CHARLES v. ANDREW

Filed 9/11/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Peter J. Polos, Judge. Reversed and remanded.

Matison & Margolese, Vana Parker Margolese and Wayne Hunkins for Plaintiff and Appellant.

Carroll, Kelly, Trotter, Franzen & McKenna, Richard D. Carroll and David P. Pruett for Defendant and Respondent.

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Plaintiff Charles M. Wilson (Wilson), a paraplegic, suffered a torn rotator cuff and a fractured shoulder during a manipulation under anesthesia procedure performed by a chiropractor, Dr. Mark Wardenburg (Wardenburg). Wardenburg was assisted during the procedure by a medical doctor, Dr. Andrew Walter Merritt (Merritt). Wilson filed a medical malpractice complaint against Merritt. Merritt made a motion for nonsuit, claiming he had no obligation to obtain Wilson's informed consent to the procedure. The court granted the motion and judgment was entered in favor of Merritt. Wilson appeals.

Wilson, who says a previous surgical procedure rendered him a paraplegic, insists that no one ever warned him prior to the manipulation under anesthesia procedure that he could suffer either a fractured bone or a torn rotator cuff. He maintains that if anyone had warned him, he never would have had the procedure. He argues that the court erred in finding that Merritt, who purportedly had marketed and recommended the procedure and to whom Wilson had posed questions about possible complications, had no duty to obtain his informed consent to the procedure. We hold that whether Merritt had a duty to obtain Wilson's informed consent, even though the procedure was going to be performed by Wardenburg, was a question of fact for the jury to determine.

Furthermore, we hold that the trial court erred in concluding that, as a matter of law, there was insufficient evidence of causation for a jury to find in favor of Wilson. A jury reasonably could determine that an adult paraplegic who was suffering some problems with stiffness and flexibility, but was functional in his then current condition, who was seeing some improvement in his condition through physical therapy, who had suffered devastating damage from surgery in the past, and who was so concerned about the potential risks associated with the recommended procedure that he took his mother with him to question the medical doctor on the topic, would indeed turn down the opportunity for the procedure if informed that it could result in a loss of his

remaining mobility due to a torn rotator cuff or a fractured bone. As Wilson argues, there is an order of magnitude in the difference in the quality of life of a paraplegic, who is at least able to get to the toilet by himself, and that of a functional quadriplegic, who cannot even to that. We reverse and remand.

I

FACTS

In 1982, Wilson was paralyzed from spinal surgery for scoliosis, rendering him a paraplegic. He was wheelchair bound and needed to use his arms and shoulders to get in and out of the wheelchair. In November 2001, Wilson had a stroke, and thereafter developed adhesive capsulitis in his shoulder.

Wilson first saw Merritt on December 13, 2002. Merritt was a board certified specialist in physical and rehabilitative medicine. He was also the medical doctor on staff at Orange County Pain and Rehab Medical Associates, Inc. (the clinic), and the director of its clinical side.

After evaluating Wilson's condition, Merritt recommended physical therapy for the shoulder, to be provided at the therapy side of the clinic. According to Merritt, at the first meeting he told Wilson about other possible treatments as well, including a procedure known as manipulation under anesthesia.

Dr. Chris Wendell (Wendell), a chiropractor at the clinic, was the one who provided the prescribed physical therapy. Wendell suggested to Wilson that he would benefit from the manipulation under anesthesia procedure. Wendell explained that the procedure involved putting the patient to sleep and then manipulating the arm so as to break up the adhesive capsulitis. At some point, Wilson was introduced to Wardenburg, another chiropractor at the clinic. Wardenburg also discussed the manipulation under anesthesia procedure with Wilson, briefly.

In order to get more information on the procedure, Wilson scheduled another appointment with Merritt. At trial, Wilson was asked why he went to Merritt for information instead of going to the chiropractor. Wilson responded: "Well, I believed Dr. Merritt was presiding over my overall care, and I trusted him. I thought because he was a physiatrist and he knew the . . . mechanics of the body, particularly the bones and the muscles, that he would know about this. And also particularly because I'm in a wheelchair, that he would know that something if there were an adverse reaction to my arms, he should be on knowledge to let me know about that."?

Wilson's mother, Maureen Wilson (Mrs. Wilson), went with him to the appointment with Merritt. Wilson asked Merritt about the manipulation under anesthesia procedure and whether there were any bad risks associated with it. Wilson explained he was concerned about undergoing procedures, because he had previously suffered paralysis due to surgery.

At trial, Wilson was questioned about what Merritt said when asked about the manipulation under anesthesia procedure. Wilson replied: "He seemed to think that there wasn't any risk. The only risk would be an [infection] from the Toradol shot." When asked, "You're talking about no risk from the procedure itself," Wilson responded, "That's correct."? When asked whether he was told that "there might be risks from the anesthesia" and/or from "the shots involved," Wilson replied, "He said only from the Toradol shot after the M.U.A. was done."? Wilson clarified: "[Merritt] didn't really seem to think that there was much risk other than the injection."?

Wilson's attorney asked him, "You were never, were you ever told by anyone, anyone at Orange County Pain [and Rehab] anywhere, that you could actually sustain a fractured bone as a part of this procedure?" In response, Wilson said, "No one at any time had told me that I could sustain a fracture or torn rotator cuff. If that had

happened, I would not have had the surgery and I would have been out of there immediately."?

At trial, Mrs. Wilson also testified with regard to what Merritt said at the appointment. She said that she and Wilson each asked Merritt what could go wrong with the procedure. According to Mrs. Wilson, "Dr. Merritt said the only thing that could go wrong would be an infection from an injection." At trial, she was posed the question, "So at this meeting, did he give you any indication of any kind that this process, this M.U.A., could have a significant adverse effect." Mrs. Wilson replied: "Absolutely not." She also testified that Merritt told them "[t]hat he would be part of this team that would perform this procedure." Wilson, too, testified that Merritt said he would "be there to supervise and assist."?

When Merritt testified about the appointment, he stated: "I don't recall a lot about the conversation. Certainly [they were] both inquisitive, I'm sure. I did the best to answer them, at the same time, qualifying that I don't perform this procedure, and that specific procedure-related questions need to be directed to the person who performs them."?

A few days after the meeting with Merritt, Wendell scheduled the manipulation under anesthesia procedure, to be performed by Wardenburg. The procedure was performed on February 3, 2003. According to Wilson, Merritt was on hand before the procedure, and greeted him and put him at ease, providing assurances that the procedure should go well. Merritt gave Wilson a consent form for an injection that Merritt was going to administer. According to Wilson, Merritt created the impression that "he was in charge [and] was there to supervise and oversee the whole procedure."

Merritt, on the other hand, testified that the reason he attended the procedure was to administer an injection. However, he also acknowledged that he acted

as the first assistant during the procedure. At deposition, he explained that the assistant position is "a nonskilled job of basically holding the patient so [he or she does] not fall off the table while the procedure is being performed by a skilled provider. . . . It is not necessary to have an M.D. perform that position."?

Wilson suffered a fractured shoulder and a torn rotator cuff during the procedure. As a result, he had to undergo surgery to repair the damage.

Wilson filed a medical malpractice action against Merritt, Wardenburg, and certain others. The matter proceeded to a jury trial against Merritt, who successfully moved for nonsuit. Only the nonsuit in favor of Merritt is at issue on appeal, not any liability on the part of Wardenburg.

II

DISCUSSION

A. Expert Witness Testimony:

Wilson's expert witness, Dr. Kendall Wagner (Wagner), was a board certified orthopedic surgeon who had performed many manipulations under anesthesia. He testified that it would be a violation of the standard of care to fail to obtain an informed consent from a patient. He also testified that it was the obligation of Wardenburg, as the one performing the manipulation under anesthesia, to obtain the informed consent, and that the February 3, 2003 procedure report indicated that Wardenburg had done so. Wagner acknowledged that Merritt did not indicate in his records that he had obtained an informed consent to the manipulation under anesthesia procedure. However, he stated his opinion that Merritt had no legal duty to obtain the informed consent with respect to the manipulation under anesthesia procedure.

In addition, Wagner testified repeatedly that, based on a review of certain medical records, he felt that both Wardenburg and Merritt had complied with the standard of care. Yet at the same time, he also testified repeatedly, that the issue in the case was

not what the medical records reflected, but what Merritt had told Wilson and his mother when they went to him to learn about the manipulation under anesthesia procedure.

Portions of Merritt's testimony were read to Wagner. In response to hearing that testimony, Wagner said: "The . . . issue in this case is whether or not the patient and his mother were told that there were no potential complications in this procedure. If they were told that, it is a violation of [the] standard of care. If they weren't told that, it is not a violation of [the] standard of care. And I don't know the answer. I wasn't there."? Wagner held fast to this position through repeated questioning.

B. Motion and Ruling:

After Wilson had rested his case, Merritt made a motion for nonsuit. Merritt's counsel argued that no cause of action based on informed consent had been established. More specifically, he stated that Wilson had failed to establish either a legal duty on the part of Merritt to obtain informed consent with respect to the manipulation under anesthesia procedure, or a failure on the part of Merritt to articulate any of the risks associated with that procedure. In addition, he asserted that Wagner had testified that he had no criticisms of Merritt.

The court, in granting the motion, provided its reasoning on the record. It stated that Merritt had no legal duty to obtain informed consent with respect to a procedure he did not perform. The court explained that Wardenburg, who was the one who had performed the manipulation under anesthesia procedure, was the one responsible for obtaining the informed consent, not Merritt. The court also noted that Wagner had opined Wardenburg did obtain informed consent. In addition, the court stated that according to Wagner, neither Wardenburg nor Merritt had breached the standard of care. Finally, with respect to causation, the court said that Wilson could not say in retrospect that he would not have undergone the procedure had he been informed of the risks,

because he really had no other option, and in choosing to undergo the procedure, he accepted risks of greater harm than the harm he in fact suffered.

C. Standard of Review:

"A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor." [Citation.] "In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give to the plaintiff[s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff'[s] favor." [Citation.] A mere "scintilla of evidence" does not create a conflict for the jury's resolution; "there must be substantial evidence to create the necessary conflict."? [Citation.] [Citation.] (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 262-263.)

"We independently review the ruling on a motion for nonsuit, guided by the same rules that govern the trial court. [Citations.] We will not sustain the judgment 'unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.' " [Citations.] [Citation.] (Ewing v. Northridge Hospital Medical Center (2004) 120 Cal.App.4th 1289, 1296.)

D. Analysis:

(1) Introduction

Wilson argues that the question of whether Merritt obtained informed consent from him should have gone to the jury for determination. He contends that Merritt had a legal duty to obtain his informed consent and furthermore that Merritt mislead him when he said that the only risk associated with the procedure was the risk of infection from a shot. We agree that the matter should have gone to the jury.

(2) Legal Duty

"[A]s an integral part of the physician's overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." [Citation.] 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. All information material to the patient's decision should be given. [Citation.] [¶] Material information is that 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 the recommended medical procedure. [Citations.] To be material, a fact must also be one which is not commonly appreciated. [Citation.] If the physician knows or should know of a patient's unique concerns or lack of familiarity with medical procedures, this may expand the scope of required disclosure. [Citation.] (Truman v. Thomas (1980) 27 Cal.3d 285, 291, fn. omitted.) The physician's duty to disclose is twofold. "First, a physician must disclose to the patient the potential of death, serious harm, and other complications associated with a proposed procedure." [Citation.]? (Daum v. SpineCare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1301-1302.) "Second, [b]eyond 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." [Citation.]â€? (Id. at p. 1302.)

As the trial court acknowledged when explaining its ruling, the question of whether Merritt had such a legal duty to disclose under the particular circumstances of this case was not a question for Wagner, as the expert, to determine. Indeed, the Supreme Court has â€