Lua v. Salzetti

Filed 4/17/07 Lua v. Salzetti CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Ronald S. Prager, Judge. Reversed.

In this medical malpractice action arising out of injuries suffered during the birth of Francisco Lua as a result of his delivery by Ronald Salzetti, M.D., a jury found in favor of Salzetti and against Lua. On appeal, Lua asserts (1) the court erred by (a) denying his motion to amend his complaint to add a cause of action for failure to obtain informed consent from Lua, via his mother, Claudia Camarillo, (b) improperly restricting Camarillo's testimony on this claim, and (c) improperly instructing the jury on this claim; (2) the court erred in denying Lua's motion to disqualify Salzetti's attorney after he contacted and retained Lua's previously designated expert, William Frumovitz, M.D.; (3) the jury was given an incorrect special verdict form which led them to find in favor of Salzetti; and (4) the trial judge, the Honorable Ronald S. Prager, pressured Lua into dismissing his petition for writ of mandate challenging his denial of Lua's motion to disqualify Judge Prager from presiding over the trial.

We conclude that the court erred in refusing to allow Lua to proceed on a claim that Salzetti failed to obtain, through his mother Camarillo, his informed consent to a vaginal, as opposed to Caesarean section (C-section), delivery. We further conclude that the court improperly limited Camarillo's testimony on this issue and failed to properly instruct the jury on this claim as well. We further conclude that these errors were prejudicial and that we must therefore reverse the judgment. Based upon this holding, we need not address Lua's remaining contentions.

FACTUAL BACKGROUND

On August 7, 1998, Camarillo entered Scripps Mercy Hospital for the purpose of giving birth to a baby. Salzetti was Camarillo's delivery doctor.

Camarillo weighed 295 pounds, which made her a high risk patient. She also had an increased risk for delivering a large baby. It was estimated that the birth weight of Lua would be 4,000 grams (about 10 pounds). According to Lua's expert witness, William Hinderstein, M.D., Camarillo's weight and the projected weight of the baby, as well as other factors, made her at risk of delivering a baby that would suffer from shoulder dystocia (problems having the shoulders exit the birth canal) if the baby was delivered vaginally.

When born, Lua was diagnosed with a brachial plexus injury─injury to the nerves in his shoulder that resulted in a loss of use of his left arm, fingers and wrist. This resulted from the force used by Salzetti performing the vaginal delivery on Camarillo. According to Hinderstein, Lua's injury was caused by excessive traction and improper rotation of the head during the delivery.

Hinderstein stated that Salzetti should have discussed with Camarillo the option of having a C-section, given Lua's risk factors, including his projected size. In Hinderstein's opinion, Salzetti's failure to discuss this option with Camarillo fell below the standard of care.

Salzetti admitted that he did not discuss with Camarillo the option of a C-section delivery or the risks attendant to a vaginal delivery. According to Salzetti, he did not recommend the procedure to Camarillo because he never believed that she needed one.

PROCEDURAL BACKGROUND

In August 2005 Lua filed a motion to amend his complaint, brought on an ex parte basis, seeking leave to "assert a claim based upon the defendant's failure to have obtained his informed consent via his Mother and Natural Guardian, [Camarillo], for his vaginal delivery."

The court denied the motion, finding that "the allegations of failure to counsel regarding vaginal delivery are personal to Camarillo, and Camarillo would have to be a named Plaintiff in this case." The court further found that the complaint could not be amended to add Camarillo as a plaintiff because the statute of limitations for such a claim was three years from the injury or one year after discovery, and that claim accrued on the date of Lua's birth in 1998 and expired in 1999. The court also found that even if the amended claim were properly brought on behalf of Lua, it was also untimely as Lua's expert knew about the alleged lack of informed consent as early as June or July of 2000.

Finally, the court noted that "there is a negligence claim based upon the standard of care that will address whether or not the option of a [C-]section should have been presented to Camarillo."

During her testimony at trial, Camarillo was asked by her counsel, "If you had been informed by anyone during your August 6th, 1998 hospital admission that you were a high risk for an injury that might occur to [Lua] if you continued with the vaginal delivery, and you were given the option of a C-section, what would you have said?" Defense counsel objected to the question, and the court sustained the objection, finding that it was "a hypothetical question to a non-expert witness." However, she was allowed to testify that she was never given the option of delivering Lua by C-section.

Lua requested that the jury be instructed under Judicial Council of California Civil Jury Instructions (2006) CACI Nos. 531 (Consent on Behalf of Another), 532 (Informed Consent─Definition), 533 (Failure to Obtain Informed Consent─Essential Factual Elements), 534 (Informed Refusal─Definition) and 535 (Risks of Nontreatment─Essential Factual Elements). Of relevance to this case, CACI No. 531 provides:

"In this case [name of patient] could not consent to the [insert medical procedure] because [he/she] was [insert reason--e.g., a minor/incompetent/unconscious]. In this situation, the law allows [name of authorized person] to give consent on behalf of [name of patient]. [] You must decide whether [name of authorized person] consented to the [insert medical procedure] performed on [name of patient]."

Instead, at defense counsel's request, the jury was only instructed on informed consent with BAJI No. 6.11 as follows:

"Except as hereinafter explained, a physician has a duty to disclose to the patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment. [] Material information is information which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject a recommended medical procedure. To be material a fact must also be one that is not commonly appreciated. [] The physician does not have a duty to make disclosure of risks where the procedure is simple and the danger remote and commonly understood to be remote. [] Likewise, there is no duty to discuss minor risks inherent in common procedures, when those procedures very seldom result in serious ill effects. [] However, when a procedure inherently involves a known risk of death or serious bodily harm, the physician has a duty to disclose to the patient the possibility of such an outcome and to explain, in lay terms, the complications that might possibly occur. The physician or surgeon must also disclose such additional information as would be called for by the standard of skill and care required of the defendant under the same or similar circumstances. [] Even though the patient has consented to a proposed treatment or operation, the failure of the physician to inform the patient as stated in this instruction before obtaining consent is negligence. This negligence renders the physician subject to liability for any injury caused by the treatment if a reasonably prudent person in the patient's position would not have consented to the treatment if she had been adequately informed of all the significant perils." (Italics added.)

None of the other BAJI instructions on informed consent were given to the jury. These included BAJI No. 6.10, which provides:

"A physician has a duty to obtain the consent of a patient before treating or operating on the patient. Consent may be express or may be implied from the circumstances. [] [However, if the patient is a minor or incompetent, the authority to consent is transferred to the patient's legal guardian or closest available relative [unless it is impossible or impracticable to obtain consent because of an emergency as defined in these instructions].]"

DISCUSSION

Lack of Informed Consent

Lua asserts that the court erred in denying his motion to amend the complaint to add a cause of action for lack of informed consent, via his mother Camarillo, to have a vaginal delivery as opposed to a C-section delivery. Lua also asserts that the court erred in limiting Camarillo's testimony and in its instruction to the jury on this claim. We conclude that the court erred in refusing to allow Lua to proceed on a claim that Salzetti failed to obtain, through his mother Camarillo, his informed consent to a vaginal, as opposed to C-section, delivery. We further conclude that the court improperly limited Camarillo's testimony on this issue and failed to properly instruct the jury on this claim. We also conclude that these errors were prejudicial and that we must therefore reverse the judgment.

In Cobbs v. Grant (1972) 8 Cal.3d 229 (Cobbs), the California Supreme Court held that a physician has a duty to disclose to a patient "the available choices with respect to proposed therapy and . . . the dangers inherently and potentially involved in each." (Id. at p. 243.) The scope of a physician's duty to disclose is measured by the amount of knowledge a patient needs in order to make an informed choice. (Id. at p. 245.) Material information is information which the "physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject a recommended medical procedure." (Arato v. Avedon (1993) 5 Cal.4th 1172, 1186.) The physician must also reveal to the patient such additional information as a skilled practitioner of good standing would provide under similar circumstances. (Id. at p. 1190; Cobbs, supra, 8 Cal.3d at pp. 244-245.) Finally, "[i]f the physician knows or should know of a patient's unique concern or lack of familiarity with medical procedures, this may expand the scope of required disclosure." (Truman v. Thomas (1980) 27 Cal.3d 285, 291 [citations omitted].)

"[I]f the patient is a minor or incompetent, the authority to consent is transferred to the patient's legal guardian or closest available relative." (Cobbs, supra, 8 Cal.3d at p. 244; Farber v. Olkon (1953) 40 Cal.2d 503, 509.) Therefore, while Lua had a claim for lack of informed consent that was personal to him, he being in utero and unable to give consent on his own, that consent must be obtained from his guardian. That rule is codified in CACI No. 531 (quoted, ante), which is to be used in a lack of informed consent case where the plaintiff, because he or she is a minor or incompetent, cannot give informed consent on its own. BAJI No. 6.10, also not given in this case, provides essentially the same instruction.

Case law has also recognized that minors asserting injuries arising out of a pregnancy or birth have a personal claim for lack of informed consent. For example, in Turpin v. Sortini (1982) 31 Cal.3d 220, our Supreme Court ruled that a child born with a hereditary affliction (deafness) was entitled to maintain a tort action in its own right against a medical care provider who─before the child's conception─negligently failed to advise the child's parents of the possibility of the hereditary condition, depriving them of the opportunity to choose not to conceive the child. The gist of the minor's claim was that she had "suffered harm or damage as a result of defendants' negligent performance of their professional tasks, and that, as a consequence, she [was] entitled to recover under generally applicable common law tort principles." (Id. at p. 229.)

It is true that Camarillo would also have her own claim for negligence based upon a lack of informed consent. However, that claim would only be for any emotional distress damages she suffered as a result of that failure to obtain informed consent. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1075-1076 [mother of child who suffered injuries during birth could bring claim for emotional distress she suffered as a result of negligence in doctor's treatment of her as patient].) However, a claim alleging physical injuries to Lua, including one for lack of informed consent, belongs to him alone. Because he was a minor/incompetent, just as he was required to bring this action by and through his guardian ad litem (his mother Camarillo), so too during the delivery process the informed consent regarding whether to have a vaginal birth or a C-section had to be obtained from her.

Thus, the court erred in refusing to allow Lua to bring a claim alleging that Salzetti failed to obtain Lua's informed consent, throughCamarillo, to a vaginal delivery.

Salzetti asserts that Lua suffered no prejudice by the denial of his motion to amend the complaint because the court's order still allowed him to claim a failure to advise of the C-section option as part of his ordinary negligence claim, i.e., that this failure to advise violated the standard of care.However, Lua was unable to directly allege and prove that the failure to advise itself caused his injuries, i.e., but for that lack of informed consent, the injuries would never have been suffered. In other words, he was not allowed to present evidence and argue to the jury that (1) if given the option of a C-section, and informed of the risks of vaginal delivery, Camarillo would not have consented to a vaginal delivery; and (2) a reasonably prudent person in Camarillo's position would not have consented to the vaginal delivery if she had been adequately informed of its significant perils.

The court did not allow Camarillo testify as to what she would have done had she been given the option of a C-section. That testimony was crucial. In order to establish proximate cause in a lack of informed consent case: "There must be 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. Here the record discloses no testimony that had plaintiff been informed of the risks of surgery he would not have consented to the operation."(Cobbs, supra, 8 Cal.3d at p. 245.)

Proximate cause in such actions is not established, as Salzetti claims, only through testimony of an expert that the lack of informed consent caused the patient's injuries. In an action against a physician for failure to adequately inform a patient, the patient may testify to prove proximate cause, that is, had he or she been informed of the risks, he or she would not have consented to the particular treatment. (Cobbs, supra, 8 Cal.3d at p. 245.) The ultimate test of whether he or she would have consented if informed of risks is objective, i. e., what would a prudent person in his or her position have decided if adequately informed of all significant perils. (Ibid.) This test is codified in the last sentence of BAJI 6.10 (quoted, ante) and CACI No. 533.^[1]

The court, moreover, did not give the complete jury instructions on informed consent, either under CACI or BAJI. In particular, the court did not instruct the jury that Salzetti was required to obtain informed consent from Camarillo, under either CACI No. 531 or BAJI No. 6.10. This failure to instruct completely on the doctrine of informed consent was erroneous and requires a reversal of the judgment. Where the trial judge gave an erroneous instruction or improperly refused a particular instruction, we view the evidence in the light most favorable to the appellant. (Sills v. Los Angeles Transit Lines (1953) 40 Cal.2d 630, 633.) In other words, we assume the jury might have believed the evidence upon which the instruction favorable to the appellant was predicated and rendered a verdict in appellant's favor on those issues as to which it was misdirected. (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 674; Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 655.) The failure to instruct on Lua's theory of the case was "irrefutably prejudicial." (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1424.)

This is particularly so in a close case such as this. (See Downing v. Barrett Mobile Home Transp., Inc. (1974) 38 Cal.App.3d 519, 525.) Here, the jury began deliberations at approximately 3:00 p.m. on Thursday, January 26, 2006. By the end of the day on Friday, January 27, the jurors had voted nine to three that Salzetti was negligent. However, on Monday, January 30, an alternate juror was substituted for an absent juror, and the jury began deliberations anew. Four hours later the jury returned with a verdict of nine to three, finding that Salzetti was not negligent. On this state of the record, viewing the evidence in the light most favorable to Lua on his informed consent claim, we cannot say the court's failure to instruct the jury properly constituted harmless error.

DISPOSITION

The judgment is reversed. Appellant shall recover his costs on appeal.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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^[1] CACI No. 533 - Failure to Obtain Informed ConsentEssential Factual Elements provides that one element of such a claim is "[t]hat a reasonable person in [the plaintiff's] position would not have agreed to the [medical procedure] if he or she had been fully informed of the results and risks of [and alternatives to] the procedure . . . ."