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Huerta v. DeFeo2/21/2003
not negligent and the statute of limitations barred the claim. In opposing the motion, Huerta did not argue the surgical consent form was insufficient-he did not need to do so because neither the complaint nor the motion asserted the form was insufficient. In his declaration in opposition to the motion, Huerta did not mention the consent form or express any reliance on it. Huerta asserted only that DeFeo allegedly failed to disclose the fact that the Medical Board had placed DeFeo on probation.
The trial court therefore could not adjudicate the issue whether the surgical consent form adequately disclosed the risks of the spinal surgery, and we do not and cannot consider that issue.
B. Whether DeFeo Was Required to Disclose That the Medical Board Had Placed Him on Probation
At the time of Huerta's spinal surgery, the Medical Board had placed DeFeo on probation. In opposing summary judgment, Huerta contended DeFeo was required to disclose his probation and the reasons for it because that information was material to Huerta's decision to consent to DeFeo performing the spinal surgery. Huerta stated in his declaration that " f Dr. DeFeo had told me about his probation and the reasons for it, I would not have had the surgery." DeFeo and amici curiae argue physicians are not required to disclose probation status.
We do not reach the issue whether DeFeo had to disclose his probation status to Huerta because DeFeo did not bring a motion for summary adjudication raising that issue. Code of Civil Procedure section 437c, subdivision (f)(1) permits a party to move for "summary adjudication as to one or more causes of action within an action . . . or one or more issues of duty." However, "`a motion for summary adjudication cannot be considered by the court unless the party bringing the motion duly gives notice that summary adjudication is being sought.'" (Jimenez v. Protective Life Ins. Co. (1992) 8 Cal.App.4th 528, 534-535.)
DeFeo did not move for summary adjudication of a cause of action (under the theory the malpractice claim can be alleged in separate causes of action for negligence and lack of informed consent). He did not move for summary adjudication of the issue of a duty to disclose his probation status. As explained above, the trial court sua sponte decided the lack of informed consent theory on an issue not raised by the pleadings. Our decision to reverse is without prejudice to a motion for summary adjudication.
DISPOSITION
The judgment is reversed. Huerta shall recover his costs on appeal.
WE CONCUR:
O'LEARY, ACTING P. J.
MOORE, J.
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