Mousavi v. Woodburn CA2/6

Filed 10/1/14 Mousavi v. Woodburn CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

MORVARID MARY MOUSAVI, 2d Civil No. B251529 (Super. Ct. No. 56-2012-00418964-CU- Plaintiff and Appellant, MM-VTA) (Ventura County) v.

JAMES D. WOODBURN III,

Defendant and Respondent.

This action arises from an intra-operative injury allegedly sustained by appellant Morvarid Mary Mousavi during a procedure performed by respondent James D. Woodburn III, M.D. Mousavi sued Dr. Woodburn for medical malpractice, assault and battery, false imprisonment and related claims. After successfully demurring to all but the medical malpractice claim, Dr. Woodburn moved for summary judgment. He submitted expert evidence that his participation in the surgery did not require Mousavi's advance express consent and that his treatment was within the standard of care and did not cause her claimed injuries. Mousavi offered no expert evidence in response. Concluding she had failed to raise a triable issue of material fact, the trial court granted summary judgment. We affirm. FACTUAL AND PROCEDURAL HISTORY Mousavi consulted with Dr. Terry Cole, a board-certified specialist in obstetrics and gynecology (OB/GYN), regarding various gynecological issues. Dr. Cole

determined Mousavi suffered from uterine fibroids, ovarian cysts and excessive menstrual bleeding. Her past surgical history included multiple caesarean sections, an ectopic pregnancy, bowel resection and abdominoplasty (tummy tuck). Mousavi elected to have Dr. Cole perform a total abdominal hysterectomy and removal of her remaining ovary. When she arrived at Community Memorial Hospital (CMH) for the procedure, Mousavi signed the surgical consent, which stated: "The operations or procedures will be performed by the supervising physician or surgeon named above [Dr. Cole] (or in the event that physician is unable to perform or complete the procedure, a qualified substitute supervising physician or surgeon) . . . ." Dr. Cole asked Dr. Woodburn, a general surgeon, to assist with the surgery. Dr. Cole performed the initial incision to open the abdomen, but was unable to identify the pelvic structures due to extensive adhesions and scar tissue from Mousavi's past surgeries. Because he could not safely remove the uterus and ovary at that point, Dr. Cole requested Dr. Woodburn's assistance. Dr. Woodburn performed extensive lysis of the adhesions and scar tissue to expose the pelvic structure for Dr. Cole. Once this process was completed, Dr. Cole removed the uterus and right ovary. Dr. Woodburn closed the surgical wound. Against medical advice, Mousavi discharged herself from CMH two days later. She returned to the hospital that same evening and was re-admitted for pain complaints. A few hours later, before she could be fully evaluated, Mousavi again discharged herself against medical advice. She went to Los Robles Regional Medical Center, where she was diagnosed with a distal right ureter injury. She underwent a successful ureter re-implantation the next day. Mousavi filed a complaint in pro per against Dr. Woodburn and CMH for medical malpractice, assault and battery, and negligent infliction of emotional distress by gross negligence. She alleged Dr. Woodburn committed malpractice by failing to obtain her consent prior to assisting with the surgery and by causing the ureter injury. Dr. Woodburn demurred to the complaint. While that demurrer was pending, Mousavi filed a first amended complaint against Dr. Woodburn, CMH and several other defendants