We posted earlier this year about the failure to warn causation decision from the California Supreme Court in Himes v. Somatics, 549 P.3d 916 (Cal. 2024), and the potential parade of horribles that might ensue.  Here comes the grand marshal of the parade.

The decision we report today is on remand from Himes itself (even though the case caption, Riera v. Mecta, 2024 U.S. Dist. LEXIS 194654 (C.D. Cal. Oct. 24, 2024), might not look like it).  To recap, in answering a certified question from the Ninth Circuit in Himes, the California Supreme Court held that a plaintiff can establish failure to warn causation with evidence that (1) the prescribing physician would have passed on a stronger warning to the patient, and (2) “an objectively prudent person in the patient’s position” would have declined the treatment.  Himes, 549 P.3d at 921.  After receiving the answer to the certified question, the Ninth Circuit remanded to the district court.  Applying the facts to the Himes standard, the district court punted to the jury.

Plaintiffs’ claims arise from the use of electroconvulsive therapy (“ECT”) with Somatics’s devices.  Plaintiff Himes began ECT after repeated hospitalizations for depression and suicidal ideation over a multi-year period and after unsuccessfully trying nine different drugs.  In her lawsuit, she alleged the ECT caused severe physiological, psychological, and emotional injuries, including cognitive impairment and memory loss.

When the prescribing physician was asked whether he would communicate the risk that the ECT device could cause the loss of ability to formulate new memories, he “responded that he would ‘have to see it’ himself, but stated he would inform the patient of the risk.”  Riera, 2024 U.S. Dist. LEXIS 194654, *4.  He also stated that “any warnings received from Somatics regarding permanent memory loss, brain injury, or the inability to formulate new memories would be included in the informed consent form he gives his patients.”  Id.  This was sufficient for the district court to deny summary judgment on prong one of the Himes causation analysis.

The court also found an issue of fact on prong two. To determine what an “objectively prudent person in the patient’s position” would do, the Himes court listed a number of factors to consider, including:

[W]hether the physician weighed and assessed the risks and benefits of the treatment and, after discussing those risks and benefits with the patient, continued to recommend the treatment; whether the treatment was novel or was instead an established method for addressing the patient’s condition; the availability and utility of alternative treatments and the degree to which they have previously been tried in an effort to address the patient’s condition; the severity of the patient’s condition; and the likelihood that the treatment would have resulted in more than marginal benefits to the patient. [¶]  In addition, personal characteristics of the patient or circumstances unique to the patient should be taken into account when applying the objectively prudent person in the patient’s position standard.

Himes, 549 P.3d at 931.

Although the district court acknowledged that Somatics effectively argued that a reasonable person in Himes’s position would not have declined ECT treatment given the severity of her condition, that still was not enough.  Plaintiff got to the jury with evidence “that alternative, unexplored treatments like individual therapy were available to her” and “evidence disputing the long-term safety and effectiveness of ECT.”  Riera, 2024 U.S. Dist. LEXIS 194654 at *7.

This decision wrongly applies the Himes standard not only because it fails to consider the Himes factors, but because it neglects a critical piece of the Himes objective causation analysis.  The question is not simply what an objectively prudent person in general would do.  It’s what an objectively prudent person in the patient’s position would do.  Evidence of “alternative, unexplored treatments like individual therapy” should not have created an issue of fact here because it was undisputed that “Himes was never offered or given individual therapy.”  Id. at *7, *3.  Nor is there any indication in the opinion that Plaintiff would have been provided “evidence disputing the long-term safety and effectiveness of ECT.”  Id. 

How could an objectively prudent person in the patient’s position decline treatment when she would not have had any of this information?  This decision simply gets it wrong.  Hopefully others will not join this misguided parade.