Justia California Court of Appeals Opinion Summaries

A surgeon and his clinic sought a writ from the Court of Appeal directing the trial court to vacate its order allowing the survivors of a patient who died from a surgical procedure to amend their complaint to assert a claim for punitive damages. The Court of Appeal determined the evidence of the misconduct of the surgeon and the employees of his clinic that the survivors submitted with their motion for leave to amend, if believed by the trier of fact, might well support an award of punitive damages. Nevertheless, because the survivors did not move to amend within the time mandated by statute, the Court granted the requested relief. View "Divino Plastic Surgery, Inc. v. Superior Court" on Justia Law

Pappas sued Dr. Chang for malpractice. During mediation, they agreed that Chang would pay Pappas $100,000. Both parties and their counsel signed a settlement agreement, which provided that Pappas “will execute a release of all claims ... in a more comprehensive settlement agreement ... to include a provision for mutual confidentiality as to the facts ... the terms and amount of this agreement.” The parties unsuccessfully negotiated the “more comprehensive settlement agreement” and “provision for mutual confidentiality” for months. Pappas discharged her attorney and, representing herself, advised Chang’s attorney that she would only comply with a confidentiality provision if she received $525,000, then sued Chang for breach of contract.The trial court ruled against Pappas “because she has not signed a ‘more comprehensive settlement agreement’ and release which includes a provision for mutual confidentiality.” In consolidated appeals, the court of appeal affirmed, rejecting an argument that a confidentiality provision would be against public policy and violate the Business and Professions Code. The court also rejected Chang’s appeal of the trial court’s denial of her attorney fees as costs of proof at trial (Code Civ. Proc., 2033.420) based on its finding that Pappas’s denial of two requests for admission was based on a good faith belief she would prevail at trial and that the requests went to the ultimate issue. View "Pappas v. Chang" on Justia Law

The Court of Appeal affirmed the trial court's judgment in favor of defendant, a neurosurgeon, in a medical malpractice action against defendant and others, alleging claims related to plaintiff's treatment in the emergency room. Plaintiff and his wife alleged that emergency surgery should have taken place sooner than six hours after his arrival at the emergency room because time was of the essence in removing a blood clot. After the surgery, plaintiff ended up partially quadriplegic.The court concluded that the trial court did not err in declining to instruct the jury with CACI 509 (Abandonment of Patient) as the instruction was not supported by substantial evidence. The court also concluded that CACI 411 (Reliance on the Good Conduct of Others) did not prejudice plaintiffs. Furthermore, the trial court's refusal to give CACI 430 (Causation: Substantial Factor) and CACI 431 (Causation: Multiple Causes) and its decision to give Defense Special Instruction No. 2 are moot in light of the jury's finding of no negligence. Finally, plaintiff's challenge to CACI 506 (Alternative Methods of Care) is waived, and the trial court did not err in refusing to give BAJI 6.15, which defined "emergency." View "Zannini v. Liker" on Justia Law

Nina’s was a residential care facility for the elderly (RCFE) licensed by the Community Care Licensing Division (CCL) of the State Department of Social Services. Plaintiff, an RN-certified legal nurse consultant, was hired to assist with the closure of Nina’s and agreed to assess each of the residents and recommend a new facility, as required by RCFE closing procedures, Health and Safety Code 1569.682(a)(1)(A).Caregivers from the new RCFE, Frye’s, came to transfer J.N. They immediately noticed that J.N. was in significant pain; multiple bandages “stuck to [J.N.’s] skin and her wounds,” which “all smelled really bad.” J.N.’s toes were black. Frye’s caregivers called 911. J.N. died weeks later. A CCL investigator contacted plaintiff, who confirmed that he had performed J.N.’s assessment. Plaintiff later denied performing J.N.’s physical assessment, stating that Mia “was the one in charge.” He denied guiding or instructing Mia during the assessment, stating he only acted as a “scribe.” The ALJ found clear and convincing evidence that plaintiff committed gross negligence in connection with J.N.'s appraisal, unprofessional conduct in carrying out nursing functions in connection with the appraisal, and unprofessional conduct by not being truthful with the Board investigator regarding J.N.'s care provided.The court of appeal upheld the revocation of plaintiff’s nursing license. Substantial evidence supports the finding that plaintiff engaged in a “usual nursing function” when he performed J.N.’s resident appraisal. Plaintiff’s dishonesty during the investigation constitutes unprofessional conduct. View "Clawson v. Board of Registered Nursing" on Justia Law

Plaintiff State Farm Mutual Automobile Insurance Company (State Farm) filed an Insurance Fraud Protection Act (IFPA) action alleging defendants Sonny Rubin, M.D., Sonny Rubin, M.D., Inc., and Newport Institute of Minimally Invasive Surgery (collectively, defendants) fraudulently billed insurers for various services performed in connection with epidural steroid injections. A month prior, however, another insurer, Allstate, filed a separate IFPA lawsuit against the same defendants, alleging they were perpetrating a similar fraud on Allstate. The trial court sustained defendants’ demurrer to State Farm’s complaint under the IFPA’s first-to-file rule, finding it alleged the same fraud as Allstate’s complaint. State Farm appealed, arguing its complaint alleged a distinct fraud. After review, the Court of Appeal agreed the demurrer was incorrectly sustained, but for another reason. The Court found the trial court and both parties only focused on whether the two complaints alleged the same fraudulent scheme, but in this matter of first impression, the Court found the IFPA’s first-to-file rule required an additional inquiry. "Courts must also review the specific insurer-victims underlying each complaint’s request for penalties. If each complaint seeks penalties for false insurance claims relating to different groups of insurer-victims, the first-to-file rule does not apply. A subsequent complaint is only barred under the first-to-file rule if the prior complaint alleges the same fraud and seeks penalties arising from the false claims, submitted to the same insurer-victims." Judgment was reversed and the matter remanded for further proceedings. View "California ex rel. State Farm Mutual Automobile Ins. Co. v. Rubin" on Justia Law

Mitchell swallowed 60 Naproxen tablets. With her husband, she arrived at the Hospital emergency department on May 27, 2017, alert, oriented, and with no acute distress. The physician noted no motor deficits or sensory deficits. A nurse placed an IV catheter in Mitchell’s forearm. Nearly two hours later, Mitchell walked to the toilet with assistance from her husband, then walked back to her bed without assistance. On the way back, Mitchell fell, causing abrasions to her face and severely injuring her knee. The nursing staff had no reason to suspect Mitchell presented a high fall risk because she did not complain of dizziness; they had no observed balance problems. An x-ray and CT scan of Mitchell’s knee showed serious injuries. Mitchell was referred to physical therapy and was discharged from Hospital.Mitchell filed her complaint, alleging general negligence and premises liability on May 17, 2019. The hospital argued that the complaint alleged professional negligence, rather than general negligence or premises liability, and was barred under Code of Civil Procedure section 340.5’s one-year limitations period. Mitchell acknowledged that the condition of the floor did not contribute to her fall. The court of appeal affirmed the dismissal of the complaint. The nursing staff’s decision to not assist Mitchell in walking to the restroom was “integrally related” to her medical care. View "Mitchell v. Los Robles Regional Medical Center" on Justia Law

Smith’s hip resurfacing implant consists of a metal ball that covers the top of the femur and a cup that fits inside the hip socket. When a surgeon puts these ball-and-cup surfaces in the joint, the polished metal surfaces are supposed to allow smoother movement than the damaged bone or cartilage they replace. Gall, who had hip resurfacing surgery for his left hip, recovered and became physically active. Years later, convinced his implant was unsatisfactory, Gall sued Smith.Gall argued that Smith failed to properly warn Gall’s surgeon, Dr. Hernandez, about the risks of using Smith’s product. The trial court granted Smith summary judgment because Hernandez independently knew these risks and whether Smith gave Hernandez redundant warnings did not matter. Gall also argued that Smith’s product was defective. The trial court granted summary judgment because Gall did not show anything was wrong with his implant. Gall did show Smith’s quality control procedures once failed to satisfy regulatory authorities, but the court concluded this fact did not imply the parts Gall received were defective. The court of appeal affirmed. Gall’s claims share the same causation element and Gall did not establish causation. View "Gall v. Smith & Nephew, Inc." on Justia Law

Plaintiff Rodney Davis, a physician assistant, learned to perform liposuction under the guidance of a physician. Davis grew dissatisfied with the physician for whom he worked, so he decided to establish a new practice. To do so, Davis needed a physician to serve as his supervising physician. Davis found Dr. Jerrell Borup, who had been an anesthesiologist for 18 years, but who had not practiced medicine for 12 years. Before meeting Davis, Borup had never performed liposuction or other surgery. Borup agreed to serve as “Medical Director,” although he would never perform a procedure at the new practice. Borup’s role, in practice, consisted of reviewing charts. Davis, who gave himself the title of “Director of Surgery,” would perform all of the liposuction procedures. Davis opened his practice, Pacific Liposculpture, in September 2010. In 2015, the Physician Assistant Board (the Board) filed an accusation accusing Davis of, among other things, the unlicensed practice of medicine, gross negligence, repeated negligent acts, and false and/or misleading advertising. An administrative law judge (ALJ) found the Board’s accusations were established by clear and convincing evidence, and recommended the revocation of Davis’s license. The Board adopted the ALJ’s findings and recommendations. Davis filed a petition for a writ of administrative mandamus seeking, inter alia, a writ compelling the Board to set aside its decision. The trial court denied the petition. On appeal, Davis argued the ALJ erred in finding that he committed the various acts alleged, and that the findings were not supported by substantial evidence. He further claimed that the discipline imposed constituted a manifest abuse of discretion. Finding no reversible error, the Court of Appeal affirmed. View "Davis v. Physician Assistant Board" on Justia Law

Plaintiff Darren Hulbert, a self-represented indigent inmate, appealed the dismissal of his medical malpractice suit Richard Cross, M.D. Dr. Cross performed a radial head resection and arthroplasty on Hulbert’s right elbow. Hulbert alleged that Dr. Cross negligently failed to tighten a screw in the implant, which resulted in the screw coming loose and damaging Hulbert’s elbow joint, cartilage, and surrounding tissue. To help establish his claim, Hulbert filed a motion for appointment of legal counsel and a medical expert. The trial court denied the motion and subsequently found that Hulbert could not rebut the declaration of Dr. Cross’s medical expert without providing medical expert evidence of his own. On this basis, the trial court granted Dr. Cross’s motion for summary judgment. On appeal, Hulbert contended: (1) he was deprived of meaningful access to the courts because the trial court denied him the assistance of a medical expert while requiring a medical expert to establish a triable issue of material fact; (2) the trial court failed to exercise its discretion by considering all of the remedies available to ensure that he had meaningful access to the courts; (3) the trial court erred in determining there was no triable issue of material fact because the loose screw itself did not prove medical negligence; (4) the trial court erred in refusing to appoint legal counsel; (5) Dr. Cross did not provide informed consent prior to the procedure; (6) the declaration by Dr. Cross’s medical expert was insufficient to overcome a presumption of negligence because Dr. Cross’s operation notes failed to show compliance with the implant manufacturer’s instructions. After review, the Court of Appeal concluded the trial did not properly exercise informed discretion with respect to ensuring access to the courts when it denied Hulbert’s motion for appointment of a medical expert. The trial court’s statement that it lacked authority to appoint legal counsel required remand to allow the trial court to consider and clarify which remedies were appropriate in this case to protect Hulbert’s right to meaningful access to the court. View "Hulbert v. Cross" on Justia Law

Plaintiff-appellant Joanna Grabowski brought claims for medical malpractice against Kaiser Foundation Health Plan, Inc., Southern California Permanente Medical Group, and various associated physicians (collectively, Kaiser). The claims were heard by an arbitrator, pursuant to a contractual arbitration agreement. After a contested hearing, the arbitrator awarded judgment in favor of Kaiser. Grabowski petitioned the trial court to vacate the arbitration award, alleging: (1) the arbitrator committed misconduct, and revealed disqualifying bias, by engaging in an ex parte communication with Kaiser’s counsel about Grabowski’s self-represented status; (2) the arbitrator failed to disclose two matters involving Kaiser where he was selected as an arbitrator; and (3) the arbitrator improperly denied Grabowski’s request for a continuance of the arbitration hearing. The trial court found that “the arbitrator’s conduct did not rise to a level that substantially prejudiced [Grabowski’s] rights” and dismissed her petition. Grabowski appealed. After review, the Court of Appeal agrees the award should have been vacated. The Court concluded the arbitrator committed misconduct on several levels, at least one required vacating the arbitration award. The ex parte communication between the arbitrator and Kaiser’s counsel was recorded by Grabowski’s mother as part of her effort to document the arbitration hearing; the audio recording revealed comments by the arbitrator making light of Grabowski’s self- representation and her inability, in the arbitrator’s view, to effectively represent herself. The arbitrator volunteered these comments to Kaiser’s counsel, ex parte, and “they shared a hearty laugh about Grabowski’s perceived shortcomings as an advocate.” Because the arbitrator was aware of this communication and did not disclose it to Grabowski, the award had to be vacated. View "Grabowski v. Kaiser Foundation Health Plan, Inc." on Justia Law