ALLISON STEIN VS DAVID GHOZLAND ET AL

Tentative Rulings

Case Number: BC683817    Hearing Date: March 11, 2020    Dept: P

Tentative Ruling

Allison Stein v. David Ghozland, et al. Case No. BC683817

Hearing Date: March 11, 2020

Defendants’ Motion for Summary Judgment/Summary Adjudication

Plaintiff Stein had a labiaplasty surgery performed by defendant David Ghozland, M.D.; plaintiff alleges defendant removed more tissue than was consented to, resulting in trauma, physical pain and incontinence. Defendants move for summary judgment or, in the alternative, summary adjudication as to the causes of action for fraud, intentional infliction of emotional distress and battery.

Evidentiary Objections

All objections to defense expert Emily Sikking, M.D. declaration are OVERRULED.

Summary Judgment

The elements of a cause of action for medical malpractice are (1) the duty to use such skill, prudence, and diligence as other members of the medical profession commonly possess and exercise; (2) breach; (3) causation; and (4) damages. E.g. Hanson v. Grode (1999) 76 Cal.App.4th 601, 606. Expert testimony is required to prove breach of the standard of care. Landeros v. Flood (1976) 17 Cal.3d 399.

Defendants argues Ghozland complied with the standard of care when performing surgery, did not mislead plaintiff, did not exceed the scope of consent and did not cause plaintiff’s injuries, supported by the expert declaration of Emily Sikking, M.D. and depositions of plaintiff’s treating doctors. Defendants’ Separate Statement (DSS) at ¶¶22-29. This is sufficient to carry defendants’ initial burden, which thereafter shifts to Stein to show a triable issue of material fact as to standard of care and causation.

Plaintiff presents contrary expert testimony from Marki Knox, M.D., who opines, based on physical examination and review of medical records, that defendant did not meet the standard of care, failed to obtain informed consent and performed surgery that exceeded the scope of Stein’s consent. Plaintiff’s Response to Separate Statement (PRSS) ¶¶22-29. This is sufficient to create a triable issue of material fact as to these elements. Motion for summary judgment DENIED.

Summary Adjudication – Battery

Medical battery occurs when a patient has consented to a particular treatment, but the doctor performs a treatment that goes beyond the consent. Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1268.

Dr. Sikking states she saw no evidence of “mutilation” when reviewing plaintiff’s medical records and opines the labiaplasty was within the scope of plaintiff’s consent. Defendants’ Separate Statement 21, 22, 24. Defendants also argue there is no evidence of an intent to harm. An intent to harm is not an element of medical battery. See, Conte. Plaintiff provides contrary evidence from Dr. Knox, who states “[i]t is clear to me that Ms. Stein did not get what she and Dr. Ghozland agreed to. Instead, it appears that Dr. Ghozland disregarded Ms. Stein’s wishes . . . .” Knox Decl. at ¶25. This creates a triable issue of fact as to battery.

Intentional Infliction of Emotional Distress

The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct with the intention of causing, or reckless disregard to the probability of causing, emotional distress; (2) plaintiff’s extreme emotional distress, and (3) causation. Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.

Defendants argues Ghozland’s conduct was not extreme and outrageous (since he performed the surgery correctly), and he did not intend to cause plaintiff emotional distress. As explained above, the Knox declaration provides evidence the surgery exceeded the scope of the consent. This conduct could be considered “extreme and outrageous” by a reasonable jury. Additionally, while plaintiff has not shown Ghozland had the intent to cause emotional distress, she presents evidence that could lead a reasonable jury to conclude, by exceeding the scope of Stein’s consent, Ghozland acted with a “reckless disregard” to the probability of causing distress.

Fraud

The elements of fraud are (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance and (5) damage. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.

Defendants argue plaintiff cannot establish false representations or knowledge of falsity. Plaintiff’s opposition does not directly address defendant’s arguments regarding the fraud claim. The court interprets this silence as agreement summary adjudication is proper.

Summary judgment DENIED. Summary adjudication GRANTED as to the fraud cause of action only and DENIED as to all other causes of action.