Judge: Virginia Keeny, Case: BC709201, Date: 2023-03-06 Tentative Ruling
Case Number: BC709201 Hearing Date: March 6, 2023 Dept: W
VINCENT A PADOVANO V. ADONAI CONGREGATE
LIVING INC ET AL.
Defendant suman n. patel, m.d.’s motion
for determination of good faith settlement
Date of Hearing: March
6, 2023 Trial Date: October 2, 2023
Department: W Case No.: BC709201
Moving Party: Defendant Suman N. Patel, M.D.
Responding Party: Defendant Adonai Congregate Living, Inc.
BACKGROUND
Plaintiff was born on November 21, 1968
and suffered functional quadriplegia, causing him to be bedridden and require
24/7 skilled nursing care.
Plaintiff was a resident of Adonai
Congregate Living, Inc. between March 11, 2017 and April 23, 2017. Plaintiff
alleges by virtue of his bedridden status, he was at high risk for development
of decubitus ulcers. During the course of his residence, Plaintiff alleges the
attending physician, Dr. Patel, and nursing personnel at Adonai were aware of
Plaintiff’s high risk of development of decubitus ulcers but lacked the
competency as well as the policies and procedures for the observation,
monitoring, and treatment of decubitus ulcers. Plaintiff alleges due to
Adonai’s failure to monitor and develop a plan of care, Plaintiff became
infected with Stage IV sacrococcyx decubitus ulcer.
On June 7, 2018, Plaintiff filed a
Complaint alleging 1) Elder Abuse and 2) Medical Malpractice. Plaintiff filed a
First Amended Complaint on December 13, 2019.
On July 15, 2019, the case was
transferred from the Personal Injury Court to this court.
[Tentative] Ruling
Defendant Suman N. Patel, M.D.’S Motion for
Determination of Good Faith Settlement is GRANTED.
discussion
Defendant Suman N. Patel, M.D. moves this court for
an order determining that the settlement between Defendant Dr. Patel and
Plaintiff Padovano was made in good faith, pursuant to Code of Civil Procedure
section 877.6.
Code
of Civil Procedure section 877.6(a)(1) provides that a “party to an action in
which it is alleged that two or more parties are joint tortfeasors or
co-obligors on a contract debt shall be entitled to a hearing on the issue of
the good faith of a settlement entered into by the plaintiff or other claimant
and one or more alleged tortfeasors or co-obligors…” Under subdivision (a)(2),
a settling party may give notice of settlement to the parties and court,
together with an application for determination of good faith settlement and a
proposed order. The application “shall indicate the settling parties, and the
basis, terms, and amount of the settlement” and must include a proof of
service. (CCP §877.6(a)(2).)
In
determining the good faith of a settlement, the court may consider the
affidavits served with the notice of hearing, and any counter-affidavits filed
in response, or other evidence in the court’s discretion. (CCP §877.6(b).) The
California Supreme Court, in Tech-Bilt Inc. v. Woodward-Clyde &
Associates (1985) 38 Cal.3d 488, provided factors to be considered in
determining the good faith of a particular settlement. The court explained that
the policies and intent underlying section 877.6 “require that a number of
factors be taken into account,” such as: a rough approximation of a plaintiff’s
total recovery and the settlor’s proportionate liability; the amount paid in
settlement; the allocation of settlement proceeds among plaintiffs; a
recognition that a settlor should pay less in settlement than he would if he
were found liable after a trial. (Tech-Bilt at p. 499.) Other relevant
factors include financial conditions and insurance policy limits of settling
defendants, and the existence of collusion, fraud, or tortious conduct aimed to
injure the interests of non-settling defendants. (Id.). This evaluation
must be made “on the basis of information available at the time of settlement.”
(Id.) The court further explained that settlement by a defendant “must
not be grossly disproportionate to what a reasonable person, at the time of the
settlement, would estimate the settling defendant’s liability to be.” (Id.,
citations omitted.)
The
non-settling tortfeasors or obligors bear the burden of demonstrating the
absence of good faith in the settlement.
(CCP §877.6(d).) In
order to demonstrate a lack of good faith, the non-settling party must show
that the settlement is so far “out of the ballpark” as to be inconsistent with
the equitable objectives of Section 877.6.
(Nutrition Now, Inc. v. Superior Court (2003) 105 Cal.App.4th
209, 213.)
Defendant
Dr. Patel has filed an application for good faith settlement providing that Dr.
Patel and Plaintiff would settle for $29,999.00 to be paid to Plaintiff and in
exchange Dr. Patel be dismissed from the action with prejudice. Defendant. Dr.
Patel contends although a complex medical malpractice case, the Medi-Cal lien
against Plaintiff is only for $9,677.65 and Plaintiff only seeks between $2,000
to $4,000 in out-of-pocket costs and therefore, the settlement price is well
within the ballpark of potential proportionate liability as to Dr. Patel.
Defendant
Adonai challenges Dr. Patel’s settlement with Plaintiff on the grounds (1) the
motion was not timely filed pursuant to Code of Civil Procedure section 1005, (2)
the $29,999 settlement is not within the reasonable range of the settling
tortfeasor’s proportional share of liability for Plaintiff’s injuries; (3) there
is no evidence provided documenting an approximation of Plaintiff’s injuries; (4)
Dr. Patel is insured while Defendant Adonai is not; (5) the circumstances
surrounding the settlement are suspicious and questionable; and (6) further
discovery needs to be conducted.
Timeliness
Defendant
Adonai argues the instant motion was served on the very last day it could be
served with notice for a February 7, 2023 hearing and was filed with the court
at the last minute of jurisdictional timing and as a result, placed Defendant
Adonai in an impossible situation to create a decent opposition.
A
motion that is served and filed exactly within the statutory timeframe does not
prejudice the opposing parties. Defendant Adonai was given ample opportunity to
provide a “decent” opposition.
Rough
Approximation of Plaintiff’s Total Recovery
Defendant
Adonai argues it is impossible for this court to assess the nature of Dr.
Patel’s settlement or proportionate liability without a rough approximation of
Plaintiff’s total recovery. Moreover, using a discounted Medi-Cal Lien does not
support the settlement of $29,999.00.
Defendant
Dr. Patel argues the actual damages are approximately $9,677.65 for the lien,
plus $2,000-4,000 for plaintiff's out of pocket expenses, reflecting a total of
approximately $11,677 to $13,677. Dr. Patel further notes Plaintiff has no
future loss of earnings, as he has been unable to live or work unassisted, at
least since his quadriplegia-inducing automobile accident in 2016. Moreover,
the sacrococcyx wound had apparently fully healed in early 2020, and there have
been no specific contentions by Plaintiff of further needs in relation to the
defendant's alleged misconduct.
As
noted by Defendant Adonai, the State of California's Department of Health Care
Services’ (“DHCS”) final Medi-Cal lien provides that Plaintiff has actually
received $200,998.91 of services through the Medi-Cal program. DHCS reduced the
lien from $200,998.91 to $9,677.65 pursuant to Welfare and Institutions Code
section 14124.78. Section 14124.78 provides that a Medi-Cal Lien amount can
never be greater than the beneficiary’s recovery (after subtracting beneficiary’s
attorney’s fees/litigation costs). However, “[a]n injured plaintiff with health
insurance may not recover economic damages that exceed the amount paid by the
insurer for the medical services provided. (Howell v. Hamilton Meats &
Provisions, Inc. (2011) 52 Cal.4th 541, 566, 129 Cal.Rptr.3d 325, 257 P.3d
1130[.])” (Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th
1266, 1268–1269.) This includes Medi-Cal. (See Hanif v. Housing Authority
(1988) 200 Cal.App.3d 635, 639.)
Plaintiff
did not seek future medical expenses. (See Complaint.) Rather, Plaintiff sought
general and special damages including pain and suffering, physical harm, and
economic loss. (Complaint ¶¶62, 66.) As such, the Medi-Cal lien and
out-of-pocket costs are a rough approximation of Plaintiff’s recovery. Further,
the court considers that $29,999.00 is a rough approximation of Patel’s
liability, given that damages are often speculative.
Reasonable
Range of Defendant Dr. Patel’s Proportionate Liability
Defendant
Adonai argues the settlement at $29,999.00 is not within the reasonable range
of Dr. Patel’s proportional share of comparative liability for the Plaintiff’s
injuries. Defendant Adonai contends allowing the only medical professional who
had responsibility for Plaintiff’s care to get out of the action so that he can
avoid reporting this loss to the Medical Board is not what is anticipated or
required to approve a good faith settlement.
Defendant
Dr. Patel contends the $29,999.00 is within a reasonable range given Plaintiff
complied with the applicable standard of care at all times. Dr. Patel contends
he has the support of three expert witnesses who are supportive of Dr. Patel
and his assertions he complied with the applicable standard of care. Defendant
Dr. Patel does not provide these declarations. They, however, have been filed
with the court in support of Dr. Patel’s motion for summary judgment and
therefore, are part of this court’s record.
Defendant
Dr. Patel’s evidence is sufficient to show that the settlement is proportionate
to what his liability would be estimated to be. Several expert witnesses for
Defendant Dr. Patel have provided that Dr. Patel acted within the applicable
standard of care and treatment for Plaintiff. This does not appear to be a case
where Dr. Patel is “purchasing protection from its indemnification obligation
at bargain-basement prices.” (Long Beach Memorial Medical Center v. Superior
Court (2009) 172 Cal.App.4th 865, 876.) Given Dr. Patel’s minimal liability,
the settlement appears to be reasonable.
Insurance
Defendant
Adonai briefly notes Dr. Patel is fully insured for the medical malpractice
claim against him while Adonai has no insurance and no obvious source of
payment for any settlement or judgment. The only relevant consideration is Dr.
Patel’s, the settling defendant, financial condition and insurance policy
limits.
Circumstances
of the Agreement
Defendant
Adonai argues the circumstances of the settlement are suspicious and
questionable because Plaintiff’s counsel has admitted that the factors that
were included in Plaintiff accepting the settlement agreement included Plaintiff’s
loss and/or unavailability of a key medical expert witness to oppose Defendant
Dr. Patel’s motion for summary judgment; a decline in Plaintiff’s counsel’s
health, which affected his ability to oppose the motion for summary judgment; and
the burden of opposing the motion for summary judgment.
The
court may not consider hearsay statements. Moreover, this contention is not
something the court must take into consideration in determining a good
faith settlement.
Discovery
Defendant
Adonai argues this motion should either be denied or continued for Mr. Evans to
conduct discovery over the next 60 to 90 days. Defendant Adonai contends all
the Tech-Bilt factors are ripe for discovery.
This
action has been pending since 2018. Defendant Adonai does not present any
reason why further formal discovery is needed into the Tech-Bilt
factors. (See Franklin Mint Co. v.
Sup.Ct. (Manatt, Phelps & Phillips) (2005) 130 CA4th 1550, fn.
5—no absolute right to discovery for purposes of § 877.6 good faith
determination).