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Kiljian v. Grimes10/30/2003
of Review
"`A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.' (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, citations omitted.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)" (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579.) We exercise "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
Informed Consent
Plaintiff contends that, since triable issues of fact exist as to whether she was advised of any of the risks of general anesthesia, expert evidence was not required to establish that surgical awareness was a risk of which she should have been advised. We disagree.
" he duty to disclose risks of death, serious injury , or significant complications is not defined by the custom or practice of the medical community. Instead, such a potential peril must be divulged if it would be material to the patient's decision, regardless of the custom in the profession." (Spann v. Irwin Memorial Blood Centers (1995) 34 Cal.App.4th 644, 655.) These disclosures are referred to as the minimal requisite disclosures for informed consent. "In addition to these `minimal' disclosures, 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. 657.) " physician is liable only where the failure to disclose causes the injury. [Citations.] `There must be a causal relationship between the physician's failure to inform and 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.' [Citation.] Moreover, causation must be established by an objective test: that is, the plaintiff must show that reasonable `prudent person ' in the patient's position would decline the procedure if they knew all significant perils." (Ibid.) A bald declaration of the patient that the patient would have sought other treatment had the patient been accurately informed of the risks is not sufficient to defeat summary judgment. (Id. at p. 659.)
The record reflects that plaintiff signed two consent forms in which she was advised of the risk of death from the surgical procedure. The consent form for the surgery expressly states that all operations and procedures involve risks of complications, injury, or death. Plaintiff has declared only that she was never advised
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