Case Number: BC596419 Hearing Date: December 17, 2019 Dept: 40

MOVING PARTY: Defendant Good Samaritan Hospital

OPPOSITION: Plaintiffs David Chang and Donovan Chang

At the November 14, 2019 hearing on Good Samaritan Hospital’s (“Defendant”) motion for summary adjudication, the Court allowed further briefing on the Unfair Business Practices Act/Unfair Competition Law claim (“UCL”) (Bus. & Prof. Code § 17200).

The Unfair Competition Law (“UCL”) defines unfair competition as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [California’s false advertising law].” (Bus. & Prof. Code, § 17200.) “Because section 17200 is written in the disjunctive, a business act or practice need only meet one of the three criteria- unlawful, unfair, or fraudulent- in order to be considered unfair competition under the UCL.” Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.

The unlawful prong borrows violations of other laws and makes those unlawful practices actionable under the UCL. Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383. Violation of almost any law, federal or state, may serve as a sufficient predicate for a claim under the UCL’s unlawful prong. (Id.) “A business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits. The determination whether a business practice is unfair involves an examination of [that practice’s] impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant’s conduct against the gravity of the harm to the alleged victim….” McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.

Scope of the Pleadings: Defendant argues that Plaintiffs’ theory of UCL liability, fraudulent record keeping, is not in the pleadings and was alleged at the last minute. At the hearing, Plaintiffs argued that they seek injunctive relief prohibiting Defendant from making and maintaining fraudulent records that state that certain healthcare professionals provided care to patients when they did not do so. Plaintiffs contend that Defendant allows physician assistants to list any supervising physicians’ name on the records.

Defendant cites to Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648, in which the court held that the pleadings set the boundaries of the issues to be decided on summary judgment.

Plaintiffs state that the theory is alleged in the complaint and cite Paragraph 67 of the third amended complaint (“TAC”), which states:

“DEFENDANT GSH engaged in “unfair” business practices because its conduct was, unethical, oppressive, and substantially damaging to PLAINTIFF. Specially, DEFENDANT GSH through its agent, servants and/or employees failed to provide proper examination, consultation, and determination of causes of BABY CHANG’s symptoms and proceeded with an invasive procedure known as a Frenotomy based on the recommendation of a lactation consult to be performed by a physician assistant without any oversight.”

As noted by Defendant, Paragraph 69 of the TAC ties the harm of the unfair business practice to billing. Paragraph 69 reads as follows:

“Despite the fact that the procedure was performed by a less qualified and experienced physician assistant without any supervision, the consent form and GSH records indicate Dr. Smeeta Sardasai as the primary surgeon for the procedure. On information and belief. it was done for the purpose of billing Dr. Smeeta Sardesai’s billing rate which is higher than a physician assistant.”

The Court finds that the fraudulent records claim was alleged in the pleadings. Defendant is correct that the TAC’s prayer, asks “[f]or injunctive relief prohibiting fraudulent billing practices of Good Samaritan Hospital.” (TAC, Pg. 13, lns 15-16.) Moving defendants have the “burden on summary judgment of negating only those theories of liability as alleged in the complaint and [are] not obliged to refute liability on some theoretical possibility not included in the pleadings simply because such a claim was raised in plaintiff’s declaration in opposition to the motion for summary judgment.” Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1254. However, Paragraph 69 of the TAC indicates that Sardesai was listed as performing the frenotomy which was done for the purpose of fraudulent billing. Therefore, the fraudulent records claim was properly alleged in the TAC

Unfair/Unlawful Business Practice: Plaintiffs argue that Defendant failed to supervise the physician assistant as required by the relevant regulations.

Section 3502 (a) provides: “Notwithstanding any other law, a physician assistant may perform those medical services as set forth by the regulations adopted under this chapter when the services are rendered under the supervision of a licensed physician and surgeon who is not subject to a disciplinary condition imposed by the Medical Board of California prohibiting that supervision or prohibiting the employment of a physician assistant.” The parties do not dispute that a physician assistant may perform a frenotomy if supervised. The issue is whether the physician assistant was in fact supervised.

Title 16 California Code of Regulations, § 1399.545(a) states that a “supervising physician shall be available in person or by electronic communication at all times when the physician assistant is caring for patients.” Section 1399.545 (e) outlines how a supervising physician may adopt protocols for the adequate supervision of the physician assistant, which must include one or more of the following mechanisms:

“(1) Examination of the patient by a supervising physician the same day as care is given by the physician assistant;

(2) Countersignature and dating of all medical records written by the physician assistant within thirty (30) days that the care was given by the physician assistant;

(3) The supervising physician may adopt protocols to govern the performance of a physician assistant for some or all tasks….The supervising physician shall review, countersign, and date a minimum of 5% sample of medical records of patients treated by the physician assistant functioning under these protocols within thirty (30) days. The physician shall select for review those cases which by diagnosis, problem, treatment or procedure represent, in his or her judgment, the most significant risk to the patient;

(4) Other mechanisms approved in advance by the board.”

There is a triable issue of material fact as to whether Defendant complied with the regulations. Defendant argues that they complied with the regulations because when Denslow, the physician assistant, performed the frenotomy there was a supervising physician, Dr. Biniwale, available in person or by electronic communication. Defendant also argues that it was proper for physician assistant Barbara Jones to sign her name and write Sardesai’s name on the labor and delivery summary on June 30, 2014. Defendant argues that Sardesai’s name was required by 16 CCR § 1399.546(a), which states “[e]ach time a physician assistant provides care for a patient and enters his or her name, signature, initials, or computer code on a patient’s record, chart or written order, the physician assistant shall also record in the medical record for that episode of care the supervising physician who is responsible for the patient.” Therefore, the burden shifts to Plaintiffs to raise a triable issue of material fact.

The Court finds that Plaintiffs have met their burden and raised a triable issue of material fact as to Defendant’s compliance with the regulations. Denslow testified that for the frenotomy Sardesai was her supervising physician but that did not mean that she had to report back to her. (UMF No. 23.)
Instead, it meant that Sardesai was the one who documented Denslow’s proficiency with the procedure. Sardesai was not at the hospital or available via electronic communication on the day of the frenotomy. Therefore, she could not have been “the supervising physician who is responsible for the patient.” There is a triable issue as to whether the supervising physician was Biniwale or whether there was no supervising physician. There is also a triable issue as to whether Sardesai was not the supervising physician responsible for the patient on June 30, 2014. Although Sardesai indicates that she was working at the hospital at that date, she also indicates that she never examined the baby. (Reply, Ex. A.)

Injunctive Relief: Defendant argues that Plaintiffs are not entitled to injunctive relief. Generally, injunctive relief is appropriate only when there is a threat of continuing misconduct. Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 463.

The Court finds that Plaintiffs fail to establish that there is a threat of continuing misconduct. Plaintiffs states that Defendant continues to fraudulently bill and to make fraudulent records. Other than the allegations in this case, there is no evidence that such misconduct is continuing. “Injunctive relief

will be denied if, at the time of the order of judgment, there is no reasonable probability that the past

acts complained of will recur.” Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th

1302, 1326-1327. There is no record indicating that the acts are currently occurring.

Conclusion: Defendant’s summary adjudication of the UCL cause of action is GRANTED.