Ly v. Larson
Filed 2/5/13 Ly v. Larson CA4/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
DIEP LY,
Plaintiff and Appellant,
v.
DAVID D. LARSON,
Defendant and Respondent.
G046075
(Super. Ct. No. 30-2010-00382386)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Gregory Munoz, Judge.
Affirmed.
Law Offices of Andrew D.
Weiss and Andrew D. Weiss for Plaintiff and Appellant.
Schmid & Voiles,
Denise H. Greer and Sidney J. Martin for Defendant and Respondent.
* * *
Diep
Ly sued anesthesiologist Dr. David Larson for persistent
following Larson’s administration of five percent Lidocaine as a spinal
anesthetic for a dilation and curettage (D & C) procedure necessitated by
a miscarriage the day before. The jury returned a defense verdict. It was undisputed at trial that while Larson
told Ly her choice of spinal, as
distinct from general, anesthesia
carried with it the risk of “back pain,†he did not inform Ly that Lidocaine,
as distinct from another spinal anesthetic, Marcaine, carried with it an
elevated risk of transient neurologic syndrome (TNS), which Ly would later
claim as the cause of her back pain and leg numbness. The sole question on appeal is whether
substantial evidence supports the jury’s express finding that Ly gave Larson
her informed consent for the spinal anesthesia that used five percent
Lidocaine.
We affirm the judgment
entered in the wake of the defense verdict.
The jury heard evidence from which it could reasonably infer that
Marcaine, which can last up to five hours, was just not a viable option for
Ly’s D & C procedure, which was expected to be over in a matter of
minutes. Marcaine can take up to five
hours to wear off and commonly requires patients to remain several hours with a
urinary catheter. The jury also heard
conflicting evidence concerning just how much Lidocaine increases the risk of
TNS, including evidence that Lidocaine-caused TNS is practically unheard of
after 10 days. Under these
circumstances, the jury could reasonably conclude the potential for TNS as a
result of the use of Lidocaine was reasonably subsumed in telling Ly of the
potential for back pain as the result of a spinal anesthetic.
FACTS
The basic story is
simple. Ly suffered a
Vegas on March
22, 2011. The next day she
saw her personal physician, who sent her to Long
Beach Memorial Medical
Center for a D & C. By 2 p.m.
she was at the hospital and she soon had a conversation with Larson about the
upcoming procedure. What Larson told her
in that conversation was disputed at trial.
Ly said Larson merely complimented her physician but didn’t discuss the
procedure at all. According to Larson,
however, he and Ly discussed the “two main options for providing anesthesia†in
the operation, “general anesthesia or spinal anesthesia.†He also testified he told Ly that for spinal
anesthesia, there were three “common risks,†namely “back pain, headache,
persistent numbness.†However, he
admitted that he did not give Ly a choice between Lidocaine and Marcaine;
indeed there is no evidence he mentioned either anesthetic to her. He testified “we did not go into that technical
level of discussion about the choices.â€
According to Larson, Ly choose a spinal anesthetic; he then chose
Lidocaine as the drug for the spinal anesthetic.
The D & C procedure
itself was uneventful, though it is uncontroverted that in the end the Lidocaine
had to be “supplement[ed]†with very low levels of general anesthesia
anyway. After the operation, however, Ly
experienced a very bad headache as well as “a lot of†lower back pain. Thereafter, at least for the next two years
until trial, Ly would complain of persistent back pain and numbness.
The expert evidence on
the Lidocaine-Marcaine dichotomy was sharply conflicting. Ly’s expert was anesthesiologist Dr. Steven
Yun. He testified it was below the
standard of care for Larson to allow a spinal anesthetic over a general
anesthetic in the first place, given the lack of “contraindications†to general
anesthesia in Ly’s case. On top of that,
Yun opined it was below the standard of care for Larson to use Lidocaine as a
spinal anesthetic instead of an available alternative. He described Lidocaine as “notorious†for
“neurotoxity complication,†and “neurological complications.†Yun further opined that Ly’s pain was directly
caused by the Lidocaine injection and generally asserted that Lidocaine has a
“very high incidence†of complications, which he quantified at as much as 40
percent. Yun even noted that when he was
training at UCLA from 1996 to 2000, it was “taboo†to use five percent
Lidocaine for a spinal anesthetic.
According to Yun, there was only a “slight†difference in wear-off times
between Lidocaine and Marcaine.
Larson’s expert,
anesthesiologist Dr. Timothy Carpenter, told a different story. He first explained the advantages of a spinal
over a general anesthetic. Blood loss is
reduced by 20 to 30 percent, there is a decreased possibility of blood clots
forming in the legs, and it doesn’t “stress out†the heart like a general
anesthetic. And for spinal anethestics,
according to Carpenter, Lidocaine is by far preferable to Marcaine for short
operations. Lidocaine has usually worn
off within an hour and a half. By
contrast, Marcaine lasts up to three or four hours, and so with Marcaine there
is a high incidence of risk of urinary retention, and it is not uncommon for a
patient to require several hours with a urinary catheter. Accordingly, said
Carpenter, Lidocaine was the “drug of choice†for short procedures. Carpenter also observed a D & C “will
probably take two to five minutes.†(Yun
himself testified “the actual surgical procedure†of a D & C lasts five to
ten minutes.)
experts also disagreed about the relationship between Lidocaine and TNS. As we have noted, Yun testified that
Lidocaine was so problematic that in the period 1996 to 2000, its use was
virtually “taboo.†Carpenter, however,
testified that Lidocaine had been recently rehabilitated in the medical
community in relation to TNS.
Specifically, Carpenter
testified that TNS was first recognized only in 1993, and as a syndrome has
already been through several name changes, including being known as “transient
radicular toxicology.†(Larson himself
would refer to it also as “transient radicular irritation.â€) According to Carpenter, almost
24 after a spinal anesthetic, but there have been only one or two cases where
it has ever lasted beyond 10 days.
Carpenter also noted all
spinal anesthetics cause TNS “to a different degree,†so even Marcaine carries
a risk of TNS, albeit a much lower one of six to eight percent.
TNS itself. It is “not toxic, just an
unfortunate side effect,†and in fact doesn’t involve any nerve damage at all.
Carpenter also
confronted Lidocaine’s apparently bad reputation coinciding with Yun’s days at
UCLA. He acknowledged use of the
anesthetic had dropped by 90 percent by 2003.
However, he also testified that articles later than 1993 showed no
pathology from Lidocaine, hence the drug was subsequently “re-introduced.â€
Larson also testified on
his own behalf. He admitted that
Lidocaine can have the “side effect†of causing TNS up to 40 percent of the
time, but that figure was not consistent with his own experience in 25 years of
anesthesiology practice. Larson had (up
to Ly’s case at least) encountered only one or two instances of
Lidocaine-caused TNS.
name="_ftnref3" title="">[3]
Two issues were
submitted to the jury. One was whether
Ly had given her informed consent “for the spinal anesthesia with 5%
lidocaine.†The other was whether Larson
was negligent in his treatment of Ly.
DISCUSSION
Ly does not contest the
jury’s finding there was no negligence.
Her sole argument on appeal is that there was
consent, because it was undisputed TNS is a painful condition, a consequence
material to her decision to undergo a D & C, and she was entitled to know
Lidocaine increased the probability of TNS.
Several points bearing
on the issue of informed consent for medical procedures should be recognized at
the outset. First, because Ly does not
argue the evidence was insufficient to absolve Larson of negligence in
sufficient for us to decide there was substantial evidence Lidocaine was
preferable to the alternative Marcaine for Ly’s D & C procedure. As this appeal comes to us, it is about
whether Ly was entitled to be told
about the choice between Lidocaine and Marcaine, not whether Larson fell below
the standard of care in choosing Lidocaine over Marcaine. (See Cobbs
v. Grant (1972) 8 Cal.3d 229, 242-243 [articulating theory that patients
have right to control their own bodies and therefore consent to treatment must
be informed].)
Second, if our Supreme
Court has articulated one main theme in its consideration of the informed consent
issue, it is that the medical community itself does not define the standards
for informed consent. (See
[rejecting rule that duty of disclosure is set by “medical community
standardâ€]; Arato v. Avedon (1993) 5
Cal.4th 1172, 1186 [reiterating rejection of rule “that filters the scope of
patient disclosure entirely through the standards of the medical
communityâ€].) The point is that
laypeople are perfectly adept at knowing what laypeople might want to know in a
given medical context. (See
(1992) 5 Cal.App.4th 234, 280, fn. 14 [“Since laypersons can ordinarily
determine what information would be significant to a patient, ‘informed
consent’ cases are like other cases where professional negligence can be
inferred without expert testimony . . . .â€]; Spann v. Irwin Memorial Blood Centers (1995) 34 Cal.App.4th 644,
657, fn. 13 [“Generally expert testimony is not required to establish a failure
to provide informed consent since the scope of disclosure is measured by what
the patient needs to know, not by the
standard in the professional community.â€])
Accordingly, again, it is not enough simply to note an expert witness
was willing to opine that Larson was within the standard of care in only informing
Ly of the possibility of back pain from a spinal anesthetic and summarily
affirm based on that fact. We cannot
avoid the details presented by the actual evidence.
Third,
the jury could validly rely on the medical knowledge actually testified to by
experts in evaluating the adequacy of the disclosure – indeed there are times
when juries must rely on expert
evidence. (See Betterton v. Leichtling (2002) 101 Cal.App.4th 749, 756
[because effect of aspirin use on surgical complications is beyond the general
knowledge of lay people, jury could only rely on expert testimony in
determining whether the use of aspirin causes significant risks in surgery];
Cal.App.4th 836 [plaintiff required to submit expert evidence he was diabetic
in order to survive summary judgment motion where his suit was based on theory
doctor did not explain the special risks of infection from surgery on patients
with diabetes].)
And finally, the
adequacy of a particular disclosure is a quintessential matter for the jury,
turning as it does the “situational ingredients that contribute to a particular
doctor-patient exchange of information relevant to treatment decisions,†hence
it is an area not appropriate for appellate courts to lay down “‘bright line’
guides.’†(Arato, supra, 5 Cal.4th at p. 1186; accord, Wilson v. Merritt (2006) 142 Cal.App.4th 1125, 1134-1135
[question of whether physician should have disclosed risk of shoulder injuries
in chiropractic manipulation done under anesthesia administered by that
physician should have gone to jury instead of being precluded by nonsuit];
e.g., Quintanilla v. Dunkelman (2005)
133 Cal.App.4th 95, 115 [classic substantial evidence review upholding
determination that patient was not told of possible disfigurement and pain in
nonconsented to laparoscopy procedure, even though patient did consent to D
& C].)
With these points in
mind, we may take as a given in the case before us that Ly chose spinal
anesthesia, and Larson had no duty to talk her out of it. There was substantial evidence in Carpenter’s
testimony to the effect spinal anesthesia carried some advantages over general
anesthesia, not the least of which is less stress on the heart.
Ly’s having chosen
spinal anesthesia, there was also substantial evidence that the
to Lidocaine were so great in relation to a procedure that might last as little
as five minutes that a jury could reasonably conclude that Marcaine wasn’t even
a viable option. The jury heard evidence
that because of its long wear-off time, Marcaine carries a significant risk of
urinary retention and the need for the patient to remain several hours with a
urinary catheter.
Of course, Ly’s argument
is that she was entitled to be told of the choice between Lidocaine and
Marcaine, so she could have decided
between a 40 percent risk of TNS from Lidocaine versus the discomfort of
catheterization from Marcaine. And we
must remember here that her suit is predicated on the theory that it was
Lidocaine that caused the TNS to which she attributed her persistent back pain
and numbness. But in
evidence that Lidocaine posed virtually no risk at all of TNS lasting beyond 10
days.
The jury was thus
presented with substantial evidence for a scenario in which
– (a) Ly would have a
spinal anesthetic for a D & C that would last no longer than 10 minutes and
maybe as short as 3 minutes;
– (b) the only possible
anesthetics for that short operation were (1) Lidocaine, which would wear off
quickly and allow the patient to go home earlier, and (2) Marcaine, which would
take as long as five hours to wear off and probably require catheterization;
and
– (c) even though the
drug that avoided catheterization carried a higher risk of TNS in the first 10
days after the operation, the absolute risk of TNS after 10 days from the
surgery was extremely low.
Given this scenario, the
jury could reasonably conclude that a warning of back pain from a
functional equivalent of a warning of TNS from Lidocaine.
We decline to speculate
about Larson’s back up argument, which is that even if there was
consent, the judgment must still be affirmed because there still was
damages because her back pain is the product of somatoform pain disorder, hence
the judgment must be affirmed anyway.
DISPOSITION
The
judgment is affirmed. Respondent to
recover costs.
BEDSWORTH,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.
her complaints constituted TNS at all was itself controverted at trial. The defense presented expert evidence to the
effect Ly’s complaints were the product of depression and somatoform pain
disorder.
name="_ftn2" title=""> [2] Because this case stems from a
jury trial, conflicts are resolved and inferences drawn in favor of the winner,
Larson. Larson’s testimony about
virtually zero TNS after 10 days yet, incidences of six to eight percent for
Marcaine and perhaps as high as 40 percent for Lidocaine, makes sense if one
distinguishes between the first 10 days after a spinal anesthetic with either
drug and the period of time thereafter.
In any event, Ly does not make a point of the putative discrepancy in
her own briefing.
