Salvatto v. Mitchell CA1/3

Filed 1/30/15 Salvatto v. Mitchell CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

LATEACHEEAH SALVATTO, Plaintiff and Appellant, A141424 v. JARED MITCHELL, (Contra Costa County Super. Ct. No. MSC1102698) Defendant and Respondent.

In this medical malpractice action, plaintiff LaTeacheeah Salvatto appeals in propria persona (pro. per.) from a summary judgment entered in favor of defendant Dr. Jared Mitchell. She argues: (1) there is a triable issue of fact as to whether Dr. Mitchell met the applicable standard of care in obtaining her informed consent to undergo spinal anesthesia; (2) Dr. Mitchell lacked legal standing to pursue a summary judgment motion on the same grounds asserted in a prior demurrer; (3) defense counsel “illegally obtained her deposition” by deposing her for more than seven hours; and (4) the expert witnesses relied upon by Dr. Mitchell lacked personal knowledge of the matters on which they offered opinions. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On October 29, 2010, Salvatto underwent surgery on her right hip at John Muir Hospital. Dr. Mitchell was the anesthesiologist who administered general and spinal anesthesia to Salvatto. Salvatto filed suit against the hospital and Dr. Mitchell. The operative, second amended complaint contains two causes of action—(1) medical negligence, and

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(2) medical battery—lack of informed consent. Salvatto alleges that Dr. Mitchell was negligent in administering anesthesia to her and that, as a proximate result of Dr. Mitchell’s actions, she suffered an injury to her spine resulting in partial paralysis. She claims her prior medical history revealed she was not an appropriate candidate for spinal anesthesia. Salvatto also alleges that Dr. Mitchell failed to inform her that spinal anesthesia would be used and failed to advise her of the potential side effects and risks of spinal anesthesia. She contends she would not have consented to the procedure had she been fully informed of the risks. Although not alleged in the second amended complaint, Salvatto claims to have developed arachnoiditis as a result of the treatment provided to her by Dr. Mitchell. Salvatto describes arachnoiditis as “an irreversible disease of the spine” that has resulted in leg paralysis, cognitive brain injury, brain lesions, continuous headaches, and sexual dysfunction. Dr. Mitchell moved for summary judgment on the following grounds: (1) Salvatto cannot establish that the anesthesia care and treatment he provided to her fell below the applicable standard of care; (2) Salvatto cannot establish that any act or omission by Dr. Mitchell caused or contributed to any injuries she claims to have suffered; and (3) as to the battery cause of action, Salvatto cannot establish the required element of lack of consent. In support of the summary judgment motion, Dr. Mitchell offered a declaration by a neurologist, Dr. Bruce Adornato, establishing that the medical care and treatment provided to Salvatto by Dr. Mitchell did not cause or contribute to any injuries Salvatto claims to have suffered. Dr. Mitchell presented evidence establishing that, to a reasonable medical probability, Salvatto does not have arachnoiditis. A declaration authored by Dr. Jerome Barakos, a radiologist, established that spinal MRI’s of Salvatto taken after the 2010 surgery did not reveal evidence of arachnoiditis. As set forth in the evidence supplied by Dr. Mitchell, Salvatto has a number of somatic complaints—i.e., complaints for which there is no objective medical explanation. Her complaints are consistent with her pre-existing history of recurrent, unexplained choreoathetoid type movements, associated speech difficulties, and other pre-existing health problems. Dr.