Stewart v. Superior Court

• Court: California Court of Appeal
• Decided: October 12, 2017
• Docket: E067316
• Status: Published

Opinion

Filed 10/12/17 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

MAXINE STEWART, as Personal Representative, etc.,† E067316 Petitioner, (Super.Ct.No. CIVVS1205737) v. OPINION THE SUPERIOR COURT OF SAN BERNARDINO COUNTY,

Respondent;

ST. JOSEPH’S HEALTH et al.,

Real Parties in Interest.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts 2 and 3.

† Petitioner, Maxine Stewart, brings causes of action as the personal representative of an estate. Previous orders we issued in this case indicated that Bettina Gray, Jordon Carter, Paul Carter, and Regina Carter were also petitioners, as they are plaintiffs alongside Stewart in the trial court action. Upon further review, it appears Gray and the Carters assert a single cause of action for wrongful death, which was unaffected by the summary adjudication order the petition asks us to review. Consequently, they should not be parties to this petition. We have amended the caption accordingly.

1 ORIGINAL PROCEEDING; petition for writ of mandate. Michael A. Sachs,

Judge. Petition granted.

McMahan Law, Carl A. McMahan and Mark J. Habeeb for Petitioner.

No appearance for Respondent.

Brobeck, West, Borges, Rosa & Douville, Louise M. Douville and Edward J. Reid

for Real Parties in Interest.

The petition in this case challenges a trial court order summarily adjudicating a

cause of action under the Elder Abuse and Dependent Adult Civil Protection Act (the

Act), a cause of action for fraud by concealment, and another for medical battery, while

allowing other claims, including one for medical negligence, to proceed to trial. Stewart

is the representative of Anthony Carter, a man who died after admission to a hospital

owned by real parties in interest. She alleges the hospital “denied and withheld from Mr.

Carter the right to refuse an unnecessary surgery, denied and withheld from Mr. Carter

the right to be involved in secret hospital meetings to invalidate his designated consent,

and denied and withheld from Mr. Carter his right to a second opinion prior to proceeding

with an unwarranted surgery that resulted in a hypoxic injury, brain damage, cardiac

arrest and his untimely death.” Having concluded the petition might have merit, we

stayed the action in the trial court and requested an informal response. Having received

and read the “return by verified answer” that was filed by real parties in interest, we then

2 set an order to show cause and requested further briefing on a specific issue.1 Real

parties in interest decided to stand on their informal response in lieu of filing another

brief, and Stewart declined to file a traverse.

We now explain why we conclude we must grant the petition. Furthermore, we

find it important to emphasize that elders have the right to autonomy in the medical

decision-making process. We therefore publish the portion of this opinion that discusses

the cause of action for elder abuse to explain how, in our view, a substantial impairment

of this right can constitute actionable “neglect” of an elder within the meaning of both the

little-invoked catchall definition contained in Welfare and Institutions Code

section 15610.57, subdivision (a)(1), and two of the types of neglect that are set forth in

Welfare and Institutions Code section 15610.57, subdivision (a)(2).

PETITIONER’S ALLEGATIONS

The operative pleading alleges the following:2 Real parties in interest3 own and

operate a hospital called St. Mary Medical Center. On February 1, 2012, Carter, who was

1 Our order directed the parties to “specifically . . . address the applicability of Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 161 (Winn), in light of the fact that Carter appears to have been a patient in a facility owned by real parties in interest.”

2 We omit allegations that are unnecessary to the resolution of this petition, including allegations pertaining to the wound care provided to Carter.

3Real parties in interest are St. Mary Medical Center, St. Joseph Health System, and David O’Brien, M.D. For ease of reference, we refer to these parties collectively as “St. Mary.” We mean no disrespect.

3 78 years old and experiencing confusion, became a patient at St. Mary. He named

Stewart, who was at all relevant times a registered nurse with an active license, his

durable power of attorney for health care decisions during this admission.4

Timothy A. Denton, M.D., one of St. Mary’s codefendants, told Stewart two days

after Carter’s admission that she should consider placing Carter in hospice care, as well

as inserting a gastronomy tube (g-tube). Stewart objected, and Dr. Denton agreed to

order a calorie count instead of a g-tube.

Some of the defendants, including real parties in interest, planned to perform

surgery and implant a pacemaker in Carter, in part because he was experiencing four-

second gaps in his heartbeat. On February 7, 2012, Stewart canceled a pacemaker

procedure and told real parties in interest she thought the four-second pauses were related

to Carter’s sleep apnea. She requested a second opinion regarding Carter’s need for a

pacemaker and opined that he had never previously shown “ ‘clear indicators’ ” that he

needed one.

Also on February 7, 2012, Dr. Denton, real parties in interest, and others told

Stewart that Carter required a g-tube because he was not receiving adequate calories.

Petitioner asked them to try parenteral nutrition (TPN) instead of a g-tube, but they

“refused to consider and/or abide by this request.”

On February 17, 2012, real parties in interest and the other defendants informed

Stewart that a pacemaker procedure was scheduled for the following day. Stewart “stated

4Carter’s capacity to execute the power of attorney is not at issue in this proceeding.

4 that she would absolutely not consent to such a procedure” and again requested a second

opinion.

The next day, real parties in interest and some of the other defendants, including

Dr. Denton, determined through St. Mary’s risk management department that they could

continue with the pacemaker procedure despite petitioner’s objection. Stewart had at no

time consented to this procedure and had instead expressly objected to it.

On February 22, 2012, Stewart contacted St. Mary to inquire about Carter and

learned he had not had breakfast because he was scheduled for surgery. Stewart again

objected to the pacemaker procedure. When Stewart arrived at St. Mary at approximately

noon, she was informed the surgery had occurred at 8:30 that morning. Stewart met with

several of real parties in interest’s representatives, who told her they had proceeded

without her consent because she was not acting in Carter’s best interests.

Carter went into cardiac arrest sometime on or about February 22, 2012. On

information and belief, this occurred because Carter did not need the pacemaker. The

pacemaker was surgically removed on February 24, 2012. Carter, who had experienced

brain damage, required acute skilled nursing care until his death on April 15, 2013.

PROCEDURAL BACKGROUND

Stewart named St. Mary, Dr. Denton, and others on several causes of action in the

operative pleading. St. Mary moved for summary adjudication of most of these causes of

action. As relevant to this petition, it argued the elder abuse claim failed because holding

an ethics committee meeting about Stewart’s power of attorney over Carter could not

5 amount to reckless neglect within the meaning of the Act. The fraudulent concealment

claim, St. Mary contended, failed because a hospital owes no fiduciary duty to a patient,

and the medical battery claim was allegedly insufficient because the hospital itself did not

perform the surgery and the doctors who performed the surgery were not hospital

employees.

For evidentiary support for these assertions, St. Mary largely relied on a

declaration from Mary Ransbury, R.N., a licensed registered nurse and wound care

specialist; we discuss this declaration post. Using the testimony of various deponents,

including Dr. Denton, St. Mary also established the following background facts and

occurrences:

Dr. Denton thought a pacemaker “was clearly indicated” for Carter due to “long

[cardiac] pauses” requiring intervention by a specialist. Dr. Denton therefore referred

Carter to another codefendant, Ramin Ashtiani, M.D., who eventually made the decision

to implant the pacemaker and then actually performed the pacemaker surgery.

When Stewart refused to consent to a pacemaker procedure, Dr. Denton asked St.

Mary’s risk management department for a consultation regarding concerns he had about

Carter’s power of attorney. The risk management department decided to convene an

ethics committee meeting. Dr. Denton, who participated in the meeting by phone,

“stressed the patient could die” if he did not receive a pacemaker and said he did not feel

Stewart was acting in his best interests because Dr. Denton knew Carter would “want

everything done to save his life.” There was a suspicion “that there might be a conflict

6 with Ms. Stewart.” After a meeting on a Friday afternoon, an “action plan” was reached

that “the power of attorney was valid.” However, the committee also concluded that

Stewart could be voided as Carter’s designee if she failed to authorize lifesaving

measures, because “the language of the power of attorney stated, in essence, that all

measures were to be taken to preserve [Carter’s] life.” At some point in time after the

meeting, Stewart was in fact voided as the designee of Carter’s power of attorney. At his

deposition, Dr. Denton admitted he did not consult with any doctor other than

Dr. Ashtiani about Carter’s pacemaker procedure. Instead, he contacted St. Mary’s risk

management department and said something like, “Please help me with this case. There

are lots of legal issues going on. There is a power of attorney that I think is problematic,

and I don’t have a clue what to do about this.”

Dr. Denton described the ethics committee’s role in the surgery as follows:

“[W]hat happens is that I provide risk management with information and they make a

decision about what to do. [¶] . . . [¶] For example, since I don’t implant pacemakers,

they will say ‘Go ahead. The pacemaker is indicated. It’s okay to do that.’ And then the

pacemaker can be done by the person doing the procedure.” For his part, Dr. Ashtiani,

when asked if the risk management department “gave [him] the green light” to perform

the pacemaker surgery, responded, “If medically necessary, from paper standpoint, we

are okay to do that.”

In conjunction with its argument regarding the cause of action for medical battery,

St. Mary also offered an admission form showing Carter had signed his name next to an

7 advisement that all “Physicians and Surgeons furnishing services to the patient . . . are

independent contractors and are not employees of the hospital.” St. Mary otherwise

relied on discovery responses and the aforementioned Ransbury declaration.

The bulk of this declaration addressed allegations that St. Mary failed to provide

adequate wound care to Carter, which does not concern us for the reasons stated in

footnote 2, ante. In fact, only the last paragraph of the Ransbury declaration discussed

the ethics committee meeting or the topic of Carter’s consent to the pacemaker surgery.

That paragraph reads: “Finally, plaintiffs allege in their operative Complaint that hospital

defendants fraudulently concealed from Maxine Stewart the fact that Mr. Carter was to

undergo pacemaker implantation surgery. Based on my review of the above-referenced

materials, I note that the sole determination of the Ethics Committee was that the Power

of Attorney was valid and that the Power of Attorney indicated that all life-saving

measures were to be done for Carter. The Ethics Committee did not decide whether or

not to operate on Mr. Carter. This decision to perform surgery was made by Dr. Ashtiani.

This stands to reason given that a patient’s surgeon is the one who determines whether a

surgical procedure is appropriate and should be performed, not the hospital staff where

the surgery is to take place. Accordingly, based on my review of the above noted

materials and my education, training and experience, I conclude that hospital defendants

had no duty to inform Maxine Stewart that Mr. Carter was to undergo surgery. If such a

responsibility existed under the circumstances it would be Dr. Ashtiani’s as he was

Carter’s treating physician and surgeon.”

8 Stewart filed written opposition to St. Mary’s summary judgment motion. She

generally argued that declarations from two medical experts, Vikram Rajan, M.D., and

Charles Pietrafesa, M.D., created triable issues of material fact regarding the standard of

care and causation. Dr. Pietrafesa, who focused most of his opinions on the ethics of

conducting an ethics committee meeting as occurred in this case, discussed in detail his

opinion “that the decision to implant a permanent pacemaker without appropriate

informed consent on this patient fell below the standard of care in the medical

community.”5 He was of the opinion that anyone who wanted to operate on Carter

without Stewart’s consent was required to obtain a court order, as well as that petitioner

or her representative should have been at the ethics committee meeting, which he called a

“sham.” Finally, Dr. Pietrafesa concluded that the act of “authorizing and proceeding

with this unnecessary surgery directly resulted in the patient’s cardiac arrest and resulting

death.” For his part, Dr. Rajan opined that Dr. Denton breached the standard of care by

informing St. Mary that the “surgery to implant a permanent pacemaker was a life

threatening condition that required immediate action.” In Dr. Rajan’s opinion, there was

no evidence that a pacemaker was needed on an emergency basis. Like Dr. Pietrafesa,

Dr. Rajan determined that the pacemaker surgery led to Carter’s death.

5 From 1992 to 2009, Dr. Pietrafesa served as the Executive Medical Director and Chief Medical Officer at St. John’s Health Center in Santa Monica, California. In that capacity, he was “responsible for the management of the ethic committee,” established the hospital’s bioethics service, and “had consulting and direct line responsibility for the day to day operations of the activities of the hospital’s bioethics function.”

9 In addition to the declarations of Dr. Pietrafesa and Dr. Rajan, Stewart relied in

part on evidence in the form of doctor’s notes6 from Carter’s medical file. These

establish the following:

Dr. Denton noted on the February 1, 2012 admission form that Carter had “a long

complex history” and described Carter’s social environment as “fairly supportive.” After

a consultation that occurred the day after Carter’s admission, a different doctor described

him as “markedly somnolent” and indicated that he “open[ed his] eyes only transiently.”

On February 6 or 7, 2012, Dr. Denton completed a doctor’s note regarding

“extensive discussions” he had with Stewart regarding Carter’s caloric intake on an

undisclosed date. The note reflects that Stewart asked to wait until after a calorie count

was completed before placing a g-tube, and that she still did not want a g-tube. She said

Carter was “taking in more calories now” after Dr. Denton indicated Carter was not

consuming adequate nutrition. Although Dr. Denton agreed to make a final decision

about g-tube placement later, he indicated he would ask to have Carter “observe[d]

during the intervals when the family is in the room.”

Rajeev Yelamanchili, M.D., is the doctor who had previously treated Carter for

sleep apnea, as alleged in the operative pleading. On February 7, 2012, Dr. Yelamanchili

consulted with Carter regarding “obstructive sleep apnea syndrome [(OSA)] with sinus

pauses”; he stated Carter had been diagnosed with “severe OSA . . . 2 years back.” He

6 Various doctor’s notes refer to Carter’s “girlfriend” or “wife.” The operative pleading refers to Stewart as Carter’s “partner,” and one of Stewart’s experts referred to her as Carter’s “life partner.” We follow the parties’ convention and infer that any references to Carter’s partner, girlfriend, or wife are to Stewart.

10 suggested treating Carter’s apnea “to see how the sinus pauses are,” said he would be

“happy to follow [Carter] as an outpatient after discharge,” and indicated a repeat study

might need to occur because Carter had lost a significant amount of weight.

Dr. Yemanchili’s report concludes with: “If the follow up study fails to reveal evidence

of OSA with sinus pauses then permanent pacemaker will be indicated. I have informed

this to the wife and she is satisfied.”

On February 8, 2012, Arnab Biswas, DO, provided a consultation regarding

placement of a g-tube because Carter was “unable to take anything by mouth.”

Dr. Biswas noted Carter was “a very poor historian. He only grunts and mumbles and is

unable to provide any intelligible history.” Because Stewart was “unavailable,”

Dr. Biswas was forced to obtain much of Carter’s history from records and physical

examination. Dr. Biswas indicated that someone would discuss “risks and benefits of” g-

tube placement with Stewart, as well as that “TPN would be a good short-term solution”

if a g-tube was intolerable or impossible.

The next doctor’s note in chronological order is signed by Dr. Denton and dated

February 18, 2012. After a notation that “[m]uch has happened over the last 24 hours,”

Dr. Denton described the ethics committee meeting and the decision reached thereat. He

then remarked: “Given this, [Stewart] was contacted by the nursing staff stating we are

going to be moving forward with appropriate care of this patient. [¶] What is also clear

is that Adult Protective Services has been called and are anxiously await [sic] my

interview with Adult Protective Services. [¶] So what we have now is, we now have the

11 freedom to provide appropriate care for this patient and today we will be trying to find

the appropriate calorie count.” After recounting that Carter was oriented to person but

not place or time, Dr. Denton opined that Carter “[c]learly” could not make decisions on

his own. He then wrote: “If the document is legal, if the power of attorney is legal, then

we will proceed appropriately. If the power of attorney is not legal, then we will proceed

appropriately with the exact same therapy.” The February 18, 2012 doctor’s note

concluded by indicating that Dr. Denton was waiting for a final calorie count but planned

to order g-tube placement and that he would “be making determination regarding the

appropriateness of permanent pacemaker placement, even though he has already had a 4

second pause.”

Dr. Ashtiani prepared a report after the pacemaker surgery on February 21, 2012.

He acknowledged Carter’s sleep apnea but stated, “it was determined that patient will

definitely benefit from pacemaker due to prevention of malignant form of arrhythmia and

its complications especially if it happens and provoked during episodes of sleep apnea.”

Next, Dr. Ashtiani commented that Stewart had previously revoked consent to the

pacemaker surgery and said he told Dr. Denton he “basically discharged [him]self from

the rest of the care for the patient.”

Dr. Ashtiani then wrote: “Again, I was contacted by Dr. Denton since he had

frequent and multiple discussions with the patient’s girlfriend due to different medical

issues and need for medical intervention and refusal of her to help the patient. She

provided with a paper stating as power of attorney which was obtained when the patient

12 was not alert and oriented, to be able to consent for that. Basically, this lady never had

any power of attorney, in order to have any legal thing about the case and she of course

did not seem to be his best advocate when he needed the most. For that reason, risk

management from the hospital got involved and they determined that we should proceed

to implant a pacemaker if medically is necessary. I had this discussion with Dr. Kyle as

well as Dr. O’Brien and he agreed upon the planned procedure based on this discussion.

I also spoke with Dr. Yelamanchili, the pulmonologist and he also agreed upon the

planned procedure and the logic behind the implantation of the device. For those

mentioned reason, we decided to proceed with the implantation of the device.” The final

sentence before the report’s conclusion section is: “I need to mention, the consent was

signed by two physicians which was advocated through risk management, myself, and

Dr. Denton.”

The final doctor’s order contained in our record was prepared by Carter’s

discharging physician, Huy Nguyen, M.D. The note explained that Dr. Denton had

admitted Carter, but that Dr. Nguyen “took over as the primary care physician on request

of [Stewart] who has verbal power of authority for second opinion.” After initially

deeming it inappropriate to remove the pacemaker as Stewart had requested, Dr. Nguyen

later consulted with Dr. Arshia Noori and decided to remove the pacemaker, after all.

This was because, “on review of the telemonitor strips, it looks like the RV lead was not

adequately . . . placed, is autocapturing and then it sent him into cardiac ventricular

fibrillation.”

13 In addition to these doctor’s notes and related records concerning Carter, Stewart

relied on deposition testimony from numerous witnesses when opposing St. Mary’s

summary judgment motion. Stewart herself testified that Carter first gave her authority to

make medical decisions on his behalf in 1998 or 1999. She said when she asked

Dr. Denton about trying TPN instead of a g-tube during Carter’s 2012 admission to St.

Mary, his response was, “Absolutely not.” He gave no reason. When asked whether,

based on her education and training as a nurse, Stewart had developed an impression as to

why Dr. Denton might have rejected TPN, her response was, “I believe he wanted

[Carter] to be put in a care facility.” Stewart confirmed that Carter had been seeing

Dr. Yelamanchili for sleep apnea “[f]or many years,” and she reported that, when

Dr. Denton first told her he recommended a pacemaker, she said, “That’s because he has

sleep apnea. . . . He needs to be on a CPAP machine.” Stewart’s “next step” was to

contact Dr. Yelamanchili, which she did “the next moment [she] was able to speak to

him.” When Stewart “told [Dr. Yelamanchili] that Dr. Denton wanted to put in a

pacemaker, [Dr. Yelamanchili] said, ‘We don’t need to do anything invasive. He needs a

CPAP machine.” Stewart then testified that a St. Mary employee called to tell her a

pacemaker surgery had been scheduled; Stewart “just told them, ‘I’m not consenting,’

and that [she] wanted a second opinion.”

One of the other deponents on whose testimony Stewart relied is Susan Alvarez,

who was asked by her director, Mia Bunch, to participate in the ethics committee meeting

14 “as a member of the risk management team.”7 Alvarez explained that Dr. Denton called

Bunch, in her capacity as St. Mary’s risk manager, to discuss concerns he had regarding

Carter’s care. Sometime before noon on Friday, February 17, 2012, the ethics team,

including Alvarez, met in a conference room; Dr. Denton participated by telephone. The

meeting lasted approximately 20-30 minutes and included Alvarez, a case manager

named Minda, someone from social services, a woman named Mary, and a nonclinical

employee named John Perring-Mulligan. Avarez is “not clinical, either.” No one “from

[Carter’s] side” attended. Later the same day, Alvarez, Bunch, and Perring-Mulligan met

in the office of St. Mary’s CEO to discuss “what the concerns were.” Dr. Denton was not

present at all, but at least one attorney participated by telephone. After meeting for

“[m]aybe 20 minutes,” the “action plan,” or the determination that the power of attorney

was valid but that Stewart was voided as the designee, was made. In “the second part of”

this meeting, Bunch was to contact Dr. Denton and tell him about the action plan.

Alvarez explained that, on Tuesday, February 22, 2012, she, Bunch, Dr. O’Brien,

and others met with Stewart, who first learned that the pacemaker surgery had occurred.

As Alvarez admitted, “the surgery went forward anyway against Maxine Stewart’s

directive not to proceed.” In response to a question implying Dr. Denton had suggested

Stewart had some kind of financial motive for refusing the pacemaker, Alvarez stated:

“What I recall why he was talking about finances and he was saying that he knew—he

7 Some of the testimony from Alvarez and Bunch that Stewart used in opposing the motion is identical to the testimony St. Mary used to establish the foundational facts we described ante. We now summarize only that testimony from Stewart that is new.

15 knew [Carter], you know, through his office, basically like he’s cared for this patient, and

he just said that she—maybe it—it could be. I mean he really didn’t say why, but he said

financial, you know. You need to look at the financial aspect, or he mentioned something

about her taking control of money, but that’s when our person said, ‘That part we don’t

talk about.’ [¶] . . . [¶] John [Perring-Mulligan] basically shut that down.”

Bunch’s deposition testimony adds the following additional details. Neither Dr.

Ashtiani (the surgeon who implanted the pacemaker), Dr. Yelamanchili (the

pulmonologist who treated Carter for sleep apnea), nor Dr. Biswas (the author of the

“poor historian” doctor’s note) participated in the ethics process. Rather, “[i]t was

Dr. Denton, from an M.D. standpoint, that was involved in that decision.” Although she

would not speculate as to his meaning, Bunch admitted Dr. Denton, when told of the

action plan, spoke the words, “So my posterior is covered.” Bunch also authenticated a

note she had written, which reads, “Explained conversation with [power of attorney]

Maxine wanting second opinion. Dr. Denton stated, ‘I won’t do that.’ ”

Stewart also noted Dr. Denton’s deposition testimony established that he and Dr.

Ashtiani were both members of the same medical group when they provided care to

Carter. Her trial court brief in opposition to St. Mary’s motion alleged that “Dr. Denton

specifically pushed for the placement of a permanent pacemaker by Dr. Ashtiani, an

electrophysiologist, his partner and a surgeon in the same group.”

16 Finally, Stewart offered deposition testimony from Dr. Nguyen and Dr. Noori.

Both testified that Carter did not require a pacemaker on an emergency basis. Dr. Noori

explained that Carter went into cardiac arrest after a lead from the pacemaker dislodged.

Shortly before the hearing on St. Mary’s motion for summary judgment and/or

adjudication, the trial court heard a similar motion by Dr. Denton. Finding triable issues

of material fact existed regarding breach and causation, the court denied Dr. Denton’s

motion as to Stewart’s cause of action for professional negligence. The trial court found

the motion procedurally improper as to the elder abuse claim, but it summarily

adjudicated the cause of action for medical battery because Dr. Denton “did not

physically perform the unconsented surgery.” Finally, at least as relevant to this petition,

the trial court denied the motion as to Stewart’s cause of action for fraudulent

concealment. With respect to the latter ruling, the trial court explained: “the February

18, 2012 notes suggest [Dr.] Denton was prepared to ensure the procedure no matter what

by involving Adult Protective Services, [Dr.] Denton advocated for the surgery to the

committee, and [Dr.] Denton said ‘I won’t do that’ when asked about a second opinion.

Thus, a jury could infer that the failure to inform Stewart the surgery would occur was an

intentional effort to conceal the scheduling of the surgery.”

As previously indicated, the trial court granted St. Mary’s motion for summary

judgment and/or adjudication, but only as to the causes of action for elder abuse, medical

battery, and fraudulent concealment. The court explained it was granting the motion as to

the elder abuse claim because “[i]nterpreting the power of attorney then letting a . . .

17 surgery occur was not withholding care or not within custodial capacity.” With respect to

medical battery, the court’s ruling was “the same as . . . [Dr.] Denton’s case,” or that St.

Mary could not be liable because Dr. Ashtiani performed the surgery. The trial court

reasoned that St. Mary “didn’t direct anybody to do the procedure. Dr. Denton signed the

authorization. Ashtiani performed the procedure. Again, the hospital just offered an

opinion regarding the health directives in this case.” Despite denying summary

adjudication on the fraudulent concealment claim when Dr. Denton moved for summary

judgment, the trial court granted St. Mary’s motion as to that cause of action on the

theory that a hospital owes no fiduciary duty to one of its patients.

Stewart lodged evidentiary objections to St. Mary’s evidence in conjunction with

her opposition, and St. Mary, in reply, did the same with respect to Stewart’s evidence.

Our record contains no indication that the trial court ruled on these objections; any such

objections are therefore presumed overruled and preserved on appellate review. (Reid v.

Google, Inc. (2010) 50 Cal.4th 512, 534.) Stewart does not argue the merits of any of her

evidentiary objections in this court. St. Mary does, but only by including in the response

a “respectful[] request [that] this [c]ourt consider [its] written objections to Petitioners’

expert declarations and disregard the objectionable material therein.” We decline the

invitation, as “[t]his court is not inclined to act as counsel for . . . appellant and furnish a

legal argument as to how the trial court’s rulings . . . constituted an abuse of discretion.”

(Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) We therefore

consider all the evidence in the record before us.

18 DISCUSSION

“A party may move for summary adjudication as to one or more causes of action

within an action . . . if the party contends that the cause of action has no merit, . . .”

(Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication may be

made by itself or as an alternative to a motion for summary judgment and shall proceed in

all procedural respects as a motion for summary judgment.” (Id., subd. (f)(2).)

“A defendant making the motion for summary adjudication has the initial burden

of showing that the cause of action lacks merit because one or more elements of the cause

of action cannot be established or there is a complete defense to that cause of action.

[Citations.] If the defendant fails to make this initial showing, it is unnecessary to

examine the plaintiff’s opposing evidence and the motion must be denied. However, if

the moving papers establish a prima facie showing that justifies a judgment in the

defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of

the existence of a triable material factual issue. In meeting this obligation, the plaintiff

may not rely on the mere allegations of its pleadings, but must ‘set forth the specific facts

showing that a triable issue of material fact exists as to that cause of action. . . .’

[Citation.] ‘There is a triable issue of fact if, and only if, the evidence would allow a

reasonable trier of fact to find the underlying fact in favor of the party opposing the

motion in accordance with the applicable standard of proof.’ ” (Intrieri v. Superior Court

(2004) 117 Cal.App.4th 72, 81-82 (Intrieri).)

19 Summary adjudication rulings may be reviewed by writ of mandate. (Code Civ.

Proc., § 437c, subd. (m)(1).) In this case, writ review is particularly warranted because a

second trial would be necessary if we required Stewart to wait until an appeal from the

final judgment before deciding that summary adjudication of the causes of action for

elder abuse, fraudulent concealment, and medical battery was improper. (Noe v. Superior

Court (2015) 237 Cal.App.4th 316, 324.) Although we independently review orders

granting summary adjudication, we still “ ‘must “consider all of the evidence” and “all”

of the “inferences” reasonably drawn therefrom [citation], and must view such evidence

[citations] and such inferences [citations], in the light most favorable to the opposing

party.’ [Citation.] The trial court’s stated reasons for granting summary adjudication are

not binding on the reviewing court, which reviews the trial court’s ruling, not its

rationale.” (Intrieri, supra, 117 Cal.App.4th at p. 81.)

1. The trial court erred in summarily adjudicating the elder abuse cause of

action

Stewart argues the trial court erred in summarily adjudicating her cause of action

for elder abuse because there are triable issues of material fact regarding whether “denial

of care and abuse of custodial power [occurred] with respect to the unauthorized surgical

procedure to implant a pacemaker.” In response, St. Mary asserts its act of conducting an

ethics committee meeting about the power of attorney was not an act implicating

20 custodial duties toward Carter.8 Because, as we now explain, a reasonable jury could

find that St. Mary recklessly and/or fraudulently failed to meet its custodial obligations

toward Carter, Stewart’s position has more merit.

“[The Act] affords certain protections to elders and dependent adults. Section

15657 of the Welfare and Institutions Code provides heightened remedies to a plaintiff

who can prove ‘by clear and convincing evidence that a defendant is liable for physical

abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57,’ and

who can demonstrate that the defendant acted with ‘recklessness, oppression, fraud, or

malice in the commission of this abuse.’ [Welfare and Institutions Code s]ection

15610.57, in turn, defines ‘[n]eglect’ in relevant part as ‘[t]he negligent failure of any

person having the care or custody of an elder or a dependent adult to exercise that degree

of care that a reasonable person in a like position would exercise.’ ” [Citation.]” (Winn,

8 We briefly comment on St. Mary’s assertion that “the sole determination [of the ethics committee meeting] was that the Power of Attorney was valid and that the Power of Attorney indicated that all life-saving measures were to be done for Carter,” which we interpret to be an attempt by St. Mary to distance itself from the actual performance of the surgery. Dr. Denton and Dr. Ashtiani, however, described a closer connection between the ethics committee’s decision and the surgery itself. For example, Dr. Denton testified that the result of the ethics committee meeting was that “the pacemaker can be done by the person doing the procedure.” Dr. Ashtiani agreed that the ethics committee gave him the “green light” to proceed with surgery. Finally, Dr. Ashtiani noted that “risk management” told him he and Dr. Denton could sign the consent form when he completed the report on Carter’s pacemaker surgery. There are at least triable issues of material fact regarding the extent of St. Mary’s connection to the performance of the actual surgery. For these reasons, we feel comfortable, in discussing the issues the parties raise, indicating at times that St. Mary authorized Carter’s pacemaker surgery. We emphasize, however, that the extent of St. Mary’s role in the actual performance of the surgery is for a jury to determine.

21 supra, 63 Cal.4th at p. 152.) “The Act seems premised on the idea that certain situations

place elders and dependent adults at heightened risk of harm.” (Id. at pp. 159-160.)

However, the Winn court emphasized that the Act is “not meant to encompass

every course of behavior that fits either legal or colloquial definitions of neglect.” (Winn,

supra, 63 Cal.4th at p. 159.) Rather, “neglect [under the Act] requires a caretaking or

custodial relationship that arises where an elder or dependent adult depends on another

for the provision of some or all of his or her fundamental needs.” (Id. at p. 160.)

To us, it appears Carter depended on St. Mary to meet his basic needs in ways that

establish the type of custodial relationship described by the Winn court. In fact, we note

Carter’s admission to an acute care facility such as St. Mary, standing alone, would have

been sufficient to make him a “dependent adult” who would be entitled to the Act’s

protections even if he had not also qualified as an “elder” by virtue of his age. (Welf. &

Inst. Code, §§ 15610.23, subd. (b) [definition of “dependent adult”], 15610.27 [definition

of “elder”]; Health & Saf. Code, § 1250, subd. (a) [definition of “general acute care

hospital”].) The facts of this case further support our conclusion, as Carter was

experiencing confusion upon admission, and a doctor’s note prepared a week after

admission describes him as a “very poor historian” who could not provide a coherent

history and tended only to mumble and grunt. The record also shows that Carter at times

needed medical assistance, including a g-tube, to consume adequate calories. Finally, St.

Mary readily admits Dr. Denton told it that Carter’s health was poor enough that he

required a pacemaker on an emergency basis. For these reasons, we conclude St. Mary

22 had “care or custody of” Carter and therefore was obligated “ ‘to exercise that degree of

care that a reasonable person in a like position would exercise.’ [Citation.]” (Winn,

supra, 63 Cal.4th at p. 152.)

St. Mary does not and cannot deny that it had at least some amount of care and

custody over its own patient; rather, it asks us to make a care and custody determination

as to the specific circumstances surrounding the ethics committee meeting instead of as to

the relationship between Carter and St. Mary as a whole. The ethics committee meeting,

in St. Mary’s view, was not about the provision of medical care but instead involved only

the interpretation of Stewart’s power of attorney. Relying on both Winn and Covenant

Care, Inc. v. Superior Court (2004) 32 Cal.4th 771 (Covenant Care), St. Mary argues

such a nonmedical or administrative act cannot be deemed custodial, and cannot

constitute “neglect” under the Act. We now explain why neither case supports this

theory.

In the Winn court’s words, the type of relationship the Act contemplates is “a

robust caretaking or custodial relationship—that is, a relationship where a certain party

has assumed a significant measure of responsibility for attending to one or more of an

elder’s basic needs that an able-bodied and fully competent adult would ordinarily be

capable of managing without assistance.” (Winn, supra, 63 Cal.4th at p. 158.) Applying

this rule to the facts before it, the court found the provider of an outpatient clinic could

not have committed elder abuse against one of that clinic’s patients because no custodial

relationship was present. (Id. at p. 165.) The patient had received only “intermittent,

23 outpatient medical treatment,” and “[n]o allegations in the complaint supported an

inference that [she] relied on defendants in any way distinct from an able-bodied and

fully competent adult’s reliance on the advice and care of his or her medical providers.”

(Ibid.)

We do not see how Winn supports the suggestion that “when [St. Mary]

interpreted [Carter’s] Power of Attorney, [it was] no longer acting as care custodian[], but

rather as [a] healthcare provider[] focused on the undertaking of medical services.” In

fact, in our view, Winn supports the opposite conclusion. Here, St. Mary accepted Carter

as a patient with knowledge of his “confus[ed]” state, which left him a “poor historian,”

and its records show Carter at times required assistance with feeding. Moreover, the

ethics committee authorized the performance of surgery on Carter’s behalf on the

assumption that he lacked the ability to consent. In our view, St. Mary had accepted

responsibility for assisting Carter with acts for which “[o]ne would not normally expect

an able-bodied and fully competent adult to depend on another.” (Winn, supra, 63

Cal.4th at p. 158.)

We see no reason why the facts that the decision to allow Dr. Denton and Dr.

Ashtiani to sign the consent to the pacemaker surgery in Carter’s stead was made in a

setting that was more like a conference room than an examination room, or that St. Mary

sought advice from counsel rather than from a doctor other than Dr. Denton, must mean

that the ethics committee meeting served a noncustodial function. After all, “it is the

defendant’s relationship with an elder or a dependent adult—not the defendant’s

24 professional standing or expertise—that makes the defendant potentially liable for

neglect.” (Winn, supra, 63 Cal.4th at p. 158.) For these reasons, Winn better supports the

conclusion that the majority of St. Mary’s interactions with decedent were custodial. St.

Mary has cited no authority allowing or even encouraging a court to assess care and

custody status on a task-by-task basis, and the Winn court’s focus on the extent of

dependence by a patient on a health-care provider rather than on the nature of the

particular activities that comprised the patient-provider relationship counsels against

adopting such an approach.

In support of its position that the ethics committee meeting was simply an

administrative task that cannot constitute neglect under the Act, St. Mary relies heavily

on Covenant Care. There, the court wrote: “As used in the Act, neglect refers not to the

substandard performance of medical services but, rather, to the ‘failure of those

responsible for attending to the basic needs and comforts of elderly or dependent adults,

regardless of their professional standing, to carry out their custodial obligations.’

[Citation.] Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of

medical services, but of the failure to provide medical care.” (Covenant Care, supra, 32

Cal.4th at p. 783, original italics; see Worsham v. O'Connor Hospital (2014) 226

Cal.App.4th 331, 337-338.) St. Mary argues that conducting the ethics committee

meeting amounts to the “undertaking of medical services” and is therefore not actionable

on an elder abuse theory. Because this holding from Covenant Care occurred in the

context of explaining the difference between claims under the Act and claims of “simple

25 or gross negligence by health care providers,” another way of phrasing St. Mary’s

contention is that, even if everything Stewart alleges is true with respect to St. Mary’s

treatment of Carter, the most she can prove is that St. Mary committed ordinary medical

malpractice.9 Any such suggestion is incorrect for the following reasons.

First, we are troubled that labeling this case one for no more than professional

negligence seriously undervalues the interest Carter had in consenting or objecting to the

surgery that, in the opinion of Stewart’s experts, contributed to his death. “More than a

century ago, the United States Supreme Court declared, ‘No right is held more sacred, or

is more carefully guarded, by the common law, than the right of every individual to

possession and control of his own person, free from all restraint or interference of others,

unless by clear and unquestionable authority of law. . . . “The right to one’s person may

be said to be a right of complete immunity: to be let alone.” [Citation.]’ [Citation.]

Speaking for the New York Court of Appeals, Justice Benjamin Cardozo echoed this

precept of personal autonomy in observing, ‘Every human being of adult years and sound

mind has a right to determine what shall be done with his own body. . . .’ [Citation.]

And over two decades ago, Justice Mosk reiterated the same principle for this court: ‘[A]

person of adult years and in sound mind has the right, in the exercise of control over his

body, to determine whether or not to submit to lawful medical treatment.’ ” (Thor v.

Superior Court (1993) 5 Cal.4th 725, 731 (Thor).)

9 In fact, after petitioner’s counsel responded to the tentative ruling with respect to the cause of action for elder abuse at the hearing in the trial court, counsel for St. Mary stated: “What counsel just finished describing was a rock-solid case for professional negligence.”

26 This right, the right to personal autonomy, is the right St. Mary denied Carter by

authorizing Dr. Ashtiani and Dr. Denton to sign the consent for the pacemaker on

Carter’s behalf. This form was signed not only without Carter’s consent, but over the

objection of his designee. The California Supreme Court has described the right to

consent to medical treatment as “ ‘basic and fundamental,’ ” “intensely individual,” and

“broadly based.” (Thor, supra, 5 Cal.4th at pp. 735-736, 741.) The same court has also

emphasized that excusing the patient from a judicial proceeding regarding a surgery to be

performed over his objection “denie[s] fundamental due process.” (Id. at p. 733, fn 2.) It

is immaterial that a doctor has said the treatment is required to save the patient’s life.10

(Id. at p. 739.) Rather, “ ‘A doctor might well believe that an operation or form of

treatment is desirable or necessary, but the law does not permit him to substitute his own

judgment for that of the patient by any form of artifice or deception.’ ” (Id. at p. 736,

fn. omitted.) Finally, the patient’s reasons for refusing are irrelevant. “For self-

determination to have any meaning, it cannot be subject to the scrutiny of anyone else’s

conscience or sensibilities.” (Id. at p. 741.)

Here, it is undisputed that St. Mary authorized a surgery without the consent of

either Carter or Stewart. It is also undisputed that St. Mary gave no notice of the ethics

committee meeting to Carter or Stewart, and that it gave Stewart no notice that the

10 “Particularly when the restoration of normal health and vitality is impossible, only the person whose moment-to-moment existence lies in the balance can resolve the difficult and uniquely subjective questions involved. Regardless of the consequences, the courts, the medical profession, and even family and friends must accept the decision with understanding and compassion.” (Thor, supra, 5 Cal.4th at p. 741, fn. omitted.)

27 surgery was going to occur. Even if the reasonableness of Stewart’s objection were

something St. Mary could have taken into account when deciding to void Stewart as

Carter’s designee, there are triable issues of material fact on this issue. Stewart was not

an uneducated patient objecting to a procedure without explanation; instead, at the time

of Carter’s pacemaker surgery, she was a registered nurse, with knowledge of Carter’s

history, whom he had chosen repeatedly as the designee of his power of attorney, and

who requested a second opinion and suggested a specific possible alternative cause for

the gaps in Carter’s heartbeat. Moreover, there is evidence Dr. Yelamanchili agreed that

Carter’s sleep apnea might have been causing the problems that concerned Dr. Denton,

and Dr. Nguyen and Dr. Noori testified that the pacemaker was not medically necessary.

We have difficulty concluding that the deprivation of a right as important as personal

autonomy, if in fact St. Mary is found to have deprived Carter of that right, cannot

amount to more than professional negligence in the context of this case.

In a related contention, and relying exclusively on Cobbs v. Grant (1972) 8 Cal.3d

229, 239-240 (Cobbs), St. Mary argues the most Stewart can have proved is a cause of

action for failure to obtain informed consent, which is a type of negligence claim.

However, the type of claim Cobbs described in sounding in simple negligence was one in

which a patient consents to a procedure but later argues the consent was ill-informed due

to undisclosed risks. (Id. at pp. 239-240.) “The battery theory should be reserved for

those circumstances when a doctor performs an operation to which the patient has not

consented.” (Id. at p. 240.) That standard is undeniably met here, which confirms our

28 conclusion that Stewart has alleged and proved something more than a potential medical

malpractice claim.

Furthermore, we find the facts Stewart has alleged and proved could support not

just some formless cause of action that is something more than professional negligence,

but a cause of action for elder abuse, specifically. Any of the following three theories

supports this conclusion.

First, if Stewart proves to a jury that St. Mary failed to “exercise that degree of

care that a reasonable person in a like position would exercise” with respect to Carter

(Welf. & Inst. Code, § 15610.57, subd. (a)(1)), she will have shown that it engaged in

actions that constitute neglect under the Act.11 The above described evidence from

Stewart creates triable issues of material fact regarding whether St. Mary appropriately

respected Carter’s right to personal autonomy, and we have discussed the fundamental

nature of that right in detail. St. Mary has offered, and we have found, no reason why a

reasonable jury could not find that St. Mary was therefore unreasonable in discharging its

custodial obligations to Carter within the meaning of the Act.

In addition, a reasonable jury could find St. Mary committed neglect of an elder

within two of the specific categories described by statute. Neglect under the Act can

11 While the Act gives more specific examples of the types of acts that constitute neglect of an elder, this list is nonexhaustive. (Welf. & Inst. Code, § 15610.57, subd. (b).) We have found little discussion of the parameters of this catchall category in the elder abuse cases we have read, but we presume the Legislature created it for a purpose. That the right to autonomy possesses the type of fundamental importance we have described makes it easier to conclude that this is a case that appropriately falls within the catchall provision.

29 include, among other things, the “[f]ailure to provide medical care for physical and

mental health needs” (Welf. & Inst. Code, § 15610.57, subd. (b)(2)) and the “[f]ailure to

protect from health and safety hazards” (id., subd. (b)(3)). As discussed ante, the right to

personal autonomy regarding medical decisions is fundamental. (Thor, supra, 5 Cal.4th

at p. 741; see also Conservatorship of Wendland (2001) 26 Cal.4th 519, 532 [Thor

recognized fundamental right in the common law; later cases find the same right derives

from the California Constitution].) It seems to us, then, that respecting the patient’s right

to consent or object to surgery is a necessary component of “provid[ing] medical care for

physical and mental health needs.” (Welf. & Inst. Code, § 15610.57, subd. (b)(2).)

Conversely, depriving a patient of the right to consent to surgery could constitute a

failure to provide a necessary component of what we think of as “medical care.”

Finally, we think a reasonable jury could find St. Mary “fail[ed] to protect [Carter]

from health and safety hazards” (Welf. & Inst. Code, § 15610.57, subd. (b)(3)) by

authorizing the surgery in the way it did. Dr. Pietrefesa, who has over a decade’s

experience as the head of a hospital ethics committee, characterized the ethics committee

meeting that occurred here as a “sham” and stated St. Mary needed a court order to

authorize a surgery over Stewart’s objection. According to Dr. Pietrafesa, the

requirement for a court order is a “safeguard [that] is in place to protect the patient from

the abuse that occurred in this case.” Dr. Pietrafesa also concluded that St. Mary “was

required to have representation from Maxine Stewart and/or a representative from the

patient present at the meeting to present all the facts pertinent to the decision to ignore the

30 legally binding consent document executed by [Carter].” St. Mary’s only evidence on the

ethics of the procedure it followed comes from the declaration of Ransbury, a nurse,12

who concluded that Dr. Ashtiani and only Dr. Ashtiani had a duty to tell Stewart about

the surgery; she offered no opinion about whether St. Mary should have told Carter or

Stewart that it planned to consider the validity of the power of attorney at an ethics

committee meeting. There are at least triable issues of material fact regarding whether St.

Mary’s decision to authorize the surgery, without notice to Stewart and over her objection

and request for a second opinion, failed to adequately protect Carter from health and

safety hazards.

For the foregoing reasons, we find Stewart has at least shown the existence of

triable issues of material fact regarding whether custodial neglect within the meaning of

the Act occurred when St. Mary authorized Carter’s pacemaker surgery over Stewart’s

objection. We now turn to whether she has produced enough evidence that St. Mary “has

been guilty of recklessness, oppression, fraud, or malice in the commission of this”

neglect, so as to entitle her to the Act’s enhanced remedies. (Welf. & Inst. Code,

§ 15657.) Our task is made easier by the fact that we conclude, post, that the trial court

erred in summarily adjudicating the cause of action for fraudulent concealment. St. Mary

offers no reason why Stewart will have failed to have proved the required state of mind

should that eventuality occur.

12 Stewart objected in the trial court that Ransbury lacked foundation to opine about the committee meeting, but the trial court failed to rule on her objection. Because Stewart does not argue the merits of her objections here, we do not pass on this issue.

31 We also conclude there are triable issues of material fact regarding whether St.

Mary’s actions qualified as reckless. “Recklessness, unlike negligence, involves more

than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but

rather rises to the level of a ‘conscious choice of a course of action . . . with knowledge of

the serious danger to others involved in it.’ ” (Delaney v. Baker (1999) 20 Cal.4th 23,

31-32 (Delaney).)

We find uncontroversial the idea that any surgery on a 78-year-old man who has

been admitted to the hospital in such a state that St. Mary looked to his designee for

consent is potentially dangerous, and testimony from Dr. Noori, Dr. Nguyen, and Dr.

Rajan supports Stewart’s assertion that the surgery was never necessary. Also, and as

discussed ante, the evidence shows there are triable issues of material fact regarding

whether St. Mary adequately protected Carter from health and safety hazards when it

authorized the surgery without the participation of Stewart or anyone “from [Carter’s]

side,” even though it knew Stewart had offered an alternative explanation for the gaps in

Carter’s heartbeat and requested a second opinion on that issue. St. Mary’s suggestion

that it cannot be punished for listening to the advice of a doctor in good standing at the

hospital fails to account for its decision to structure the ethics committee meeting in an

entirely one-sided manner. (See Covenant Care, supra, 32 Cal.4th 771, 778 [elder abuse

plaintiffs alleged defendants concealed the deterioration of patient’s condition]; see also

Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405

32 [enhanced remedies warranted in Covenant Care in part because skilled nursing facility

“misrepresented and failed to inform [patient’s] children of his true condition”].)

For the foregoing reasons, the trial court erred in summarily adjudicating Stewart’s

cause of action for elder abuse. At oral argument, St. Mary’s counsel expressed concern

that our holding, especially with respect to the care and custody issue, will be interpreted

to mean that any act of negligence by a hospital will constitute elder abuse. We share no

such fear, since “ ‘ “cases are not authority for propositions not considered.” ’ ” (Loeffler

v. Target Corp. (2014) 58 Cal.4th 1081, 1134.) First, and as we have stressed

throughout, the right to autonomy in medical decision-making is uniquely fundamental;

we offer no opinion about how this petition would have resolved had Stewart alleged a

violation of a lesser right. Second, we were careful to describe the evidence introduced

by the parties on summary judgment in detail, to focus our inquiry on where and how

Stewart’s evidence created triable issues of material fact, and to stress that it is the jury’s

role to determine the extent of St. Mary’s role in the pacemaker surgery Dr. Ashtiani

performed on Carter. As we explained ante, when reviewing summary adjudication

orders we “ ‘must “consider all of the evidence” and “all” of the “inferences” reasonably

drawn therefrom [citation], and must view such evidence [citations] and such inferences

[citations], in the light most favorable to the opposing party.’ ” (Intrieri, supra, 117

Cal.App.4th at p. 81.) We have done so, and we have explained our views about how the

rules on which we rely apply to the evidence submitted with the summary judgment

motion. We need not make a prediction about how a court should rule in the future when

33 asked to apply today’s holding to a set of facts that is missing any of the elements that are

present here.

2. The trial court erred in summarily adjudicating the cause of action for

fraudulent concealment

Stewart argues the trial court erred in summarily adjudicating her cause of action

for fraudulent concealment on the sole ground that, based on the reasoning in Moore v.

Regents of University of California (1990) 51 Cal.3d 120, 133 (Moore), St. Mary did not

owe Carter a fiduciary duty. As we now explain, we agree.

“ ‘ “[T]he elements of an action for fraud and deceit based on concealment are:

(1) the defendant must have concealed or suppressed a material fact, (2) the defendant

must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must

have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff,

(4) the plaintiff must have been unaware of the fact and would not have acted as he did if

he had known of the concealed or suppressed fact, and (5) as a result of the concealment

or suppression of the fact, the plaintiff must have sustained damage.” ’ ” (Boschma v.

Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) A duty to disclose will arise:

“ ‘(1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the

defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when

the defendant actively conceals a material fact from the plaintiff; and (4) when the

defendant makes partial representations but also suppresses some material facts.’ ”

(LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336 (LiMandri).)

34 St. Mary argues it cannot be liable for fraudulent concealment because it owed

Carter no fiduciary duty under Moore. We question the applicability of Moore to this

case. There, a leukemia patient alleged causes of action against his physician and, among

others, a hospital for “using his cells in potentially lucrative medical research without his

permission.” (Moore, supra, 51 Cal.3d at pp. 124-125.) The court found these

allegations stated causes of action for breach of fiduciary duty and/or lack of informed

consent against the physician, Golde. (Id. at pp. 128-129.) With respect to the other

defendants, the court stated simply, without analysis or citation to authority: “In contrast

to Golde, none of these defendants stood in a fiduciary relationship with Moore or had

the duty to obtain Moore’s informed consent to medical procedures. If any of these

defendants is to be liable for breach of fiduciary duty or performing medical procedures

without informed consent, it can only be on account of Golde’s acts and on the basis of a

recognized theory of secondary liability, such as respondeat superior.” (Id. at p. 133.)

Participating in a process that allegedly failed to respect a patient’s right to personal

autonomy seems very different in kind, for purposes of fiduciary duty analysis, from

failing to disclose profits earned from a patient’s discarded tissue. (See Delaney, supra,

20 Cal.4th at p. 33 [purpose of the Act “is essentially to protect a particularly vulnerable

portion of the population from gross mistreatment in the form of abuse and custodial

neglect.”].)

35 We need not decide whether St. Mary owed Carter a fiduciary duty, however,

because a fiduciary duty is not the only circumstance giving rise to a duty to disclose. 13

As we have already established, St. Mary also had a duty to disclose if it had sole

knowledge of material facts not known to Stewart, actively concealed at least one

material fact from her, or made a partial representation but suppressed at least one

material fact. (LiMandri, supra, 52 Cal.App.4th at p. 336.) Our independent review of

the record indicates there are triable issues of material fact regarding each of these

theories.14 St. Mary knew it had authorized a pacemaker surgery to proceed over

Stewart’s objection because it made this the “action plan” after the ethic committee

meeting, and it knew it did not inform Stewart about the surgery. St. Mary also knew of

Stewart’s objection to the pacemaker procedure, and it chose to tell her about neither the

ethics committee meeting nor the upcoming surgery. The cause of action for fraudulent

concealment does not fail for lack of duty to disclose.

13 St. Mary argues Stewart only alleged it failed to disclose the date of the surgery in her operative pleading and may not now allege it also committed fraudulent concealment by failing to disclose the scheduling of the ethics committee meeting. Even if the complaint must be read so sparingly, the distinction makes no difference to our analysis.

14 “ ‘Although the determination of duty is primarily a question of law, its existence may frequently rest upon’ ” the nature and extent to which a plaintiff proves the facts allegedly creating a duty to be true. (Silva v. Union Pacific Railroad Co. (2000) 85 Cal.App.4th 1024, 1029.) Here, we say there are triable issues of material fact regarding the existence of a duty because whether such a duty exists depends on the nature and extent of Stewart’s proof of the facts we are about to summarize. At present, we find only that she has presented enough evidence to take the issue to a jury.

36 Nor does it fail, as St. Mary argues, for lack of proof of fraudulent intent, as we

find no gap in the evidence on this issue. The trial court denied Dr. Denton’s motion for

summary adjudication of this claim because it found there were triable issues of material

fact regarding whether “the failure to inform Stewart the surgery would occur was an

intentional effort to conceal the scheduling of the surgery.” It appears much the same

analysis applies to St. Mary, which is the party that actually made the decision not to

advise Stewart of the ethics committee.

Although Dr. Denton was the only clinical person who took part in the first ethics

committee meeting, we think it fair to infer that the risk management team would have

reviewed the doctor’s notes contained in its own file on Carter; otherwise, it seems the

ethics committee meeting would have no purpose but to simply rubber stamp whatever

procedure Dr. Denton recommended. To at least some readers, these notes will likely

reflect an increasing level of animosity between Stewart and Dr. Denton, with Carter’s

admission note indicating his home environment was “fairly supportive,” while a note

from a consultation only five or six days later said Dr. Denton wanted Carter observed

while his family was with him. This second note memorialized a consultation in which

Dr. Denton “extensive[ly]” discussed his recommendation for placement of a g-tube, and

Stewart still said she did not want one. It is a reasonable inference that conflicts such as

these are what led to the involvement of Adult Protective Services, which was, according

to a doctor’s note by Dr. Denton, “anxiously awaiting” an interview with him. In

addition, a note from Dr. Yemanchili indicated there may have been some merit to

37 Stewart’s suggestion that Carter be treated for sleep apnea before a surgery occurred.

Since the discussion about Carter’s power of attorney reached St. Mary’s CEO, it appears

multiple layers of people at the hospital had a reason to read these notes, if they intended

to conduct a fair and adequate review before making an ethics committee decision. To a

reasonable jury, these notes might be an indication that St. Mary ignored cause for

concern about Dr. Denton’s impartiality.

In addition, Bunch, who is a director of risk management, knew Dr. Denton’s

response when she told him of the action plan was that his “posterior was covered,” as

well as that his response to Stewart’s request for a second opinion was simply, “I won’t

do that.” Finally, St. Mary knew Dr. Denton made some kind of allegation that Stewart

had a financial motive for refusing to consent to the pacemaker surgery because, at the

ethics committee meeting, Perring-Mulligan had to “shut that down” when Dr. Denton

broached the topic. Again, a jury could infer that St. Mary had particular reason to

ensure that Stewart was involved in the process of authorizing the pacemaker surgery, or

that she had notice that a surgery had been scheduled, but instead deliberately decided to

exclude her from the process.

Perhaps a reasonable jury would view these facts and think St. Mary was

innocently blindsided by a misguided doctor, as St. Mary’s response implies. But it

seems to us a reasonable jury could instead conclude that St. Mary intentionally

concealed the surgery because it and Dr. Denton had become weary of Stewart’s habit of

refusing what Dr. Denton thought was necessary treatment. In other words, there are

38 triable issues of material fact regarding St. Mary’s intent in concealing facts from

Stewart, just as there are regarding its duty to disclose those same facts. The trial court

therefore erred in summarily adjudicating the fraudulent concealment claim.

3. The trial court erred in summarily adjudicating the cause of action for

medical battery

The trial court summarily adjudicated the cause of action for medical battery

solely because Dr. Ashtiani, not St. Mary, actually performed the pacemaker surgery.

Petitioner argues there are triable issues of material fact regarding St. Mary’s connection

to the surgery. We again agree.

“Battery is an offensive and intentional touching without the victim’s consent.”

(Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645 (Kaplan).) The elements of a

cause of action for medical battery are: (1) That the defendant either performed a

medical procedure without the patient’s consent or performed a medical procedure that is

substantially different from one to which the plaintiff consented; (2) that the plaintiff

suffered harm; and (3) that the defendant’s actions were a substantial factor in causing the

plaintiffs’ harm. (CACI No. 530A.)

The record in this case belies St. Mary’s suggestion that it had no connection to

the performance of the surgery simply because Dr. Ashtiani, an independent contractor,

made that decision. As we have already described in footnote 8, ante, Dr. Denton and

Dr. Ashtiani both testified that the decision of the ethics committee was the event that

allowed the surgery to occur. Moreover, Dr. Ashtiani’s comment in the postoperative

39 report—“I need to mention, the consent was signed by two physicians which was

advocated through risk management, myself, and Dr. Denton”—could easily be

interpreted to mean that St. Mary specifically advised Dr. Ashtiani to sign the consent

form, without which the surgery likely could not proceed at all.

Neither party has cited authority defining how distant the connection a defendant

has to the touching that occurs when a doctor performs surgery, to which the patient has

not consented, may be before the plaintiff loses a right to a cause of action for medical

battery. “In the absence of any definitive case law [setting the boundary St. Mary

asserts], we conclude the matter is a factual question for a finder of fact to decide.”

(Kaplan, supra, 162 Cal.App.4th at p. 647.) There are triable issues of material fact

regarding whether St. Mary was sufficiently involved in the process of allowing the

pacemaker surgery on Carter to have “performed a medical procedure” within the

meaning of CACI No. 503A.

DISPOSITION

Let a peremptory writ of mandate issue, directing the Superior Court of San

Bernardino County to vacate the October 3, 2016 order granting summary adjudication of

Stewart’s causes of action for elder abuse, fraudulent concealment, and medical battery,

and to substitute an order denying the motion as to those causes of action. The temporary

stay we issued is to dissolve upon the filing of this opinion.

40 Stewart is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of

service on all parties.

Petitioner is awarded her costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION

RAMIREZ P. J.

We concur:

McKINSTER J.

MILLER J.