Chen v. Maloney

Filed 6/20/06 Chen v. Maloney CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Jacqueline A. Connor, Judge. Affirmed.

William G. Schweizer for Plaintiff and Appellant.

Reback, McAndrews & Kjar, Robert C. Reback and Kristin L. Megrund for Defendants and Respondents.

_________________________

Plaintiff and appellant Linda Chen (Chen) appeals a judgment following a grant of summary judgment in favor of defendants and respondents Robert K. Maloney, M.D., Maloney-Seibel Vision Institute and Maloney Vision Institute (collectively, Maloney).^[1]

The issues presented include whether the trial court properly sustained a demurrer to Chen's battery claim without leave to amend, and whether it properly granted summary judgment in favor of Maloney on Chen's claims for negligence, professional negligence and failure to obtain informed consent.

We perceive no error in the trial court's rulings and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Pleadings.

Chen commenced this action on October 29, 2003. On February 6, 2004, Chen filed the operative first amended complaint against Maloney, alleging causes of action for: negligence (first cause of action); professional negligence (second cause of action); battery (third cause of action); breach of warranty (fourth cause of action) and breach of duty to obtain informed consent (fifth cause of action).^[2]

The gravamen of the complaint is that Maloney negligently performed LASIK surgery on Chen on December 19, 2001, causing serious and irreparable harm to her vision; Maloney failed to properly and completely inform Chen of the potential risks and consequences of the procedure, causing her to undergo the surgery without full appreciation of the risks involved; and that in performing the surgery, he exceeded the scope of the consent given by Chen.

2. The proceedings on the demurrer; trial court sustains demurrers to Chen's claims for battery and breach of warranty.

Maloney demurred to the entire complaint.

On June 29, 2004, the trial court overruled Maloney's demurrer as to the first, second and fifth causes of action. It sustained the demurrer to the battery claim without leave, and sustained the demurrer to the claim for breach of warranty with 10 days leave to amend. Chen did not amend her pleading.

3. The motion for summary judgment.

a. Moving papers.

On August 6, 2004, Maloney filed a motion for summary judgment with respect to the three remaining causes of action, i.e., negligence, professional negligence and failure to obtain informed consent. The moving papers asserted Maloney at all times adhered to the standard of care while treating Chen, and that no alleged act or omission by him either caused or contributed to any injury.

b. Expert declaration in support of moving papers.

Maloney's motion was supported by the declaration of Dr. Paul Donzis. In addition to being a California attorney, Dr. Donzis is a board certified ophthalmologist as well as an associate clinical professor at the Jules Stein Eye Institute, UCLA School of Medicine. Based on Dr. Donzis's review of Chen's medical records, he opined:

Chen's symptoms are consistent with presbyopia, or the inability of the eye to accommodate and focus from near and far. Presbyopia, which is common in adults over 40, is progressive and requires patients to obtain increasingly stronger reading and middle vision glasses. Given Chen's age, 45, the manifestation of presbyopia is not uncommon and occurs in the absence of any negligence associated with LASIK surgery. Further, LASIK does not counteract the natural progression of this condition. Chen was fully informed of all potential risks and complications associated with LASIK, as well as alternatives to the surgery. The medical records indicate Chen met with both a consulting technician and Maloney on September 24, 2001. Maloney explained to Chen that there was no promise of perfect vision and that she may require an enhancement procedure.

Prior to the initial surgery on December 19, 2001, Maloney again discussed the procedure in detail with Chen. He was aware of Chen's career as a professional photographer and specifically told her that following LASIK surgery, her vision may not be as good as it was with her contact lenses and that the surgery might impact her ability to work in her profession.

Chen's medical records also indicate that on December 17, 2001, two days before the initial surgery, she was also informed of the risks and complications by Dr. Seldon. Also, prior to the enhancement procedure on April 10, 2002, Chen was advised by Dr. Ng that there was no guarantee of perfect visual acuity, and they discussed all risks and complications of the enhancement procedure.

The informed consent forms signed by Chen before the two surgeries further established that Chen was fully informed as to risks and potential complications of LASIK surgery, including the possibility of glare, halos, reduced quality of vision, decrease of spectacle-corrected vision, undercorrection, overcorrection and presbyopia. The informed consent form specifically stated that presbyopia typically occurs in patients over the age of 43, and that patients who require bifocals or reading glasses prior to LASIK will likely continue to need them after surgery.

After addressing the informed consent issue, the Donzis declaration continued:

To a reasonable degree of medical certainty, Chen's loss of visual acuity was not the result of any negligence by Maloney. He performed the surgeries using an FDA-approved laser deemed to be safe and effective. Chen's preoperative levels of myopia and astigmatism were well within the treatment range and FDA guidelines for the LASIK procedures. The preoperative evaluations did not reveal any special risk factors. Chen was an appropriate candidate for both the initial surgery and the enhancement procedure.

Further, Maloney did not breach his duty of care in performing the procedures on Chen. He properly programmed the prescription into the laser. The post-operative topography indicated the surgical procedure was properly performed. The nature of Chen's complaints following her enhancement procedure, such as difficulty reading, or shifting from near to far focus, are not of the type normally associated with mishandling of the laser or equipment. Likewise, her complaints are not typical of the negligent performance of the manual part of the operation. Since the time of Chen's surgery, her presbyopia would have increased, with or without LASIK. Even if Chen â€