Judge Ralph C. Hofer, Case Number: 23GDCV00358, Date: 2023-10-27 Tentative Ruling

Plaintiff Jamie Black alleges that in October of 2022, plaintiff, who had a history of depression, bipolar disorder, ADHD and schizophrenia, for which she had previously been placed on several 5150 involuntary psychiatric holds, went for a walk, and a group of people she encountered noticed she was upset and scared and not acting appropriately and asked if she needed an ambulance, to which plaintiff replied in the affirmative.

Plaintiff alleges that paramedics were summoned, and she was transported to defendant Glendale Adventist Medical Center dba Adventist Health Center (the Hospital). The complaint alleges that when plaintiff arrived at the Hospital, her vital signs showed she was hypersensitive and tachycardic. While in the emergency room, when asked her name, plaintiff identified several names, which were not her correct name, and plaintiff was also unable to provide a valid social security number. Plaintiff alleges that although attempts were made to take plaintiff’s blood and urine, the attempts were not successful.

Plaintiff alleges that she was eventually seen by defendant Alec Bradleigh Freling, M.D., who diagnosed plaintiff with, among other conditions, psychosis due to methamphetamine use, schizoaffective disorder, and PCP use, and concluded that plaintiff appeared in a psychotic state.

Plaintiff alleges that she was given a dose of haloperidol, a medication used to treat psychotic patients, and an injection of lorazepam, an anti-anxiety medication. Plaintiff repeatedly requested that the psychiatrist evaluate her, and a request was entered by Dr. Freling for plaintiff to be seen by a psychiatrist. Dr. Freling later re-evaluated plaintiff and noted that she would not provide further information to him because he was a male and had requested to speak with a female behavioral health individual, so that Dr. Freling noted that a female, Tracy, previously had attempted an evaluation during which plaintiff was uncooperative, and that Tracy would attempt to evaluate plaintiff again.

The complaint alleges that plaintiff engaged in behavior such as telling the nursing staff she had been poisoned and requesting an ultrasound because she believed there were drugs inside her uterus, crying loudly, screaming, pulling the curtains on other patient’s beds and screaming and yelling. Plaintiff was asked to write down her social security number, but ultimately said she could not remember it. The complaint alleges that later that evening Dr. Freling noted that Tracy had evaluated plaintiff and that plaintiff had been cleared by the on-call psychiatrist, although there is no record plaintiff was seen or evaluated by a psychiatrist at any time during her presentation. It is alleged that Dr. Freling stated plaintiff was alert and oriented and had normal mood and affect, but there was no physical examination performed at that time to support such a conclusion.

Plaintiff alleges that after some further confusion, plaintiff ultimately called a friend to pick her up, and the nurses escorted plaintiff out of the hospital, essentially throwing her out of the facility, three hours after arriving, when plaintiff had never been seen or evaluated by a psychiatrist and had never had blood or urine work done.

Plaintiff alleges that after many instances of improper behavior in the car and once plaintiff arrived at the friend’s house, plaintiff eventually walked to an overpass above the 15 freeway in Barstow and jumped off the overpass in an attempt to kill herself, as a result of which she suffered serious injuries.

“(a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.”

Accordingly, it is plaintiff’s burden to satisfy a two-prong test. It must “state” and “substantiate” a legitimate, triable claim by showing such evidence to the court at the pleading stage as would allow plaintiff to get to a jury. College Hospital, Inc. v. Superior Court, (1994) 8 Cal.4th 704, 709. The evidence must be competent admissible evidence. Id. Plaintiff’s evidence is to be considered first, with defendant’s evidence considered to fill in any gaps left by that evidence. Id.

Civil Code § 3294 authorizes recovery of punitive damages on the basis of findings “that the defendant has been guilty of oppression, fraud, or malice.” “Oppression” is defined to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” “Malice” is defined to include “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code § 3294 (c)(1) and (2). In College Hospital, “despicable” was defined as a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible.” College Hospital, 8 Cal.4th at 725.

The cases considering CCP §425.13 have mostly established the standard to be applied, without actually applying it to the applicable facts. In Looney v. Superior Court, (1993) 16 Cal. App.4th 521, for example, the court of appeal established a clear and convincing evidentiary standard and then sent the case back down to the trial court for an evaluation under that standard. Two cases relied upon by plaintiff did apply the standard to the facts before it. In College Hospital, 8 Cal.4th 704, the California Supreme Court reversed a ruling permitting a plaintiff to plead punitive damages against a hospital where the plaintiff alleged, she was traumatized when her affair with a hospital employee ended. Despite her presentation of evidence that the affair was known about, and encouraged by hospital staff, the Court found that, since the hospital employee was acting outside the scope of his employment, the punitive damages could not be recovered, and therefore not pled, against the hospital.

In Aquino v. Superior Court, (1993)21 Cal.App.4th 827, a family brought an action against three doctors in the treatment and care of their daughter after a car accident. The cause of action giving rise to punitives in that case was intentional infliction of emotional distress on the family, which allegedly occurred when the doctors did not keep the family informed of the daughter’s condition, removed life support, made misrepresentations about her time of death and permitted her body to be removed to the coroner’s without last rites. The court analyzed plaintiff’s evidence and concluded that denial of their motion to amend to allege punitive damages against the doctors was appropriate. The court of appeal made several findings in this matter. As to one doctor, it concluded that removal of the machine in question was a treatment method subject to the application of medical judgment, and with no showing with respect to that medical judgment, the punitive damages could not be pled. As to another doctor, the court of appeal held that plaintiffs had failed to make out a prima facie showing because the showing did not establish that the doctor concealed knowledge or “that the exact sequence of events showed fraud or disregard of plaintiffs’ rights.” Aquino, 21 Cal.App.4th at 860.

Plaintiff submits a declaration from a board-certified psychiatrist, Brian Jacks, M.D., which shows that the witness has completed the appropriate education and training and experience to offer expert testimony concerning the care and treatment provided to plaintiff by the health care professionals in this matter. [Jacks Decl., paras. 2, 4-6]. Dr. Jacks indicates he has reviewed plaintiff’s medical records from Glendale Adventist Medical Center and the Complaint in this matter. [Jacks Decl., para. 7]. He sets forth in detail his understanding of the facts in this matter. [Jacks Decl., paras 9-21].

Dr. Jacks indicates that it is his opinion that “the care and treatment provided to Ms. Black by Defendants was not only negligent but fell grossly and egregiously below the applicable standard of care for both a behavioral health therapist as well as an emergency room doctor evaluating a psychiatrically altered patient.” [Jack’s Decl., para. 22]. Dr. Jacks explains that Ms. Black was exhibiting delusional behaviors, that the hospital staff did not take or was unable to determine a proper history, failed to take blood samples or conduct a urinalysis, and failed to reach a final diagnosis other than “altered mental status,” which he opines, “is absolutely unconscionable in a patient such as Ms. Black given her markedly abnormal presentation.” [Jacks Decl., paras. 23, 24].

Dr. Jacks also explains how releasing a patient under the circumstances was “totally unreasonable,” as was the failure to institute an involuntary psychiatric hold, as “Ms. Black’s behavior in the hospital was clearly an indication that she would need active supervision and to be held in hospital to prevent further harm to herself or others.” [Jacks Decl., paras. 25-27].

“In conclusion, the care rendered to Ms. Black by Defendants on the evening of October 13, 2022 and early morning of October 14, 2022, was categorically and unequivocally below the standard of care, and even more so, represented a callus and willful and reckless disregard for her health and safety.”

Plaintiff also submits evidence from plaintiff’s attorney indicating the attorney previously litigated a similar claim against the same hospital defendant in this action, which the attorney indicates strongly suggests that the hospital has learned nothing from the previous experience in prematurely discharging a patient with similar psychiatric complaints, leading to that patient jumping off a parking structure and rendering him quadriplegic. [Kramer Decl., para. 3].

Defendants argue that the expert evidently relied on the complaint in this action for any facts beyond those contained in the hospital medical records, which is inappropriate. The Second District in Pomona Valley Hospital Medical Center v. Superior Court (2013) 213 Cal.App.4th 828, expressly held, “The plaintiff may not rely on allegations of its own pleadings, even if verified, to satisfy the required evidentiary showing.” Pomona Valley, at 836. The Second District in Pomona Valley also observed:

““[S]ubstantiation of a proposed punitive damages claim occurs only where the factual recitals are made under penalty of perjury and set forth competent admissible evidence within the personal knowledge of the declarant. (See §§ 437c, subds. (b) & (d), 2015.5.) 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[, subdivision] (a) motion should be carefully reviewed to ensure that a genuine contestable claim is indeed proposed.” (College Hospital, supra, at pp. 719–720, 34 Cal.Rptr.2d 898, 882 P.2d 894, fn. omitted.)”

This argument suggests that the declaration here improperly relies on medical records which are not in fact submitted with the motion for the court’s review, authenticated or established to include material which would qualify as an exception to the hearsay rule. This showing is insufficient to meet plaintiff’s substantial burden here. The motion accordingly is denied.

“(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

With respect to Dr. Freling, who is an emergency medicine physician, the Dr. Freling opposition argues that the claims brought against him are solely related to his role as an emergency medicine physician, so that the only admissible medical testimony that can be offered regarding the services he provided must be made by a witness with professional experience in that field.

“(c) In any action for damages involving a claim of negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department. For purposes of this section, "substantial professional experience" shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in general acute care hospital emergency departments in the same or similar localities where the alleged negligence occurred.”

There is no indication that Dr. Jacks has had any professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department. The CV reflects no such experience. Accordingly, the court cannot consider Dr. Jacks’ medical testimony as against Dr. Freling. The motion is denied as to Dr. Freling on this ground as well.

In addition, as to defendant Glendale Adventist Medical Center dba Adventist Health Glendale, plaintiff has failed to submit evidence substantiating the necessary showing under Civil Code § 3294(b). As to defendant Alex Bradleigh Freling, M.D., plaintiff has failed to submit appropriate evidence from a witness qualified under Health and Safety Code section 1799.110 (c).