Gillian v. Taylor

Filed 10/16/05 Gillian v. Taylor CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Stephen J. Kane, Judge.

Farley Law Firm, Michael L. Farley; Tritt & Tritt and James F. Tritt for Plaintiff and Appellant.

McCormick, Barstow, Sheppard, Wayte & Carruth, Lowell T. Carruth and Todd W. Baxter for Defendant and Respondent.

-ooOoo-

Dr. Terry Gillian (Dr. Gillian) sued D. Mitchell Taylor (Taylor) for malicious prosecution based on his legal representation of Dr. Gillian’s former patient, Gail Conway-Lenz (Conway-Lenz), on whom Dr. Gillian had performed breast augmentation surgery. The trial court concluded Taylor had probable cause to file and prosecute an action against Dr. Gillian for medical malpractice and to ultimately try that action on a theory of medical battery, and therefore malicious prosecution was not established. On appeal from the judgment entered in Taylor’s favor, Gillian argues the trial court erred. As we shall explain, we will affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The Surgeries by Dr. Ryskamp

Dr. James Ryskamp performed breast augmentation surgery on Conway-Lenz in 1983. Conway-Lenz had the surgery because the right side of her chest had been injured as a result of it being crushed by a horse when she was a young girl. Dr. Ryskamp inserted a pair of 235 cc volume silicone breast implants, but according to Conway-Lenz there was a “huge difference“ in the size of the breasts, so he performed a second surgery in 1984 to correct it by inserting two different sized implants to bring symmetry to the appearance of her breasts. According to Dr. Ryskamp, Conway-Lenz also wanted her breasts larger, so he inserted a 280 cc implant on the right side and a 255 cc implant on the left. Dr. Ryskamp performed the second surgery at no cost to Conway-Lenz.

The Surgery by Dr. Gillian

In August 1993, Conway-Lenz consulted Dr. Gillian after the left implant ruptured. Conway-Lenz told Dr. Gillian about the concavity in her chest and she signed a release for Dr. Ryskamp’s medical records. Dr. Gillian told her he would remove the silicone implants and replace them with new saline implants. In an August 13, 1993 letter regarding that consultation, Dr. Gillian noted Conway-Lenz told him she had two different sized implants inserted because of the previous history of injury to the right side of the chest and the breasts appeared reasonably symmetrical, although he noticed some asymmetries caused by the deformity of the right chest wall. Dr. Gillian stated he told Conway-Lenz her breasts would not be symmetrical after the surgery because she may experience some contour deformity of the breast and visible wrinkling through the skin due to the saline implants. Conway-Lenz did not have the surgery at that time, however, because she did not have the money to pay for it.

On February 1, 1995, Conway-Lenz returned to Dr. Gillian to schedule the surgery. In his notes regarding that visit, Dr. Gillian stated “the implants were subsequently replaced because a horse stepped on her chest and caused some asymmetry and to correct the asymmetry, the implants were replaced.” Dr. Gillian also stated in the notes that he advised Conway-Lenz her best option was to remove the implants and not replace them because of the uncertainty of her present symptomology.

On March 22, 1995, she had a pre-surgical visit with Dr. Gillian, where they discussed the size of the implants to be inserted. According to Conway-Lenz, when Dr. Gillian told her he was going to remove the capsules and some of the breast tissue the silicon had damaged, she told him she wanted to be pretty much the same size, “between a B and a C,” that he then wrote something down on a piece of paper, which he gave to his assistant, and he told Conway-Lenz to return the next day for surgery.^[1]

In Dr. Gillian’s notes of that visit, Dr. Gillian stated they discussed the possibility of not putting any implants in place, but Conway-Lenz stated she wanted to be a larger size. Dr. Gillian also stated they discussed the possibility of disruption of the medial attachments, which referred to tears of the cleavage between the breasts which may be caused by an increase in size. Dr. Gillian reported they were planning to put in 235 cc and 280 cc implants, but Conway-Lenz stated she wanted to be at least a cup size larger. Dr. Gillian said he advised her to consider going to a smaller size, but she definitely wanted to be much larger than originally planned. The notes stated they discussed the various sizes of implants and agreed on approximately 450 to 475 cc implants. Dr. Gillian also stated in the notes that the larger implant would be on the left side, while the smaller one would be on the right, even though it was the right side that required the larger implant, and the sizes initially noted were 280 on the left and 235 on the right, under which was written 472 and 425, respectively, which are the sizes he ordered.

The surgery took place the following day. Conway-Lenz claimed that when she came in for surgery, she did not see Dr. Gillian at all. The implants inserted into Conway-Lenz were both 450 cc’s that Dr. Gillian increased to 475 cc’s. The post-operative report shows Dr. Gillian put in two 472 cc implants, not the different sized implants he had noted in the pre-operative report. Dr. Gillian also noted they were originally going to put in a 235 cc implant on the right and a 280 cc implant on the left, but they had agreed on approximately 450 and 472 cc implants.

Conway-Lenz stated she did not know Dr. Gillian had inserted two 475 cc implants until she returned for a follow-up visit. When she found out, she was upset because she knew that when the swelling went down, she was going to be uneven. After examining Conway-Lenz in June 1995, Dr. Gillian observed the right breast was much smaller because of the concave condition. He also noted Conway-Lenz complained of some tightness in her right breast and that the left breast was fuller than the right.

Conway-Lenz saw Dr. Gillian again on September 27, 1995, when Dr. Gillian again noted the left breast appeared larger than the right, that a horse stepped on her chest when she was young and the concavity, which the right breast implant was partially filling, made it appear smaller than the left. Conway-Lenz also complained about problems with her right hip and Dr. Gillian noted she may have an injury to an underlying nerve or a bruised hip.

Conway-Lenz last visited Dr. Gillian on January 5, 1996. Dr. Gillian noted that Conway-Lenz complained her breasts were too large, the left was larger than the right, and the implants were coming closer in the middle and touching. Dr. Gillian examined Conway-Lenz and noted the left breast was larger than the right, the external attachments and sternal folds were disrupted, and the implants were dropping. Dr. Gillian saw this as a real problem. Conway-Lenz described the condition of her chest in September 2004 as follows: The cleavage area was completely ripped loose, the right implant had moved over to the center and the bottoms were ripping downward. While she has seen doctors in San Francisco and Los Angeles, no one specifically knows how to repair the problem.

The Consultation with Dr. Mitts

On March 14, 1996, Conway-Lenz consulted Dr. Thomas Mitts, a plastic surgeon, who examined her and took a history. Conway-Lenz told Dr. Mitts about her surgeries with Dr. Ryskamp, that she told Dr. Gillian about the asymmetry of her breasts and Dr. Gillian had Dr. Ryskamp’s records stating he put in a larger implant on the right side, but Dr. Gillian put in equally sized implants in both breasts.^[2] In looking at the breast implants, Dr. Mitts noticed there was a waviness of the implant, which is common with saline implants, and that Conway-Lenz had symmastia, which is a loss of skin adherence to the sternum between the two breast mounds giving it the appearance that the two breasts had grown together. Conway-Lenz told Dr. Mitts she may have had some symmastia prior to the surgery, which had worsened after the surgery. Although Dr. Mitts said symmastia was not a good result, he was not willing to give the opinion that the symmastia worsened as a result of the surgery.

In this examination, Dr. Mitts was not determining why Dr. Gillian did certain things; he was determining his recommendations regarding what should be done to address Conway-Lenz’s problem. According to Dr. Mitts, the decision to put in the 475 cc implants was the surgeon’s decision at the time of surgery. Dr. Mitts did not know, however, whether Dr. Gillian had permission to put in the 475 cc implants, as he did not know what the permission for surgery read. Dr. Mitts felt Conway-Lenz needed two more surgeries to correct the problem, particularly the symmastia, which would consist of one surgery to remove the implants and after she healed, a second surgery to “do some more for the breasts.”

The Medical Malpractice Action

Following this appointment, Conway-Lenz and her husband Roger Lenz consulted with Taylor, an attorney who specialized in plaintiff’s medical malpractice cases. Conway-Lenz told Taylor she had four complaints regarding Dr. Gillian’s surgery: (1) her left breast was larger than her right; (2) she believed she had an agreement or understanding with Dr. Gillian that one breast implant would be smaller than the other; (3) she had pain in her hip where she thought she may have had an injection that went too deep; and (4) the implants were placed above the pectoral muscle instead of below. They provided Taylor with Dr. Gillian’s and Dr. Ryskamp’s notes which Taylor reviewed, but not a full set of their records. Taylor understood Conway-Lenz had consulted Dr. Thomas Mitts before coming to see him.

Conway-Lenz told Taylor the night before the surgery they were planning on inserting a 235 cc implant and a 280 or 285 cc implant, but Dr. Gillian mentioned that when the old implants were removed, the tissue goes with it, so if implants that were the same size as the previous ones were inserted, the breasts would not be the size they were before the surgery. Conway-Lenz explained that when she asked Dr. Gillian if he could increase the amount of saline to make up the difference for the tissue that would be removed, he became upset, thought she was a problem patient and he didn’t like the fact that he would have to go to the trouble of finding different implants. According to Taylor, when Conway-Lenz came into his office she could barely walk and moved very gingerly. Taylor was aware Conway-Lenz had a silicone poisoning problem from the ruptured implant.

Taylor reviewed the following notes from Dr. Ryskamp’s file: (1) a June 16, 1983 entry which stated that Conway-Lenz would like a C cup; (2) a July 18, 1983 entry which stated that breast augmentation had been performed using “two 375 cc implants”; (3) an August 5, 1983, entry that Conway-Lenz had asymmetry to the chest wall which makes her right breast look smaller and they would wait to put a larger implant on the right side; and (4) notes regarding the second surgery in which he changed the size of the implants.^[3] Taylor also reviewed Dr. Gillian’s file, including the notes of his 1993 consultation with Conway-Lenz, the March 22, 1995 pre-surgical notes, and the March 23, 1995 surgical notes.

After meeting with Conway-Lenz and her husband three times, Taylor agreed to represent them on a contingency basis. Taylor filed the complaint in this action on May 14, 1996. With respect to Conway-Lenz, the complaint alleged a cause of action for medical malpractice, which did not contain any specific allegations of what actions constituted the alleged malpractice.^[4] Sometime after the complaint was filed, Taylor learned Conway-Lenz had filed a complaint against Dr. Gillian with the medical board before she had first seen Taylor, which the medical board took no action on.

On August 27, 1996, Taylor wrote Dr. Mitts requesting that he testify against Dr. Gillian and sent an authorization to obtain medical information concerning Conway-Lenz.^[5] Taylor did not remember whether he ever received or reviewed a copy of Dr. Mitts’s file. In a September 13, 1996 letter to Taylor, Dr. Mitts explained there are patients and reputable plastic surgeons “who prefer placing the implants superficial to the muscle rather than underneath for various reasons and are all reasonable as being appropriate.” Dr. Mitts stated he was unable to state Dr. Gillian gave Conway-Lenz substandard treatment, that in reviewing the records it appeared Dr. Gillian placed the implants underneath the muscle although Dr. Mitts could not clinically confirm that, and it appeared Dr. Gillian “did everything that was reasonable.”

Trial of the Medical Malpractice Action

Taylor attempted to retain an expert who would testify against Dr. Gillian, but he could not find a doctor willing to do so. Taylor designated Drs. Ryskamp and Mitts as non-retained expert witnesses because they were treating physicians.

Since Taylor thought he needed an expert to proceed on the issue of whether the implants were placed above or below the muscle, he did not pursue that theory at trial. Taylor believed he did not need an expert to proceed on the theory that Dr. Gillian was negligent by inserting implants of the same size when he knew from his chart that two different sized implants were required. Taylor argued to the trial judge that an expert wasn’t needed to read the medical records that indicated the night before the surgery Dr. Gillian planned on putting in two distinct sizes of implants and he deviated from those notes when he put in the same sized implants, because that was within the jury’s common knowledge. The trial judge, however, disagreed and ruled that expert opinion was required to proceed on that theory.

Taylor then proceeded to trial on a battery theory -- that if Conway-Lenz was telling the truth and Dr. Gillian deviated from the permission she gave to insert two distinct sizes of implants, he did something substantially different than the surgery agreed to, which constituted medical battery. Taylor was inspired further by the fact that during his deposition, Dr. Gillian testified that Conway-Lenz had given him carte blanche to do whatever he felt was appropriate at the time of surgery, when Dr. Gillian’s records never mentioned that Conway-Lenz had given him authority to make that decision.

The trial court in the underlying action allowed the matter to move forward on the battery theory and permitted an oral amendment of the complaint for a “failure to have informed consent of the plaintiff.” The jury returned a verdict in Dr. Gillian’s favor when it answered “No” to the question of whether Dr. Gillian performed a substantially different operation than consented to by Conway-Lenz.^[6]

The Malicious Prosecution Action

Dr. Gillian sued Taylor and other parties for malicious prosecution. By the time of trial, only Taylor remained as a defendant. Following the presentation of evidence, the trial court addressed the issue of probable cause, allowing argument from the parties. The court asked the parties whether there were any relevant facts regarding Taylor’s knowledge the jury must decide before the court could decide the probable cause issue. Dr. Gillian’s counsel stated he had four disputed issues, two of which were whether Taylor actually talked to Dr. Ryskamp and whether Dr. Mitts ever told Taylor he would be an expert for him. Taylor’s counsel stated he was not relying on those facts to establish probable cause, and therefore the two disputed facts Dr. Gillian’s counsel identified were irrelevant. The court asked both attorneys if they were satisfied that if Taylor was not relying on the conversations with Drs. Ryskamp and Mitts “I do not need to have the jury resolve any factual findings before I decide the issue of probable cause.” Taylor’s counsel concurred, while Dr. Gillian’s counsel responded “you would have to satisfy yourself that the records adequately reviewed and the client was truthful or told him he relied upon that. He didn’t talk to Mitts. He didn’t talk to Ryskamp. I guess you’d have to go down that path you don’t care he deferred, he said he didn’t talk to them and come to the conclusion.” The court explained that another way to ask it was whether the evidence was undisputed that before he filed the complaint, Taylor reviewed the records of Drs. Gillian and Ryskamp and talked to his clients, who told him what they had testified to in court and what they agreed and did not agree Dr. Gillian could do.

The following exchange then occurred:

“[DR. GILLIAN’S COUNSEL]: Well, that’s the filing of the complaint. Then you get to the prosecution of the case, which is -- so he starts a negligence case. I think we’ve agreed on that, because there was some dispute about that. So if they agree he pursued a negligence case and if they agree he had no standard of care expert he’s saying he did, he’s saying Mitts said -- he’s claiming Mitts backed up on him. If we’re accepting the fact Mitts always -- he never talked to him and Mitts always said he wouldn’t be an expert, so he continues to pursue the negligence case to the time of trial.

“THE COURT: I think I’m being asked, for purposes of this determination, not to assume that he got any commitment from Dr. Mitts he was going to be a liability expert, so I’m not going to assume that for purposes of this determination.

“[DR. GILLIAN’S COUNSEL]: So are you also going to assume he had no expert lined up for the standard of care?

“THE COURT: That’s correct. That’s the body of the --

“[DR. GILLIAN’S COUNSEL]: So he had no expert lined up and that’s the negligence he was going to pursue at the time of trial.

“THE COURT: Yes.”

The court then held a discussion on whether lack of informed consent is a form of negligence. After a break in the proceedings, the court stated it had considered what it believed to be the undisputed evidence about Taylor’s knowledge of facts at the relevant times and was not considering his testimony about talking with Drs. Ryskamp or Mitts. The court explained the issue of the lack of probable cause was “exclusively a decision for the judge to make unless there’s a dispute concerning defendant’s knowledge of the facts. And I think the parties have indicated that they do not see that there is any dispute as to the facts of Mr. Taylor’s knowledge. So the Court can decide this without any jury findings.” The court found based on the facts known to Taylor during the relevant periods he had probable cause to (1) file a negligence action based on the insertion of equal sized implants and the failure to obtain informed consent to using the 475 cc implants, (2) maintain the case based on the theory of lack of informed consent even without expert testimony, and (3) to proceed to trial on a theory of medical battery.

Pursuant to Dr. Gillian’s request, the court prepared a proposed statement of decision. Dr. Gillian filed a request to amend the proposed statement. One of the objections was to a footnote in the proposed statement, which read: “If there is a factual dispute concerning defendant’s knowledge of the facts, then the jury must resolve that dispute. However, in this case the parties agreed that there were no disputes as to the facts of Mr. Taylor’s knowledge.” During an extensive discussion of this issue during the hearing on the request for amendment, Dr. Gillian’s counsel admitted he was not contending the court was not entitled to consider any of the evidence cited in the proposed statement of decision and he was just trying to make a point of clarification which didn’t affect the ultimate decision. Following this hearing, the court issued a statement of decision, in which it denied the request for amendment and reiterated its findings in Taylor’s favor regarding the probable cause issue.

DISCUSSION

The Probable Cause Element of Malicious Prosecution

“Under the governing authorities, in order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate ‘that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871 (Sheldon Appel).) Here, the trial court ruled Taylor had probable cause to initiate and maintain an action for medical negligence, and to try the case to the jury on a theory of medical battery.

In order to establish the lack of probable cause to prosecute Conway-Lenz’s action against him, Dr. Gillian had to show that no reasonable attorney would have thought Conway-Lenz’s claims to be legally tenable. (Sheldon Appel, supra, 47 Cal.3d at p. 878.) This is ultimately a question of law for the court, not a jury, to decide. (Ibid.; Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164 (Sangster).) A dispute over the defendant’s knowledge or belief in the facts on which the action is based presents a factual question that is appropriately submitted to a jury. (Sheldon Appel, supra, 47 Cal.3d at pp. 879-880; see also Citi-Wide Preferred Couriers v. Golden Eagle Ins. Corp. (2003) 114 Cal.App.4th 906, 912 [defendant had right to have jury resolve threshold question of factual knowledge before trial court could determine probable cause].) “‘”What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact. The former is exclusively for the court, the latter for the jury.”’ [Citations.]” (Sheldon Appel, supra, 47 Cal.3d at p. 877.) As a question of law, to the extent there are no disputed questions of fact relevant to the issue, the determination is subject to our de novo review. (Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 63.)

As our Supreme Court has explained, “the probable cause element calls on the trial court to make an objective determination of the ‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable. The resolution of that question of law calls for the application of an objective standard to the facts on which the defendant acted.” (Sheldon Appel, supra, 47 Cal.3d at p. 878.) “Because the malicious prosecution tort is intended to protect an individual’s interest ‘in freedom from unjustifiable and unreasonable litigation’ [citation], if the trial court determines that the prior action was objectively reasonable, the plaintiff has failed to meet the threshold requirement of demonstrating an absence of probable cause and the defendant is entitled to prevail.” (Ibid.) An action may be deemed tenable “if it is supported by existing authority or the reasonable extension of that authority.” (Arcaro v. Silva & Silva Enterprises Corp. (1999) 77 Cal.App.4th 152, 156 (Arcaro); accord, Morrison v. Rudolph (2002) 103 Cal.App.4th 506, 512, disapproved on another point in Zamos v. Stroud (2004) 32 Cal.4th 958, 973.)

The subjective beliefs of the defendant attorney regarding the legal tenability of the action are not relevant to the question of probable cause, though they bear upon the element of malice. The factual predicate of a claim, however, is by no means irrelevant to a probable cause determination. “A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.” (Sangster, supra, 68 Cal.App.4th at pp. 164-165.) Inherent in the probable cause analysis is whether there was “evidence sufficient to prevail in the action or at least information reasonably warranting an inference [that] there is such evidence.” (Puryear v. Golden Bear Ins. Co. (1998) 66 Cal.App.4th 1188, 1195 (Puryear).)

If it is proved that the defendant instituted the prior action knowing that the essential facts were untrue, or knowing that a claim was “manifestly unsupported” by any evidence or information permitting an inference that such evidence could be obtained for trial, a court may conclude that no reasonable attorney would find the claim to be legally tenable. (Puryear, supra, 66 Cal.App.4th at pp. 1195, 1198; Arcaro, supra, 77 Cal.App.4th at pp. 156-157.)

Of course, a litigant’s misstatements are not necessarily attributed to the attorney in this situation. When the attorney initiates the action, he or she is “entitled to rely on information provided by the client.” (Morrison v. Rudolph, supra, 103 Cal.App.4th at pp. 512-513.) Unless the attorney has notice that the client is providing material false information or factual mistakes, the attorney “‘may, without being guilty of malicious prosecution, vigorously pursue litigation in which he is unsure of whether his client or the client’s adversary is truthful, so long as that issue is genuinely in doubt.’” (Id. at p. 513.)

As a threshold matter, we address Dr. Gillian’s contentions that the trial court applied the wrong standard in determining the probable cause issue and failed to submit disputed evidentiary facts to the jury. With respect to the jury issue, Dr. Gillian argues the issue of whether Taylor spoke with Drs. Ryskamp and Mitts should have been submitted to the jury. It is clear, however, that Dr. Gillian waived his right to argue on appeal that there were disputed factual issues which required jury findings when his counsel agreed to submit the probable cause issue to the court based on the understanding the court would assume Taylor had not spoken with either doctor before filing the complaint. Having acquiesced in the trial court’s decision to decide the probable cause issue without jury findings, Dr. Gillian is precluded, by the doctrines of invited error and implied waiver, from claiming the trial court erred in not giving the issue to the jury. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.)

Dr. Gillian also claims the trial court erred when it “failed to apply ‘substantial evidence’ review to the facts which were known to Mr. Taylor.” Dr. Gillian contends the court only accepted the facts that established probable cause and improperly ignored the facts that negated probable cause. This claim fails for the simple reason that our review is de novo. Therefore, even if the trial court applied the wrong standard, reversal is not required if we conclude there was probable cause to prosecute the action, since we review the result, not the trial court’s reasoning. (Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 22.)

With these legal principles in mind, we turn to an analysis of each claim.

Medical Negligence

Dr. Gillian contends Taylor did not have probable cause to initiate and pursue the medical negligence cause of action alleged in the complaint because (1) “the evidence was overwhelmingly against Ms. Conway-Lenz’s version of the facts” and (2) Taylor could not find an expert witness willing to testify that Dr. Gillian acted below the standard of care. We disagree.

Taylor contends there was probable cause for a claim of negligent lack of informed consent without involving expert testimony. Our Supreme Court established the parameters of a doctor’s duty to obtain a patient’s informed consent before performing a medical procedure in Cobbs v. Grant (1972) 8 Cal.3d 229, 244-245 (Cobbs). In Cobbs, a patient who suffered complications from surgery sued the surgeon on two theories: the surgeon had performed the operation negligently or his failure to disclose the risks of the operation vitiated the patient’s consent. The jury returned a general verdict in the patient’s favor. On review, the Supreme Court found there was insufficient evidence to support the negligent performance theory and, because it was not possible to determine if that was the theory upon which the jury relied for its verdict, reversed the judgment.

In considering the plaintiff’s claim that his doctor failed to obtain his informed consent to a surgical procedure, the Cobbs court noted the doctor had failed to “discuss any of the inherent risks of the surgery” with the plaintiff. (Id. at p. 234.) The Cobbs court rejected the defendant’s argument that a doctor need disclose only as much information as is the custom of physicians practicing in the community. Such a rule, the court concluded, is “needlessly overbroad,” in that even if there were a “medical community standard as to the disclosure requirement for any prescribed treatment, it appears so nebulous that doctors become, in effect, vested with virtual absolute discretion.” (Cobbs, supra, 8 Cal.3d at p. 243.) The court continued, “‘Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone. Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose on themselves.’” (Ibid.)

Accordingly, in California the scope of a doctor’s duty to obtain informed consent is as follows: “[W]hen a given procedure inherently involves a known risk of death or serious bodily harm, a medical doctor has a duty to disclose to his patient the potential of death or serious harm, and to explain in lay terms the complications that might possibly occur. Beyond the foregoing minimal disclosure, a doctor must also reveal to his patient such additional information as a skilled practitioner of good standing would provide under similar circumstances.” (Cobbs, supra, 8 Cal.3d at pp. 244-245.)

Subsequent decisions have clarified that although expert testimony is not required to establish a doctor’s duty to disclose a “known risk of death or serious bodily harm” associated with a medical procedure (Cobbs, supra, 8 Cal.3d at p. 244, italics added), expert testimony may be required to establish the existence of a risk. For example, in Jambazian v. Borden (1994) 25 Cal.App.4th 836, 840 (Jambazian), the court held that in proving his informed consent claim, the plaintiff was required “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.” The Jambazian court rejected the plaintiff’s argument that “the trial court erred in concluding opinion testimony was needed to defeat the summary judgment motion because it is not required in informed consent cases.” (Id. at pp. 846-847.)

The court noted Cobbs and its progeny had not addressed the issue of whether expert testimony could be required to establish the existence of a risk associated with a medical procedure: “The problem with plaintiff’s reliance on Arato [v. Avedon (1993) 5 Cal.4th 1172], Cobbs, [supra, 8 Cal.3d 229,] and Willard [v. Hagemeister (1981) 121 Cal.App.3d 406] is none of those decisions involved an issue of whether the plaintiff in fact had a particular medical condition which required disclosure concerning the particular range of effects of a proposed procedure on the patient. Moreover, no decision supports plaintiff’s implicit argument that in informed consent cases, a lay witness may render a medical opinion as to whether a patient has a condition which requires particular advice be given as to risks of a surgery.” (Jambazian, supra, 25 Cal.App.4th at p. 848.)

Jambazian makes clear that while no expert testimony is required to establish a doctor’s duty to disclose a “known risk of death or serious bodily harm” (Cobbs, supra, 8 Cal.3d at p. 244; italics added), expert testimony is required to establish whether a risk exists in the first instance where the matter is beyond the knowledge of a lay person. (Jambazian, supra, 25 Cal.App.4th at pp. 848-849.)^[7]

In the underlying case, Taylor contended his client should have been permitted to present her case to the jury on a lack of informed consent theory without a medical expert. We agree with the trial court that this was a legally tenable position. Conway-Lenz told Taylor she advised Dr. Gillian of her right side concavity. Taylor knew Dr. Gillian was aware that Dr. Ryskamp’s first surgery left a bad result because one breast was larger than the other and a second surgery was performed to achieve symmetry by inserting different size implants to account for the right side concavity. Conway-Lenz told Taylor she believed she had an agreement or understanding with Dr. Gillian that one implant would be smaller than the other. From this evidence, it could be concluded that Dr. Gillian failed to inform Conway-Lenz about the decision to insert two 475 cc implants and Conway-Lenz would not have consented to the surgery had she known Dr. Gillian intended to insert such large implants. Arguably an expert was not necessary to determine whether Dr. Gillian had a duty to advise Conway-Lenz of the size of the implants he intended to insert, as Dr. Gillian testified he in fact discussed that with her, or whether a reasonable person in Conway-Lenz’s position would have agreed to the surgery if she had been fully informed he intended to insert two 475 cc implants.

Dr. Gillian asserts this case is not a lack of informed consent case because it did not involve a failure to warn of the adverse consequences of treatment. While this may not have been a typical lack of informed consent case, we cannot say that no reasonable attorney would have thought such a claim to be legally untenable. Based on the evidence known to Taylor, he could conclude Dr. Gillian failed to adequately inform Conway-Lenz about the decision to insert two 475 cc implants and the size of the implants was material to her decision to have surgery. As Taylor points out, the test for determining whether a potential peril must be divulged is its materiality to the patient’s decision. (Cobbs v. Grant, supra, 8 Cal.3d at p. 245.) Thus, Taylor had a basis to argue a reasonable person in Conway-Lenz’s position would not have agreed to the surgery if she had been fully informed Dr. Gillian intended to insert two 475 cc implants. In that case, expert testimony would not have been required to establish Dr. Gillian’s duty to tell Conway-Lenz what he intended to do. That the trial court in the underlying action disagreed with Taylor’s position and found expert testimony was required does not mean that Taylor’s position was not “supported by existing authority or the reasonable extension of that authority.” (Arcaro, supra, 77 Cal.App.4th at p. 156.)

Dr. Gillian contends there was no probable cause to proceed with the case after Taylor’s receipt of Dr. Mitts’s September 13, 1996 letter. Although both Taylor and Dr. Mitts testified about the letter’s contents, the letter itself, which was entered into evidence at trial, is not part of the appellate record. It is an appellant’s burden to provide an adequate appellate record; “[f]ailure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].” (Hernandez v. California Hospital Medical Ctr. (2000) 78 Cal.App.4th 498, 502.) Without the letter itself, it is impossible to tell what effect the letter has on the probable cause analysis. Moreover, based on the testimony regarding the letter, it appears the letter refers only to Dr. Mitts’s opinion concerning placement of the implants, not whether there was lack of informed or actual consent. Accordingly, that Dr. Mitts believed Dr. Gillian acted reasonably has no bearing on the informed consent claim.

Finally, Dr. Gillian asserts there was no probable cause to pursue a lack of informed consent theory because the evidence was overwhelmingly against Conway-Lenz’s version of the facts based on the medical records and Dr. Mitts’s letter. Even if the evidence was overwhelmingly against Conway-Lenz, however, Taylor was still entitled to rely on her version of events as long as he did not have notice that she was providing materially false information. (See Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 624-627, disapproved on another point in Zamos v. Stroud, supra, 32 Cal.4th at p. 973 [an attorney is entitled to rely on information the client provided unless the attorney is made aware of information as to verifiable facts which, if true, would totally negate the client’s cause of action]; Morrison v. Rudolph, supra, 103 Cal.App.4th at pp. 612-613.) Here, while Dr. Gillian’s notes either contradicted or cast doubt on what Conway-Lenz told Taylor, Taylor was also aware the notes themselves contained errors, in that the size of the implants to be inserted on left and right sides were reversed, which could support a conclusion that the notes contained other errors. Dr. Gillian does not point to any verifiable facts which, if true, totally negated Conway-Lenz’s claim that she did not agree to the insertion of 475 cc implants and that she believed Dr. Gillian was going to insert two different sized implants.

Dr. Gillian contends Taylor had a duty to investigate further, particularly once he received Dr. Mitts’s letter. The adequacy of an attorney’s investigation and research, however, is not normally relevant to the determination of probable cause. (See Sheldon Appel, supra, 47 Cal.3d at p. 883; Swat-Fame, supra, 101 Cal.App.4th at p. 627.) As explained in Swat-Fame, such a duty might arise when a plaintiff “was given specific information as to verifiable facts that, if true, would totally negate its cause of action.” (Id. at p. 627.) Thus, in Arcaro, supra, a collection agency was found to lack probable cause to file an action on a guarantee Arcaro purportedly executed when Arcaro told the agency the signature on the guarantee was a forgery, and provided handwriting samples and the name of the suspected forger. (Arcaro, supra, 77 Cal.App.4th at pp. 155, 158-159.) In that situation, the appellate court concluded the collection agency had a duty to investigate further before filing suit. (Id. at pp. 158-159.) As the Swat-Fame court noted, the collection agency’s attorneys were not named as defendants in the malicious prosecution action and “Arcaro suggests the attorneys were entitled to rely on the genuineness of Arcaro’s signature on the guarantee and had no duty to investigate before filing suit. [Citation.]” (Swat-Fame, supra, 101 Cal.App.4th at p. 627.)

Here, there were no verifiable facts which would negate Conway-Lenz’s statements that Dr. Gillian did not tell her he was going to insert 475 cc implants and that she wanted two different sized implants inserted. Instead, the matter was a credibility issue between Dr. Gillian and Conway-Lenz -- either Dr. Gillian’s notes were correct and Conway-Lenz was mistaken or lying, or Conway-Lenz was correct and Dr. Gillian’s notes were wrong.^[8] As explained by our Supreme Court in Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 822 (Wilson): “A litigant or attorney who possesses competent evidence to substantiate a legally cognizable claim for relief does not act tortiously by bringing the claim, even if also aware of evidence that will weigh against the claim. Plaintiffs and their attorneys are not required, on penalty of tort liability, to attempt to predict how a trier of fact will weigh the competing evidence, or to abandon their claim if they think it likely the evidence will ultimately weigh against them. They have the right to bring a claim they think unlikely to succeed, so long as it is arguably meritorious.”

Here, Taylor possessed competent evidence in the form of his client’s statements that supported a lack of informed consent case. That he was aware of evidence in the form of Dr. Gillian’s notes and statements which contradicted her statements on this issue does not mean that he was not entitled to rely on her statements. He was not required to predict how the jury would weigh the competing evidence. He was entitled to rely on his client’s information absent evidence he knew it was false. (Morrison v. Rudolph, supra, 103 Cal.App.4th at pp. 512-513; Swat-Fame, supra, 101 Cal.App.4th at p. 629.)

In sum, we conclude Taylor had probable cause to bring and maintain a lack of informed consent claim.

Medical Battery

The underlying action was tried to the jury on a claim of medical battery. A medical battery is committed when a patient gives a doctor permission to perform one type of surgical procedure and the doctor performs a substantially different operation. (Cobbs, supra, 8 Cal.3d at p. 239.)

Our Supreme Court explained the distinction between negligence and battery in the context of informed consent to a medical procedure in Cobbs as follows: “Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery. [Citations.] However, when an undisclosed potential complication results, the occurrence of which was not an integral part of the treatment procedure but merely a known risk, the courts are divided on the issue of whether this should be deemed to be a battery or negligence. [Citations.] California authorities have favored a negligence theory. [Citations.] We agree with the majority trend. The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.” (Cobbs, supra, 8 Cal.3d at pp. 239-241; see also Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1267-1268; Ashcraft v. King (1991) 228 Cal.App.3d 604, 609-610 [conditional consent].)

In this case, the evidence that supported a claim for negligent lack of informed consent created the foundation for a claim for medical battery. Taylor knew Dr. Gillian was aware of the concavity problem on the right side of Conway-Lenz’s chest based on the prior surgeries with Dr. Ryskamp and Conway-Lenz claimed she wanted to remain about the same size and had not consented either to having implants of the same size or to having Dr. Gillian insert 475 cc implants. Taylor was entitled to consider what Conway-Lenz reported to him, along with all the other evidence available to him, to determine whether there was a legally tenable claim for medical battery. Taylor had probable cause to amend the complaint at trial to assert medical battery based on Dr. Gillian’s insertion of equal-sized implants and his alleged failure to obtain Conway-Lenz’s actual consent to insert (1) implants of the same size in both breasts and (2) implants of the size he actually inserted. As the trial court found, there was a triable issue of fact, which depended on the credibility of Dr. Gillian and Conway-Lenz, about whether the surgery Dr. Gillian performed was in fact substantially different from the surgery to which he and Conway-Lenz agreed.

The fact that the jury found in Dr. Gillian’s favor does not negate the existence of probable cause. As the trial court explained, the jury’s verdict could have been reached in several ways: (1) the jury believed Dr. Gillian and concluded he obtained Conway-Lenz’s actual consent to perform the procedure he performed, with implants of the same size; (2) the jury concluded Conway-Lenz failed to carry her burden of proving actual consent was not obtained; or (3) the jury concluded the procedure Dr. Gillian performed was not substantially different from the procedure Conway-Lenz consented to even if she did not agree to the size of implants that were inserted.

Dr. Gillian contends this was not a medical battery case because he performed the surgery that Conway-Lenz authorized. While Conway-Lenz authorized Dr. Gillian to perform breast augmentation surgery, Conway-Lenz told Taylor she did not authorize Dr. Gillian to insert the size of implants he inserted and did not authorize him to insert implants of equal size. The issue for the jury, which it ultimately decided against Conway-Lenz, was whether the insertion of the larger implants that were equal in size was a substantially different treatment than the one to which Conway-Lenz consented. Dr. Gillian argues that because he had discretion to insert the implants he did, he did not perform a substantially different treatment. While he places great emphasis on Dr. Mitts’s testimony that the surgeon has discretion to determine the ultimate size of the implants during surgery, there is no evidence that Taylor was aware of this testimony when the underlying case proceeded to trial and even if he was aware of it, Dr. Mitts testified he did not know the scope of permission Conway-Lenz gave Dr. Gillian. Dr. Gillian also points to his testimony that the consent form did not specify the size of implant to be inserted; he also testified, however, that he and the patient determine the size of the implants before surgery, with adjustments made at his discretion during surgery. Based on this evidence, coupled with Conway-Lenz’s statements that she did not want to be larger in size and wanted two different sized implants inserted, the jury certainly could have concluded that inserting two 475 cc implants was a substantially different operation than the one to which Conway-Lenz consented.

Dr. Gillian argues liability for medical battery should be limited to cases where the doctor performs an operation to which the patient has not consented, such as where a clearly unauthorized surgical procedure was performed. The cases cited by the Supreme Court in Cobbs as representing “clear case[s] of battery“ -- where the procedure performed was “substantially different” from the procedure for which consent was obtained -- may reflect a much greater difference than exists in the present case. (Cobbs, supra, 8 Cal.3d at p. 239; see e.g. Berkey v. Anderson (1969) 1 Cal.App.3d 790, 803 [patient who consented to what was described as a simple exploratory procedure like one he had undergone before, was in fact strapped to a table and a large needle inserted into his spine; court held that, absent consent, this would constitute a “technical battery“].) That this may not have been such a clear-cut case on this issue, however, does not mean that no reasonable attorney would have thought the claim untenable. As our Supreme Court has explained, “‘[c]ounsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win.’ [Citation.]” (Sheldon Appel, supra, 47 Cal.3d at p. 886.) While it may have been unlikely that Conway-Lenz would win on this theory, based on Conway-Lenz’s representations to Taylor the claim was arguably correct. Accordingly, we cannot say that any reasonable attorney would agree the claim was totally and completely without merit.^[9]

DISPOSITION

The judgment is affirmed. Respondent is awarded his costs on appeal.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Levy, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] Conway-Lenz’s husband, who was present during all but one of Conway-Lenz’s conversations with Dr. Gillian, also said they wanted her to stay the same size and did not want her to be larger. According to him, Conway-Lenz never consented to have two equally sized implants inserted.

^[2] A chronological history which Conway-Lenz prepared was in Dr. Mitts’s file, which indicated that Conway-Lenz was worried about Dr. Gillian removing so much tissue as the small implants would “make me look small, boyish.”

^[3] Taylor testified he also spoke with Dr. Ryskamp and asked him about the first two surgeries. Dr. Ryskamp told Taylor he would not be a retained expert to talk on the area of standard of care against any doctor. Dr. Ryskamp, however, testified he had no recollection of talking with Taylor regarding Conway-Lenz or Dr. Gillian and there was nothing in Conway-Lenz’s chart indicating he had such a conversation.

^[4] None of the exhibits entered into evidence at trial of the malicious prosecution action, including the complaint in the underlying action, are part of the appellate record.

^[5] Taylor testified he spoke with Dr. Mitts before filing the complaint, who told him that he didn’t want to testify as a retained expert to criticize Dr. Gillian on the standard of care, but he did say he thought the implants should have been inserted below the muscle and he wasn’t sure if they had been.

^[6] Conway-Lenz appealed the judgment to this court, which we affirmed in Conway-Lenz v. Gillian (Jan. 31, 2000, F029968) [nonpub. opn.]. Taylor did not represent Conway-Lenz in the appeal.

^[7] Both parties also rely on the case of Betterton v. Leichtling (2002) 101 Cal.App.4th 749. This case, however, was decided well after the underlying action was filed in May 1996 and tried in October 1997, and therefore has no bearing on the determination of whether the medical malpractice claim was “supported by existing authority or the reasonable extension of that authority.” (Arcaro, supra, 77 Cal.App.4th at p. 156.)

^[8] Dr. Gillian contends that “nurses in their notes consistently supported Dr. Gillian’s version of events.” The evidence Dr. Gillian points to is Taylor’s testimony that he recalled a nurse testified in a deposition that Conway-Lenz called the night before the surgery and wanted to make sure they would have the larger implant, but he could not remember another nurse testifying at trial she was present when Dr. Gillian said they were going to do the 450 to 472 implants. Neither the nurses’ notes, nor their testimony, are part of the appellate record. To the extent the notes and testimony were consistent with Dr. Gillian’s notes, the evidence presents merely another credibility determination that does not necessarily negate Conway-Lenz’s version of events.

^[9] Taylor also argues there was probable cause to try the medical battery claim on a theory of conditional consent. Since we have concluded there was probable cause to prosecute the medical battery claim based on a theory of lack of actual consent, however, we need not decide whether he is correct.