Motion for Summary Judgment in Steadman, Ernest Compton, Jr. vs Doctor Lionel S Foster JR MD et al| Trellis.Law

On November 04, 2019 a Hearing was filed involving a dispute between Steadman, Ernest Compton, Jr., and Doctor Edward J Orderica Md, Doctor Lionel S Foster Jr Md, for (45) Unlimited Medical Malpractice in the District Court of Butte County.

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1 ROBERT H. ZIMMERMAN, Bar No. 84345
RICHARD J.HOGAN, Bar No. 312947 11/5/2020
2 Schuering Zimmerman & Doyle, llp
400 University Avenue
3 Sacramento, California 95825-6502
(916) 567-0400
4 FAX: 568-0400

5
Attorneys for Defendants EDWARD J. ORDORICA,
6 M.D. (erroneou sly sued as EDWARD J. ORDERICA,
M.D.); LIONEL S. FOSTER, JR., M.D.
7

8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE

10 ERNEST COMPTON STEADMAN, JR., ) NO. 19CV03301
)
11 Plaintiff, ) Assigned to the Honorable Robert A.
) Glusman for All Purposes
12 vs. )
) MEMORANDUM OF POINTS AND
13 DOCTOR LIONEL S. FOSTER JR., M.D., ) AUTHORITIES IN SUPPORT OF
ORDERICA, M.D. ) DEFENDANTS' MOTION FOR
DOCTOR EDWARD J.
14 et al., ) SUMMARY JUDGMENT
)
15 Defendants. ) Date: February 3, 2021
Time: 9:00 a.m.
16 Dept.: 10

17 Trial: October 4, 2021

28
1 TABLE OF CONTENTS

2
Page
3
INTRODUCTION 1
4
II. STATEMENT OF FACTS 1
5
III. STATUTORY AUTHORITY 4
6
ARGUMENT 5
IV.
7
A. THE COURSE OF RADIATION THERAPY WAS ADMINISTERED
8 WITHIN THE STANDARD OF CARE 6

B. LACK OF INFORMED CONSENT 8
9

10 1. Dr. Foster and Dr. Ordorica's Pre-Treatment
Advisements Regarding All Available Options
11 to Treat Mr. Steadman's Aggressive Prostate Cancer
Were Appropriate 9
12
2. Dr. Foster and Dr. Ordorica's Pre-Treatment
13 Advisements Regarding Risks and Benefits of Intensity-
Modulated Radiation Therapy Were Appropriate 10
14
11
V. CONCLUSION
15

01296716.WPD
i

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1 TABLE OF AUTHORITIES

2 Page

3 Cases

4 Blair v. Pitchess (1971) 5 Cal.3d 258 4

5 Cedars-Sinai Medical Center v. Superior Court (1988) 206 Cal.App.3d 414 . . 5

6 Coyne v. Krempels (1950) 36 Cal.2d 257 5

7 Custodio v. Bauer (1967) 251 Cal.App.2d 303 7

8 Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992 7

Folk v. Kilk (1975) 53 Cal.App.3d 176 7
9

v. Prisinzano (1972) 23 Cal.App.3d 275 7
10 Keen

Landeros v. Flood (1976) 17 Cal.3d 399 7
11

Cracchiolo (1985) 38 Cal.3d 18 7
12 Mann v.

Filice (1967) 252 Cal.App.2d 613 5
13 McDonald v.

Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412 5
14 Stationers

v. Williams (1989) 211 Cal.App.3d 566 5
15 Thompson

252 Cal.App.2d 158 4
16 Truslow v. Woodruff { 1967)

(1995) 31 Cal.App.4th 573 5
17 Union Bank v. Superior Court

(1995) 35 Cal.App.4th 733 5
18 Villa v. McFerren

19 Statutes

4
20 Code Civ. Proc., §437c

Civ. Proc., §437c(p)(2) 5
21 Code

0 129671 6.WPD
ii

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1 I.

2 INTRODUCTION

On November 4, 2019, plaintiff Ernest Compton Steadman, Jr. ("Plaintiff") filed a
3

4 document entitled, "Affidavit of Truth in Support of Notice of Motion and Motion for

5 Tort Claim Damages; Motion for Trial by Jury." (See Plaintiffs Affidavit of Truth in

6 Support of Notice of Motion and Motion for Tort Claim Damages; Motion for Trial by

7 Jury, Exhibit A to Appendix of Evidence in Support of Motion for Summary Judgment

8 (Appendix of Evidence) filed herewith.) The Court and counsel have treated this

document as the operative complaint. A detailed reading of the Complaint shows that
9

10 it pleads one cause of action for medical malpractice and one cause of action for lack

11 of informed consent under two separate theories.

On December 5, 2019, Defendants LIONEL S. FOSTER, JR., M.D. and EDWARD J.
12

13 ORDORICA, M.D. served on Plaintiff a Demurrer and Motion to Strike. (See Defendant's

14 Motion to Strike, Exhibit B to Appendix of Evidence.) On January 31, 2020, the Court

15 denied the demurrer, and granted the motion to strike. (See Notice of Entry of Order

16 granting Defendant's Motion to Strike, Exhibit C to Appendix of Evidence.) The Court

17 ordered most of the content contained within the Complaint to be stricken. (See

18 redacted Complaint after Motion to Strike, Exhibit D to Appendix of Evidence.)

This Motion for Summary Judgment is filed on behalf of Lionel S. Foster, Jr.,
19

M.D. and Edward J. Ordorica, M.D., and is based on the grounds that Dr. Foster and Dr.
20

21 Ordorica met the standard of care at all times in treating plaintiff.

22 II.

23 STATEMENT OF FACTS

Dr. James Brown, a primary care physician, referred Mr. Steadman to Dr. Foster,
24

25 following an elevated prostate specific antigen level of 1 1.2 and possible prostate

26 cancer. An elevated prostate specific antigen can be a sign of prostate cancer. A

27 prostate specific antigen level above 4.0 is considered to be elevated. (Separate

28 Statement of Undisputed Material Facts (SSUMF) 1.)

0!296716.WPD
l

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Dr. Foster first saw Mr. Steadman on July 21,2017. Mr. Steadman was a 79- year
1

2 old man who presented for treatment related to an elevated prostate specific antigen

3 level and possible prostate cancer. Dr. Foster recommended a transrectal ultrasound

4 biopsy. On August 3, 201 7, Dr. Foster performed a biopsy of Mr. Steadman's prostate.

Dr. Steven DeMartini evaluated the biopsied material and diagnosed Mr. Steadman
5

6 with prostate cancer. Mr. Steadman's prostate cancer was scored at Gleason 9.

7 Gleason score 9 is an aggressive form of prostate cancer. (SSUMF 2.)

On August 1 7, 201 7, Dr. Foster saw Mr. Steadman to discuss the results of the
8

Dr. Foster reviewed the results with Mr. Steadman in great detail. Dr. Foster
9 biopsy.

10 discussed treatment options, including active surveillance, androgen deprivation

therapy, radiation therapy, and radical prostatectomy. Dr. Foster suggested Mr.
11

Steadman undergo androgen deprivation therapy and radiation therapy. Dr. Foster
12

concluded active surveillance was inappropriate given the aggressiveness of the
13

Dr. Foster also concluded a radical prostatectomy was inappropriate given Mr.
14 cancer.

15 Steadman's age. Mr. Steadman did not make an immediate treatment decision. A

16 follow-up was scheduled. (SSUMF 3.)

17 On September 7, 201 7, Dr. Foster saw Mr. Steadman for a treatment decision.

18 Mr. Steadman presented to Dr. Foster with several family members. Treatment options

19 were again discussed at length, including active surveillance, androgen deprivation

therapy, radiation therapy, and radical prostatectomy. The risks, benefits, possible side
20

21 effects and complications of androgen deprivation therapy and radiation therapy were

22 again discussed. Dr. Foster again concluded active surveillance and radical

prostatectomy were inappropriate. Mr. Steadman agreed to radiation therapy, but
23

24 declined to undergo androgen deprivation therapy. Dr. Foster ordered a radiation

25 oncology consultation at the next available date. (SSUMF 4.)

26 On September 14, 201 7, Dr. Ordorica saw Mr. Steadman for a radiation therapy

consultation. Mr. Steadman's prostate specific antigen levels had increased to 1 4,
27

which indicated his condition was worsening. Dr. Ordorica concluded Mr. Steadman
28

0 129671 6.WPD
2

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1 was not a candidate for a radical prostatectomy given his advanced age. Dr. Ordorica

2 determined radiation therapy was appropriate. Mr. Steadman agreed to proceed with

3 radiation therapy, but refused to begin treatment until being assessed with a bone

4 scan and a CT scan, which had not been recommended by a physician. (SSUMF 5.)

5 On September 18, 201 7, a CT scan of Mr. Steadman's abdomen and pelvis was

6 completed. On September 29, 201 7, a body bone scan of Mr. Steadman was

7 completed. (SSUMF 6.)

8 On October 3, 201 7, Dr. Ordorica saw Mr. Steadman for a follow-up regarding

9 radiation therapy treatment. Dr. Ordorica advised Mr. Steadman that the plan was for

10 treatment of the larger volume and adjacent nodes at 45 grays. Dr. Ordorica would

11 then reduce to the planning target volume encompassing the prostate and seminal

12 vesicle basis, with treatment at 75 grays. There would be 42 therapy sessions. A

13 prostate specific antigen test would be completed at the start of treatment and another

14 prostate specific antigen test would be completed five weeks into radiation therapy.

15 (SSUMF 7.)

16 On October 26, 2017, Mr. Steadman signed a form memorializing his consent for

17 radiation therapy. The consent form indicated that Mr. Steadman had been informed

18 about the nature of his prostate cancer, the process of radiation therapy and potential

19 risks and expected benefits. The form also indicated Mr. Steadman's questions had

20 been answered satisfactorily and other treatment options had been discussed as

21 appropriate. There were no guarantees about the results of the treatment. Further, it

22 advised Mr. Steadman that side effects would depend on the area treated, individual

23 tolerance, the dose of radiation needed to achieve the desired effect as well as other

24 factors. It advised that side effects that may appear during radiation therapy included

25 fatigue, skin irritation, and loss of hair. Uncommon but possible side effects were

26 headache, nausea, worsening of pre-existing conditions and fatigue. (SSUMF 8.)

27 Mr. Steadman completed 42 radiation therapy sessions with Dr. Ordorica,

28 between November 1, 2017, and January 12, 2018. Between November 1, 2017, and

01296716.WPD 3

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
18, 2017, Mr. Steadman received radiation dosages of 45 grays. Between
1 December

and January 12, 2018, Mr. Steadman received radiation dosages of
2 December 19, 2017

3 75 grays. There were no adverse events during radiation therapy. (SSUMF 9.)

Dr. Foster was the referring urologist and was not involved in the administration
4

5 of the radiation therapy. (SSUMF 10.)

6 On February 22, 2018, Dr. Ordorica saw Mr. Steadman for a follow-up after

therapy. Dr. Ordorica formed the impression Mr. Steadman
7 completion of radiation

no lingering acute toxicity from the radiation therapy. The plan was to test Mr.
8 had

9 Steadman's prostate specific antigen level within one week. (SSUMF 1 1 .)

10 On January 3, 2019, Dr. Peter Ree saw Mr. Steadman for a regularly scheduled

11 prostate cancer treatment follow-up. Mr. Steadman's prostate specific antigen level

12 had decreased to 1.45. (SSUMF 12.)

13 III.

14 STATUTORY AUTHORITY

15 Code of Civil Procedure section 437c, provides in pertinent part:

16 (a) A party may move for summary judgment in an action or
proceed ing if itis contend ed that the action has no merit ....
17
(c) The motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any material
18
fact and that the moving party is entitled to a judgment as a matter of
19 law. ...

(p)(2) A defendant or cross-defendant has met his or her burden
20
of showing that a cause of action has no merit ifthe party has shown that
one or more element s of the cause of action, even ifnot separate ly
21
pleaded , cannot be establish ed, or that there is a complet e defense to
22 the cause of action. ...

The primary duty of the court in ruling on a motion for summary judgment is to
23

are issues of fact to be tried. {Blair v. Pitchess (1971) 5 Cal.3d
24 determine whether there

284-285.) Where there are no such issues requiring the weighing procedures of a
25 258,

26 trial, summary judgment should be granted to effectively expedite litigation by

27 avoiding unnecessary trials. {Truslow v. Woodruff { 1967) 252 Cal.App.2d 158.)

28 III

01296716.WPD
4

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1 It is well established the purpose of the summary judgment procedure is to

2 penetrate through evasive language in the pleadings and to ascertain the existence or

3 absence of triable issues of fact. ( Thompson v. Williams (1989) 21 1 Cal.App,3d 566,

4 572; Cedars-Sinai Medical Center v. Superior Court (1988) 206 Cal.App.3d 414, 418.)

5 Summary judgment serves to pierce the pleadings and free the court and parties of

6 non-meritorious suits. (Stationers Corp, v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412.)

7 Under the standard discussed above, the defendant's initial burden is to show

8 one or more elements in a plaintiffs cause of action cannot be established, or that

9 there is a complete defense to that cause of action. (Villa v. McFerren (1995) 35

10 Cal.App.4th 733.) The burden then shifts to the plaintiff to produce prima facie

11 evidence on each element of the cause of action, and if the plaintiff is unable to

12 produce sufficient evidence on any element of the cause of action, the defendant is

13 entitled to summary judgment. (Code Civ. Proc., §437c(p)(2); Union Bank v. Superior

14 Court (1995) 31 Cal.App.4th 573.)

15 If it appears from an examination of the evidence found in connection with the

16 motion for summary judgment that no triable issue of material fact exists, the granting

17 of the motion for summary judgment is proper. {Coyne v. Krempels (1950) 36 Cal.2d

18 257, 261.)

19 IV.

20 ARGUMENT

21 Plaintiffs complaint is artlessly pled, making the causes of action difficult to

22 discern. The law is clear that, even though a plaintiff may label their causes of action,

23 they will not necessarily be bound by those labels. "It is an elementary principle of

24 modern pleading that the nature and character of a pleading is to be determined from

25 its allegations, regardless of what it may be called, and that the subject matter of an

26 action and issues involved are determined from the facts alleged rather than from the

27 title of the pleadings or the character of the damage recovery suggested in connection

28 with the prayer for relief." {McDonald v. Filice (1967) 252 Cal.App.2d 613, 622.)

01296716.WPD
5

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1 There are two sections of plaintiffs complaint that illuminate its gravamen. The

2 first pertinent section alleges: "The Defendant(s) through medical negligence did

3 cause medical and emotional harm to the Plaintiff. The Plaintiff was never warned of

4 the possible damaging effect due to too much radiation exposure causing egregious

5 tort claim damages." (See Exhibit D at 2:3-6.) The second pertinent section alleges:

6 "The Defendant(s) did expose the Plaintiff to excessive and damaging radiation

7 effects. ..Each Defendant either knew, or should have known that excessive and

8 damaging radiation effects could affect the medical safety of the Plaintiff... The

9 Defendant(s) failed to warn the Plaintiff about the damaging effects of too much and

10 too frequent exposure to excessive radiation exposure. ..Excessive radiation exposure

11 is not safe and should not be used to treat cancer of the prostate in preference to other

12 safe treatments such as surgery or chemotherapy." (See Exhibit D at 5:12-18.)

13 The allegations and form of plaintiffs complaint essentially put forth two causes

14 of action. The first cause of action alleges medical malpractice based on negligent

15 administration of radiation therapy. The second cause of action alleges lack of

16 informed consent based on: (1) failure to provide pre-treatment advisements

17 regarding all available options to treat plaintiffs aggressive prostate cancer; and (2)

18 failure to provide pre-treatment advisements regarding risks and benefits of intensity-

19 modulated radiation therapy.

20
A. THE COURSE OF RADIATION THERAPY WAS ADMINISTERED WITHIN THE
21 STANDARD OF CARE

22 Plaintiffs first cause of action alleges medical malpractice based on negligent

23 administration of radiation therapy. To prevail at trial on a medical malpractice cause

24 of action, plaintiff will be required to prove by a preponderance of the evidence that:

25 (1) defendants were negligent, that is, they breached the applicable standard of care;

26 (2) plaintiff was harmed; and (3) defendants' negligence was a substantial factor in

27 causing plaintiffs harm. (Judicial Council of California, Civil Jury Instructions (2017-

28 2018) CACI Nos. 500, 501, 502.)

01296716.WPD 6

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1 The fundamental principle of medical malpractice is that a healthcare provider

2 is not liable for injuries to a patient unless the injuries are caused by the provider's

3 failure to possess and exercise the reasonable degree of skill, knowledge, and care

4 that is ordinarily possessed by healthcare providers in the same or similar

5 circumstances. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8

6 CaMth 992.)

7 There are certain general principles that must be observed with respect to

8 medical malpractice cases. The law has never held a physician or surgeon liable for

9 every untoward result which may occur in medical practice, but it demands only that a

10 physician or surgeon have the degree of learning and skill ordinarily possessed by the

11 practitioners of the medical profession in applying such learning and skill for the

12 treatment of his patients. (Custodio v. Bauer (1967) 251 Cal.App.2d 303, 31 1; see also

13 Landeros v. Flood (1976) 17 Cal.3d 399.)

Ordinarily, the question whether a healthcare provider has failed to exercise the
14

15 requisite care, diligence and skill must be based on expert medical testimony.

16 (Landeros v. Flood, supra, 17 Cal.3d at 410.) In the absence of a showing that a

17 particular result is a matter of common knowledge, expert medical testimony is

18 required. (Keen v. Prisinzano (1972) 23 Cal.App.3d 275, fn. 4.) The prevailing standard

19 of care and the propriety of particular conduct is not a matter of general knowledge.

20 Expert testimony on such matters is conclusive and cannot be disregarded. {Folk v.

21 Kilk (1975) 53 Cal.App.3d 176, 185.) Consequently, courts have found that when

22 healthcare provider defendants have introduced expert testimony negating a triable

23 issue of fact, the plaintiff must introduce contradictory expert testimony in order to

24 avoid summary judgment. {Mann v. Cracchiolo (1985) 38 Cal.3d 18, 41.)

25 In this case, Dr. Foster and Dr. Ordorica have retained a board certified

26 oncologist and hematologist, David Harrison, M.D., to evaluate the care they provided

27 to plaintiff related to his diagnosis of prostate cancer. Dr. Harrison has opined Dr.

28 III

01296716.WPD
7

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1 Foster and Dr. Ordorica met the standard of care at all times in their care and

2 treatment of Mr. Steadman. (SSUMF 1 7.)

3 According to Dr. Flarrison, the course of radiation therapy was administered

4 within the standard of care. The quantity (42 radiation therapy sessions between

5 November 1,201 7, and January 12, 2018) and quality (dosages of 45 grays between

6 November 1, 2017, and December 18, 2017, and dosages of 75 grays between

7 December 19, 2017, and January 12, 2018) of the radiation treatment that was

8 administered was appropriate. (SSUMF 16.)

9 Dr. Foster was the urologist who referred plaintiff to Dr. Ordorica, but was not

10 involved in the administration of radiation therapy. (SSUMF 10.) Dr. Foster thus could

11 not have fallen below the standard of care in administration of the radiation therapy

12 because he was not involved in the care.

13 Dr. Foster and Dr. Ordorica are entitled to judgment as a matter of law with

14 regard to plaintiffs first cause of action, alleging medical malpractice, because plaintiff

15 cannot prove the first element of CACI 500, 501, 502; that is, he cannot prove Dr. Foster

16 and Dr. Ordorica did not meet the standard of care. (SSUMF 17.) Dr. Foster was not

17 involved in the administration of radiation therapy. Dr. Ordorica administered the

18 radiation therapy, but he did so appropriately. (SSUMF 16.) Dr. Harrison's declaration

19 makes clear that Dr. Ordorica's care was within the standard of care. (SSUMF 1 7.)

20 Thus, Dr. Foster and Dr. Ordorica's motion for summary judgment should be granted.

21 B. LACK OF INFORMED CONSENT

22 To prevail at trial on a lack of informed consent cause of action, plaintiff will be

23 required to prove by a preponderance of the evidence that: (1) Dr. Foster or Dr.

24 Ordorica performed radiation therapy on plaintiff; (2) Dr. Foster or Dr. Ordorica did not

25 disclose to plaintiff the important potential risks and alternatives to radiation therapy;

26 (3) that a reasonable person in plaintiffs position would not have agreed to the

27 radiation therapy if that person had been adequately informed; and (4) that plaintiff

28 was harmed by a result or risk that Dr. Foster or Dr. Ordorica should have explained.

0 129671 6.WPD 8

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1 (CACI 533.) Dr. Foster and Dr. Ordorica are entitled to judgment as a matter of law

to plaintiffs lack of informed consent cause of action because they
2 with regard

the important risks of, and alternatives to, radiation therapy, and because a
3 disclosed

4 reasonable person in plaintiffs position would have agreed to radiation therapy having

5 been adequately informed.

6 1. Dr. Foster and Dr. Ordorica's Pre-Treatment Advisements Regarding
All available Options to Treat Mr. Steadma n's Aggress ive Prostate
7 Cancer Were Appropriate

Dr. Harrison has opined that Mr. Steadman was appropriately advised of all
8

available treatment options in compliance with the standard of care. (SSUMF 13.) The
9

reasonable treatment options available to Mr. Steadman were: (1) active surveillance;
10

11 (2) androgen deprivation therapy; (3) radical prostatectomy; and (4) radiation therapy.

Dr. Foster and Dr. Ordorica's advisements against active surveillance were appropriate
12

the chances for early metastasis into sites, including the bones, would have
13 because

14 substantially increased, resulting in death or serious symptomatology if not treated

15 immediately. (SSUMF 13.) Dr. Foster and Dr. Ordorica's advisements against a radical

prostatectomy were appropriate because the procedure was not feasible given Mr.
16

17 Steadman's advanced age. (SSUMF 13.) Dr. Foster and Dr. Ordorica were within the

18 standard of care in advising Mr. Steadman to undergo androgen deprivation therapy

and radiation therapy because those treatments were most likely to provide a
19

20 significant remission in symptoms and reasonable time control of Mr. Steadman's

21 prostate cancer given his particular situation. (SSUMF 13.) Mr. Steadman made an

informed decision to decline androgen deprivation therapy. It was appropriate to
22

23 proceed with radiation therapy. (SSUMF 13.)

Radiation therapy, as recommended by Dr. Foster and Dr. Ordorica, was the
24

25 only reasonable treatment option. (SSUMF 15.) Active surveillance would not have

been a reasonable treatment option, because Mr. Steadman's aggressive prostate
26

27 cancer would have resulted in metastasis, severe symptoms, and likely death if left

28 untreated. (SSUMF 15.) A radical prostatectomy would not have been a reasonable

0 129671 6.WPD
9

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1 treatment option, because Mr. Steadman was likely too old to tolerate the procedure.

2 (SSUMF 15.) Mr. Steadman declined to proceed with androgen deprivation therapy.

3 (SSUMF 15.) Furthermore, androgen deprivation therapy is not a solution by itself; it

4 must be paired with another form of treatment to be effective, such as radiation

5 therapy. (SSUMF 15.) Mr. Steadman had to undergo radiation therapy treatment to

6 prevent death. (SSUMF 15.)

7 Dr. Harrison's expert declaration affirmatively establishes the plaintiff cannot

8 meet the second and third elements of plaintiffs lack of informed consent cause of

9 action based on a failure to advise of alternative treatment options. Plaintiff cannot

10 prove the second element against Dr. Foster or Dr. Ordorica because they disclosed all

11 the reasonable alternatives to radiation therapy. Plaintiff cannot prove the third

12 element against Dr. Foster or Dr. Ordorica because a reasonable person in plaintiffs

13 position would have agreed to radiation therapy regardless of being adequately

14 informed. Thus, Dr. Foster and Dr. Ordorica are entitled to judgment as a matter of law

15 with regard to plaintiffs lack of informed consent cause of action based on his theory

16 that Dr. Foster and Dr. Ordorica failed to advise plaintiff of alternative treatment

17 options.

18 2. Dr. Foster and Dr. Ordorica's Pre-Treatment Advisements Regarding
Risks and Benefits of Intensity-Modulated Radiation Therapy Were
19 Appropriate

20 Dr. Harrison has opined that Mr. Steadman was appropriately advised of risks

21 and benefits of radiation therapy. (SSUMF 14.) The records from Oroville Hospital

22 specifically note that on August 1 7,201 7, and September 7, 201 7, the risks and benefits

23 of all potential treatment options were discussed with Mr. Steadman. (SSUMF 14.) The

24 notes reflect a lengthy, detailed explanation of the risks and benefits of the particular

25 treatment options. (SSUMF 14.) Dr. Foster properly advised Mr. Steadman of the risks

26 and benefits of the potential treatment options, including radiation therapy. (SSUMF

27 1 4.) Mr. Steadman signed a consent form for radiation therapy given to him by Dr.

28 Ordorica's office that indicated advised consent had been given. (SSUMF 14.)

0 129671 6.WPD 10

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1 Radiation therapy, as recommended by Dr. Foster and Dr. Ordorica, was the

2 only reasonable treatment option. (SSUMF 15.) Active surveillance would not have

3 been a reasonable treatment option, because Mr. Steadman's aggressive prostate

4 cancer would have resulted in metastasis, severe symptoms, and likely death if left

5 untreated. (SSUMF 15.) A radical prostatectomy would not have been a reasonable

6 treatment option, because Mr. Steadman was

Case Info

Judge

Benson, Stephen E Track Judge’s New Case

Case No.

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Document Filed Date

February 03, 2021

Case Filing Date

November 04, 2019

County

Parties

Doctor Edward J Orderica MD Defendant
Doctor Lionel S Foster JR MD Defendant
Henderson, Dennise Suzanne Attorney for the Plaintiff
Hogan, Richard James Attorney for the Defendant
Steadman, Ernest Compton, Jr. Plaintiff
Zimmerman, Robert Harry Attorney for the Defendant
Steven Schultz Attorneys for Plaintiffs
Daniel Weltin Attorneys for Plaintiffs
Robert Deering Attorney
Scott Cole Attorneys for Plaintiffs
Laura Van Note Attorneys for Plaintiffs
Cody Bolce Attorneys for Plaintiffs
Dorsett Lyde Attorneys for Defendants
Michael Gallert Attorneys for Defendants
Kat Todd Attorneys for Defendants
Douglas Kraft Attorneys for Plaintiffs
John McCaslin Attorneys for Plaintiffs
Edward Vaisbort Attorneys for Plaintiffs
Eric Rans Attorneys for Plaintiffs
Jane Kutepova Attorneys for Plaintiffs
Joshua Borger Attorneys for Defendants

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Hearing: Steadman, Ernest Compton, Jr. vs Doctor Lionel S Foster JR MD et al

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