Judge William A. Crowfoot, Case 22STCV21515 2023-05-08 Tentative Ruling

Judge: William A. Crowfoot, Case: 22STCV21515, Date: 2023-05-08 Tentative Ruling

This wrongful death and survival action was filed on July 1, 2022 by Danny A. Godoy, individually and as the successor-in-interest to his wife, Ana Xanthe Chirino Godoy’s (“Decedent”). Plaintiff alleges that defendants Shane S. Pak, M.D., Sergio Y. Go, M.D., and Alhambra Hospital Medical Center (collectively, “Defendants”) engaged in medical malpractice when Decedent underwent spine surgery on June 28, 2021. (Compl., ¶¶ 14-15.) Decedent allegedly lost over two liters of blood which caused her to go into shock and suffer severe acidosis and hyperkalemia; eventually Decedent’s condition deteriorated and she passed away on July 1, 2021. (Id., ¶ 15.)

On March 28, 2023, Plaintiff filed this motion for leave to amend the complaint and add a prayer for punitive damages.

In any action¿for professional negligence¿against a health care provider, no claim for punitive damages may be included in an original complaint.¿¿(Code Civ. Proc.,¿§ 425.13, subd. (a).)¿ Rather, a¿plaintiff must file a motion¿for leave¿to amend the complaint and add a prayer for punitive damages.¿(Ibid.) A¿motion¿for leave to amend under 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.¿ (Ibid.)¿ Like with summary judgment motions, the motion is decided entirely on an ‘affidavit’ showing with supporting and opposing declarations.¿ (Pomona Valley Hospital Medical Center v. Superior Court¿(2013)¿213 Cal.App.4th 828, 837.)

“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.)

The purpose of section 425.13(a) is to “shift[] to plaintiff the procedural burden that would otherwise fall on defendant to remove ‘frivolous’ or ‘unsubstantiated claims’ early in the suit.” (Goodstein v. Superior Court (1996) 42 Cal.App.4th 1635, 1641-1642.) “Rather than requiring the¿defendant¿to defeat the plaintiff’s pleading by showing it is legally or factually meritless, the motion to amend to add punitive damage allegations requires the¿plaintiff¿to demonstrate that he possesses a legally sufficient claim which is ‘substantiated,’ that is, supported by competent, admissible evidence.” (Id. at p. 1642.)

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, subd. (a).) As defined in Civil Code section 3294(c),2¿“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 p. 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.)

Plaintiff’s evidence includes a single declaration from Boris Gelman, M.D., a board-certified anesthesiologist, and Decedent’s medical records. Dr. Gelman states that Dr. Pak “obviously anticipated significant blood loss” during Decedent’s surgery because he “ordered a Cell Saver machine to be available with a technician during surgery.” (Gelman Decl., ¶ 7.) He also states that as the anesthesiologist, Dr. Go should have anticipated the possibility of blood loss and placed a larger central line to provide the ability to replace significant blood loss with blood products and fluids at a quicker and higher volume. (Gelman Decl., ¶ 8.) Dr. Gelman criticizes Dr. Go’s decision to use “one small peripheral IV line” and states “an arterial line would also likely be necessary in order to accurately measure blood pressure and to obtain vital labs during the lengthy procedure that would help guide treatment.” (Gelman Decl., ¶ 8.) Dr. Gelman states that during the surgery, Decedent was documented to have lost more than 2 liters of blood, or 40% of her blood volume, which caused a lack of oxygen to her vital organs and led to metabolic acidosis and multi-organ failure. (Gelman Decl., ¶ 10.) He states that large volume shifts such as this require “frequent labs and central venous access and monitoring to guide the resuscitation effort” but “no lab values were obtained and no arterial blood gas (ABG) was obtained”, meaning that Dr. Pak and Dr. Go did not know the severity of Decedent’s condition. (Gelman Decl., ¶ 10.)

Ultimately, Dr. Gelman opines that Dr. Go “fell well below the standard of care with evidence of reckless disregard for [Decedent’s] safety.” (Gelman Decl., ¶ 13.) He states that Dr. Go should have placed central venous access and an arterial line preoperatively and that central venous pressure and continuous arterial blood pressure should have been monitored. (Ibid.) He also states that narcotics “should have been given as necessary during the procedure” and that “once massive blood loss was evident, frequent ABGs and labs should have guided treatment and resuscitation” which would have aided with earlier diagnosis and timely intervention and could have resulted in a better outcome. (Ibid.)

Plaintiff fails to meet his burden to establish a prima facie case that there is a substantial probability that he will prevail on his punitive damages claim against any of the Defendants. Conclusory characterizations of defendant’s conduct as willful, intentional or fraudulent is a patently insufficient statement of the necessary factual grounds for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Dr. Gelman’s declaration does not support Plaintiff’s allegations of abandonment, despicable conduct, and reckless disregard, but a different approach to medical treatment.

The Court notes that Dr. Go argues that Plaintiff’s motion is untimely by three months. (Go Opp., pp. 3-4.) However, as the Court finds no substantive basis to grant this motion, it need not address this argument about timeliness.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.