Preview
Superior Court of California
JAMES J. THOMPSON SBN:63003
County of Butte
2535 CEANOTHUS AVENUE SUITE 126
CHICO, CA95973
Tel: 530-342-0886 3/9/2021
JJTLAW@SABER.NET
Ki rk
JOEL B. MASSAE SBN:262732 By Deputy
Electroni ily PALED
P.O. BOX 3104
PARADISE, CA 95967
Tel: 530-966-1684
NORCALATTORNEY@GMAIL.COM
Attorney for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF BUTTE
11
12 LYNN REICHENBACH, Successor in Interest Case No.: 19CV01124
to the Estate of GORDON REICHENBACH
13 and Individually
OPPOSITION TO DEFENDANT
14 xxxxxx S. xxxxxx, M.D.’s MOTION
Plaintiffs FOR SUMMARY ADJUDICATION
15
16
VS. DATE: MARCH 24, 2021
17 TIME: 9:00 A.M.
18
DEPT: 10
xxxxxx S. xxxxxx, M.D. xxxxxx
19 xxxxxxxx, MD, and DOES ONE through
FIFTY, inclusive
20
21 Defendants.
22
23 Plaintiff, GORDON REICHENBACH herein submits its opposition to defendant
24 xxxxxx S. xxxxxx, M.D.’s MOTION FOR SUMMARY ADJUDICATION as to Plaintiff's
25
MEDICAL BATTERY cause of action to Plaintiffs Second Cause of Action for Medical
26
Battery appearing in Plaintiff's First Amended Complaint. Plaintiff opposes Defendant’s motion
27
28
on the grounds that Plaintiff's second cause of action is supported by disputed facts and by the
law.
This opposition is based on the Opposition, the attached memorandum of points and
authorities on the complete files and records of this action and on such oral and or such
documentary evidence that may be submitted on the hearing of the motion.
MEMORANDUM OF POINTS AND AUTHORITIES
10 I
i Introduction
12
13 Factually, Defendant argues he is intitled to summary adjudication because former
14 plaintiff, GORDON REICHENBACH, hereinafter “decedent” gave informed consent to
15
defendant xxxxxx to remove his healthy kidney; Defendant relied on a false left kidney CT
16
scan performed by Co-Defendant and radiologist, xxxxxxxx indicating that the left kidney was|
17
18 probably diseased or otherwise cancerous and presumably his training and experience as an
19 expert in his field of practice. Based on these facts, defendant argues that the law supports his
20 position based on decedent’s informed consent. The reliance on the particular set of facts alleged
21
in defendant’s moving papers are incomplete and thus the legal arguments must fail.
22
23 Decedent’s medical records show that a CT Scan of Decedent’s liver was performed on
24 May 18, 2018 indicating a mass on his right kidney. Opposing Party’s Response and Supporting
25
Evidence No. 1, (“PR”) and Massae Dec. Exhibit “B”. This fact was not mentioned in defendant
26
xxxxxx’s moving papers.' However, decedent knew that his right kidney would be removed as
27
28
he reviewed the MRI’s from Feather River Hospital, Adventist Health [PR No. 1] and Massae
Dec. Exhibit “A”. Despite decedent’s reliance on defendant xxxxxx’s assertion that decedent’s
left kidney was probably cancerous, factually the right kidney was cancerous [PR No. 1] and
Massae Dec. Exhibit “B”. The underlying facts provided to decedent were false. Objectively,
defendant could not have consented to the removal of his left health kidney.
Decedent was given false information about the condition of his left kidney. Further, since there
is no dispute that the preoperative diagnosis was probable versus an absolutely certain diagnosis
of cancer, during the procedure, defendant, xxxxxx should have taken a biopsy of the left
10
11 kidney prior to its removal, stitched decedent’s incision and sent the biopsy out for histology.
12 Defendant made a conscience decision to rely on the CT scan performed by Co-defendant,
13
xxxxxxxx and what xxxxxx observed as an “indeterminate renal mass” on decedent’s left
14
kidney” [Massae Dec. No. 6 as Exhibit “C”] and the mass he alleges he felt on the kidney prior
15
16 to its removal. Not only was xxxxxx negligent, he committed a medical battery" as decedent
17 could not have objectively consented to the removal of his healthy left kidney.
18
Il.
19
LEGAL ARGUMENTS
20
21 B. Defendant consented to the removal of his diseased kidney and a healthy kidney was
removed and thus a substantially different procedure was performed and a Medical
22
Battery occurred [Cobbs v. Grant (1972) 8 Cal.3d 229, 239 [104 Cal.Rptr. 505, 502 P.2d 1]
23 Basically, defendant xxxxxx’s argument is that since decedent in consented writing to
24
the removal of his left kidney which purportedly was diseased, the removal of a healthy kidney ig
25
within the scope of consent. Not so. The removal of Plaintiff's healthy kidney was a substantial!
26
27 different procedure compared to what was agreed to by plaintiff which was the removal of his
28 diseased kidney. (Dec. of Massae, Exhibit “A”] In the 1975 California Supreme Court case off
Cobbs v. Grant the court stated that “Where a doctor obtains consent of the patient to perform]
one type of treatment and subsequently performs a substantially different treatment for which)
consent was not obtained, there is a clear case of battery.” [Cobbs v. Grant (1972) 8 Cal.3d 229.
239 [104 Cal.Rptr. 505, 502 P.2d 1].) The removal of a healthy kidney versus a diseased kidney]
is a substantially different procedure. Consent is not valid as the underlying information leading}
to plaintiff's consent was untrue. If decedent did not give his informed or knowledgeable
consent, the performance of the removal of his kidney would constitute a technical battery
pursuant to [Pedesky v. Bleiberg (1967) 251 Cal. App.2d 119 [59 Cal. Rptr. 294]). Id. Cobbs v.
10
Grant (19720 8 Cal.3d 229, 239 cites to Zoterell v. Repp (1915) 187 Mich. 319 [153 N.W. 692]
11
“[cJonsent given for a hernia operation during which doctor also removed both ovaries”
12
13 Tl.
14 CONCLUSION
15
Plaintiff did not give consent to the removal of his healthy as the underlying facts leading
16
17 plaintiff to consent to the removal of his left kidney were untrue. The surgical procedure that was|
18 performed in removing his healthy kidney was a substantially different treatment than was
19
expressly consented which was the removal of a diseased kidney and thus a medical battery was
20
perpetrated upon decedent. Plaintiff request Defendant’s Motion be denied.
21
22
23
pica: 2 / Ve
25 JOEL B. MASSAE,
“Attorney for Plaintiff,
26 LYNN REICHENBACH
27
28
‘ Rio Linda Unified School Dist. v . Sup.Ct (1997) 52 CA 4", 732,740 “If a party contends some particular issue of
fact has no support in the record, it must set forth a// the material evidence on the point and not merely the evidence
favorable to it.”
ii Judicial Council of California Civil Jury Instructions (2021 edition) CACI No. 530 (A) 1. [That [name of
defendant] performed a medical procedure without [name of plaintiff]’s consent; [or]]1. [That [nameof plaintiff]
consented to one medical procedure, but [name of defendant] performed a substantially different medical
procedure;]2. That [name of plaintiff] was harmed; and 3. That [name of defendant]’s conduct was a substantial
factor in causing [name of plaintiff]’s harm.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PROOF OF SERVICE
REICHENBACH V. xxxxxx, et al.
BCSC Case No. 19CV01124
I am a resident of the County of Butte, State of California. My Business address is P.O. Box
3104 Paradise, CA 95967. I am over the age of 18 years and not a party to this action.
On March 9, 2021 I served the within Plaintiff's OPPOSITION TO DEFENDANT
xxxxxx S. xxxxxx, M.D.’s MOTION FOR SUMMARY ADJUDICATION
on the foregoing party(ies) in said action addressed as follows:
D. Mare Lyde Email to: Michaelgallert@yahoo.com
Michael G. Gallert
Leonard & Lyde
1600 Humboldt Road Suite 1
Chico, CA 95928
Robert H. Zimmerman. Email to:
Shuering Zimmerman & Doyle RHZ@szs.com
400 University Avenue DJV@szs.com
Sacramento, CA 95825 KSB@szs.com
DMK@szs.com
calendar@szs.com
0 USPS MAIL: I am familiar with my practice of mailing of my office
whereby each document is placed in an envelope, the envelope is sealed,
the appropriate postage is placed thereon and the sealed envelope is
placed in a post office location in Paradise, California.
Q FAX: I personally sent to the addressee’s telecopier number a true copy
of the above-described document(s), and verified said transmission.
PERSONAL SERVICE: I personally caused delivery by hand to the
office of the addressee.
O Federal Express Delivery: I personally placed the document in a sealed
envelope or box and had it delivered Federal Express courier from
Paradise, California, via, Overnight Delivery and Ground Delivery.
[xx] EMAIL: By electronic transmitting to the person(s) whose named herein
at the e-mail address indicated.
1 affirm under the laws of the State of California that the foregoing is true and
correct, executed on March 9, 2021 at Paradise, California.
ie...
JDEL B. SSAE
Preview
Superior Court of California JAMES J. THOMPSON SBN:63003 County of Butte 2535 CEANOTHUS AVENUE SUITE 126 CHICO, CA95973 Tel: 530-342-0886 3/9/2021 JJTLAW@SABER.NET Ki rk JOEL B. MASSAE SBN:262732 By Deputy Electroni ily PALED P.O. BOX 3104 PARADISE, CA 95967 Tel: 530-966-1684 NORCALATTORNEY@GMAIL.COM Attorney for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF BUTTE 11 12 LYNN REICHENBACH, Successor in Interest Case No.: 19CV01124 to the Estate of GORDON REICHENBACH 13 and Individually OPPOSITION TO DEFENDANT 14 xxxxxx S. xxxxxx, M.D.’s MOTION Plaintiffs FOR SUMMARY ADJUDICATION 15 16 VS. DATE: MARCH 24, 2021 17 TIME: 9:00 A.M. 18 DEPT: 10 xxxxxx S. xxxxxx, M.D. xxxxxx 19 xxxxxxxx, MD, and DOES ONE through FIFTY, inclusive 20 21 Defendants. 22 23 Plaintiff, GORDON REICHENBACH herein submits its opposition to defendant 24 xxxxxx S. xxxxxx, M.D.’s MOTION FOR SUMMARY ADJUDICATION as to Plaintiff's 25 MEDICAL BATTERY cause of action to Plaintiffs Second Cause of Action for Medical 26 Battery appearing in Plaintiff's First Amended Complaint. Plaintiff opposes Defendant’s motion 27 28 on the grounds that Plaintiff's second cause of action is supported by disputed facts and by the law. This opposition is based on the Opposition, the attached memorandum of points and authorities on the complete files and records of this action and on such oral and or such documentary evidence that may be submitted on the hearing of the motion. MEMORANDUM OF POINTS AND AUTHORITIES 10 I i Introduction 12 13 Factually, Defendant argues he is intitled to summary adjudication because former 14 plaintiff, GORDON REICHENBACH, hereinafter “decedent” gave informed consent to 15 defendant xxxxxx to remove his healthy kidney; Defendant relied on a false left kidney CT 16 scan performed by Co-Defendant and radiologist, xxxxxxxx indicating that the left kidney was| 17 18 probably diseased or otherwise cancerous and presumably his training and experience as an 19 expert in his field of practice. Based on these facts, defendant argues that the law supports his 20 position based on decedent’s informed consent. The reliance on the particular set of facts alleged 21 in defendant’s moving papers are incomplete and thus the legal arguments must fail. 22 23 Decedent’s medical records show that a CT Scan of Decedent’s liver was performed on 24 May 18, 2018 indicating a mass on his right kidney. Opposing Party’s Response and Supporting 25 Evidence No. 1, (“PR”) and Massae Dec. Exhibit “B”. This fact was not mentioned in defendant 26 xxxxxx’s moving papers.' However, decedent knew that his right kidney would be removed as 27 28 he reviewed the MRI’s from Feather River Hospital, Adventist Health [PR No. 1] and Massae Dec. Exhibit “A”. Despite decedent’s reliance on defendant xxxxxx’s assertion that decedent’s left kidney was probably cancerous, factually the right kidney was cancerous [PR No. 1] and Massae Dec. Exhibit “B”. The underlying facts provided to decedent were false. Objectively, defendant could not have consented to the removal of his left health kidney. Decedent was given false information about the condition of his left kidney. Further, since there is no dispute that the preoperative diagnosis was probable versus an absolutely certain diagnosis of cancer, during the procedure, defendant, xxxxxx should have taken a biopsy of the left 10 11 kidney prior to its removal, stitched decedent’s incision and sent the biopsy out for histology. 12 Defendant made a conscience decision to rely on the CT scan performed by Co-defendant, 13 xxxxxxxx and what xxxxxx observed as an “indeterminate renal mass” on decedent’s left 14 kidney” [Massae Dec. No. 6 as Exhibit “C”] and the mass he alleges he felt on the kidney prior 15 16 to its removal. Not only was xxxxxx negligent, he committed a medical battery" as decedent 17 could not have objectively consented to the removal of his healthy left kidney. 18 Il. 19 LEGAL ARGUMENTS 20 21 B. Defendant consented to the removal of his diseased kidney and a healthy kidney was removed and thus a substantially different procedure was performed and a Medical 22 Battery occurred [Cobbs v. Grant (1972) 8 Cal.3d 229, 239 [104 Cal.Rptr. 505, 502 P.2d 1] 23 Basically, defendant xxxxxx’s argument is that since decedent in consented writing to 24 the removal of his left kidney which purportedly was diseased, the removal of a healthy kidney ig 25 within the scope of consent. Not so. The removal of Plaintiff's healthy kidney was a substantial! 26 27 different procedure compared to what was agreed to by plaintiff which was the removal of his 28 diseased kidney. (Dec. of Massae, Exhibit “A”] In the 1975 California Supreme Court case off Cobbs v. Grant the court stated that “Where a doctor obtains consent of the patient to perform] one type of treatment and subsequently performs a substantially different treatment for which) consent was not obtained, there is a clear case of battery.” [Cobbs v. Grant (1972) 8 Cal.3d 229. 239 [104 Cal.Rptr. 505, 502 P.2d 1].) The removal of a healthy kidney versus a diseased kidney] is a substantially different procedure. Consent is not valid as the underlying information leading} to plaintiff's consent was untrue. If decedent did not give his informed or knowledgeable consent, the performance of the removal of his kidney would constitute a technical battery pursuant to [Pedesky v. Bleiberg (1967) 251 Cal. App.2d 119 [59 Cal. Rptr. 294]). Id. Cobbs v. 10 Grant (19720 8 Cal.3d 229, 239 cites to Zoterell v. Repp (1915) 187 Mich. 319 [153 N.W. 692] 11 “[cJonsent given for a hernia operation during which doctor also removed both ovaries” 12 13 Tl. 14 CONCLUSION 15 Plaintiff did not give consent to the removal of his healthy as the underlying facts leading 16 17 plaintiff to consent to the removal of his left kidney were untrue. The surgical procedure that was| 18 performed in removing his healthy kidney was a substantially different treatment than was 19 expressly consented which was the removal of a diseased kidney and thus a medical battery was 20 perpetrated upon decedent. Plaintiff request Defendant’s Motion be denied. 21 22 23 pica: 2 / Ve 25 JOEL B. MASSAE, “Attorney for Plaintiff, 26 LYNN REICHENBACH 27 28 ‘ Rio Linda Unified School Dist. v . Sup.Ct (1997) 52 CA 4", 732,740 “If a party contends some particular issue of fact has no support in the record, it must set forth a// the material evidence on the point and not merely the evidence favorable to it.” ii Judicial Council of California Civil Jury Instructions (2021 edition) CACI No. 530 (A) 1. [That [name of defendant] performed a medical procedure without [name of plaintiff]’s consent; [or]]1. [That [nameof plaintiff] consented to one medical procedure, but [name of defendant] performed a substantially different medical procedure;]2. That [name of plaintiff] was harmed; and 3. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE REICHENBACH V. xxxxxx, et al. BCSC Case No. 19CV01124 I am a resident of the County of Butte, State of California. My Business address is P.O. Box 3104 Paradise, CA 95967. I am over the age of 18 years and not a party to this action. On March 9, 2021 I served the within Plaintiff's OPPOSITION TO DEFENDANT xxxxxx S. xxxxxx, M.D.’s MOTION FOR SUMMARY ADJUDICATION on the foregoing party(ies) in said action addressed as follows: D. Mare Lyde Email to: Michaelgallert@yahoo.com Michael G. Gallert Leonard & Lyde 1600 Humboldt Road Suite 1 Chico, CA 95928 Robert H. Zimmerman. Email to: Shuering Zimmerman & Doyle RHZ@szs.com 400 University Avenue DJV@szs.com Sacramento, CA 95825 KSB@szs.com DMK@szs.com calendar@szs.com 0 USPS MAIL: I am familiar with my practice of mailing of my office whereby each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in a post office location in Paradise, California. Q FAX: I personally sent to the addressee’s telecopier number a true copy of the above-described document(s), and verified said transmission. PERSONAL SERVICE: I personally caused delivery by hand to the office of the addressee. O Federal Express Delivery: I personally placed the document in a sealed envelope or box and had it delivered Federal Express courier from Paradise, California, via, Overnight Delivery and Ground Delivery. [xx] EMAIL: By electronic transmitting to the person(s) whose named herein at the e-mail address indicated. 1 affirm under the laws of the State of California that the foregoing is true and correct, executed on March 9, 2021 at Paradise, California. ie... JDEL B. SSAE