Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BC319741. Michael Stern, Judge.
Deborah A. Purnell, in pro. per., for Plaintiff and Appellant.
LaFollette, Johnson, DeHaas, Fesler & Ames, Louis H. DeHaas, Gillian N. Pluma, David J. Ozeran for Defendants and Respondents.
BOREN, P.J.
INTRODUCTION
This appeal of a medical malpractice case involves the requirement that an expert witness establish that a healthcare provider’s recommendation or rendering of medical care fell below the standard of care. It also involves the validity of the patient’s informed consent when there is a signed consent form. Finally, it addresses which persons or entities have a duty to obtain the patient’s informed consent. We find that respondent Cedars-Sinai Medical Center (Cedars) was entitled to summary adjudication as to all causes of action and that there was no prejudicial error in granting summary judgment as to respondent Frances Lineback, M.D. (Dr. Lineback).
FACTS
1. Presurgery Medical History
At the time of surgery, appellant was a 46-year-old woman who had undergone two ectopic pregnancies more than 18 years prior. For over a year, appellant experienced irregular menses with heavier than normal bleeding, which became constant during the final three months before surgery. Bruce McLucas, M.D., diagnosed appellant with fibroid tumors three months prior to surgery. His records show he explained the risks and benefits of undergoing a hysterectomy, and appellant elected not to undergo the procedure at that time. Arthur Johnson, M.D. (Dr. Johnson), later counseled appellant in the outpatient department of Cedars, where she elected to undergo the hysterectomy. At that time, Dr. Johnson was an independent physician with privileges to utilize the hospital facilities.
2. Surgery
Appellant was admitted to Cedars on May 6, 2003, where she signed a surgery consent form recognizing that training physicians and nurses may take part in her surgery. Dr. Johnson, assisted by resident Dr. Lineback, performed a total abdominal hysterectomy on appellant. The surgery was complicated because the doctors had to break up extensive abdominal adhesions and remove a large fibroid before the actual hysterectomy could be performed. The doctors did not close the inner abdominal wall at the conclusion of surgery.
Dr. Lineback assisted in surgery primarily by holding and suturing but stated she probably did perform a portion of the hysterectomy. Approximately eight months after the surgery, Dr. Johnson took an early retirement after being diagnosed with primary progressive aphasia, a disease which slowed his motor skills and made him incapable of performing surgery.
3. Postsurgery Complications
Appellant experienced postoperative bowel obstruction due to the combination of adhesions resulting from the surgery and preexisting adhesions which may have reformed during surgery. Surgeon Kenneth Adashek, M.D., consulted appellant a week after her surgery. As a result of the blockage, appellant began to vomit, which necessitated the pumping of appellant’s stomach from the time of consultation until Dr. Adashek performed corrective surgery seven days later. Dr. Adashek initially attempted to correct the bowel obstruction using nonsurgical decompression, but he eventually had to perform two surgeries, removing approximately 12 inches of appellant’s intestine, which had been cut off from a blood supply, to correct the obstruction. There was no evidence the intestine had been cut during the hysterectomy.
PROCEDURAL HISTORY
1. Complaint
Appellant, in propria persona, filed a complaint in Los Angeles Superior Court on August 6, 2004, against Dr. Johnson as an individual and corporation, Cedars, and unknown employees of Cedars. The complaint alleged medical negligence, professional negligence, lack of informed consent, contributory negligence, and fraud. Appellant sought compensatory damages, exemplary damages, and punitive damages. The proceedings against Dr. Johnson as an individual and corporation were stayed as the parties entered into binding arbitration. Neither is a party to this appeal.
Cedars demurred on the grounds that causes of action for lack of informed consent, contributory negligence, and fraud failed to state a cause of action, and the causes of action for compensatory and exemplary damages failed to state sufficient facts to constitute a cause of action. Cedars also made a motion to strike the portions of appellant’s complaint relating to punitive and exemplary damages and attorney fees on the grounds that they violated Code of Civil Procedure sections 425.13 and 1021. The court sustained the demurrer and motion to strike but granted appellant leave to amend the complaint within 30 days.
Appellant retained counsel, who submitted the first amended complaint alleging medical malpractice against all original defendants. The amended complaint asserted an Elam claim against Cedars for negligence in allowing Dr. Johnson to perform appellant’s surgery while he was suffering from a debilitating condition. It also asserted negligence for “failure to properly test and evaluate whether plaintiff was a proper candidate for the prescribed course of medical care and/or surgery, failure to obtain appropriate consent prior to and during the conduction of the prescribed course of medical/nursing care and/or surgery, failure to follow the prescribed course of medical care and/or surgery when appropriate, failure to correctly administer medications, and failure to diagnose and properly treat plaintiff as her condition warranted.”
Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, hereinafter, Elam.
Appellant dismissed her counsel and substituted herself in propria persona. During discovery, appellant learned that Dr. Lineback was the assisting doctor in her surgery and thus amended the complaint to include Dr. Lineback as a defendant in place of Doe 1.
2. Motion for Summary Judgment
Cedars filed a motion for summary judgment on April 7, 2005, supported by the declarations of Amy Rosenman, M.D. (Dr. Rosenman), that the surgical care and treatment of appellant was appropriate and not the proximate cause of her injuries, and Linda Leon, R.N. (Nurse Leon), that the nursing care and treatment was appropriate.
In her declaration, Dr. Rosenman asserted the recommendation of the hysterectomy was within the standard of care, given appellant’s abnormal bleeding and the presence of fibroid tumors. She described the procedures involved in conducting a hysterectomy and found that the standard of care was met at all times during appellant’s surgery. Dr. Rosenman explained that appellant’s injuries were the result of the accepted risks and complications of the procedure and they did not imply negligence. She found there was no evidence that appellant’s intestines had been injured during the hysterectomy. Finally, Dr. Rosenman was of the opinion that Cedars had no duty to inform appellant of the risks of the surgery because it is not the hospital’s function to obtain informed consent.
Nurse Leon asserted in her declaration that appellant made no complaints of bruising or soreness in her skin during her stay at the hospital. She further asserted that any potential bruising or scarring from nurse-administered injections were accepted risks and complications of the injections and did not indicate that the injections were performed below the standard of care.
Based on these declarations and appellant’s lack of an expert opinion to create an issue of material fact, Cedars moved for summary judgment. Cedars claimed Dr. Rosenman’s declaration established that the recommendation, care and treatment were within the standard of care. Cedars asserted that this removed any causation linking Dr. Johnson’s medical condition and appellant’s injuries necessary to establish negligent medical treatment, which is required for an Elam claim. Cedars further asserted that the hospital had no duty to obtain informed consent. Finally, Cedars claimed the declaration of Nurse Leon established the nursing care and treatment were within the standard of care.
3. Opposition and Ruling
The motion for summary judgment was initially scheduled to be heard on June 24, 2005, but appellant was granted three separate continuances to file an opposition. In granting the final continuance, the court clearly told appellant that there would be no further continuances if she failed to produce an expert’s opinion regarding the standard of care. The hearing was eventually held on November 9, 2005.
Appellant filed an amended opposition to the summary judgment motion on October 26, 2005, supported by the expert opinion of Simon Henderson, M.D. (Dr. Henderson). The amended opposition alleged that Dr. Johnson negligently recommended appellant undergo the surgery, that Cedars should not have allowed Dr. Johnson to perform surgery in Dr. Johnson’s condition or allowed Dr. Lineback to assist, that Dr. Rosenman based her opinions on flawed information, and that appellant did not give informed consent to the hysterectomy or to having Dr. Lineback assist in the operation.
The amended opposition also included the declaration of appellant’s expert, Dr. Henderson, stating that he disagreed with and would not have made the recommendation to undergo the hysterectomy, feeling it was not necessary and not worth the risk. Dr. Henderson further declared that he saw no evidence Dr. Johnson had informed appellant of the potential risks and complications of undergoing a hysterectomy.
Cedars argued in its reply that the declaration of appellant’s expert did not create a material issue of fact regarding negligent treatment, that appellant signed a form consenting to Dr. Lineback’s involvement in the surgery, that Dr. Lineback had no duty to obtain appellant’s informed consent because she was not the recommending physician, and finally that appellant was advised of the risks of the hysterectomy by Dr. McLucas and thus she was adequately informed.
On November 9, 2005, the court ruled that Dr. Henderson’s declaration did not address the requisite standard of care and thus there was no triable issue of fact. The court rejected appellant’s request for another continuance to amend her expert’s declaration and granted the motion for summary judgment as to Cedars. The court also granted summary judgment as to Dr. Lineback, although she was not a named party to the motion.
DISCUSSION
I. Applicable Principles of Appellate Review
We review de novo the trial court’s decision to grant summary judgment, and “consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence . . . .” (Code Civ. Proc., § 437c, subd. (c).) We view such evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) The defendant moving for summary adjudication on any cause of action need only show that the plaintiff cannot establish one necessary element of the cause of action, then the burden shifts to the plaintiff to show a triable issue of fact with respect to that element of the cause of action. (Id. at p. 853.) This burden cannot be met by conclusory or argumentative opposition based on mere conjecture or speculation. (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161.)
Appellant sets forth a long list of issues, but we may consider only those issues raised by the amended complaint. (Fireman’s Fund Ins. Co. v. City of Turlock (1985) 170 Cal.App.3d 988, 994.) Further, we are confined to consider only those relevant issues that have been adequately raised and supported in appellant’s brief. (Reyes v. Kosha (1998) 65 Cal.App.4th 452, 466.) “To the extent defendant perfunctorily asserts other claims, without development and, indeed, without a clear indication that they are intended to be discrete contentions, they are not properly made, and are rejected on that basis.” (People v. Turner (1994) 8 Cal.4th 137, 214 fn. 19.) Thus, we consider the granting of summary adjudication regarding the causes of action for negligent recommendation of the hysterectomy, for negligent care and treatment, for an Elam claim, for negligent supervision, and for failure to obtain informed consent. We also review the trial court’s refusal to grant appellant’s request for a continuance, the effect of the court’s ruling on demurrer in relation to the motion for summary judgment, and the appropriateness of summary judgment as to Dr. Lineback, who was not a named party to the motion.
II. The Effect of the Court’s Ruling on Demurrer
Appellant argues that the court’s ruling on demurrer shows there might be a triable issue of fact regarding an Elam claim and should have precluded granting summary judgment to Cedars. In ruling on a demurrer, the court accepts the allegations of the complaint as being true. (Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 475.) In ruling on a motion for summary judgment, the court requires declarations or affidavits to establish a triable issue of material fact, rather than relying on assertions that such evidence exists or on conclusory statements based on speculation or conjecture. (Ibid.) A higher standard must be met to overcome a motion for summary judgment. For this reason, a ruling that a complaint survives a demurrer in no way precludes a grant of summary judgment regarding the same issue.
III. The Court’s Refusal to Grant a Continuance
Appellant did not comply with Code of Civil Procedure section 437c, subdivision (h), requiring that a request for mandatory continuance be made in opposition to the motion for summary judgment or by ex parte application made on or before the opposition is due. Since appellant did not comply with the statute, the court’s refusal to grant appellant’s oral request for continuance was discretionary and is reviewed under the abuse of discretion standard. (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.)
In this case, the court had previously granted three continuances, spanning more than four months, to allow appellant time to oppose the motion for summary judgment. In granting the last continuance the court explicitly explained to appellant what was required to overcome summary judgment and that no more continuances would be granted if appellant failed to produce it. The court did not abuse its discretion in refusing to grant a fourth continuance.
IV. Care and Treatment
Expert testimony must establish the appropriate standard of care in a medical malpractice cause of action, except in narrow circumstances where the conduct falls within common knowledge. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) This is because the standard of care against which a physician’s conduct is measured is beyond the knowledge of an average juror and particularly within the knowledge of an expert. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607.) “‘When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’ (Hutchinson v. United States (9th Cir. 1988) 838 F.2d 390, 392, citing Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.)” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985.)
Cedars moved for summary judgment supported by the expert declarations of Dr. Rosenman and Nurse Leon. Dr. Rosenman detailed the surgical procedure and concluded that Cedars’s performance met the standard of care at all times. Nurse Leon concluded the nursing care met the standard of care, including the administration of the injections. Appellant failed to provide any conflicting expert testimony that the performance of the surgery or medical care and treatment failed to meet the standard of care. Thus appellant failed to create a triable issue of material fact and Cedars was entitled to summary adjudication as to the medical malpractice cause of action against it for the care and treatment rendered to appellant.
V. Recommendation of the Hysterectomy
Cedars moved for summary judgment supported by Dr. Rosenman’s expert declaration. Dr. Rosenman reviewed appellant’s medical record and concluded that Dr. Johnson’s decision to recommend the hysterectomy was within the standard of care, given appellant’s abnormal bleeding and the presence of fibroid tumors. Appellant produced Dr. Henderson’s expert testimony concluding that based on appellant’s medical record she should not have undergone the hysterectomy until less invasive procedures had been tried. Dr. Henderson stated that he would not have recommended the hysterectomy and did not feel it was necessary at that time, but he did not conclude that Dr. Johnson’s recommendation fell below the standard of care. Exhibit D attached to appellant’s opening brief consists of an amended declaration by Dr. Henderson that recommending the hysterectomy fell below the standard of care, but this declaration was created subsequent to entry of the judgment and cannot be considered because it is not a part of the trial court record.
Appellant relies on Tortorella v. Castro (2006) 140 Cal.App.4th 1, to argue that recommending an unnecessary surgery is inherently below the standard of care. Tortorella is readily distinguished because that court concluded only that an expert’s opinion that a surgery was unnecessary, where the performing surgeon allegedly misdiagnosed the patient’s condition, was sufficient to create a triable issue of fact about causation. (Id. at p. 3.) The plaintiff’s expert witness in that case stated that the recommendation fell below the standard of care, which was the basis for finding a triable issue of fact concerning a breach of duty. Appellant is still required to produce an expert to create a triable issue of fact regarding any alleged breach of the standard of care.
It is clear that Dr. Rosenman and Dr. Henderson had a difference of opinion about Dr. Johnson’s recommendation of a hysterectomy against less invasive alternatives. However, a difference of medical opinion about the appropriate procedure to prescribe, given several alternatives, does not establish that the decision to recommend one constitutes negligence. (Clemens v. Regents of University of California (1970) 8 Cal.App.3d 1, 13.) Rather, a viable cause of action for medical negligence requires expert testimony establishing the standard of care. (Willamson v. Prida (1999) 75 Cal.App.4th 1417, 1424.) Appellant failed to produce conflicting expert evidence as to whether the recommendation to undergo the hysterectomy fell within or below the standard of care. Thus, Cedars was entitled to summary adjudication as to the medical malpractice cause of action against it for the recommendation of the hysterectomy.
VI. Elam Claim
The court in Elam held that a hospital could be liable to a patient under the doctrine of corporate negligence for the negligent conduct of independent physicians and surgeons who are not hospital employees but are members of the hospital staff. (Elam, supra, 132 Cal.App.3d 332, 335.) The hospital’s liability stems from its “failure to insure the competence of its medical staff through careful selection and review,” creating unreasonable risk of harm to the patient. (Id. at p. 341.) To prevail on an Elam claim, a plaintiff must show that the hospital was negligent in allowing a physician or surgeon to be a member of its staff. As prerequisite to this, the plaintiff must show that the physician or surgeon himself was negligent in his conduct, otherwise there could be no causation linking the patient’s injuries to the hospital’s negligent supervision.
As discussed above, appellant has failed to show that Dr. Johnson’s recommendation or performance of the hysterectomy fell below the standard of care. As a result, appellant has failed to show any negligent conduct on the part Dr. Johnson. Thus, appellant cannot prevail on an Elam claim. Regardless of whether the hospital was negligent in allowing Dr. Johnson to remain on its staff, he performed the surgery within the standard of care and thus there is no causal link between who performed the surgery and any resulting complications. Accordingly, Cedars was entitled to summary adjudication as to the Elam cause of action against it.
VII. Informed Consent
A. Validity of Appellant’s Consent to Dr. Lineback’s Participation in Surgery
Appellant contends she never consented to and in fact was never made aware that Dr. Lineback would be assisting in performing her surgery. She claims she would never have consented to allowing a resident to do so. However, appellant completely fails to address the consent form she signed upon admittance to the hospital, acknowledging that Cedars was a teaching hospital and that “physicians . . . in training may participate in the operation . . . specified above under the supervising physician or surgeon named above” and consenting thereto.
Appellant relies on Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95, to argue that the validity of a written consent form signed by the patient is a question of fact for the jury and thus summary judgment is improper. The court there concluded, “The law is clear in California that the existence of informed consent is an issue of fact for the jury” and that “the adequacy of a written consent is a factual issue for the jury, and does not stand for the proposition that a signed form is conclusive proof that informed consent was given.” (Id. at pp. 115-116.) However, in that case there was significant conflicting evidence that the consent form was written in Spanish, which the plaintiff contended she did not understand, and the performing surgeon, who she had never met, went outside the scope of the procedures authorized by the consent form. (Id. at pp. 117-118.) In this case, appellant presents no conflicting evidence except her own assertion that she did not consent to Dr. Lineback’s participation, with no reference or explanation as to why her signed consent was invalid.
More importantly, the court in Quintanilla addressed the validity of the informed consent to medical procedures, an issue particularly well suited to a jury because the duty of disclosure of the risks and complications of the procedure is not governed by the community standard of care but by law that governs the physician’s conduct in the same way as for any other fiduciary relationship. (Berkey v. Anderson (1969) 1 Cal.App.3d 790, 805.) It is a peculiarly fact-based question as to the breadth and depth to which a physician should explain the risks and complications of a procedure that is particular to the individual patient. (Ibid.)
This is an entirely different issue than the type of consent appellant is contesting in this case. Here, we are assessing the validity of a signed, written consent to the participation of training physicians and nurses in surgery performed on a nonemergency basis. None of the same particularities to each individual patient are present. The ability of a hospital to rely on a written consent form to allow physicians and nurses in training to participate in surgery under the supervision of senior physicians and surgeons is a crucial element in the proper training of physicians and nurses.
Nonemergency consent to participation in surgery is better addressed as courts have addressed physician-patient arbitration agreements, where a patient will be bound by his signed consent in the absence of evidence that he did not understand what he was signing or that he signed the form to receive urgent medical care. (See Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1590-1591; Coon v. Nicola (1993) 17 Cal.App.4th 1225, 1238.) Appellant signed the form consenting to Dr. Lineback’s participation in the surgery as a physician in training. She signed the form under a nonemergency basis and presented no evidence that she did not understand the form. She was bound by her written consent, and Cedars was entitled to summary adjudication as to the cause of action for failure to obtain consent to Dr. Lineback’s participation in surgery.
B. Dr. Lineback’s Duty to Obtain Informed Consent
Appellant contends Dr. Lineback had an independent duty to obtain informed consent based on her participation in the surgery. The seminal case on the doctrine of informed consent in California is Cobbs v. Grant (1972) 8 Cal.3d 229, which established that the treating physician had a duty of reasonable disclosure of the available choices for treatment and the risks and complications associated with each. (Id. at p. 243.) In explaining the reasoning for such a duty, the court explained that “[a] medical doctor, being the expert, appreciates the risks inherent in the procedure he is prescribing, the risks of a decision not to undergo the treatment, and the probability of successful outcome of the treatment.” (Ibid.) The court emphasized that the duty to disclose fell on the prescribing physician, at which point the choice as to the course of action fell exclusively on the patient. (Ibid.) The duty is derived from the being in the position to prescribe the treatment.
In Quintanilla v. Dunkelman, supra, 133 Cal.App.4th 95, the court expanded this duty to include both the referring physician and the treating and performing surgeon, where the patient had never met the surgeon and reasonably believed the referring physician would be performing the surgery. (Id. at pp. 118-119.) The court in Wilson v. Merritt (2006) 142 Cal.App.4th 1125, concluded that the duty fell on the original prescribing physician and the performing physical therapist, where the physician administered the anesthesia and the patient reasonably believed the physician would be in charge throughout the procedure. (Id. at pp. 1136-1137.) Importantly, the duty to obtain informed consent rests only with those physicians who have actively managed the patient’s care. (Id. at p. 1134.)
No case has imposed a duty on assisting surgeons to obtain informed consent from the patient. An assisting surgeon is not in the same position to inform the patient of relevant information at the time of prescribing the treatment. An assisting surgeon is generally not actively involved in managing the patient’s care. Rather, an assisting surgeon is generally a member of the hospital staff who works under the supervision of the performing surgeon as needed, with little or no prior contact with the patient to establish a physician-patient relationship. There is no public policy furthered by requiring each hospital employee assisting in the care for a patient to obtain informed consent. This is especially true in this case, where the assisting surgeon is a resident in training. The duty to obtain informed consent should remain with the prescribing and treating physician. As such, Dr. Johnson had the duty to obtain appellant’s informed consent as the physician who prescribed and performed the surgery. Dr. Lineback had no such duty as a resident, assisting primarily in holding and suturing.
C. Duty of Cedars to Obtain Informed Consent
Appellant contends Cedars had a duty to obtain her informed consent to the hysterectomy because it was performed at the hospital. California courts have yet to specifically address the issue. As discussed earlier, it is clear that the court in Cobbs v. Grant, supra, 8 Cal.3d 229, was focusing on the duty of the treating physician to disseminate relevant information to the patient and to gain her informed consent prior to conducting the surgery. (Id. at p. 243.) This duty was based on the fiduciary relationship the treating doctor shared with the patient and the disparity in medical knowledge between the doctor and patient. (Ibid.) A hospital does not share this same fiduciary relationship with the patient. Further, hospital staff members do not necessarily have the same level of expert knowledge regarding the factors to be considered in choosing to undergo treatment, nor are they in the position at the time of prescribing treatment to disseminate the information.
In Derrick v. Ontario Community Hospital (1975) 47 Cal.App.3d 145, the court recognized that placing a duty on the hospital could disrupt the relationship between the treating physician and the patient. (Id. at p. 154.) The court in that case was considering whether the hospital had a duty to inform the patient or her parent that she had a contagious disease. The court found the duty fell exclusively with the treating physician, explaining its reasoning: “We do not think it wise to impose upon Hospital the duty to advise a patient or a patient’s parents concerning the patient’s condition when that duty might substantially interfere with the relationship between the patient and her attending physician.” (Ibid.) The impact on the physician-patient relationship is likely to be even more drastic if a duty to obtain informed consent to treatment were imposed on the hospital. It could disrupt the physician’s ability to recommend and render the treatment which the physician feels is best suited to the situation.
While it is not the case for general surgical procedures, the California Legislature has specifically addressed the issue of consent to performing a hysterectomy. Health and Safety Code section 1690 lays out the specific information which must be given to the patient both orally and in writing before undergoing the surgery. The statute requires that, “Prior to the performance of a hysterectomy, physicians and surgeons shall obtain verbal and written informed consent.” (Health & Saf. Code, § 1690, subd. (a).) This suggests the Legislature considered the issue and did not find it necessary to impose a duty to obtain informed consent on the hospital in the same way as it did for physicians and surgeons.
Other states have addressed the issue. The almost universal consensus has been that, where an independent, nonemployee physician or surgeon performs a surgery utilizing the hospitals facilities, it is the duty of the physician or surgeon alone to obtain the patient’s informed consent and no such duty rests with the hospital. (See, e.g., Krane v. Saint Anthony Hosp. Systems (Colo.App. 1987) 738 P.2d 75; Petriello v. Kalman (D.Conn. 1990) 576 A.2d 474; Auler v. Van Natta (Ind.App. 1997) 686 N.E.2d 172; Giese v. Stice (Neb.1997) 567 N.W.2d 156; Fiorentino v. Wenger (N.Y.App. 1967) 227 N.E.2d 296; Kershaw v. Reichert (N.D. 1989) 445 N.W.2d 16; Goss v. Oklahoma Blood Institute (Okl.App. 1990) 856 P.2d 998; Boney v. Mother Frances Hosp. (Tex.App.-Tyler 1994) 880 S.W.2d 140.) These other jurisdictions have recognized that imposing such a duty, as urged by appellant would detrimentally interfere with the physician-patient relationship.
We decline to impose on the hospital a duty to obtain an additional informed consent from the patient as to surgery performed by a nonemployee physician or surgeon utilizing the hospital’s facilities. In this case, Dr. Johnson prescribed the hysterectomy as an independent physician and then utilized his staff privileges to perform the surgery at the hospital. Dr. Johnson had a duty to obtain appellant’s informed consent, but Cedars had no such duty. Cedars was entitled to summary adjudication as to the cause of action for failure to obtain appellant’s informed consent to the hysterectomy.
VIII. Summary Judgment in Favor of Dr. Lineback
While Cedars’s motion for summary judgment was pending, appellant learned that Dr. Lineback had assisted in her surgery and added her in an amendment to her complaint. Thus Dr. Lineback was not a named party in the motion for summary judgment. Nevertheless, the court granted summary judgment with respect to both respondents.
Appellant contends that this constituted procedural error. Assuming, arguendo, there was procedural error, this alone does not warrant a reversal. Pursuant to Code of Civil Procedure section 475, no judgment should be reversed due to error unless it appears from the record that the error was prejudicial and that a different result would have been likely if the error had not occurred.
Here, it is readily apparent that a different outcome would not have resulted even if Dr. Lineback had filed her own separate motion for summary judgment. Indeed a summary of the procedural circumstances indicates why Dr. Lineback came to be in the unusual situation of joining a codefendant’s pending motion.
Appellant filed her complaint against Cedars on August 6, 2004. In January 2005, she filed her first amended complaint. Dr. Lineback was not named as a defendant in either pleading. In April 2005, Cedars moved for summary judgment, and a hearing was scheduled for June 24, 2005. While Cedars’s motion for summary judgment was pending, Dr. Lineback was added on June 15, 2005, as a Doe defendant. Shortly thereafter, on July 29, 2005, appellant filed her original opposition to Cedars’s motion for summary judgment. Then, at appellant’s request, the motion was continued multiple times to allow her time to submit an amended opposition with a supporting expert declaration. Her amended opposition was filed on October 26, 2005.
Cedars and Dr. Lineback filed a reply brief. This appears to be the first time that Dr. Lineback was mentioned as a moving party in connection with Cedars’s motion for summary judgment. At the hearing on November 9, 2005, Cedars’s counsel stated: “Since filing of the motion for summary judgment, [appellant] amended the complaint to add Dr. Lineback, who’s a resident at Cedars whose only role was assisting in the surgery. [¶] The motion for summary judgment addressed that the surgery complied with the standard of care. . . . Does this motion apply to her”? The trial court concluded that it did, and ordered Cedars’s counsel to prepare an order reflecting its ruling that it was granting summary judgment to Cedars and Dr. Lineback.
Thus, the trial court treated the reply brief as if it were a proper vehicle for Dr. Lineback to formally join Cedars’s summary judgment motion. Dr. Lineback’s “motion” for summary judgment does not comply with the statutory requirements. Dr. Lineback did not file any appropriate moving papers, such as a separate statement. (Code Civ. Proc., § 437c, subd. (b); Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 46-47.) Given that she was first mentioned as a “moving party” in the reply brief, she also did not provide adequate statutory notice that she intended to “join” in Cedars’s motion. (See, e.g., Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 765.) The issue then is whether these failures constitute reversible error.
We conclude that the order granting summary judgment to Dr. Lineback should be affirmed. A judgment may be set aside if, after an examination of the whole record, the court is convinced that an error has resulted in a miscarriage of justice, was prejudicial, and that a different result would be probable if no error had occurred. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 802.) Appellant cannot establish these elements. Other than claiming that her right to notice was violated, she demonstrates no prejudice. She offers no argument or evidence that would compel denial of Dr. Lineback’s motion for summary judgment.
In the same vein, appellant does not demonstrate that a different result would have been probable had the error not occurred. As we noted above, appellant’s claims against Dr. Lineback are limited by her pleadings, which limit her claims to medical malpractice in the performance of the surgery and in the failure to obtain informed consent. As set forth in the trial court’s order granting the motion for summary judgment, there is no evidence that Cedars or its physicians did anything wrong. It follows that appellant has no claim against Dr. Lineback, who merely assisted in the procedure.
In fact, collateral estoppel would bar appellant’s claims. “The doctrine of collateral estoppel precludes relitigation of an issue previously adjudicated if: (1) the issue necessarily decided in the previous suit is identical to the issue sought to be relitigated; (2) there was a final judgment on the merits of the previous suit; and (3) the party against whom the plea is asserted was a party, or in privity with a party, to the previous suit.” (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 910.) Summary judgment in favor of Cedars is a final judgment on the merits establishing that the standard of care was met at all times during appellant’s surgery, without regard to the specific acts of Dr. Johnson or Dr. Lineback. Thus, appellant is collaterally estopped from relitigating this issue, and Dr. Lineback would prevail as a matter of law on any claim for medical malpractice relating to the hysterectomy.
Moreover, Dr. Lineback had no duty to obtain appellant’s informed consent because she was merely a resident assisting in the surgery.
It follows that the procedural errors committed in connection with the trial court’s order granting summary judgment to Dr. Lineback do not amount to reversible error.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.