Judge: Carolyn M. Caietti, Case: 37-2022-00010022-CU-MM-CTL, Date: 2023-09-29 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
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HALL OF JUSTICE
TENTATIVE RULINGS - September 28, 2023
09/29/2023 10:30:00 AM C-70 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:Carolyn Caietti
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Civil - Unlimited Medical Malpractice Discovery Hearing 37-2022-00010022-CU-MM-CTL REMLAND VS SCHULTZEL DO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 05/10/2023
Plaintiffs Janice Remland and John Remland's Motion to Compel Defendant Matthew Schultzel's Further Responses to Requests for Production, Set One is GRANTED IN PART AND DENIED IN PART.
Plaintiffs Janice Remland and John Remland's Motion to Compel Defendant Matthew Schultzel's Further Responses to Special Interrogatories, Set One is GRANTED IN PART AND DENIED IN PART.
The Court considered Defendant's late opposition.
Defendant's unopposed request for judicial notice is granted and notice will only be taken to the extent permitted.
This is a medical negligence case. Plaintiff's Complaint alleges Defendants performed an unnecessary hemorrhoidectomy procedure on Plaintiff. Contrary to Plaintiff's arguments made throughout the motions, the Complaint does not allege Dr. Schultzel operates 'a volume-based surgical practice and repeatedly touts the large number of surgeries he has performed as an indicator of his abilities and success.' Further, there are no allegations Dr. Schultzel was motivated to treat patients surgically rather than using more conservative – and less profitable – treatment methods.
Other Claims of Negligence Special Interrogatory (SI) No. 2 asks Defendant to describe 'all claims of medical negligence made against you by providing the date each claim was made, the name of the patient, the court in which the claim was filed, and whether the claim has been resolved.' Defendant represents he will disclose the names of lawsuits filed within the last seven years, as previously agreed between the parties in the meet and confer process, but objects to the disclosures of notices of claims brought by other patients on grounds they are not relevant, not reasonably calculated to lead to the discovery of admissible evidence and violates patient privacy, physician-patient privilege and attorney work product.
Defendant's objections hold merit. Case law generally holds inadmissible evidence of the defendant's prior negligence in medical treatment to prove he was negligent in a particular case and holds inadmissible opinion evidence as to the defendant's general skill as a physician. (Hinson v. Clairemont Community Hospital (1990) 218 Cal.App.3d 1110, 1122, modified (Apr. 11, 1990) disapproved on other grounds by Alexander v. Superior Court (1993) 5 Cal.4th 1218.) In Hinson, the trial court properly excluded evidence a physician was terminated from two residency programs and a hospital and his staff privileges were suspended at another hospital in a negligence action. (See also, Bowen v. Ryan (2008) Calendar No.: Event ID: TENTATIVE RULINGS
2969818 49 CASE NUMBER: CASE TITLE: REMLAND VS SCHULTZEL DO [IMAGED] 37-2022-00010022-CU-MM-CTL 163 Cal.App.4th 916 (holding evidence of a defendant's prior negligence in medical treatment is inadmissible to prove negligence in a particular case).) Thus, the interrogatories – as related to other 'claims' - do not seek information 'reasonably calculated to lead to the discovery of admissible evidence.' (C.C.P., § 2017.010.) However, Defendant will be compelled to serve a further response in compliance with his representation of disclosing lawsuits filed within the last seven years.
For these same reasons, Defendant's objections to Request for Production of Documents (Request), No.
5 (prior testimony) and Request No. 6 (complaints arising out of Defendant's medical treatment), hold merit. However, for Request No. 5, Defendant maintains this request is moot as he agreed to produce deposition transcripts from previous lawsuits. Plaintiffs did not reply. Defendant will be compelled in comply with his agreement.
Marketing SI Nos. 5 and 6 concern Defendant's marketing for his medical practice. Plaintiffs maintain they 'allege' a negligent scheme exists between United Medical Doctors and Dr. Schultzel to funnel all potentially operable patients to Dr. Schultzel because they know his volume practice will operate on those patients and the group will profit as a result. No such allegations are made in the Complaint and this information is not reasonably calculated to lead to the discovery of admissible evidence of Plaintiffs' current medical negligence, lack of informed consent and loss of consortium claims. Notwithstanding, Defendant affirms he will amend his response and indicate all advertising was arranged through United Medical Doctors.
Defendant will be compelled to serve a further response in compliance with this representation.
Defendant similarly maintains he will amend his response to Request No. 7 (documents relating to marketing of Defendant's medical practice) to indicate all advertising concerning his practice was arranged through United Medical Doctors and will be compelled to do so. The objections to Request No.
7 otherwise hold merit for these same reasons.
Suspensions SI No. 9 asks if a hospital suspended or terminated Defendant's privileges and to describe the name of the hospital, date of suspension or termination and the reasons for the suspension or termination.
Defendant objected under Evidence Code section 1157, the right to privacy about 'personal information about his work and employment relationships,' the physician-patient privilege and relevance.
Defendant, as the party resisting the discovery, has the burden to show Evidence Code section 1157 applies and failed to provide any evidence supporting its application. (Willits v. Superior Court (1993) 20 Cal.App.4th 90, 104-05; see also, Hinson, supra, 218 Cal.App.3d at p. 1128 (concluding an application for staff privileges and the fact a physician's privileges were denied, suspended or terminated does not fall within the scope of Evidence Code section 1157).) Further, a medical malpractice plaintiff is entitled to discover whether or not a hospital evaluated a physician and such information is not a 'proceeding' or 'record' under the policy the Legislature evidenced in enacting section 1157. (Brown v. Superior Court (1985) 168 Cal.App.3d 489, 501.) In addition, the information is relevant to the 'threshold qualifications' of whether a doctor met the training and experience component of the standard of care. (Hinson, supra, at p.1130.) Defendant also relies on Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 524, which the California Supreme Court disapproved of in Williams v. Superior Court (2017) 3 Cal.5th 531.
Defendant has not provided any analysis regarding his right to privacy 'about his work and employment relationship,' nor provided evidence of how the request invades the physician-patient privilege. Thus, the objections lack merit and a further response will be compelled.
Complaints to the Osteopathic Medical Board SI Nos. 10-12 concern complaints made against Defendant to the Osteopathic Medical Board (date of Calendar No.: Event ID: TENTATIVE RULINGS
2969818 49 CASE NUMBER: CASE TITLE: REMLAND VS SCHULTZEL DO [IMAGED] 37-2022-00010022-CU-MM-CTL complaint, summary of allegations, whether the complaint was investigated and resolved). For the reasons discussed above, this information is not calculated to lead to the discovery of admissible evidence. (Hinson, supra; Bowen, supra.) Plaintiff argues she requests 'cursory information of non-public complaints' without supporting legal authority it is discoverable.
Malpractice Insurance Certificate Request No. 3 requests Defendant's malpractice insurance certificate, including claims history. In opposition, Defendant maintains he agreed to produce his entire liability insurance policy and nothing further will be produced. Plaintiffs do not reply. Thus, this request is moot.
Surgical Log Request No. 4 requests Defendant's 'surgical log' from Scripps Memorial Hospital for years 2013 to the present. Defendant's offer to submit a log limited to hemorrhoidectomies in the last seven years with patient identities redacted and subject to a qualified protective order is reasonable. In reply, Plaintiffs maintain the request should not be limited to hemorrhoidectomies to confirm their unpled theory there is a volume-base surgical practice. No legal authority is provided in support.
For these reasons, the motions are GRANTED IN PART AND DENIED IN PART.
Concluding Orders Defendant is ordered to serve a further verified and code-complaint (see, C.C.P., §§ 2031.210, et seq.) response to Request for Production of Documents, Set One, Nos. 4, 5, and 7 in compliance with Defendant's representations during the meet and confer, including any responsive document production, by October 27, 2023.
Defendant is ordered to serve a further verified and code compliant (see, C.C.P., §§ 2030.210, et seq.) response to Special Interrogatories, Set One, Nos, 2, 5, 6 and 9 in compliance with Defendant's representations during the meet and confer, by October 27, 2023.
If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.
Plaintiffs are ordered to serve written notice of the Court's final ruling by October 3, 2023.
Defendants are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.
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