Opinion
B292801
05-15-2020
LAURA RAMIREZ, Plaintiff and Appellant, v. RAMIN J. JAVAHERY, M.D., et al., Defendants and Respondents.
Don Lawson for Plaintiff and Appellant. Kjar, McKenna & Stockalper, Robert L. McKenna and Danielle M. Corkhill; Schmid & Voiles and Denise H. Greer for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BC639235) APPEAL from a judgment of the Superior Court of Los Angeles County, Rafael A. Ongkeko, Judge. Affirmed. Don Lawson for Plaintiff and Appellant. Kjar, McKenna & Stockalper, Robert L. McKenna and Danielle M. Corkhill; Schmid & Voiles and Denise H. Greer for Defendants and Respondents.
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Plaintiff Laura Ramirez (plaintiff) is the mother of decedent Jose Gonzalez (Jose), who died in 2016 of a malignant brain tumor. Defendants Ramin Javahery and Nicole Cobo (sometimes collectively referred to as defendants) are physicians at Long Beach Memorial Medical Center (LBMMC) who for many years treated Jose for brain tumors and seizures. After Jose's death, plaintiff filed the present action against defendants for wrongful death and survivor personal injury, asserting that defendants' alleged professional negligence contributed to Jose's death. The trial court granted defendants' summary judgment motions, and plaintiff appealed.
We affirm. We conclude that defendants met their initial summary judgment burden to demonstrate the absence of evidence of a breach of the standard of care and causation, and plaintiff failed to demonstrate a triable issue of material fact as to either issue. Thus, summary judgment was properly granted.
FACTUAL AND PROCEDURAL BACKGROUND
A. Medical History
Jose was born in January 1996 with a hereditary predisposition to cancer due to a genetic mutation. When he was a year old, he was diagnosed with choroid plexus carcinoma, a rare malignant brain tumor that occurs mainly in children, and an adrenocortical carcinoma, an aggressive, malignant cancer in the outer layer of the adrenal glands. Both tumors were removed in 1997.
Jose had recurrent brain tumors in 2000 and 2011, which were removed surgically. The 2011 surgery was performed by Dr. Javahery. Jose also experienced seizures throughout his life, for which he was treated by a team of specialists, including pediatric neurologist Dr. Cobo.
B. 2015 Recurrence and Treatment
On June 24, 2015, Jose was admitted to LBMMC for a 24-hour electroencephalogram (EEG) study due to persistent seizures and headaches. Upon Jose's admission to the hospital, plaintiff reported that Jose had had a brain scan in April 2015, which reportedly showed neurocysticercosis, a neurologic infection caused by tapeworms. Dr. Cobo noted that apparent calcified lesions were observed on the April 2015 CT scan, and she ordered a repeat MRI "to confirm stable and rule out neurocysticercosis." The MRI, performed June 25, 2015, ruled out neurocysticercosis, but revealed a lesion in the left temporal lobe of Jose's brain. Because of concerns that the lesion might be malignant, plaintiff was advised to follow up with Jose's oncologist.
Dr. Javahery saw Jose on July 7, 2015. Following the visit, Dr. Javahery noted the following treatment plan: "At this point, after discussion at tumor board, we are not going to plan on doing anything surgical, to resect that lesion in the temporal lobe would be highly risky. . . . The plan at this point is to allow [Jose] to be managed conservatively and repeat the MRI in three months. If the lesion is larger, then will do a stereotactic biopsy and decide on how to proceed from there. I explained this to mom and answered her questions. She was very concerned. I will see him in September after the repeat scan." A nurse documented that plaintiff was advised of the risks of surgery and the plan of care; she noted: "Mom participated in the development of this plan of care. Understanding of plan of care and discharge instructions verbalized."
Dr. Javahery dictated his notes the day of the visit, but he did not sign the notes until October 9, 2015.
Dr. Cobo saw Jose for the last time on July 17, 2015 to address his complaint of headaches. Dr. Cobo's notes of that visit reflect as follows: "[R]epeat MRI found interval nodular enhancement in lining of left lateral ventricle. Being followed with repeat scans. Dr. Groncy [oncologist] and Javahery following as well. [¶] New complaint of headaches. Unclear etiology. Findings on MRI not explanation . . . . Will try medication management." Dr. Cobo also noted the case had been presented at the hospital's neuro-oncology tumor board "with decision to repeat the scan in 3 months." A nurse documented that plaintiff "verbalized understanding of plan of care and discharge instructions to MD/Nurse."
In late July 2015, plaintiff reported a change in Jose's behavior. He did not recognize family, displayed paranoia and aggression, refused to eat, and could not see from one eye. Though his seizures had improved, he had painful, chronic headaches. Jose was admitted to Harbor UCLA Medical Center (Harbor UCLA) on July 28, where new scans revealed that his lesion had significantly increased in size. Doctors at Harbor UCLA and LBMMC jointly determined that no surgical intervention would be effective, and plaintiff agreed to place Jose in hospice care.
Jose was discharged from Harbor UCLA on August 15, 2015. He died six months later, on February 3, 2016. The cause of death was an adrenal cortical carcinoma, and the underlying cause of death was choroid plexus carcinoma.
C. The Present Action
Plaintiff filed the present action for wrongful death and survivor personal injury against Dr. Javahery, Dr. Cobo, and other physicians and medical entities in November 2016. The operative first amended complaint (complaint) alleges that Jose was under defendants' care between February 12, 2015 and February 3, 2016. Defendants' care and treatment of Jose was alleged to be "below the standard of care for physicians and surgeons," including but not limited to "failure to diagnose decedent's brain condition, failure to diagnose decedent's brain condition at an earlier time, failure to use necessary diagnostic tools, failure to initiate treatment of decedent's brain condition, resulting in his loss of chance of cure, failure to conduct timely follow-up examination to determine progress of the brain condition and any treatment thereof, [inattention] to decedent's seizures and [failure to] adequately attempt to resolve the complaints of decedent, fail[ure] to refer decedent to [a] specialist or to consult with appropriate specialists, fail[ure] to recommend, offer, or inform of surgical option, failure to advise of the option of obtaining a second opinion regarding treatment options, including surgery, failure to advise patient that prior or concurrent medical treatment was below the standard of care, [and] failure to exercise independent medical judgment regarding diagnosis and treatment of decedent." The complaint alleged that as a result of defendants' professional negligence, Jose's health was injured, and plaintiff suffered great physical and emotional pain and suffering.
D. Motions for Summary Judgment
Defendants filed motions for summary judgment in January 2018. In support, Dr. Cobo submitted the expert declaration of Dr. Paul Fisher, a pediatric neurologist, and Dr. Javahery submitted the expert declaration of Dr. Gerald Grant, a pediatric neurosurgeon.
1. Dr. Fisher's Declaration
Dr. Fisher stated that he is licensed to practice medicine in California and is a board-certified pediatric neurologist. Dr. Fisher was retained by Dr. Cobo's attorneys to offer an expert opinion on plaintiff's allegations of medical negligence.
Dr. Fisher stated that based on Jose's medical records and family history, it is likely that Jose suffered from Li Fraumeni syndrome, which is a rare inherited genetic predisposition to multiple cancers. As a result of Jose's earlier cancers and cancer treatment, Jose had sustained an intellectual disability, behavioral problems, hydrocephalus, epilepsy, cerebral palsy, hearing loss, bilateral cataracts, growth failure, hypothyroidism, and scoliosis.
Dr. Cobo managed a limited aspect of Jose's care—specifically, his seizures. Jose's brain cancer was managed by other physicians, including his oncologists and neurosurgeons. Dr. Fisher stated that in his expert opinion, all of Dr. Cobo's care and treatment of Jose was within the standard of care. Dr. Fisher further opined that, to a reasonable degree of medical probability, nothing Dr. Cobo did or did not do in her care and treatment of Jose caused any injury or damage to plaintiff.
2. Dr. Grant's Expert Declaration
Dr. Grant stated that he is licensed to practice medicine in California and is a board-certified neurologist and pediatric neurologist. He was retained by Dr. Javahery's attorneys to render an opinion as to whether Dr. Javahery met the standard of care with regard to his treatment of Jose, and whether anything Dr. Javahery did or failed to do caused or contributed to Jose's death.
Based on his review of Jose's extensive medical records, Dr. Grant stated as follows. Dr. Javahery removed a tumor from Jose's brain in 2011, and did not thereafter see Jose between 2011 and July 2015. On June 26, 2015, Jose underwent a brain MRI that revealed a lesion in the left temporal lobe of his brain. On about July 1, 2015, Jose's case was presented to the Neuro-Oncology Tumor Board at LBMMC to discuss the new tumor. Dr. Javahery saw Jose on July 7, 2015, at which time he recommended that the tumor be closely watched through MRI surveillance, but that no surgery be performed at that time. Dr. Javahery noted that to "resect" (surgically remove) the lesion would be highly risky, especially given the encephalomalacia (softening or loss of brain tissue) in Jose's temporal lobe. Dr. Javahery recommended repeating the MRI in three months and, if the lesion was larger, considering a biopsy at that time. Dr. Javahery did not see Jose again after July 7.
Dr. Grant opined that given the tumor's location deep in the left temporal lobe and Jose's preexisting injuries to the right temporal lobe, it was "appropriate, indicated, and within the standard of care for Dr. Javahery not to recommend surgical management of this new lesion when he evaluated [Jose] on July 7, 2015." Further, "[t]he decision to manage the patient conservatively and to order a repeat MRI of the brain in three months was also appropriate, indicated, and within the standard of care." And, Dr. Grant said, "[g]iven the significant and aggressive progression of the patient's tumor between June 26, 2015 and July 29, 2015, the development of leptomeningeal spread of the tumor shown on the July 29, 2015 MRI, and the patient's history of chemotherapy and radiation therapy, it was appropriate, indicated, and within the standard of care for the Harbor UCLA Medical Center and Long Beach Memorial Medical Center neuro-oncology teams to come to the consensus that palliative care would be the best option for the patient and no surgical intervention would be done." Dr. Grant concluded: "To a reasonable degree of medical probability, no negligent act or omission on behalf of Dr. Javahery caused or contributed to decedent's death and/or [plaintiff's] claimed injuries or damages."
E. Opposition to Summary Judgment Motions
Plaintiff filed four oppositions to the summary judgment motions. The first pair of oppositions, filed in March 2018, requested a continuance to depose defendants' expert witnesses and establish that the experts did not consider the April 2015 CT scan, which allegedly showed the first appearance of a tumor. Plaintiff also sought additional time to depose defendants. Over defendants' opposition, the trial court granted a four-month continuance and set a new briefing schedule for filing oppositions and replies.
Plaintiff filed supplemental oppositions to the summary judgment motions in June 2018. Each opposition was only about three pages. The oppositions contended: (1) plaintiff should be permitted leave to amend the complaint to plead failure to obtain informed consent; (2) there was a triable issue as to whether defendants breached the standard of care by failing to obtain informed consent, (3) there was a triable issue as to whether Dr. Cobo breached the standard of care by refusing to consider the April 2015 CT scan; and (4) defendants' expert declarations lacked foundation. The oppositions attached declarations from plaintiff's expert witnesses, Dr. Cheyette and Dr. Terry, who respectively opined that it was below the standard of care (1) for Dr. Cobo to refuse to review the April 2015 CT scan, and (2) for Dr. Javahery to delay in placing his treatment notes into the medical record. Neither declaration addressed failure to obtain informed consent or causation.
Plaintiff's opposition was filed timely as to Dr. Javahery's motion but untimely as to Dr. Cobo's.
F. Replies to Oppositions to Summary Judgment Motions
In reply, defendants argued that plaintiff's expert declarations lacked evidentiary foundation because they relied on unauthenticated and unsubmitted evidence and failed to address the element of causation. Dr. Javahery also contended that Dr. Terry did not address the alleged failure to obtain informed consent, nor did he explain how Dr. Javahery's alleged delay in entering his treatment notes into Jose's medical record caused Jose's death.
G. Plaintiff's Supplemental Evidence
In response, plaintiff a filed a "Supplement to Plaintiff's Separate Statement of Undisputed Material Facts and Evidence in Opposition of Summary Judgment Motion," which attached (1) the medical records Dr. Cheyette and Dr. Terry reviewed, and (2) plaintiff's own declaration, which asserted that Dr. Cobo had refused to review the April 2015 CT scan plaintiff provided her. Plaintiff also submitted a "corrected" response to Dr. Javahery's separate statement, which purported to dispute the issue of causation and argued that causation and informed consent are matters of "common knowledge" not requiring an expert opinion.
Dr. Javahery objected to the admission of the "corrected" response, noting that he had not received a service copy prior to the summary judgment hearing.
H. Order Granting Summary Judgment
The court granted the motions for summary judgment in July 2018, concluding that none of plaintiff's evidence raised triable issues as to breach of standard of care, failure to obtain informed consent, or causation.
In denying the motions for summary judgment, the court refused to consider plaintiff's untimely "supplements," filed without the court's permission or opposing counsel's stipulation, which "effectively raise[d] new arguments." However, the court indicated that "even if [it] were to consider these filings, the court's rulings would remain unchanged." The court also found that plaintiff's evidentiary objections to the defendants' expert declarations were procedurally improper and without merit. Finally, the court denied plaintiff's request for leave to amend the complaint "as procedurally defective, unsupported, and prejudicial." The court noted: "[Plaintiff] has been accorded every accommodation regarding making her best case. At [plaintiff's] request, these motions have been continued for many weeks for that purpose. Whatever new information [plaintiff's] experts have imparted has been in [her] possession since at least June 15, 2018 according to their declarations, but [plaintiff] has not acted with any diligence in requesting this relief . . . . Additional grounds for denial are its futility . . . . As an example, the evidence produced demonstrates that [plaintiff] gave informed consent to the treatment and care plans, and [she] does not even dispute" key facts establishing that: (1) the treatment was within the standard of care, and (2) plaintiff was informed of the treatment, asked questions, and provided consent.
The court entered judgment in favor of Dr. Javahery and Dr. Cobo on August 15, 2018. Plaintiff timely appealed.
DISCUSSION
Plaintiff's primary argument on appeal is that defendants failed to address an allegation of the complaint—failure to obtain informed consent—and thus failed to establish that no triable issues of material fact exist. Plaintiff argues that because defendants failed to make a prima facie case, the burden never shifted to her to raise a triable issue, and therefore her opposition to the summary judgment motion is "not pertinent to deciding this case" and "does not need to be evaluated."
As we discuss, defendants' expert declarations satisfied defendants' summary judgment burden, and plaintiff failed to establish triable issues of material fact as to either defendant. Thus, summary judgment was properly granted.
I.
Legal Standards
To prevail on a motion for summary judgment, a defendant must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) "A court may grant summary judgment only when the evidence in support of the moving party establishes that there is no issue of fact to be tried." (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 547.) In other words, summary judgment should be granted only when a moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).)
All subsequent undesignated statutory references are to the Code of Civil Procedure.
On an appeal from summary judgment, we review the record de novo. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) Thus, we independently review the parties' supporting and opposing papers and apply the same standard as the trial court to determine whether a triable issue of material fact exists. We apply the same three-step analysis as the trial court. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 966-967 (Lattimore).) " 'First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue.' (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)" (Id. at p. 967.)
"We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) However, triable issues of fact can only be created by conflicting evidence, not speculation or conjecture. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.) We do not weigh the evidence and inferences, but merely determine whether a reasonable trier of fact could find in favor of the party opposing the motion, and must deny the motion when there is some evidence that, if believed, would support judgment in favor of the nonmoving party. (Lattimore, supra, 239 Cal.App.4th at p. 967.)
II.
Summary Judgment Was Properly Granted
A. Legal Standards
Plaintiff alleged two causes of action—wrongful death and survivor personal injury. " 'A cause of action for wrongful death is . . . a statutory claim. (Code Civ. Proc., §§ 377.60-377.62.) Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death.' (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) ' "The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs." ' " (Lattimore, supra, 239 Cal.App.4th at p. 968.) The elements of a cause of action for personal injury are similar—namely, liability, causation and damages. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1123.)
A wrongful death cause of action compensates specified heirs of the decedent for the loss they suffered as a result of the decedent's death. (§§ 377.60-377.62; San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1550-1551.) A survivorship claim is one that belonged to the decedent but survived his death. (§ 377.30; Adams v. Superior Court (2011) 196 Cal.App.4th 71, 78.)
In the present case, plaintiff alleged that the underlying tort that resulted in Jose's wrongful death and personal injuries was defendants' professional negligence, i.e., medical malpractice. " 'The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.' (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305 (Johnson).)" (Lattimore, supra, 239 Cal.App.4th at p. 968.)
The first element of a professional negligence action, standard of care, "can only be proved by expert testimony, unless the circumstances are such that the required conduct is within the layperson's common knowledge. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; Landeros v. Flood (1976) 17 Cal.3d 399, 410.)" (Lattimore, supra, 239 Cal.App.4th at p. 968.) Thus, a physician sued for medical malpractice may satisfy his or her initial summary judgment burden by submitting a declaration by a qualified expert in his or her field that states that the expert has reviewed the relevant medical records, describes the care and treatment provided by the defendant, and concludes that the applicable standard of care was met. (Id. at p. 969.)
B. Alleged Failure to Advise of Surgical Options
1. Defendants' Expert Declarations Satisfied Their Initial Summary Judgment Burden
Although plaintiff contends her complaint alleged a failure to obtain informed consent, her pleading was far more limited. The complaint's sole allegation relevant to informed consent states that between February 2015 and February 2016, defendants "failed to recommend, offer or inform of surgical option[s]." (Italics added.) Thus, the complaint did not allege that defendants failed to obtain informed consent as to the treatment plan pursued; it alleged only that defendants failed to adequately advise plaintiff of surgical alternatives to that treatment plan.
Under the doctrine of informed consent, " 'there is no general duty of disclosure with respect to nonrecommended procedures . . . .' (Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1071, italics added.) Instead, 'the failure to recommend a procedure must be addressed under ordinary medical negligence standards. [Citation.]' [Citation.] That is, a physician must disclose alternative treatments only to the extent it is required 'for competent practice within the medical community.' [Citation.] The standard of care prevailing in the medical community must be established by expert testimony." (Spann v. Irwin Memorial Blood Centers (1995) 34 Cal.App.4th 644, 658.)
Plaintiff asserts that expert testimony is not required to establish a failure to obtain informed consent, an assertion not supported by the cases plaintiff cites. To the contrary, one of the cases on which plaintiff relies holds that the plaintiff's failure to submit an expert declaration was "fatal to [her] appeal." (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.)
As relevant here, Dr. Javahery's expert, Dr. Grant, opined that after reviewing all of Jose's medical records, it was his expert opinion that given the size and location of the tumor apparent on the June 26, 2015 MRI and Jose's preexisting brain injuries, it was within the standard of care not to recommend a surgical option. Dr. Grant stated: "The patient's case was appropriately referred to the multidisciplinary Neuro-Oncology Tumor Board at Long Beach Memorial Medical Center to discuss management of the new findings on the MRI of the brain taken on June 26, 2015, which showed a new nodular enhancing lesion along the subependymal lining of the atrium of the left lateral ventricle in the region of the left temporal lobe measuring 7 x 10 mm. Given the location of the new lesion deep in the left temporal lobe and the patient's pre-existing injuries in the right temporal lobe, it was appropriate, indicated, and within the standard of care for Dr. Javahery not to recommend surgical management of this new lesion when he evaluated [Jose] on July 7, 2015." Dr. Grant further opined that given the size of the new lesion and the risk of surgery on a patient with a medical history like Jose's, it was "appropriate and within the standard of care . . . not to recommend a biopsy at the July 7, 2015 visit," but instead to "include in his plan for the patient a possible stereotactic biopsy if the repeat MRI showed the lesion had grown." Finally, Dr. Grant opined that to a reasonable degree of medical probability, no alleged negligent act or omission by Dr. Javahery caused or contributed to Jose's death.
Dr. Cobo's expert, Dr. Fisher, similarly opined that Dr. Cobo's treatment of Jose was within the standard of care and did not cause Jose any injury. Dr. Fisher stated that in June 2015, Dr. Cobo noted that an MRI performed on June 24, 2015 revealed a new lesion on Jose's brain. Dr. Cobo referred Jose to an oncologist for follow-up and, in July 2015, documented that Jose's case had been presented to the hospital's Neuro-Oncology Tumor Board, which had recommended that a brain scan be repeated in three months. Dr. Fisher opined that Dr. Cobo's treatment of Jose was limited to managing and treating his headaches and seizures, and that Jose's brain cancer was treated by oncologists and surgeons. Dr. Fisher opined, moreover, that all of Dr. Cobo's care of Jose was within the standard of care for the medical community, and that to a reasonable degree of medical probability, nothing Dr. Cobo did or did not do caused Jose any injuries or damage.
We conclude, contrary to plaintiff's assertions, that the expert declarations of Dr. Grant and Dr. Fisher were sufficient to meet defendants' summary judgment burden of demonstrating the absence of a triable issue of material fact as to defendants' alleged failures to advise plaintiff of surgical options. Both experts noted their medical qualifications, their review of Jose's extensive medical records, and their conclusions that defendants met the relevant standards of care and, to a reasonable medical certainty, that defendants' actions or inactions did not cause Jose's death or injuries. This was sufficient to meet defendants' summary judgment burden and to shift the burden to plaintiff. (See Lattimore, supra, 239 Cal.App.4th at pp. 969-971 [expert declaration describing review of decedent's medical records and concluding applicable standard of care was met was sufficient to satisfy defendant physician's initial summary judgment burden on wrongful death claim]; Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 718 [expert declaration is sufficient if it establishes "the matters relied upon in expressing the opinion, that the opinion rests on matters of a type reasonably relied upon, and the bases for the opinion"].)
Plaintiff contends the trial court erred in admitting the declarations of Dr. Grant and Dr. Fisher because neither declarant states that he reviewed the complaint or provided a reasoned explanation for his opinions regarding standard of care and causation. Plaintiff cites no authority, and we are not aware of any, for the proposition that an expert declaration is inadmissible absent an expert's express statement that he or she reviewed the operative pleading. Moreover, as we have said, the expert declarations contained sufficient detail to satisfy defendants' initial summary judgment burden. Plaintiff's contention that the expert declarations were inadmissible is therefore without merit.
2. Plaintiff Failed to Demonstrate a Triable Issue of Material Fact
As we have said, plaintiff's sole appellate contention with regard to the alleged failure to provide informed consent is that defendants failed to meet their summary judgment burdens; plaintiff concedes that her opposition to the summary judgment motion is "not pertinent to deciding this case" and "does not need to be evaluated." Accordingly, we need not consider whether plaintiff's opposition to summary judgment raised a triable issue of material fact. (Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487, fn. 4 [appellant's failure to raise an argument in the opening brief waives the issue on appeal].)
Even were we to consider plaintiff's oppositions, however, we nonetheless would affirm the grant of summary judgment. In opposition to summary judgment, plaintiff submitted the declarations of her expert witnesses, Dr. Cheyette and Dr. Terry. Neither declaration addressed defendants' alleged failure to advise plaintiff of a surgical option, and thus neither raised a triable issue of material fact as to this issue.
B. Failure to Review April 2015 CT Scan
As to Dr. Cobo, plaintiff asserts a second basis for denying the motion for summary judgment—namely, that Dr. Cobo did not present evidence that she reviewed Jose's April 2015 CT scan. This claim fails.
"The pleadings play a key role in a summary judgment motion and ' " 'set the boundaries of the issues to be resolved at summary judgment.' " ' [Citation.] '[T]he scope of the issues to be properly addressed in [a] summary judgment motion' is generally 'limited to the claims framed by the pleadings. [Citation.] A moving party seeking summary judgment or adjudication is not required to go beyond the allegations of the pleading, with respect to new theories that could have been pled, but for which no motion to amend or supplement the pleading was brought, prior to the hearing on the dispositive motion. [Citations.]' (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421; see California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3 ['[a] party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings,' and '[e]vidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings'].)" (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444 (Jacobs).)
Here, a fair reading of the complaint did not suggest that Dr. Cobo acted negligently by allegedly failing to review the April 2015 CT scan. At best, the complaint alleged that defendants failed "to use necessary diagnostic tools"—but we do not believe that this vague allegation, directed to more than a dozen defendants, would have caused a defendant to "reasonably anticipate" a claim based on a failure to review the April 2015 CT scan, and, therefore, "[to] have understood that a motion for summary judgment would need to address the claim." (Jacobs, supra, 14 Cal.App.5th at p. 444.) Accordingly, Dr. Cobo was not required to address her review of the April 2015 CT scan in order to shift the burden of presenting evidence to plaintiff. (See also Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 414 [" 'The counteraffidavits filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings; are not a substitute for an amendment to the pleadings; and are an ineffective defense to the motion unless they "set forth facts showing that . . . a good cause of action exists upon the merits" ' "].)
Moreover, the medical records filed in support of the motion for summary judgment reflect that Dr. Cobo did in fact review the April 2015 CT scan, and in response she ordered a repeat MRI "to confirm stable and rule out neurocysticercosis."
In any event, as we have said, Dr. Fisher opined that all of Dr. Cobo's care of Jose was within the standard of care, and nothing Dr. Cobo did or did not do caused Jose any injury or damage. Plaintiff introduced no contrary causation evidence suggesting that Dr. Cobo's asserted failure to review the April 2015 CT scan had any effect on the progress of Jose's disease or his ultimate death. Dr. Cobo's alleged failure to consider the April 2015 CT scan did not require the trial court to deny Dr. Cobo's motion for summary judgment. (E.g., Contreras v. Goldrich (1992) 10 Cal.App.4th 1431, 1433 [cause of action for professional negligence requires as a necessary element a proximate causal connection between the negligent conduct and the resulting injury].)
DISPOSITION
The judgment is affirmed. Defendants are awarded their appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
EGERTON, J.
DHANIDINA, J.