Laws Violated By Dr. Dirbas and Stanford in the Doe, M.D. vs. Stanford case: 

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Codes that were in violation by defendants’ actions and/or omissions also include but are not limited to:

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• Code of Federal Regulations, 42 C.F.R. § 489.3;

•    42 U.S.C  280m SEC. 399NN-1 (D) (E) Breast Reconstruction Education  Part V of title III of the Public Health Service Act[1]

• California Civil Jury Instructions, CACI Nos. 204[2], 501, 502, 504, 514[3]; 530A [4]

• California[Da2]  Health and Safety Code, HSC Division 2 chapter 2 Article 7;

• Cal. Bus. & Prof. Code, §1317.1(D)(b)(1)(f) (j)[5];

• Cal. Bus. & Prof. Code, §§ 801,805; 2334(b)(c)[6]; 2725;

• California Health and Safety Code §§ 70213, 70527

• California  Health and Safety Code 1348(e)[7]

• Health and Safety Codes 121110, 120975, 120980, 121922, 123148, 121075 [8]

• California CAL HEALTH & SAFETY CODE §§ 1704.5, 1704.55, 109275 TO 109277[9] 

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• California Health and Safety Code  2746.5(b)

• California Code of Regulations, Title 22 Section 70213(a) (b)[10](c)[11], 70214(a), 70215(1)(d), 70217(m), 70223(g), 70527(c) [12], 70749(a)(16), 70415(a)(2)(c), 70451[13], 70455(a)(5), 70954(b)(1).

• Code of Federal Regulations, 42 C.F.R. § 489.20(r)(2) and 489.24(j)(1-2).

• California Health & Safety Code 24172[14]

• California Health and Safety Code 10123.8 & 10123.86

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• CACI No. 530B, Medical Battery—Conditional Consent[15], and CACI 533[16]

  1. CACI 534 [17]

  2.  CACI 554[18]

  3. Business and Professions Code sections 2397(a)[19]

  4. Evidence Code section 413[20]

  5. Health and Safety Codes 121110, 120975, 120980, 121922, 123148, 121075 among other sections. [21]

 

[1] (D) The patient has a right to choose a provider of reconstructive care, including the potential

                transfer of care to a surgeon that provides breast reconstructive care   

 ``(E) The patient may opt to undergo breast                  reconstruction some time after the time of breast  cancer surgery for personal or medical reasons, during

                treatment or after completion of all other breast

                cancer treatments.

 

[2] The Judicial Council of California Advisory Committee on Civil Jury Instructions provides under instruction 204 that the jury may consider whether one party intentionally concealed or destroyed evidence.  If the jury decides that a party did so, the jury may decide that the evidence would have been unfavorable to that party.  It is prejudicial error to instruct the jury on wilful suppression of evidence when there is no evidence to support the instruction.  County of Contra Costa v. Nulty (1965) 237 Cal.App.2d 593, 598.

 

[3] Standard of care for professional, specialist, nurse, and hospital

[4] Battery may also be found if a substantially different procedure is performed: “Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 239 [104 Cal.Rptr. 505, 502 P.2d 1].)

 

“The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present.

 

In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [71 Cal.Rptr.3d 469].) “Confusion may arise in the area of ‘exceeding a patient’s consent.’ In cases where a doctor exceeds the consent and such excess surgery is found necessary due to conditions arising during an operation which endanger the patient’s health or life, the consent is presumed. The surgery necessitated is proper (though exceeding specific consent) on the theory of assumed consent, were the patient made aware of the additional need.” (Pedesky v. Bleiberg (1967) 251 Cal.App.2d 119, 123 [59 Cal.Rptr. 294].)

“[T]he reason why CACI No. 530B has an explicit intent and knowledge requirement and CACI No. 530A does not is clear. The law presumes that ‘[w]hen the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present.’ That situation is covered by CACI No. 530A.” (Dennis v. Southard (2009) 174 Cal.App.4th 540, 544 [94 Cal.Rptr.3d 559], internal citation omitted.)

“In the absence of any definitive case law establishing whether operating on the wrong disk within inches of the correct disk is a ‘substantially different procedure,’ we conclude the matter is a factual question for a finder of fact to decide and at least in this instance, not one capable of being decided on demurrer.” (Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 647 [75 Cal.Rptr.3d 861.)

 

[5]Emergency Medical Situation (f) “Medical hazard” means a material deterioration in medical condition in, or jeopardy to, a patient's medical condition or expected chances for recovery. (j) A patient is “stabilized” or “stabilization” has occurred when, in the opinion of the treating physician and surgeon, or other appropriate licensed persons acting within their scope of licensure under the supervision of a treating physician and surgeon, the patient's medical condition is such that, within reasonable medical probability, no material deterioration of the patient's condition is likely to result from, or occur during, the release or transfer of the patient as provided for in Section 1317.2, Section 1317.2a, or other pertinent statute.

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[6] 2334. (a) Notwithstanding any other provision of law, with respect to the use of expert testimony in matters brought by the Medical Board of California, no expert testimony shall be permitted by any party unless the following information is exchanged in written form with counsel for the other party, as ordered by the Office of Administrative Hearings

[7] Fraudulent Claims for payment of a health care benefit.

[8] Stanford’s release of those special records was therefore a violation of H&S Codes.

HIV records through an improper subpoena

1. [9]
   Scope Alternative Therapies/Breast Cancer Screening and Education Programs 
   Policies 
   and Limits 

2. 
   Law states that unprofessional conduct includes the failure of a physician to 
   inform a patient being treated for any form of breast cancer of alternative, 
   efficacious methods of treatment specified in the standardized written summary 
   developed by the Department on recommendation of the Cancer Advisory 
   Council. 

3. 
   Law requires health facilities and licensed physicians or surgeons, who rent or 
   own the premises where their practice is located, to post a sign with the following 
   information in an area that is proximate to where breast cancer screening or 
   biopsy procedures are performed: 

4. 
   “BE INFORMED” “ If you are a patient being treated for any form of breast 
   cancer, or prior to performance of a biopsy for breast cancer, your physician or 
   surgeon is required to provide you with a written summary of alternative 
   efficacious methods of treatment, pursuant to Section 109275 of the California 
   Health and Safety Code. “The information about methods of treatment was 
   developed by the State Department of Health Services to inform patients of the 
   advantages, disadvantages, risks, and descriptions of procedures.” 
   Signs must be posted in English, Spanish, and Chinese. 
   Quality Assurance Not indicated. 
   Effective Date 1980 enactment; amended September 29, 1996.

 

[10] Nursing (b) Policies and procedures shall be based on current standards of nursing practice and shall be consistent with the nursing process which includes: assessment, nursing diagnosis, planning, intervention, evaluation, and, as circumstances require, patient advocacy.

[11] § 70213. Nursing Service Policies and Procedures. (a) Written policies and procedures for patient care shall be developed, maintained and implemented by the nursing service.

 

[12] § 70527. Outpatient Service General Requirements. (c) If outpatient surgery is performed, the written policies and procedures shall make provision for at least the following: (7) Examination of each patient by a licensed practitioner whose scope of licensure permits prior to discharge.

[13] Comprehensive Emergency medical service means the provision of diagnostic and therapeutic services for unforeseen physical and mental disorders which, if not promptly treated, would lead to marked suffering, disability or death. The scope of services is comprehensive with in -house capabilities for managing all medical situations on a definitive and continuing basis.

[14] H&S 24172 California Experimental Subject’s Bill of Rights, requires that any person asked to take part as a subject in research involving a medical experiment is entitled to receive the following list of rights written in a language in which the person is fluent. This list includes the right to: 1. Be informed of the nature and purpose of the experiment.

[15] In a case of a conditional consent in which it is alleged that the defendant proceeded without the condition having occurred

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• [16] A physician’s duty of reasonable disclosure for purposes of consent to a proposed medical procedure was established in Cobbs v. Grant (1972) 8 Cal.3d 229 [104 Cal.Rptr. 505, 502 P.2d 1].

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• On causation: “There must be a causal relationship between the physician’s failure to inform and the injury to the plaintiff. Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given.” (Cobbs, supra, 8 Cal.3d at p. 245.)

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• A doctor generally does not have a duty to disclose information concerning non-recommended procedures. (Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1071 [9 Cal.Rptr.2d 463].) However, a doctor must make “such disclosures as are required for competent practice within the medical community.” (Ibid.)

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• The objective test is whether a reasonable person in plaintiff’s position would have refused consent if he or she had been fully informed. (Cobbs, supra, 8 Cal.3d at p. 245.) However, the defendant can seek to prove that this particular plaintiff still would have consented even if properly informed (as an affirmative defense). (Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1206 [67 Cal.Rptr.2d 573].)

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• “[A]n action for failure to obtain informed consent lies where ‘an undisclosed inherent complication . . . occurs,’ not where a disclosed complication occurs.” (Warren, supra, 57 Cal.App.4th at p. 1202 (citation omitted).)

 

• [17] “In a nutshell, a doctor has a duty to disclose all material information to his patient which will enable that patient to make an informed decision regarding the taking or refusal to take such a test.” (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 736 [223 Cal.Rptr. 859].)

 

[18] CACI 554. Affirmative Defense—Emergency Defendant claims that [he/she] did not have to obtain[ patient/authorized person]’s informed consent to the procedure because an emergency existed.

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To succeed, [name of defendant] must prove both of the following:

1. That defendant reasonably believed the procedure had to be done immediately in order to preserve the life or health of the patient and 2. That the patient  was unconscious] [or] [there was not enough time to inform [name of patient]] [or] [there was not enough time to get consent from an authorized person].

 

[19] Business and Professions Code sections 2397(a) and 1627.7(a) provide that a medical practitioner shall not be liable for injury caused in emergency situations by reason of the failure to inform if: (1) the patient was unconscious, (2) there was not enough time to inform the patient, or (3) there was not enough time to get consent from an authorized person.

 

[20] California trial courts are permitted to instruct juries with a “spoliation inference” that may be used where a litigant is found to have willfully destroyed or concealed evidence during the underlying litigation.  See Cedars-Sinai Center, 18 Cal.4th at 12.  Evid. Code 413 provides in pertinent part: 

 

In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.

 

[21] Stanford’s release of “specially protected” records were therefore a violation of H&S Codes.

 [SN1]LAWS VIOLATED

 [Da2]