on September 30, 2014, in which she alleged three causes of action: medical malpractice, strict products liability – design defect, and negligence. Only the medical malpractice cause of action was directed against the defendant surgeon.
The medical malpractice plaintiff alleged that she was injured during the surgical procedures carried out by the defendant surgeon: “Obturator nerve injury is not a recognized complication of pelvic lymph nodal dissection, and not part of the informed consent procedures [respondent] provided when informing [appellant] of all surgical risks so that [appellant] can decide whether or not to proceed with the surgery.”
The defendant surgeon filed a motion for summary judgment, arguing, in part, that the plaintiff could not establish causation with sufficient medical probability, supported by his expert’s testimony that, to a reasonable degree of medical probability, no negligence on the part of the defendant surgeon caused the plaintiff’s injuries, and that the defendant surgeon’s actions in consulting neurology, having the nerve repaired, informing the plaintiff immediately, recommending evaluation by a neurologist, and recommending physical therapy were proper and timely.
The plaintiff responded to the defendant surgeon’s motion for summary judgment but did not offer a declaration of an expert witness to oppose the defendant surgeon’s motion for summary judgment. Instead, the plaintiff argued there was no evidence to support a finding that the defendant surgeon explained to her the risks of surgery, including the risk of damage to the obturator nerve, that went beyond handing her a form to sign at the hospital minutes prior to her surgery.
The trial court granted the defendant surgeon’s motion for summary judgment, finding that the plaintiff could not establish the elements of breach of duty or causation. shifting the burden to the plaintiff to offer evidence creating a disputed issue of fact, which burden she did not meet. With regard to the plaintiff’s argument that the defendant surgeon did not repudiate a cause of action for lack of informed consent, the trial court stated that the plaintiff’s cause of action for medical malpractice did not plead malpractice based on lack of informed consent, the plaintiff did not introduce evidence suggesting that there was no informed consent, and that summary judgment cannot be granted or denied on grounds not raised by the pleadings. The plaintiff appealed.
California Appellate Court Decision
The California Appellate Court stated that when pleading a claim of failure to inform, a plaintiff must establish a causal relationship between the physician’s failure to inform and the injury to the plaintiff: such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given.
The California Appellate Court stated that the plaintiff alleged a single cause of action against the defendant surgeon: medical malpractice. The plaintiff did not allege a separate cause of action for failure to provide informed consent. To properly allege such a claim, the plaintiff was required to allege that the defendant surgeon failed to provide her with the information a skilled practitioner would provide. If, as the plaintiff alleges, obturator nerve injury is not a recognized complication of her surgery, then it would not be outside of the standard of care for a physician to fail to provide warning of that risk. Furthermore, the plaintiff did not allege that, had she been informed of this risk, she would not have proceeded with the surgery.
Therefore, the California Appellate Court held that summary judgment was properly granted to the defendant surgeon on the plaintiff’s lack of informed consent claim.
Source Jordan v. Lin, B270651
If you believe that you suffered harm as a result of a medical provider’s failure to obtain your informed consent for medical treatment in California or in another U.S. state, you should promptly find a medical malpractice lawyer in California or in your state who may investigate your lack of informed consent claim for you and represent you in an informed consent case, if appropriate.
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