Hicks v. McLean

XIAO HUI GAN HICKS, Plaintiff and Appellant, v. MICHAEL McLEAN, M.D., Defendant and Respondent.

B298800

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

June 23, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC670934)

APPEAL from a judgment of the Superior Court of Los Angeles County, David Sotelo, Judge. Affirmed.

Xiao Hui Gan Hicks, in pro. per., for Plaintiff and Appellant.

Schmid & Voiles, Jennifer K. Villebro, Deborah S. Taggart and Denise H. Greer for Defendant and Respondent.

Appellant Xiao Hui Gan Hicks appeals from summary judgment granted in favor of her former physician, respondent Dr. Michael McLean, on Hicks's claims for medical negligence/abandonment and battery arising out of varicose vein surgery Dr. McLean performed on Hicks. We affirm.

BACKGROUND

Hicks's allegations and contentions are difficult to decipher. To the extent we can ascertain Hicks's contentions from the second operative complaint (SAC) and record, they are as follows: in July 2016, Hicks consulted Dr. McLean, a cardiothoracic surgeon, regarding a diagnosis of varicose veins causing pain in her legs. On October 18, 2016, at his Los Angeles office, Dr. McLean performed surgery on Hicks's left leg after which that leg ceased to hurt.

The incidents at issue here began on December 8, 2016. On that day, Hicks returned to Dr. McLean's office and signed a written consent for surgery to treat varicose veins in her right leg. As Hicks was awaiting surgery, Dr. McLean notified Hicks for the first time that "a new medicine [was] going to be tested on [her] left leg" and, if "all went well, then they would undergo surgery on [Hicks's] right leg with the new medicine later." Jose Hernandez, Dr. McLean's physician assistant, then "injected the new medicine four to five times into [Hicks's] left leg" and, because "there [was] still some medicine left," administered a single injection of the same medication to Hicks's rightleg. Hicks does not know and was not told the name of the "medicine . . . administered on [sic] her legs."

A week later Hicks "noticed and felt unusual changes to [her] legs including more noticeable blood vessels, intense pain, tightness, heaviness, and . . . hardening in certain locations." She returned to Dr. McLean on December 13, 2016. He evaluated Hicks's legs, told her "it [sic] looked better and that they would undergo surgery on [her] right leg with the new medicine in four weeks." Thereafter, Hicks's scheduled appointments "were suddenly canceled," and she was unable to schedule an appointment to see Dr. McLean until January 12, 2017. Prior to that appointment, Hicks wrote to Dr. McLean, informed her that her "legs were in worse condition" and she thought "something was wrong," and that no surgery should be performed on her right leg with the new medicine at her upcoming appointment.

Hicks visited Dr. McLean at his Lynwood office on January 12, 2017. Dr. McLean performed an ultrasound on both her legs, after which he told Hicks he had "covered all of the varicose veins and that [the] job was done." Hicks was also told that Dr. McLean's office in Lynwood would be closing at the end of the month.¹ This "news frightened [Hicks] as [her] legs had worsened, [and she] still did not know what medicine had been administered on [her] legs." Hicks claims that, after December 8, 2016, her "left leg became worse." Shealleges she suffered "very serious side-effect, panic attacks [and] fears" as a result of the new medicine Dr. McLean tested on her leg, and his purported refusal to continue treating her after January 12, 2017.

Hicks, who has consistently been self-represented, filed this action on August 2, 2017. After one or more demurrers and motions to strike punitive damages, Hicks filed the SAC on May 29, 2018. Although it understandably found the SAC to be "poorly written and hard to follow," the trial court concluded Hicks adequately pled causes of action for (1) medical malpractice/abandonment, and (2) medical battery.

Summary Judgment Motion

In due course, Dr. McLean moved for summary judgment. He argued he had satisfied the appropriate standard of care, had not caused Hicks's injuries, had not acted with intent to harm Hicks, did not abandon or withdraw from medical treatment of his patient and had not concealed or misrepresented information from or to Hicks. The motion was supported by, among other things, declarations from Dr. McLean, Hernandez, Dr. McLean's expert witness, Dr. Vincent Rowe, an experienced vascular surgeon and professor, and Hicks's medical records, deposition testimony and other exhibits.

According to Dr. McLean and Hernandez, on December 8, 2016, after explaining the procedure to Hicks and obtaining her written consent, Hernandez (under Dr. McLean's supervision) performed sclerotherapy (a medical procedure used to eliminate varicose veins) onHicks's right leg.² Neither Hernandez nor Dr. McLean said anything to Hicks about administering a new or experimental medication for the procedure. Rather, "polidocanol," the usual medication used for such procedures, was used on the right leg. Hicks tolerated the procedure well and experienced no complications. No procedure was performed on, nor was any medication administered to, Hicks's left leg on December 8, 2016. Hernandez and Dr. McLean declared that Hicks's medical records for December 8, 2016, submitted in support of the motion for summary judgment, were complete and unaltered, and no procedure, care or treatment not identified in those records was administered to Hicks nor was any information omitted from the records. When Hicks returned the following week for a post-procedure follow up she did not report any concerns and her legs showed no edema, tenderness, erythema or discoloration. After discussing the procedure with Hernandez, Hicks scheduled an appointment for January 12, 2017, for sclerotherapy to be performed on previously inaccessible veins in her right leg.

When Hicks returned on January 12, 2017, she informed Hernandez she did not wish to proceed with the scheduled sclerotherapy. Rather, Hicks complained she had new varicose veins in both legs, which she believed had been caused by the previous sclerotherapy. An examination and ultrasound revealed no new varicose veins in or other injury to either of Hicks's legs, and she did not report any pain, discomfort, swelling or redness. When questioned about her concern, Hicks said the new varicose veins appeared primarily at night. Hicks was given and instructed to continue to wear compression stockings and to return to Dr. McLean for a follow-up appointment in four weeks. Hicks did not schedule that follow-up appointment, and never returned to see Dr. McLean. Dr. McLean and Hernandez declared they had not withdrawn from Hicks's care, had not refused to see her and did not cancel (or instruct anyone not to schedule) any appointment with Hicks after January 12, 2017.

In support of his motion, Dr. McLean submitted the declaration of his medical expert, Dr. Rowe, a double board-certified general and vascular surgeon with over 20 years of experience. Dr. Rowe is also a professor of clinical surgery at USC medical school, and chief of vascular surgery for L.A. County/USC Medical Center. Dr. Rowe testified he was familiar with the standard of care for vascular surgeons practicing in Southern California at relevant times.

Based on his review of Hicks's medical records and deposition testimony, and his education and professional experience as a vascular surgeon, Dr. Rowe opined that Dr. McLean and Hernandez met thestandard of care in connection with their medical care and treatment of Hicks. Dr. Rowe opined that the December 8, 2016 procedure was performed in the standard, customary manner after discussing the procedure with Hicks and obtaining her informed consent. The medication and dosage used was standard, appropriate and customary for such sclerotherapy. Dr. Rowe saw no evidence to indicate that any medication other than polidocanol was used, or that any injection at all was administered to Hicks's left leg on December 8, 2016. Dr. Rowe opined that, to a reasonable degree of medical probability, neither Dr. McLean's actions nor those of his physician's assistant were a substantial factor in causing or contributing to Hicks's alleged injuries. Indeed, an ultrasound performed by Dr. McLean on January 12, 2017, reflected that Hicks had no new post-surgical injuries. In Dr. Rowe's professional opinion, no negligent act or omission by Dr. McLean or Hernandez caused Hicks's alleged injuries or damages.

As for the claim of medical abandonment, Dr. Rowe opined there was no evidence Dr. McLean refused to see Hicks or withdrew from her care and treatment after January 12, 2017. Dr. Rowe opined that it was appropriate and within the standard of care for Dr. McLean to have instructed Hicks to return four weeks after January 12, 2017 for a follow-up evaluation.

Finally, with regard to Hicks's allegation of medical battery, Dr. Rowe opined there was no evidence any unconsented surgery was performed. Nor was there any indication that any new or experimental medication, or anything other than polidocanol, used on December 8,2016, or that any medication at all was administered to Hicks's left leg that day.

Hicks's declaration and opposition to the motion for summary judgment were procedurally inadequate and as unintelligible as the SAC and her other papers. Hicks objected to medical records upon which Dr. Rowe relied, claiming the records were false, but provided no evidence to support that claim. Hicks also failed to present competent (or any) evidence to...