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Kiljian v. Grimes10/30/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff and appellant Alice Kiljian appeals from a summary judgment in favor of defendant and respondent anesthesiologist Gary Thomas Grimes, M.D., in this medical malpractice action. Plaintiff contends an expert declaration was not necessary to create a triable issue of fact as to lack of informed consent. We affirm.
FACTS AND PROCEDURAL BACKGROUND
On March 29, 2001, plaintiff sued Dr. Grimes and a hospital for personal injury damages arising out of a gall bladder operation performed under general anesthesia on May 5, 2000. Plaintiff alleged she had experienced surgical awareness during the operation and had suffered extreme pain and suffering. She alleged a single cause of action for medical negligence against Dr. Grimes. Specifically, she alleged Dr. Grimes had not obtained her informed consent for the operation under general anesthesia and had negligently provided medical treatment, as well as failed to inform her of the risks of the general anesthesia. On May 29, 2001, Dr. Grimes answered the complaint.
On January 4, 2002, Dr. Grimes moved for summary judgment on the ground he had not violated the standard of care and had obtained informed consent. The motion was supported by his declaration, as well as consent forms signed by plaintiff. As to the alleged surgical awareness, Dr. Grimes declared that an episode of surgical awareness is a known, but rare, complication of general anesthesia. Dr. Grimes did not declare that he had informed plaintiff of the complication of surgical awareness.
The hospital also moved for summary judgment. The hospital's motion was supported by a declaration of a physician expert, who declared that surgical awareness is a known, but rare, complication of general anesthesia that occurs without negligence.
Plaintiff opposed the motions supported by portions of the deposition testimony of plaintiff, Dr. Grimes, and the surgeon. Plaintiff testified she spoke to Dr. Grimes before the surgery and he advised her she would be unconscious during the surgery and would not feel it. Plaintiff did not present the declaration of an expert.
In reply, both Dr. Grimes and the hospital presented expert declarations that the incidence of surgical awareness is so rare that it need not be disclosed to, or discussed with, the patient in order to conform to the standard of care for informed consent.
The trial court granted the motions for summary judgment on the ground an expert declaration was required to establish that disclosure of the risk of surgical awareness was required by the standard of care. The trial court entered judgment for Dr. Grimes and the hospital on June 24, 2002. That same date, plaintiff moved for reconsideration. The motion was supported by her declaration that she had never been informed of any of the risks of general anesthesia and had she known of the risk of death or serious harm, she would have refused the surgery. Dr. Grimes opposed the motion for reconsideration, noting that both the anesthesia consent form and the surgical consent form, both signed by plaintiff, advised her of the risk of death. The trial court denied the motion for reconsideration as untimely and on the merits. Plaintiff appealed from both judgments, but subsequently dismissed the appeal as to the hospital.
DISCUSSION
Standard
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