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Thomas v. Hickman

May 4, 2009

KELLI THOMAS, PLAINTIFF,
v.
RODERICK HICKMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

MEMORANDUM OPINION AND ORDER ADDRESSING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. #183)

Plaintiff Kelli Thomas, an inmate at the Central California Women's Facility ("CCWF"), filed civil rights actions pursuant to 42 U.S.C. § 1983 against prison medical staff, a private doctor, and private hospital. The court has jurisdiction over Plaintiff's civil rights causes of action pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the state law causes of action pursuant to 28 U.S.C. § 1367. Because the events underlying this action took place at CCWF and Madera Community Hospital, venue in this court is appropriate. Pending before the court is Defendant Charles Ugwa-Oju's motion for summary judgment.

PROCEDURAL BACKGROUND*fn1

On November 9, 2006, Plaintiff filed a corrected first amended complaint ("complaint"). The first cause of action alleges a violation of the Eighth Amendment, pursuant to 42 U.S.C. § 1983. The second cause of action alleges a violation of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. The third cause of action alleges violation of Article 1, Section 17 of the California Constitution. The fourth cause of action alleges a violation of Article 1, Section 7 of the California Constitution. The fifth cause of action alleges professional negligence against Defendant. The sixth cause of action alleges failure to obtain informed consent. The seventh cause of action alleges civil battery. The eighth cause of action alleges intentional infliction of emotional distress. The ninth cause of action alleges intentional deceit/fraud by Defendant. The tenth cause of action alleges negligent misrepresentation by Defendant.

On September 26, 2008, Defendant Ugwa-Oju (hereinafter "Defendant") filed a motion for summary judgment. Defendant contends that Plaintiff's civil rights causes of action are time-barred. Defendant further contends the first cause of action fails because Defendant was not deliberately indifferent to Plaintiff's serious medical needs. Defendant contends he did not violate Plaintiff's due process rights because Plaintiff consented to the procedure knowing it might affect her ability to have children. Defendant contends the third and fourth causes of action for violation of Article 1, Section 17, and Article 1, Section 7 of the California Constitution should be summarily adjudicated. Defendant contends the fifth cause of action is time-barred by California's one-year/three-year statute of limitations on actions against a health care provider. In the alternative, Defendant contends he met or exceeded the applicable standard of care in the care and treatment of Plaintiff and did not cause Plaintiff's injuries. Defendant contends Plaintiff's sixth cause of action for failure to obtain consent should be summarily adjudicated because it was not timely filed, and Defendant obtained Plaintiff's informed consent. Defendant contends summary adjudication as to the seventh cause of action for battery should be granted because the action is untimely, and Defendant did not deviate from Plaintiff's consent. Defendant contends the eighth cause of action for intentional infliction of emotional distress should be summarily adjudicated because it was not timely filed, and Defendant's actions were not extreme or outrageous as a matter of law. Defendant contends that because Defendant did not intentionally deceive Plaintiff, and her reliance on statements allegedly made by Defendant was not justified, Plaintiff's ninth cause of action for intentional deceit/fraud should be summarily adjudicated. Furthermore, Defendant contends summary judgment should be granted as to the tenth cause of action for negligent misrepresentation because Plaintiff's action was not timely filed, and she was not justified in relying on Defendant's alleged misrepresentations.

On October 10, 2008, Plaintiff filed an opposition to Defendant's motion for summary judgment or, alternatively, summary adjudication. Plaintiff contends her claims are not time-barred. Plaintiff contends Defendant's conduct of willfully performing a bilateral salpingooophorectomy without adequate informed consent constitutes deliberate indifference to an excessive risk to Plaintiff's reproductive health in violation of the Eighth Amendment. Plaintiff contends Defendant violated Plaintiff's Fourteenth Amendment right to procreate by performing a bilateral salpingo-oophorectomy to which she did not consent. Plaintiff contends Defendant violated the standard of care by performing a medically unnecessary surgery that left Plaintiff functionally surgically castrated. Plaintiff contends Defendant did not obtain Plaintiff's informed consent, and Defendant committed a battery by performing a procedure to which Plaintiff did not consent. Plaintiff contends Defendant intentionally caused Plaintiff emotional distress by functionally castrating her and then misleading her about the surgery. Plaintiff contends Defendant is not entitled to summary adjudication on Plaintiff's fraud claim. Further, Plaintiff contends summary adjudication of Plaintiff's negligent misrepresentation claim is improper.

On October 20, 2008, Defendant filed a reply brief.

STATEMENT OF UNDISPUTED FACT*fn2

Plaintiff is, and was, at all relevant times herein, incarcerated at CCWF in Chowchilla, California. Plaintiff expects to be released from prison between February 21, 2009 and March 9, 2009.

Prior to the date of Plaintiff's surgery, Defendant saw Plaintiff just once, on February 9, 2001, for between five and ten minutes. Plaintiff complained of chronic pelvic pain of more than six months in duration. Defendant consulted with Plaintiff regarding the need for surgery to remove the cysts on her ovaries. Defendant consulted with Plaintiff about the possibility that there may be minimal ovarian tissue after the surgery. The parties dispute whether Defendant explained to Plaintiff what "minimal ovarian tissue" meant.

Defendant's recommendation that Plaintiff undergo surgery was made, at least in part, to relieve Plaintiff's chronic pelvic pain.

There is a disputed issue of fact on whether prior to her surgery Plaintiff told Defendant that she wanted to have more children after her release from prison. Both Plaintiff and Defendant testified that Plaintiff did not tell Defendant that she wanted more children. See Thomas Depo. at 72-73; Oju Depo. at 81-82. However, in his answer Defendant concedes "that in a pre-surgery consultation, Plaintiff discussed her desire to have more children", see Answer ¶ 104, and admits "that he knew that Plaintiff wanted to have more children." see Answer ¶ 110. On this motion for summary judgment, the court must consider the pleadings, which include the answer, to determine if there are any genuine issues of material fact. See Fed.R.Civ.P. 56(c). Because the court cannot weigh the evidence nor assess credibility and all justifiable inferences are to be drawn in the opposing party's favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), the court finds Defendant's admission in the answer is sufficient to create a disputed issues of material fact regarding whether Plaintiff told Defendant she wanted more children.

Plaintiff understood that she might not be able to have children after the surgery if the cone biopsy showed cancer. See Thomas Depo. at 69-71.*fn3 She knew there was a risk that Defendant might have to perform a hysterectomy or partial hysterectomy if Defendant found cancer during her surgery. Plaintiff knew that a partial hysterectomy meant she would retain at least part of her uterus and ovaries. Plaintiff knew that a full hysterectomy would remove the uterus and both ovaries, in which case she would not be able to have children in the future.

Defendant performed surgery on Plaintiff on April 5, 2001.

After arriving at Madera Community Hospital on April 5, 2001, and prior to surgery, Plaintiff read and acknowledged she understood the consent form, had the medical procedures adequately explained to her, had a chance to ask questions, and received all the information she desired about the medical procedures. Plaintiff signed her name to the consent form authorizing a laparotomy, bilateral ovarian cystectomies, and a cone biopsy of the cervix. The consent form did not mention an oophorectomy or salpingectomy. Defendant testified at his deposition that he did not think Plaintiff wanted anything to be done except what was listed on the form. See Oju Depo. at 102.

At her deposition, Plaintiff was asked why, when Plaintiff gave Defendant authority to exercise his discretion about how much of the cervix and uterus to remove based on the amount of cancer that he found, she did not give Defendant this same discretion and judgment relative to the ovaries.*fn4 See Thomas Depo. at 75. In response, Plaintiff indicated that she probably would have asked more questions about the surgery and about other treatments because Plaintiff had heard of other treatments for cysts.*fn5 See id. When specifically asked at her deposition whether she would have refused the surgery, Plaintiff answered: "I don't know." See Thomas Depo. at 76. In her declaration, Plaintiff states that if Defendant had told her there was a possibility she could lose her ability to become pregnant naturally following surgery for some reason other than advanced cancer, she would not have consented to the procedure. See Thomas Dec. at ¶ 9.*fn6

Defendant did not specifically know the extent of Plaintiff's ovarian cysts or how much viable ovarian tissue existed prior to the surgery.

Defendant documented that he consulted with Plaintiff regarding the risks of surgery to remove her cysts including the possibility there might be minimal ovarian tissue left after her surgery.*fn7 There is a disputed issue of fact on whether Defendant explained what minimal ovarian tissue meant or that it could mean menopause and the inability to have further children. Compare Oju Depo. at 82, with Thomas Dec. at ¶ 7 and Foster-Rosales Dec. at ¶ 10.

During surgery, Defendant attempted to identify the nature of the cyst on the left ovary, before dissecting and clamping the infundibulopelvic ("IFP") ligament. He first went into the abdomen, but was unable to identify any ovarian tissue planes. He then incised the anterior broad ligaments, to see if he could see any normal ovarian tissue. Seeing none, he proceeded to clamp the IFP ligament. Defendant also attempted to determine the nature of the cyst on the right ovary prior to attempting to dissect it from the IFP ligament. Plaintiff provides additional evidence*fn8 that Defendant did not perform a meticulous dissection so as to release the left ovary from the surrounding adhesions, elevate the cyst, and the ovary in its entirety, and carefully inspect the adnexa so as to identify the ovary and tube. See Foster-Rosales Decl. ¶¶ 11-12; Foster Rosales Depo. at 72. Plaintiff provides evidence that Defendant did not perform a cystectomy (removal of the cyst), while preserving as much ovarian tissue as possible, and leaving the fallopian tube in tact. See Foster-Rosales Decl. ¶¶ 11-12; Foster-Rosales Depo. at 74-76, 78-79. Plaintiff provides evidence that once Defendant visualized the cyst by incising the anterior leaf of the broad ligament, Defendant clamped and cut the IFP, thereby completely cutting off the main blood supply to the ovary and making preservation of viable ovarian tissue virtually medically impossible. See Foster-Rosales Depo. at 75-77. Upon removing the cysts, Defendant also removed a least part of Plaintiff's fallopian tube. See Foster-Rosales Depo. at 75. Plaintiff's expert did concede that hypothetically, there are instances where it is technically impossible to salvage an ovary. See Foster-Rosales Depo. at 74.

Concerning the right ovary, Defendant identified the cyst on the right ovary and determined that it was completely compromised. Defendant belied the cyst was bilateral because he had already taken out the left one, so the chances that the right one was the same were very high. Defendant could see that the shelf of the cul-de-sac was obliterated by endometriosis, and by the time he incised the anterior broad ligament without seeing the ovary, he could see that the ovary had been compromised by the cyst. The parties dispute whether Defendant clamped and cut the IFP prior to observing the cul-de-sac. See Oju Depo. Ex. 42; Oju Depo at 134. Defendant did not attempt to perform a meticulous dissection so as to release the left ovary from the surrounding adhesions, elevate the cyst, and the ovary in its entirety, and carefully inspect the adnexa so as to identify the ovary and tube. Defendant did not attempt to perform a cystectomy. To insure that the disease did not spread into the peritoneum, Defendant dissected the cyst in its entirety. Plaintiff again provides evidence that when Defendant clamped and cut the IFP, he cut off the blood supply to the ovary making preservation of viable ovarian tissue virtually medically impossible. See Foster-Rosales Depo. at 76-77.

After the surgery, Defendant indicated on his Operative Report that both the right and left ovaries were absent with the possibility of ovarian remnants, which were minimal. The parties dispute what part of this report was relayed to Plaintiff.

The parties dispute whether Defendant adequately explained to Plaintiff after surgery that there was a possibility that she may not have any more ovaries. Defendant testified that, after surgery, he adequately explained to Plaintiff that there was a possibility that she may not have any more ovaries. Defendant provides evidence that he had no intent to deceive Plaintiff regarding the surgery performed or the outcome of the surgery. Plaintiff testified that when Defendant told her something about taking a cyst off of the fallopian tube and removing part of one fallopian tube, Plaintiff asked him if she would still be able to have kids. Plaintiff testified that Defendant responded that he did not see why not, and all he had done was remove the cysts from there, but she still had her uterus. See Thomas Depo. at 87, 96. Plaintiff also offers evidence that Defendant did not tell her he had performed an oophorectomy or salpngectomy. Defendant offers evidence he did tell her there was a possibility that she may not have any more ovaries. See Oju Depo. at 159.

The parties dispute whether Defendant knew Plaintiff would suffer surgical menopause. After the surgery, Defendant testified that he did not know if the possible remnants of ovaries that remained following the removal of the cysts would be enough to sustain an adequate level of hormones for Plaintiff to ovulate, or whether she would suffer surgical menopause. Plaintiff provides evidence that Defendant did not communicate to Plaintiff that he did not know if Plaintiff may suffer surgical menopause. Further, Plaintiff provides evidence that it was virtually certain that Plaintiff would suffer surgical menopause even if minimal ovarian tissue or remnants were left behind because once the IFP's were clamped or cut, the tissue is no longer viable. See Foster-Rosales Dec. at ¶ 13; Foster-Rosales Depo. at 76-77.*fn9

As part of his discharge orders, Defendant prescribed Premarin to Plaintiff, a drug which is used to treat decreased hormone levels in the body.

Defendant included a discharge instruction that "Further evaluation for hormone replacement therapy and also for follicle-stimulating hormone to be done in four weeks to evaluate surgical menopause status." There is no evidence this information was ever given to Plaintiff.

The parties dispute whether Defendant intended to cause Plaintiff emotional distress. Defendant provides evidence that at no time during his care and treatment of Plaintiff did Defendant intend to cause her emotional distress. See Oju Decl. at ¶ 10. Plaintiff offers evidence that by clamping and cutting the IFP during the surgery, Defendant purposefully did something during the surgery that would make it impossible for Plaintiff to have more children -something Defendant knew she wanted.

Plaintiff was discharged from MCH on April 8, 2001. Defendant did not treat Plaintiff after her discharge from MCH and her return to prison.

After the surgery, Defendant told Plaintiff that he prescribed Tylenol 3 for her pain. Defendant did not discuss any other medications.

Plaintiff never took the Premarin that Defendant prescribed. She did not take any hormonal treatment in the first year after her surgery.

The parties dispute whether Defendant at all times met the applicable standard of care in the diagnosis, care and treatment of Plaintiff.

Dr. Nash opines that Defendant at all times met the applicable standard of care in the diagnosis, care and treatment of Plaintiff. Dr. Nash opined that because Plaintiff had large endometriomas requiring surgery to relieve her from chronic pain, Defendant performed necessary and reasonable treatment. Dr. Nash further opined that nothing Defendant did, or failed to do, caused Plaintiff injury. Plaintiff points out that Dr. Nash's conclusion regarding the endometriosis as causing the cysts and pain was not determined until after surgery.

Dr. Foster-Rosales offers the opinion that Defendant violated the standard of care by not obtaining adequate informed consent for the procedure he actually performed on Plaintiff - a bilateral salpingo-oophorectomy (removal of both ovaries and portions of the fallopian tubes).*fn10

Dr. Foster-Rosales opinions that the procedure he performed was not indicated. See Foster-Rosales Depo. at 31. & 99. Dr. Foster-Rosales opines that Defendant disregarded an excessive risk to Plaintiff's reproductive health in that he disregarded her express wish to conserve her ovaries and cut the IFP.*fn11 The parties dispute whether Defendant destroyed Plaintiff's ovaries by clamping and cutting her IFP -- the primary blood supply to the ovaries.

The parties dispute whether Defendant discussed with Plaintiff her desire to have children. The parties dispute whether Defendant adequately explained to Plaintiff the risks of entering menopause at age 25.

The pelvic pain Plaintiff was experiencing prior to the surgery went away after the surgery. The parties dispute why the pain ceased.

After the surgery, Plaintiff began feeling different; she started to feel "weird." A few weeks after her surgery, another inmate told Plaintiff that maybe Defendant had removed more than the cysts and something else was happening. See Thomas Depo. at 97. Plaintiff consulted a medical dictionary to find out what Premarin was and whether it had side effects. See id. at 106-08.

In the first month after her surgery, Plaintiff was in pain, losing weight and "feeling weird." She stopped menstruating after the surgery.

Plaintiff first complained to prison officials about possible complications from her surgery on May 9, 2001, in a 602 form complaining about pain.

Between 2001 and 2005, Dr. Reeves told Plaintiff he could not tell from her medical records whether her ovaries had been removed. Dr. Reeves claimed that Plaintiff's ultrasounds were within normal limits.

Between 2001-2005 Plaintiff also met with her yard doctors regarding her condition. Plaintiff was told by her yard doctors that ultrasounds revealed no abnormalities.

In 2003, Plaintiff had suicidal thoughts and was referred to psychiatric care.

Plaintiff experienced hot flashes, back pain, stomach pain, depression, and anxiety attacks in the months and years following the surgery.

No medical doctor has ever told Plaintiff that she does not have her ovaries. See Thomas Depo. at 98. The only medical opinion Plaintiff has seen which indicates that her ovaries have been removed is the expert report by Dr. Foster-Rosales, which Plaintiff saw on or about July 3, 2008.

Plaintiff filed her original Complaint on February 24, 2006.

A bilateral ovarian cystectomy is removal of a cyst or cysts from both ovaries. If cysts have consumed most or all of the ovary, removal of the cysts may ...


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