Judge: Mark A. Young, Case: 22SMCV00797, Date: 2023-02-01 Tentative Ruling
Case Number: 22SMCV00797 Hearing Date: February 1, 2023 Dept: M
CASE NAME: Keesal, v. Caprioli,
et al.
CASE NO.: 22SMCV00797
MOTION: Motion
for Leave to Amend to Add Punitive Damages
HEARING DATE: 2/1/2023
Legal
Standard
In any action¿for professional negligence¿against a health
care provider, no claim for punitive damages may be included in an original
complaint.¿¿(CCP¿§ 425.13 (a).)¿Rather, a¿plaintiff must file a motion¿for
leave¿to amend the complaint and add a prayer for punitive damages.
¿
A¿motion¿for leave to amend under Code of Civil Procedure section
425.13¿must be supported by declarations establishing facts sufficient to
support a finding there is a “substantial probability” the¿plaintiff will
prevail on the punitive damages claim. “Substantial probability” requires the
plaintiff to show a legally sufficient claim substantiated by competent,
admissible evidence.¿(College Hospital Inc. v. Superior Court (1994)
8 Cal.4th 704, 719.)¿ The plaintiff must make a sufficient prima facie
showing of facts to sustain the punitive damage claim,¿taking into account¿the higher “clear and convincing” standard of proof
required for such claims under Code of Civil Procedure section 3294.¿(Looney
v. Superior Court¿(1993)¿16 Cal.App.4th 521, 538-540.)¿“Consistent with the
legislative intent to protect health care defendants from the drastic effects
of unwarranted punitive damage claims, the entire package of materials
submitted in support of the¿section 425.13(a) motion should be carefully
reviewed to ensure that a genuine contestable claim is indeed proposed.” (College
Hospital, supra,¿8 Cal.4th at pp. 719–720.)
Nevertheless, the court may not assess credibility or weigh
conflicting evidence.¿(Id.¿at 539; see also Looney, supra,
16 Cal.App.4th at p. 539 [“In making this judgment, the trial court’s
consideration of the defendant’s opposing affidavits does not permit a weighing
of them against the plaintiff’s supporting evidence, but only a determination
that they do or do not,¿as a matter of law,¿defeat that
evidence”].)¿The¿court must not reject a well-pled and factually supported
punitive damages claim simply because the court believes the evidence is not
strong enough for probable success before a jury.¿(College Hospital, supra,¿8
Cal.4th¿at¿709.)
The basic elements of a punitive damages claim are set out
in section 3294 of the Civil Code.¿There must be proof of “oppression, fraud,
or malice.” (Civ. Code § 3294 (a).) As defined in Civil Code section 3294(c), “the
punishable acts which fall into these categories are strictly defined.¿ Each
involves ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’
or ‘injur[ious]’ nature.
[Citation].” (College Hospital Inc.,¿supra,¿8 Cal.4th at 721.)¿Punitive
damages are only proper when the tortious conduct arises to the level of
extreme indifference to the plaintiff’s rights, a level which decent citizens
should not have to tolerate.¿(Tomaselli v. Transamerica Ins. Co.¿(1994)
25 Cal.App.4th 1269, 1287.)¿Despicable conduct has been characterized as
conduct that is so vile, base, contemptible, miserable, wretched or loathsome
that it would be looked down upon and despised by ordinary decent people.¿(Mock
v. Michigan Millers Mutual Ins. Co.¿(1992) 4 Cal.App.4th 306, 331.)
EVIDENTIARY ISSUES
Defendants’ objections to the declaration of Samuel Keesal
are SUSTAINED as to objection nos. 5 and 10, and otherwise OVERRULED.
Defendants’ objections to the declaration of Dr. Leif
Hertzog, are OVERRULED.
Analysis
Plaintiff requests punitive damages
based on causes of action for medical negligence, constructive fraud,
concealment and intentional infliction of emotional distress (IIED) against
Defendants. Thus, Plaintiff must present prima facie evidence supporting the
elements of the following causes of action.
Causes of Action
The elements of a professional negligence
medical malpractice cause of action are: “(1) the duty of the professional to
use such skill, prudence, and diligence as other members of his profession
commonly possess and exercise; (2) a breach of that duty; (3) a proximate
causal connection between the negligent conduct and the resulting injury; and
(4) actual loss or damage resulting from the professional’s negligence.” (Borrayo
v. Avery (2016) 2 Cal.App.5th 304, 310, quoting Hanson v. Grode
(1999) 76 Cal.App.4th 601, 606.) “A claim based on lack of informed
consent arises when the doctor performs a procedure without first adequately
disclosing the risks and alternatives.” (Saxena v. Goffney (2008) 159
Cal.App.4th 316, 324 [lack of informed consent sounds in negligence].)
The elements of fraud that give rise to a tort action are
“(a) misrepresentation (false representation, concealment, or nondisclosure);
(b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e.
to induce reliance; (d) justifiable reliance; and (e) resulting damage.
[Citation.]” (Engalla v. Permanente Medical Group, Inc. (1997) 15
Cal.4th 951, 974.) There are four scenarios “in which nondisclosure or
concealment may constitute actionable fraud: (1) when the defendant is in a
fiduciary relationship with the plaintiff; (2) when the defendant had exclusive
knowledge of material facts not known to the plaintiff; (3) when the defendant
actively conceals a material fact from the plaintiff; and (4) when the
defendant makes partial representations but also suppresses some material
facts. [Citation.]” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)
Justifiable reliance is required, whether based on positive
misrepresentation or concealment. (Engalla, supra, 15 Cal.4th at 974.) Ordinarily,
whether or not reliance was justifiable is a question of fact. (Furla
v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1077.) Reliance may be unreasonable
as a matter of law where the plaintiff has a sufficient level of
sophistication, a significant amount of money is at stake, information exists
to alert the plaintiff to the need for further investigation, and the plaintiff
has the ability to uncover that information. (General American Life
Insurance Co. v. Castonguay (9th Cir. 1993) 984 F.2d 1518,
1520-1521.) Such reliance is necessary,
since “[d]eception which does not cause loss is not fraud in the legal sense.”
(Hill v.¿Wrather¿(1958) 158 Cal.App.2d 818, 825.)¿
Civil
Code section 1573 provides that constructive fraud consists of “any breach of
duty which, without an actually fraudulent intent, gains an advantage to the
person in fault . . . by misleading another to his prejudice.” Thus, the elements of constructive fraud are (1) a fiduciary
relationship, (2) nondisclosure, (3) intent to deceive, and (4) reliance and
resulting injury. (Tindell v. Murphy (2018) 22 Cal.App.5th 1239,
1249-1250.) Constructive fraud is a special type of fraud arising from a
fiduciary relationship between a plaintiff and a defendant. (Peterson Dev.
Co. v. Torrey Pines Bank (1991) 233 Cal.App.3d 103, 116.)
Constructive fraud does not necessary support “fraud” as
defined by the punitive damages statute. In comparing “actual” fraud to
constructive fraud, one court observed, “actual fraud and undue influence
generally involve active misconduct . . . by the defendant. Unlike fraud and
undue influence, a constructive fraud claim allows relief for negligent
omissions constituting breach of duty in a confidential relationship.” (Tyler
v. Children’s Home Society (1994) 29 Cal.App.4th 511, 548.) “[C]onstructive fraud comprises any act, omission or
concealment involving a breach of legal or equitable duty, trust or confidence
which results in damage to another, even though the conduct is not otherwise
fraudulent.” (Efron v. Kalmanovitz (1964) 226 Cal.App.2d 546, 560.)
The elements of an intentional
infliction of emotional distress cause of action are: (1) extreme and
outrageous conduct by the defendant; (2) intention to cause or reckless
disregard of the probability of causing emotional distress; (3) severe
emotional suffering; and (4) actual and proximate causation of the emotional
distress. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th
768, 780.) To satisfy the element of extreme and outrageous conduct,
defendant’s conduct “‘must be so extreme as to exceed all bounds of that
usually tolerated in a civilized society.’” (Ibid.) “Behavior may be
considered outrageous if a defendant (1) abuses a relation or position which
gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is
susceptible to injuries through mental distress; or (3) acts intentionally or
unreasonably with the recognition that the acts are likely to result in illness
through mental distress.” (McDaniel v. Gile (1991) 230 Cal.App.3d 363,
372.)
“[I]t is not enough that the defendant
has acted with an intent which is tortious or even criminal, or that he has
intended to inflict emotional distress, or even that his conduct has been
characterized by ‘malice,’ or a degree of aggravation which would entitle the
plaintiff to punitive damages for another tort.” (Cochran v. Cochran
(1998) 65 Cal.App.4th 488, 496.) “Liability has been found only where the
conduct has been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” (Id.) While there is no
bright-line as to what constitutes outrageous conduct and thus this involves a
case-by-case analysis, courts can determine whether conduct was sufficiently
outrageous at the pleading stage. (Id. at 494.)
Plaintiff’s
Evidence in Support
Plaintiff alleges that due to
Defendants’ medical negligence during an eye surgery, he suffered permanent
blindness in his left eye. (Keesal Decl., ¶ 9.) On April 5, 2021, Keesal was
admitted as a patient at the Jules Stein Eye Institute at the Ronald Reagan
Medical Center for cataract surgery on his left eye. (Keesal Decl., ¶ 2.) The
primary surgeon was Dr. Caprioli who was assisted by Dr. Barsegian and Dr.
Fang, an anesthesiologist.
Plaintiff states that he was not
advised that a retrobulbar block procedure with a needle would be utilized to
anesthetize his eye, or of alternatives to this “higher-risk” procedure, such
as a peribulbar block, eye drops or oral medication. (Keesal Decl. ¶ 4.) Plaintiff’s
expert explains that a “peribulbar block” involves injections outside the orbit
of the eye, whereas the “retrobulbar block” procedure requires injecting the
anesthesia drug into the orbit further behind the eye which is near the nerves
that control eye movement and sensation. (Hertzog Decl., ¶ 5.) Dr. Herzog notes
that eye drops and oral medication are noninvasive. At the time of the surgery,
Defendants were aware that Keesal has glaucoma and was taking blood thinners,
each of which made the retrobulbar block procedure potentially more dangerous.
(Keesal Decl. ¶ 4; Hertzog Decl., ¶ 3.) Defendants did not discuss the
pertinent risks of surgery with Keesal prior to undertaking the operation. Instead,
Defendants explained that “there is always a risk for surgery, but in your case
it is minimal” and was not warned of the potential for death or permanent
blindness. Keesal thus contends that he could not have given his informed
consent. (Keesal, Decl., ¶ 3.)
Moreover, Keesal presents evidence
that Dr. Caprioli was not present when the retrobulbar block procedure was
administered. (Keesal, Decl., ¶ 5.) Dr. Barsegian negligently inserted the
needle block into Keesal's left eye, puncturing an artery and causing a
retrobulbar hemorrhage. (Hertzog Decl., ¶¶ 4-6.) Dr. Hertzog notes that available
procedures to correct or limit the damage caused by the procedure were not immediately
undertaken. (Hertzog Decl., ¶ 10.)
Plaintiff also attempts to
substantiate a claim of fraud in support of punitive damages. Plaintiff points
to Defendants’ post-surgery conduct “designed to conceal their prior
malpractice.” First, they failed to advise that the damage to Keesal's eye was
permanent. Second, someone “falsified” the surgery records to indicate that "there
were no complications" and that Keesal's vision was "getting
better" post-surgery. Defendants' records assert that Dr. Caprioli was
always present during the procedure, although he was not. (Keesal Decl., ¶¶ 5,
8.) Dr. Caprioli recommended to Keesal that he undergo additional surgeries to
"correct" the damage. (Keesal Decl., ¶8.) However, Dr. Herzog notes
that these additional surgeries could not have corrected or reduced permanent
damage that already had occurred. (Hertzog, ¶¶ 7, 11.) Plaintiff contends that Dr. Caprioli was
“aware” of this fact, but presents no evidence supporting such a contention.
Plaintiff explains that due to the
surgery and resulting permanent blindness in his left eye, he has suffered
extreme pain and suffering as well as severe emotional distress. (Keesal Decl.,
¶ 10.)
Discussion
The Court
agrees that Plaintiff has presented prima facie evidence of professional
negligence. However, Plaintiff does not present “clear and convincing” evidence
as a matter of law demonstrating a “substantial probability” of recovering punitive
damages. At best, the above evidence supports a claim for negligence. Medical
negligence, while a tort, is not in and of itself so “contemptible, miserable, wretched or loathsome” that it
would be looked down upon and despised by ordinary decent people. As such, Plaintiff
posits no evidence upon which a reasonable fact finder could conclude that
Defendants acted with malice, oppression or fraud in the above conduct.
Plaintiff does not present any
evidence supporting Defendants’ subjective mental state regarding the eye surgery.
Thus, Plaintiff does not support the contention that Defendants “intentionally”
or “consciously” disregarded Plaintiff’s safety with clear and convincing
evidence. Plaintiff does not point to any conduct that could be considered
“despicable” under the punitive damages statute. Instead, Plaintiff speculates on
what Dr. Caprioli knew or should have known. This unsupported speculation does
not meet the standard of proof for IIED or for malice/oppression.
Plaintiff attempts to plead a case
of fraudulent concealment based on Defendants’ post-surgery activities. For
instance, Plaintiff argues that Defendants “falsified” medical records to
“conceal” their malpractice by stating that there were no complications, that
Keesal’s vision was getting better, and that Dr. Caprioli was always present
during the surgery. While this may meet a lay person’s understanding of fraud,
it does not meet the common law or statutory definition. Critically, Plaintiff
fails to connect any of these purported misrepresentations with any reliance
by Plaintiff. There is no evidence that he relied on these concealments to his
detriment in any sense. Further, “Fraud” means an “intentional misrepresentation,
deceit, or concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person of
property or legal rights or otherwise causing injury.” (Civ. Code §
3294(c)(3), emphasis added.) As noted above, Plaintiff does not present any
evidence support Defendants’ subjective intent. Thus, there is no clear and
convincing evidence demonstrating that Defendant intended to deprive Plaintiff
of property, or cause damage to Plaintiff.
Accordingly, Plaintiff’s motion is
DENIED.