 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Huerta v. DeFeo2/21/2003
Victor Huerta sued Donald DeFeo, M.D., for medical malpractice, contending the spinal surgery DeFeo performed caused nerve damage rendering Huerta incontinent and impotent. Huerta's single cause of action for medical malpractice sought recovery under theories of negligence in treatment and lack of informed consent. Huerta contended that DeFeo's treatment fell below the applicable standard of care and that DeFeo failed to inform Huerta of the fact DeFeo was on probation with the Medical Board of California (the Medical Board). The trial court granted DeFeo's motion for summary judgment on these grounds: (1) DeFeo met the applicable standard of care "in performing surgery upon Mr. Huerta" and (2) Huerta read and signed a consent form listing "nerve damage" as a possible complication of surgery.
We reverse. With respect to the first ground, the expert declaration submitted by DeFeo did not meet his initial burden on summary judgment of making a prima facie showing that he met the applicable standard of care. A physician's expert witness declaration must offer a reasoned explanation for the expert's conclusion that the defendant physician was not negligent in order to meet the defendant's initial burden on a motion for summary judgment of a medical malpractice claim. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524-525.) In this case, the expert's two-page declaration did not provide a reasoned explanation for the conclusion that DeFeo met the applicable standard of care and did not address Huerta's claim that DeFeo was negligent in postsurgery treatment.
With respect to the second ground, the trial court erred in granting summary judgment on an issue not raised by the pleadings. The trial court concluded "there is no triable issue regarding plaintiff's informed consent" because Huerta read and signed a surgical consent form which sufficiently apprised him of the risks and potential complications of the spinal surgery. Huerta's lack of informed consent theory-as pleaded in the complaint and presented in opposition to the summary judgment motion-was not based on the failure to disclose the risks and potential complications of surgery. That theory first appears in the trial court's order granting summary judgment. Huerta's lack of informed consent theory as pleaded was based upon the failure of DeFeo to disclose he was on probation status with the Medical Board.
DeFeo did not move for summary adjudication of a cause of action or an issue of duty. (Code Civ. Proc., ยง 437c, subd. (f)(1).) The issue whether DeFeo had a duty to disclose his probation status to Huerta was not presented to the trial court and is not properly before us. We therefore do not address that issue, but reverse without prejudice to a motion for summary adjudication.
FACTS
In August 1996, Huerta suffered an injury that caused pain to his lower back. He was then 26 years of age. The pain worsened, extending to his buttocks and causing numbness in his left leg. By September 1997, his condition rendered him unable to work.
After pursuing an unsuccessful nonsurgical course of medical treatment, Huerta's physician referred Huerta to neurosurgeon DeFeo. From MRI results, DeFeo determined that Huerta had two herniated disks with an extruded fragment, and recommended spinal surgery. DeFeo was on probation with the Medical Board while he treated Huerta. The probation order did not describe the nature of the charge, did not reflect the reason for probation, and did not require DeFeo to inform his patients of his probation status. The order required DeFeo to pass a clinical oral exam in spinal surgery and to perform five neck/spinal surgeries evaluated by a board-designated monit
Page 1 2 3 4 5 6 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|