Tentative Ruling
Re: ?????????????????????????? Arteaga v. Fresno Community Regional Medical Center, et al.
Court Case No. 13 CECG 03906
Hearing Date: ????????? January 31, 2017 ????? ??????????? (Dept. 402)
Motion: ???????????????????? Chaudhry Defendants? Motion for Summary Adjudication
Hospital Defendants? Motion for Summary Adjudication
Tentative Ruling:
To deny the Chaudhry Defendants? Motion for Summary Adjudication in its entirety.? To deny the Hospital Defendants? Motion for Summary Adjudication in its entirety.
Explanation:
The Chaudhry Defendants? Motion:
Fifth Cause of Action: Battery
Battery is an unconsented invasion of the plaintiff?s right to be free from intentional, unlawful, harmful, or offensive contact with his/her person. The lack of consent to the particular contact is an essential element. (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938.) Generally, in the medical context the intentional tort of battery is reserved for cases where the physician performs a medical procedure without obtaining consent; cases where consent was obtained but was inadequate are treated as negligence. (Cobbs v. Grant (1972) 8 Cal.3d 229, 239-241.)? Battery includes cases where the act exceeds the scope of the consent to the extent that vitiates consent (Berkey v. Anderson (1969) 1 Cal.App.3d 790, 803) and where the patient places conditions on his consent and the physician exceeds the terms or conditions of the consent (Ashcraft v. King (1991) 228 Cal.App.3d 604).
Plaintiffs allege that, at no time did Mr. Perez consent to any portion of the cardiac procedure be performed by anyone other than Dr. Chaudhry or a similarly qualified physician.? (FAC ? 58.)? The Chaudhry Defendants submit evidence that Plaintiffs could not identify anyone who represented that the surgery would be performed ?fully by? Dr. Chaudhry, that it was Mr. Perez? decision to undergo the surgery, that Mr. Perez asked no questions of Dr. Stewart, that Dr. Stewart told Mr. Perez that Dr. Chaudhry would be the primary surgeon, but others, not named would be helping him.? The family did not ask who would be assisting in the surgery.? Dr. Chaudhry did not disclose who would be assisting in the surgery. Dr. Stewart did not know who would be assisting in the surgery. Thus there was no way for Mr. Perez to think that only Dr. Chaudhry would perform the surgery.?? Accordingly, consent could not have been conditioned on a representation that only Dr. Chaudhry or another qualified physician would perform the surgery.
However, the consent form signed by Mr. Perez sufficiently supports Plaintiffs? allegations that the scope of his consent was limited to the surgery being performed by Dr. Chaudhry or a similarly qualified physician. By signing the consent form, he consented to Dr. Chaudhry being his admitting physician and surgeon, and agreed that the operation would ?be performed on you by your physicians/surgeons?and/or by other?physicians/surgeons?selected by them.? (Emphasis added.)? A jury may consider the language of a consent form to determine whether the medical procedure fell within or outside its scope. (Danielson v. Roche (1952) 109 Cal.App.2d 832, 835.)? The Chaudhry Defendants have introduced no evidence to negate the allegations of the Fourth Amended Complaint that they were not acting as the agents of the Hospital Defendants.? (FAC ? 6.)? Thus, the consent form is a representation attributable to the Chaudhry Defendants.? Accordingly, summary judgment cannot be granted on the battery cause of action.
Seventh and Ninth Causes of Action: Intentional and Negligent Misrepresentation
The elements for a cause of action for intentional representation are: 1) defendant represented a fact was true; 2) defendant?s representation was false; 3) defendant knew the representation was false or made it recklessly and without regard for its truth; 4) defendant intended that plaintiff rely on the representation; 5) plaintiff reasonably relied on the representation; 6) plaintiff was harmed; and 7) plaintiff s reliance on defendant?s representation was a substantial factor in causing the harm. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, as modified (July 30, 1997); CACI 1900.) The elements for a cause of action for negligent misrepresentation are the same, except under element (3), the defendant may have honestly believed the representation was true but had no reasonable grounds for believing it was true when it was made. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407, as modified (Nov. 12, 1992); CACI 1903.)
Misrepresentation Element:
Both of these causes of action require a positive assertion of fact; an implied assertion or representation is not enough. (Diediker v. Peelle Financial Corp. (1997) 60 Cal.App.4th 288, 298, as modified on denial of reh’g (Jan. 16, 1998).) Here, the consent form states: ?Upon your authorization and consent, this operation?will be performed on you by your physicians/surgeons?and/or by other?physicians/surgeons?selected by them.? (Emphasis added.)?? This is evidence of a representation.? Again, the consent form is a representation of the Chaudhry Defendants.? (FAC ? 6.)? Accordingly, summary adjudication cannot be granted on the theory that there was no misrepresentation that the surgical procedure would be performed by Dr. Chaudhry or a qualified physician or surgeon.
As to the representation that undergoing surgery with Dr. Chaudhry would be ?safe,? the Chaudhry Defendants contend that any such representations were opinion or predictions about future events, which is not actionable fraud. (Neu-Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 307, 309-310; Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) This is correct.? However, negating this one alleged misrepresentation does not ?completely dispose[] of a cause of action? as required by Code of Civil Procedure section 437c, subdivision (f)(1).? Thus summary adjudication cannot be granted as to these causes of action on this theory.
Scienter and Intent to Induce Reliance Elements:
Intentional misrepresentation requires both scienter and intent to induce reliance.? Negligent misrepresentation does not require scienter but does require an intent to induce reliance.? (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 174.)? The Chaudhry Defendants assert that these elements cannot be met because there was no misrepresentation.? This argument fails for the reasons expressed above.
Actual Reliance Element:
?A plaintiff asserting fraud by misrepresentation is obliged to plead and prove actual reliance, that is, to ? ?establish a complete causal relationship? between the alleged misrepresentations and the harm claimed to have resulted therefrom.? [Citation.] Actual reliance is also an element of fraud claims based on omission. [Citation.] [?] … ? ?It is not … necessary that [a plaintiff’s] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct…. It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.? ? [Citations.]? ? (OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 864.)
When a fraud claim is based upon a misrepresentation or nondisclosure by a fiduciary, ?the reliance element is relaxed … to the extent we may presume reasonable reliance … absent direct evidence of a lack of reliance.? (Estate of Gump (1991) 1 Cal.App.4th 582, 601; Edmunds v. Valley Circle Estates (1993) 16 Cal.App.4th 1290, 1302 [?a representation in the context of a trust or fiduciary relationship creates a rebuttable presumption of reasonable reliance subject to being overcome by substantial evidence to the contrary?].) ?This rebuttable presumption implements the long recognized public policy of imposing fiduciary duties upon partners in their relationship to one another.? (Edmunds, supra, 16 Cal.App.4th at p. 708.)
The Chaudhry Defendants submit evidence that Mr. Perez was told the surgery was major, dangerous, that others would assist Dr. Chaudhry, that no one asked who would be assisting Dr. Chaudhry, that Dr. Stewart did not know who would be assisting Dr. Chaudhry.? However, reliance ?may be inferred from the circumstances,? which may provide ?much stronger and more satisfactory evidence? of reliance than ?direct testimony to the same effect.?? (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 814.)? An inference of reliance arises when the plaintiff’s actions are consistent with reliance on the representation.? (Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 363.)? Given that it is highly unlikely that any patient would have consented to undergoing an operation where the chief surgeon would leave before the patient?s chest was closed, would leave the task of closing to patient?s chest to a medical provider with no license or privilege to attempt such task, it may reasonably be inferred that Mr. Perez relied on the representation, as expressed in the consent form, that only Dr. Chaudhry or a qualified physician or surgeon would perform the procedure.
Eighth Cause of Action: Concealment
The statutory definition of ?concealment? is found at Civil Code section 1710, subdivision 3: ?The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact.? (See 5 Witkin, Summary 10th Torts ? 767 (2005), noting that this definition specifies the type of deceit known as concealment.) Generally, the failure to disclose is not actionable fraud unless there is some fiduciary relationship giving right to such a duty. (Mesmer v. White (1953) 121 Cal.App.2d 665, 670.) The doctor-patient relationship is fiduciary in nature, requiring the doctor to make full, honest, and complete disclosure of all facts which materially affect the patient?s rights and interests. (Stafford v. Shultz (1954) 42 Cal.2d 767, 777.)? This tort requires that the concealment or suppression of facts was done with the intent to defraud plaintiff. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.)
?
The Chaudhry Defendants argue there was no concealment as to the PA?s involvement in the surgery by Dr. Chaudhry because he was not involved in the consent meeting, and he testified that he did not speak with either Mr. Perez or his family on the morning of the surgery; Mr. Arteaga testified Dr. Chaudhry did speak with him before the surgery but it was merely a quick introduction and he relayed how long the surgery would be. If Dr. Chaudhry did speak with Mr. Arteaga right before surgery, the failure to tell him that the PA would assist him in performing the surgery could not have been with the intent to induce Mr. Perez to consent to surgery because he had already agreed to do so.
The Chaudhry Defendants attack the misrepresentation, intent to defraud and actual reliance elements of the concealment claim.? However, as demonstrated, their evidence is the same as that offered in support of the misrepresentation claims, and summary adjudication cannot be granted as to this cause of action.
The Hospital Defendant?s Motion:
Fifth Cause of Action: Battery
The Hospital Defendants repeatedly mistake plaintiffs? allegation that the scope of the consent was that Dr. Chaudhry was to ?perform the entire surgery.?? Rather the allegations of the Fourth Amended Complaint are that Mr. Perez consented to tasks being performed by Dr. Chaudhry or a ?similarly qualified physician? (Complaint ?58.)? The consent form Mr. Perez signed sufficiently supports plaintiff?s allegation and contention that the scope of his consent was limited to the surgery being performed by Dr. Chaudhry or a similarly qualified physician. The form indicates he consented to his admitting physician and surgeon being Dr. Chaudhry, and states: ?Upon your authorization and consent, this operation?will be performed on you by your physicians/surgeons?and/or by other?physicians/surgeons?selected by them.? (Emphasis added.)? Plaintiffs have raised a disputed issue of material fact that Mr. Perez? consent was vitiated by the PA being involved in the surgery, and being allowed to perform surgical tasks without Dr. Chaudhry?s supervision.
As to the issue of whether Plaintiffs can establish causation, the Hospital Defendants? expert focused only on Ms. Albakova?s closing of the chest and did not opine regarding the other intraoperative care she provided (reopening the chest, providing cardiac massage, and attempting cannulation.) Plaintiffs provided evidence that all of these tasks exceeded the scope of her privilege, and doing them without the personal presence of her supervising physician violated California law. (16 C.C.R. ? 1399.541 and 22 C.C.R. 70435, subd. (b).) Plaintiffs? expert, Dr. Shuman, opined that cardiac surgery is not ?complete? until the patient leaves the operating room, given that the very complication which occurred here could arise, requiring immediate action from a cardiothoracic surgeon. Dr. Shuman opined that the actions Ms. Albakova performed after the code was called were a substantial factor in causing Mr. Perez? injuries because her inexperience with cannulation delayed Mr. Perez getting back on bypass, which prevented adequate perfusion to his organs, including his brain.? This also delayed Mr. Perez obtaining the kind of surgical intervention he needed. This is sufficient to create a triable issue of material fact on the causation issue.
Seventh & Ninth Causes of Action: Intentional & Negligent Misrepresentation:
Misrepresentation Element:
The specific misrepresentations alleged in Plaintiffs? Fourth Amended Complaint are: that Dr. Chaudhry, or a qualified physician or surgeon, would perform Mr. Perez? complete surgical procedure and that Dr. Chaudhry would provide or was able to provide safe medical care.?? The issue with regard to these causes of action is whether these were express representations. Both of these causes of action require a positive assertion; an implied assertion or representation is not enough. (Diediker v. Peelle Financial Corp., supra, 60 Cal.App.4th at p. 298, as modified on denial of reh’g (Jan. 16, 1998).)? The Hospital Defendants offer the deposition testimony of Cristobal Arteaga that Mr. Perez understood that Dr. Chaudhry would receive assistance during the surgery and that he would defer to Dr. Chaudhry?s and the Hospital?s selection of who would provide that assistance.? The Hospital Defendants also point to Plaintiffs? responses to Special Interrogatories Nos. 252, 255,-267 as evidence that Plaintiffs have no evidence of a misrepresentation.? Those interrogatories are contention interrogatories asking Plaintiffs to state all facts and identify all witnesses and documents in support of Plaintiffs? allegations of fraud.? None of the responses identifies a direct verbal statement by any defendant to any plaintiff.? However, the responses do refer to the consent form.? That form states: ?Upon your authorization and consent, this operation?will be performed on you by your physicians/surgeons?and/or by other?physicians/surgeons?selected by them.? (Emphasis added.)?? This is evidence of a representation.? Accordingly, summary adjudication cannot be granted on the theory that there was no misrepresentation that the surgical procedure would be performed by Dr. Chaudhry or a qualified physician or surgeon.
As for the alleged misrepresentation that that Dr. Chaudhry would provide or was able to provide safe medical care and/or the surgery would be safe for Mr. Perez, ?expressions of opinion are not generally treated as representations of fact, and thus are not grounds for a misrepresentation cause of action.? (Neu?Visions Sports, Inc. v. Soren/McAdam/Bartells, supra, 86 Cal.App.4th at p. 308.) Furthermore, ? ?an actionable misrepresentation must be made about past or existing facts; statements regarding future events are merely deemed opinions.? ? (Id. at pp. 309?310.) Still, ? ?[t]he fact that statements relate to the future will not preclude liability for fraud if such statements were intended and accepted as representations of fact and involved a matter peculiarly within the speaker’s knowledge.? ? (H.W. Smith, Inc., v. Swenson (1930) 105 Cal.App. 60, 64, italics added.)? However, the fundamental problem with Plaintiffs? evidence it is that it does not identify any representation.? The consent form does not state the surgery will be ?safe.?? To the contrary, it states: ?[a]ll operations and procedures may involve calculated risks of unsuccessful results, complications, injury, or? even death, from both known and unknown causes, and no warranty or guaranty has been made has been made as to the result or cure.?? Setting aside the admissibility of Mr. Arteaga?s declaration for the moment, Mr. Arteaga does not identify any particular statement, only his belief after his conversation with Dr. Stewart that the surgery would be ?safe,? despite having ?some risks.?? (Arteaga Decl. ? 7.)? However, the plaintiffs? failure to raise a triable issue of material fact as to this one element as to this one alleged misrepresentation does not ?completely dispose[] of a cause of action? as required by Code of Civil Procedure section 437c, subdivision (f)(1).? Thus summary adjudication cannot be granted as to these causes of action.
Intent Element:
The Hospital Defendants seek to prove lack of intent to defraud through Plaintiffs? factually devoid discovery responses.? A defendant ? ?need not support his [or her] motion with affirmative evidence negating an essential element of the responding party’s case.? Instead, a moving defendant may … point to the absence of evidence to support the plaintiff’s case.? ? (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780.) This can be done through evidence ?that the plaintiff does not possess, and cannot reasonably obtain, needed evidence?as through admissions by the plaintiff following extensive discovery to the effect that he [or she] has discovered nothing? (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855, fn. omitted) or admissions in the plaintiff’s own discovery responses that disprove an essential element of its claim (Villa v. McFerren (1995) 35 Cal.App.4th 733, 749.)? Here, the Hospital Defendants have not established that Plaintiffs? cannot reasonably obtain the necessary evidence.? Thus, they have not carried their burden on this theory, and summary adjudication of the misrepresentation causes of action cannot be granted due to lack of proof of intent.
Causation Element:
An essential element of Plaintiffs? misrepresentation causes of action is causation. (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1818.)? The Hospital Defendants raise two theories as to how Plaintiffs cannot prove causation: any misrepresentation did not cause Mr. Perez to have surgery and Ms. Albakova?s closing of Mr. Perez?s chest was not the cause of his injuries.? In support of these theories, the Hospital Defendants offer evidence that Mr. Perez had the surgery because it was medically necessary; if he had not had the surgery, he would have died in six months.? (UMF No. 21.)? Additionally, the Hospital Defendants have submitted the Declaration of Dr. John Robertson who opines that nothing Ms. Albakova did in closing Mr. Perez? chest caused him injury; his injury was unrelated to the closing of his chest.? (UMF No. 23.)
Plaintiffs have raised triable issues as to both theories.? First, with regard to Mr. Perez? motivation to have the surgery, the evidence offered in support of UMF No. 21, the testimony of Dr. Sirvata, does nothing to establish Mr. Perez?s reasoning in selecting Dr. Chaudhry as his surgeon or in timing the surgery as he did.? Thus, the Hospital Defendants fail to meet their burden on this theory.? Second, the Declaration of plaintiffs? expert, Dr. Robert Shuman, adequately raises a triable issues as to whether the actions Ms. Albakova performed after the code was called were a substantial factor in causing Mr. Perez? injuries because her inexperience with cannulation delayed Mr. Perez being returned to bypass, which prevented adequate perfusion to his organs, including his brain, and delayed him getting the kind of surgical intervention he needed.
Accordingly, summary adjudication cannot be granted as to the misrepresentation claims on the theory that plaintiffs are unable to establish causation.
Eighth Cause of Action: Concealment
The Hospital Defendants argue that for the reasons expressed in response to the misrepresentation causes of action, i.e., factually devoid discovery responses (UMF No. 44), Plaintiffs have no evidence with which to establish intent.? Again, the Hospital Defendants have failed to meet their burden, for they have failed to establish that plaintiffs cannot obtain such evidence.? (Aguilar v. Atlantic Richfield Co., supra, at p. 855.)
The Hospital Defendants also assert the eight cause of action fails for lack of evidence of causation, citing the declaration of their expert Dr. Robertson.? However, Dr. Shuman?s Declaration raises a triable issue of fact as to causation as set forth with respect to the misrepresentation causes of action.
Fourth Cause of Action: Breach of Fiduciary Duty
In the health care context, a patient may allege against a provider a claim of breach of fiduciary duty, based on the ground that the provider-physician allegedly obtained the patient’s consent to a medical procedure, but without properly disclosing all information material to the patient’s decision in that respect. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129; Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1164.) The plaintiff-patient must allege (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach. (Ibid.; Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101.)
Plaintiffs? Fourth Amended Complaint alleges the Hospital Defendants breached their fiduciary duties by: ?by misleading Plaintiff and taking actions that were not in Plaintiffs? best interests but in the best interests of Defendants, including actions for Defendants? financial gain; by failing to disclose all information material to Plaintiffs? consent related to the care, treatment, and conduct described herein; by failing to disclose personal and/or economic interests that affected Defendants? professional judgment; by failing to disclose personal and/or economic interests that conflicted with the interests of Plaintiffs; and by not acting as a reasonably careful person or entity in the same or similar capacity would have acted under the same or similar circumstances.?? (FAC ? 52.)
The Hospital Defendants oppose the allegation that they did not disclose that Dr. Chaudhry would not provide safe medical care and/or that the procedure would not be safe for Mr. Perez? on the grounds that it was a statement of opinion, and not a representation of fact, as set forth in their argument with respect in to the fraud causes of action.? However, breach of fiduciary duty is not limited affirmative facts; rather it relates to information.? The distinction is fine, but important.? The seminal case of Moore v. Regents of University of California, supra, 51 Cal.3d 120 cites Cobbs v. Grant (1972) 8 Cal.3d 229, for the proposition ?in soliciting the patient’s consent, a physician has a fiduciary duty to disclose all information material to the patient’s decision.?? Cobbs held, ?In sum, the patient’s right of self-decision is the measure of the physician’s duty to reveal. That right can be effectively exercised only if the patient possesses adequate information to enable an intelligent choice. The scope of the physician’s communications to the patient, then, must be measured by the patient’s need, and that need is whatever information is material to the decision. Thus the test for determining whether a potential peril must be divulged is its materiality to the patient’s decision.?? At a minimum, Dr. Chaudhry knew that he allowed his PA to close in 80 to 90% of his procedures.? The Hospital Defendants have introduced no evidence to refute Plaints? allegations Dr. Chaudhry was their agent.? (FAC ? 6.)? The high possibility that a
PA, who had no licensure or privilege to close a patient?s chest during heart surgery
(see 16 C.C.R. ? 1399.541; CRMC?S Responses to Special Interrogatories, Set 4, at 3:124:11), would likely do so in Mr. Perez? case, was information ?information is material to [Mr. Perez?] decision? to undergo surgery with Dr. Chaudhry and the Hospital Defendants.? It is also material as to whether the procedure would be ?safe.?? Thus, this theory fails.
The Hospital Defendants oppose the allegation that they failed to disclose that Dr. Chaudhry would allow his PA to close Mr. Perez? chest with argument that it is not a fact, it is a prediction of future events.? This argument fails for the reasons expressed above ? it is material information.? The Hospital Defendants also oppose this theory on the grounds that plaintiffs cannot prove causation based on their expert?s declaration.? However, Plaintiffs have raised a triable issue of material fact as to causation with their own expert declaration as set forth above.
The Hospital Defendants oppose the allegation that they failed to disclose their ?personal and/or economic interests? that had to be disclosed with evidence of plaintiffs? factually devoid discovery responses.? (UMF No. 56.) Once again, the Hospital Defendants have failed to meet their burden, as they have failed to establish that plaintiffs cannot obtain the required evidence.? (Aguilar v. Atlantic Richfield Co., supra, at p. 855.)? Finally, the Hospital Defendants oppose this allegation on the grounds that plaintiffs cannot establish causation, citing their expert?s declaration.? Once again, Dr. Robertson?s Declaration is adequately disputed by Dr. Shuman?s Declaration.
Tenth Cause of Action: Aiding & Abetting
?Liability may … be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person. [Citations.]? (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 846.) Unlike a conspirator, an aider and abettor need not be capable of the target tort. (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1144, fn. 2.) To plead aiding and abetting by a defendant, the plaintiff must allege that the defendant had actual knowledge of the ?specific primary wrong? being committed, and gave substantial assistance to the wrongful conduct. (Id. at pp. 1145, 1146?1147.)
The Hospital Defendants assert that because they prevail on each intentional tort alleged in the complaint, they must prevail on the cause of action for aiding and abetting as well.? However, this is not the case and summary adjudication must be denied as to this cause of action.
Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary.? The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: ????????????????JYH??????????? on 01/30/17
(Judge?s initials) ?????? (Date)