Markolt v. Pinter CA2/1

Filed 5/19/16 Markolt v. Pinter CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CHRISTINA MARKOLT et al., B261464
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. PC 051644)
v.
ADRIENNE S. PINTER,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Elia
Weinbach, Judge. Affirmed in part and reversed in part.
Ferguson Case Orr Paterson and Wendy C. Lascher for Plaintiffs and Appellants.
Ford, Walker, Behar & Haggerty, William C. Haggerty and Neil S. Tardiff, for
Defendant and Respondent.
——————————
Christina Markolt (Mrs. Markolt) and her husband, Gergely Markolt
(Mr. Markolt) (collectively, Plaintiffs), sued Dr. Adrienne S. Pinter (Dr. Pinter) for
professional negligence/medical malpractice. During the course of removing an
impacted molar, Dr. Pinter fractured Mrs. Markolt’s right mandible or jawbone. Over the
course of the next year, Mrs. Markolt was seen and treated by several oral surgeons and
underwent numerous procedures and treatments (including additional surgeries) to
address her fractured mandible.
Plaintiffs sued Dr. Pinter for professional negligence, lack of informed consent,
and loss of consortium. The trial court granted Dr. Pinter’s motion for summary
judgment finding that, even though there was a triable issue of fact with regard to the
professional negligence claim, that finding was negated by Mrs. Markolt’s informed
consent to the extraction procedure. According to the trial court, “[i]nformed consent is a
complete defense to a medical malpractice action.”
On appeal, Plaintiffs assert that the trial court erred in granting judgment as a
matter of law to Dr. Pinter on their professional negligence claim, because informed
consent is a complete defense only to a claim for a lack of informed consent; “it is no
defense to a cause of action based on the professional’s failure to perform services within
the standard of care.” As we shall explain, we agree and reverse the judgment as it
applies to the professional negligence claim only.1
1 In their briefing on the motion for summary judgment, the parties addressed
Mr. Markolt’s loss of consortium claim. In its order granting Dr. Pinter summary
judgment, however, the trial court said nothing about the loss of consortium claim,
implicitly reasoning , or so we believe, that because Mr. Markolt’s claim was derivative
of his wife’s claims, it necessarily failed as well. While a loss of consortium claim is
triggered by the spouse’s injury, “a loss of consortium claim is separate and distinct, and
not merely derivative or collateral to the spouse’s cause of action.” (Gapusan v. Jay
(1998) 66 Cal. App. 4th 734, 742.) On appeal, however, Plaintiffs have not raised a
separate argument regarding Mr. Markolt’s claim. “Since there is no specific claim of
error as to the loss of consortium [claim], we do not reverse the trial court as to this cause
of action.” (See Rosencrans v. Dover Images, Ltd. (2011) 192 Cal. App. 4th 1072, 1089.)
2
BACKGROUND
I. Dr. Pinter’s care and treatment of Mrs. Markolt
On November 23 or November 24, 2010,2 Dr. Pinter, a general dentist, conducted
an oral examination of Mrs. Markolt, took a periapical x-ray, and diagnosed tooth No. 32
with pericoronitis. As tooth No. 32 was a partial bony impaction, Dr. Pinter
recommended extraction.
In connection with her recommendation for surgery, Dr. Pinter presented
Mrs. Markolt with a written informed consent form. The form addressed a wide-range of
dental procedures and treatments, including the removal of teeth, fillings, root canals,
endodontic treatment, treatment related to periodontal loss (tissue and bone) and creation
and fitting of dentures. The risks stated on the informed consent form for extraction of
tooth No. 32 were “pain, swelling, spread of infection, dry socket, loss of feeling in my
teeth, lips, tongue and surrounding tissue (Paresthesia) that can last for an indefinite
period of time or fractured jaw. I understand I may need further treatment by a specialist
if complications arise during or following treatment, the cost of which is my
responsibility.” Mrs. Markolt reviewed, read and signed the form. According to Mrs.
Markolt, Dr. Pinter did not go over the form point-by-point with Mrs. Markolt, but
simply told her where to sign or initial the form.
On November 30, 2010, during Dr. Pinter’s extraction of tooth No. 32,
Mrs. Markolt suffered a fracture of her right mandible. The dentist took a periapical x-
2 Itis unclear from Dr. Pinter’s medical chart for Mrs. Markolt when the initial
consultation occurred. For example, the “Medical History” indicates that Mrs. Markolt
completed and signed the form on November 23, 2010 and Dr. Pinter signed on
November 24, 2010. In addition, the “informed consent” form signed by Mrs. Markolt is
dated November 23, 2010. Mrs. Markolt’s deposition testimony pinpoints the initial
consultation date as November 23, 2010. However, Dr. Pinter’s notes from that initial
consultation indicate that it occurred on November 24, 2010. In her statement of
undisputed facts submitted in support of her motion for summary judgment, Dr. Pinter
identifies November 24, 2010 as the date of the initial consultation and Mrs. Markolt did
not dispute that assertion.
3
ray to evaluate the mandibular fracture. Dr. Pinter then referred Mrs. Markolt to an oral
surgeon for further evaluation. Mrs. Markolt did not return to Dr. Pinter for treatment.
II. The subsequent care and treatment of Mrs. Markolt
Over the course of the next year, Mrs. Markolt consulted with and/or was treated
by four different oral surgeons in connection with the fracture of her right mandible.
Among other things, she underwent three surgeries to correct the fracture, including bone
graft surgery to her right mandible in November 2011; further, she endured seven weeks
of intravenous antibiotics to treat osteomyelitis, a bone infection at the site of the
extraction.
III. Plaintiffs’ lawsuit against Dr. Pinter
On September 29, 2011, Plaintiffs filed their complaint against Dr. Pinter, alleging
three causes of action: professional negligence; failure to obtain informed consent; and
loss of consortium.
On October 5, 2011, Dr. Pinter answered Plaintiffs’ complaint denying generally
the allegations and asserting multiple affirmative defenses including the affirmative
defense that Mrs. Markolt had actual knowledge of the risks of surgery and voluntarily
assumed those risks.
On August 27, 2013, Dr. Pinter moved for summary judgment or, in the
alternative, for summary adjudication on Mrs. Markolt’s claim for lack of informed
consent. In support of her motion, Dr. Pinter submitted the declaration of William
Ardary, M.D., D.D.S., a currently practicing, board-certified, oral surgeon specializing in
oral and maxillofacial surgery. Based on his education, training and experience and on
his review of the medical records and the deposition testimony of Mrs. Markolt’s treating
physicians, Dr. Ardary opined that Dr. Pinter (a) “appropriately recommended the
extraction of tooth No. 32 in light of the diagnosis of pericor[o]nitis”; (b) “appropriately
obtained informed consent” from Mrs. Markolt for the extraction of tooth No. 32; and (c)
“did not breach the standard of care when she caused [Mrs. Markolt’s] mandibular
4
fracture.” Dr. Ardary stated, “The fact that such a fracture occurred does not mean that
Dr. Pinter practiced below the standard of care.”3
Plaintiffs opposed the motion, submitting in support of their opposition a
declaration by Marvin Jensen, M.D., D.D.S., a currently practicing oral surgeon
specializing in oral and maxillofacial surgery. Dr. Jensen, based on his education,
training and experience and on his review of the medical records and the deposition
testimony of Mrs. Markolt’s treating physicians, opined that Dr. Pinter did not meet the
standard of care because, among other things,4 she attempted the extraction without the
aid of even one assistant and because she continued the extraction after it became evident
that “[t]his was a complicated surgery. . . . Dr. Pinter should have recognized the
complication, stopped the procedure [after an hour] and referred Mrs. Markolt to an Oral
and Maxillofacial Surgeon.” Dr. Jensen agreed with one of Mrs. Markolt’s oral surgeons,
Dr. Jeff Hammoudeh, M.D., D.D.S., who testified at his deposition that while a facture is
a known risk when performing an extraction, there should only be a “low possibility” of
it occurring; like Dr. Hammoudeh, Dr. Jensen “would be very critical of [his] own work
if [he] fractured a mandible performing an extraction.”
On October 17, 2014, the trial court granted summary judgment to Dr. Pinter.
Initially, the court indicated that it had found that the declaration by Plaintiffs’ expert,
Dr. Jensen, raised a triable issue of fact with regard to the claim of professional
negligence: “a review of the entire declaration [by Dr. Jensen] sets forth a chain of
events that ties the allegedly negligent acts to the ultimate damage, a mandibular
fracture.” However, after finding that the Mrs. Markolt had given her informed consent
3 Plaintiffsobjected to certain portions of Dr. Ardary’s declaration, however, those
objections were overruled. On appeal, Plaintiffs do not challenge the trial court’s rulings
with respect to their objections.
4 Dr.Jensen also opines that Dr. Pinter did not meet the standard of care in her
treatment of Mrs. Markolt because her diagnosis was based on an x-ray that “did not
show the entire root structure” and “when Dr. Pinter diagnosed pericoronitis, [she]
prescribed an inappropriate antibiotic . . . to combat the infection.”
5
to the extraction procedure, the trial court concluded Dr. Pinter was entitled to judgment
as a matter of law on all of Plaintiffs’ claims, because “[i]nformed consent is a complete
defense to a medical malpractice claim.”
Judgment was entered on November 26, 2014, and then amended on January 9,
2015 to add an award of costs to Dr. Pinter. Plaintiffs timely appealed on January 21,
2015.
DISCUSSION
I. Standard of review
We review an order granting summary judgment de novo. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal. 4th 826, 860 (Aguilar).) We independently review the record
and apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 58
Cal. App. 4th 915, 925.) The trial court must grant the motion if “all the papers submitted
show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
In performing our independent review of a defendant’s summary judgment
motion, we apply the rules pertaining to summary judgment procedure. A defendant
moving for summary judgment has the initial burden of showing that a cause of action
lacks merit because one or more elements of the cause of action cannot be established or
there is an affirmative defense to that cause of action. (Code Civ. Proc., § 437c,
subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.) 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 make a prima facie showing that justifies
a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima
facie showing of the existence of a triable issue of material fact. (Code Civ. Proc.,
§ 437c, subd. (p)(2); Aguilar, at p. 849.)
In determining whether the parties have met their respective burdens, the court
must “consider all of the evidence” and “all of the inferences reasonably drawn
therefrom,” and “must view such evidence [citations] and such inferences [citations], in
the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th. at pp. 844–
6
845.) “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.” (Id. at p. 850, fn. omitted.)
Consequently, a defendant moving for summary judgment must “present evidence that
would require . . . a trier of fact not to find any underlying material fact more likely than
not.” (Id. at p. 845.)
“Although our review of a summary judgment motion is de novo, we review the
trial court’s final rulings on evidentiary objections by applying an abuse of discretion
standard.” (Powell v. Kleinman (2007) 151 Cal. App. 4th 112, 122 (Powell).)
II. Informed consent is not a complete defense to a professional negligence claim
We are unaware of any California case law holding that informed consent is a
complete defense to a professional negligence/medical malpractice claim. Indeed, it has
long been recognized that a lack of informed consent is a theory of liability separate from
professional negligence/medical malpractice. (See Cobbs v. Grant (1972) 8 Cal. 3d 229,
240–244; Arato v. Avedon (1993) 5 Cal. 4th 1172, 1190–1191.) In Willard v.
Hagemeister (1981) 121 Cal. App. 3d 406, the trial court granted summary judgment in
favor of dentists who were accused of fraud and malpractice in the diagnosis and
treatment of the plaintiff’s dental condition. The Court of Appeal affirmed summary
judgment in favor of all of the dentists on the malpractice claim, but directed the trial
court to allow the plaintiff to amend her complaint so as to allow a claim against two of
the dentists for lack of informed consent. (Id. at p. 419.) As the Court of Appeal
explained, a “question of fact” existed as to whether the treating dentists gave the
plaintiff “‘sufficient information’ as to the nature of [the procedure] so that she could
intelligently decide whether to undergo the dental procedure. If [the dentists] did not
make this minimal disclosure of material facts, they are liable for all injuries sustained by
[the plaintiff] during the course of this . . . treatment, whether the treatment was negligent
or not.” (Id. at p. 418, italics added; see Warren v. Schecter (1997) 57 Cal. App. 4th 1189,
7
1203–1204 [no merit to doctor’s contention that plaintiff could not recover for disclosed
complications].)5
Accordingly, we hold that the trial court was mistaken when it stated that informed
consent is a complete defense to a medical malpractice claim. However, because
Plaintiffs expressly disavow any challenge to the trial court’s finding that there was not a
triable issue of material fact with respect to their lack of informed consent claim, we need
not and do not review that claim. (See Garrett v. Howmedica Osteonics Corp. (2013)
214 Cal. App. 4th 173, 180, fn. 4; Angelotti v. The Walt Disney Co. (2011) 192
Cal. App. 4th 1394, 1402, fn. 3.)
III. Professional negligence/medical malpractice claim
In order to prevail on a claim for profession negligence against a doctor, a
plaintiff-patient must establish the following elements: (1) the doctor was negligent;
(2) the plaintiff-patient was harmed; and (3) the doctor’s negligence was a substantial
factor in causing the plaintiff-patient’s harm. (See CACI Nos. 400, 500; see also Code
Civ. Proc., § 340.5; Uriell v. Regents of University of California (2015) 234 Cal. App. 4th
735, 743.) A nonspecialist physician is negligent if he/she fails to use the level of skill,
knowledge, and care in diagnosis and treatment that other reasonably careful physicians
use in the same or similar circumstances. (See CACI No. 501; see also Mann v.
Cracchiolo (1985) 38 al.3d 18, 36.)
A. Medical malpractice and expert evidence
“Medical providers must exercise that degree of skill, knowledge, and care
ordinarily possessed and exercised by members of their profession under similar
circumstances.” (Powell, supra, 151 Cal.App.4th at p. 122.) Thus, in “‘any medical
malpractice action, the plaintiff must establish: “(1) the duty of the professional to use
5 Because a lack of informed consent is considered a type of negligence claim
separate from a medical malpractice claim, there are separate and differing jury
instructions for each claim. (See CACI Nos. 500 [essential elements for medical
negligence], 501 [standard of care for health care professionals], 532 [definition of
informed consent], and 533 [essential elements for failure to obtain informed consent].)
8
such skill, prudence, and diligence as other members of his profession commonly possess
and exercise; (2) a breach of that duty; (3) a proximate causal connection between the
negligent conduct and the resulting injury; and (4) actual loss or damage resulting from
the professional’s negligence.”’” (Hanson v. Grode (1999) 76 Cal. App. 4th 601, 606.)
“Whenever the plaintiff claims negligence in the medical context, the plaintiff
must present evidence from an expert that the defendant breached his or her duty to the
plaintiff and that the breach caused the injury to the plaintiff.” (Powell, supra, 151
Cal.App.4th at p. 123; see Willard v. Hagemeister, supra, 121 Cal.App.3d at p. 412
[expert testimony needed to sustain dental malpractice claim].) “‘California courts have
incorporated the expert evidence requirement into their standard for summary judgment
in medical malpractice cases. When a defendant moves for summary judgment and
supports his motion with expert declarations that his conduct fell within the community
standard of care, he is entitled to summary judgment unless the plaintiff comes forward
with conflicting expert evidence.’” (Munro v. Regents of University of California (1989)
215 Cal. App. 3d 977, 984–985.)
Here, Dr. Pinter satisfied her initial burden of production on these issues through
her submission of Dr. Ardary’s declaration, which Plaintiffs do not challenge on appeal.
Thus, the burden shifted to Plaintiffs to raise a triable issue of material fact. (See
Aguilar, supra, 25 Cal.4th at p. 850; Bushling v. Fremont Medical Center (2004) 117
Cal. App. 4th 493, 506 (Bushling).) Plaintiffs attempted to do this by presenting the
declaration of Dr. Jensen, who opined that Dr. Pinter breached the standard of care and,
as a result, caused Mrs. Markolt’s alleged damages. Plaintiffs contend that Dr. Jensen’s
declaration was sufficient to preclude summary judgment on the malpractice claim by
creating a triable issue as to both breach and causation. We agree.
B. Adequacy of Dr. Jensen’s declaration
1. STANDARDS FOR EXPERT TESTIMONY
Under Evidence Code section 801, subdivision (a), a person who qualifies as an
expert may give opinion testimony “[r]elated to a subject that is sufficiently beyond
common experience” when “‘the opinion of [an] expert would assist the trier of fact.’”
9
(Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal. App. 4th 1108, 1116
(Jennings).) For this reason, “qualified medical experts may, with a proper foundation,
testify on matters involving causation when the causal issue is sufficiently beyond the
realm of common experience that the expert’s opinion will assist the trier of fact to assess
the issue of causation.” (Id. at p. 1117.)
Nonetheless, an expert “does not possess a carte blanche to express any opinion
within the area of expertise.” (Jennings, supra, 114 Cal.App.4th at p. 1117.) Subdivision
(b) of Evidence Code section 801 provides that expert opinion must be “[b]ased on
matter . . . that is of a type that reasonably may be relied upon by an expert in forming an
opinion upon the subject to which his testimony relates. . . .” Furthermore, Evidence
Code section 802 provides that an expert witness “‘may state . . . the reasons for his
opinion and the matter . . . upon which it is based,’” unless precluded by law. As our
Supreme Court has explained, under these provisions, the court acts as a “gatekeeper,”
and “may inquire into, not only the type of material on which an expert relies, but also
whether that material actually supports the expert’s reasoning.” (Sargon Enterprises, Inc.
v. University of Southern California (2012) 55 Cal. 4th 747, 771 (Sargon).)
Where this showing is lacking, “‘there is simply too great an analytical gap
between the data and the opinion proffered.’” (Sargon, supra, 55 Cal.4th at p. 771,
quoting General Electric Co. v. Joiner (1997) 522 U.S. 136, 146.) Thus, “when an
expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation
connecting the factual predicates to the ultimate conclusion, that opinion has no
evidentiary value because an ‘expert opinion is worth no more than the reasons upon
which it rests.’” (Jennings, supra, 114 Cal.App.4th at p. 1117.) Accordingly, even when
such testimony is admitted in connection with a summary judgment motion, it does not
raise a triable issue of fact. (Nardizzi v. Harbor Chrysler Plymouth Sales, Inc. (2006)
136 Cal. App. 4th 1409, 1415; Kelley v. Trunk (1998) 66 Cal. App. 4th 519, 524 (Kelley);
see Leslie G. v. Perry & Associates (1996) 43 Cal. App. 4th 472, 487–488.)
Instructive applications of these principles are found in Jennings, supra, 114
Cal. App. 4th 1108, and Bushling, supra, 117 Cal. App. 4th 493. In Jennings, medical
10
personnel accidently left a retractor inside the plaintiff during a surgery. (Jennings,
supra, 114 Cal.App.4th at p. 1112.) Later, when the retractor was removed, doctors
found a grave infection near the original incision, but some distance from the retractor.
(Id. at pp. 1113–1114.) In the plaintiff’s medical malpractice action, his expert opined
that the retractor caused the internal infection. (Id. at pp. 1114–1115.) To support his
opinion, the expert posited that bacteria on the retractor multiplied and migrated to the
site of the infection. (Ibid.) As there was no physical evidence of migration, the expert
presented scenarios regarding how the migration might have occurred without leaving
physical traces. (Id. at pp. 1115–1116.) The trial court excluded the opinion as
speculative and unfounded. (Id. at p. 1116.) In affirming, the appellate court concluded
that the expert’s testimony regarding the migration was conjectural and conclusory. (Id.
at pp. 1116–1121.)
In Bushling, the plaintiff underwent surgery to remove his gall bladder and to
biopsy a mole on his abdomen. (Bushling, supra, 117 Cal.App.4th at p. 497.) Following
the surgery, he discovered an injury to his left shoulder. (Ibid.) In his medical
malpractice action, the defendant surgeons sought summary judgment on the ground that
they engaged in no negligent conduct that caused his shoulder injury. (Id. at pp. 497–
501.) The plaintiff’s experts opined that the injury occurred because the plaintiff was
improperly positioned on the surgery table or mishandled during the procedure. (Id. at
pp. 503–505.) In affirming summary judgment, the appellate court held that the opinions
of the plaintiff’s experts lacked evidentiary value, reasoning that the experts “assume[d]
the cause from the fact of the injury,” as there was no evidence that the plaintiff was mis-
positioned or mishandled during the surgery. (Id. at p. 510; see Shugart v. Regents of
University of California (2011) 199 Cal. App. 4th 499, 508 [expert’s unsupported
statement did not raise triable issue]; Kelley, supra, 66 Cal.App.4th at pp. 521–522, 524
[expert’s conclusory statement did not carry defendant’s initial burden].)
11
2. DR. JENSEN’S DECLARATION CREATED TRIABLE ISSUES OF FACT WITH
REGARD TO DR. PINTER’S ALLEGED NEGLIGENCE IN TREATING MRS. MARKOLT
Here, unlike the expert declarations in Jennings, supra, 114 Cal. App. 4th 1108, and
Bushling, supra, 117 Cal. App. 4th 493, Dr. Jensen did not rely on factually unsupported
hypotheticals and assumptions. Instead, Dr. Jensen applied his education, training, and
experience to the facts of the case and offered expert opinions regarding Dr. Pinter’s
alleged negligence. For example, with regard to the issue of breach, Dr. Jensen raised a
number of material factual issues for trial: (1) Dr. Pinter’s general competence—
according to Dr. Jensen, she prescribed an “inappropriate antibiotic” to combat the
infection; (2) Dr. Pinter’s preparation for the extraction procedure—Dr. Pinter admitted
at her deposition that she practiced alone, without any assistants; according to Dr. Jensen,
the extraction “should not have been performed by Dr. Pinter without at least one, but
preferably multiple assistants”; in addition, Dr. Pinter did not take an “x-ray showing the
entire root structure and surrounding bone”; thus, she was probably unaware that
Mrs. Markolt’s “jawbone had dense bone”; (3) Dr. Pinter’s competence to perform the
extraction—Dr. Pinter was a general dentist, not an oral surgeon specializing in oral and
maxillofacial surgery; as a result, she was “practicing beyond the scope of her practice”;
this lack of experience and training was evident when Dr. Pinter continued the extraction
for approximately an hour, instead of recognizing much earlier, and certainly before the
fracture, that this was a “complicated surgery” requiring someone with more skill,
training, and experience; as one of Mrs. Markolt’s treating surgeons (Dr. Hammoudeh)
noted, a fracture should only exist as a “low possibility” in an extraction procedure; that
same surgeon, who Dr. Jensen agreed with, also stated, “If I took out a set of wisdom
teeth and I had a fracture of the mandible, I would be quite critical of myself.”
We agree with the trial court that while Dr. Jensen’s causation opinion is not set
forth with great specificity or clarity, “it is also true that a review of the entire declaration
sets forth a chain of events that ties the allegedly negligent acts” of Dr. Pinter to
Plaintiffs’ alleged injuries and damages.
12
In sum, through Dr. Jensen’s declaration, Plaintiffs have met their burden with
respect to their professional negligence/malpractice claim. Dr. Pinter argued below and
on appeal that the fact that Mrs. Markolt’s mandibular fractured during the procedure on
November 30, 2010 does not mean that Dr. Pinter practiced below the standard of care.
However, the contrapositive is also true: as established by Dr. Jensen and
Dr. Hammoudeh, the fact that a fracture did occur does not mean that Dr. Pinter did not
breach the standard of care. In other words, whether Dr. Pinter breached her duty of care
to Mrs. Markolt and caused some injury to her is a question of fact for the jury to decide.
DISPOSITION
Summary adjudication in favor of Dr. Adrienne S. Pinter on Christina Markolt’s
lack of informed consent claim and on Gergely Markolt’s loss of consortium claim is
affirmed. Summary adjudication on Christina Markolt’s professional negligence/medical
malpractice claim is reversed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
CHANEY, Acting P. J.
LUI, J.
13