Filed 4/22/20 Rhee v. Park CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR
JONG RHEE,

Plaintiff and Appellant,

v.

KERRY PARK M.D.,

Defendant and Respondent. B293239

(Los Angeles County

Super. Ct. No. BC544013)

APPEAL from a judgment of the Superior Court of Los Angeles County, Alan S. Rosenfield, Judge. Affirmed

Renée L. Campbell, Edi M. O. Faal for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza, Dana L. Stenvick, Vanessa M. Domenichelli and LaFollette, Johnson, Dehaas, Fesler & Ames, Christopher P. Wend, Nicoli Z. Richardson for Defendant and Respondent.

 

INTRODUCTION

The trial court sustained without leave to amend defendant and respondent Kerry Park, M.D.’s demurrer to four of five causes of action alleged by plaintiff and appellant Jong Rhee in her amended complaint. The trial court concluded Rhee failed to adequately plead damages on her causes of action denominated as Negligent Alteration of Medical Records, Fraudulent Alteration of Medical Records, Intentional Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress. It further held a cause of action for Bystander Negligent Infliction of Emotional Distress, asserted by Rhee’s husband, was time-barred. Rhee and Park later settled her remaining cause of action for medical negligence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

“On demurrer review, we accept the truth of material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.” (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 346 (State Hospitals.) The following facts are therefore taken from Rhee’s first amended complaint.

Beginning in December 2012, Rhee went to Dr. Park for medical services related to her pregnancy. In early January 2013, Rhee began to experience spotting and later breast tenderness. Later that month, she also began to experience cramping. By the end of January, one of Rhee’s fallopian tubes had ruptured as a result of an undiagnosed ectopic pregnancy.

Rhee had communicated her spotting, tenderness, and cramping symptoms to Park. But Park failed to conduct testing that would have detected her ectopic pregnancy. Instead, Park misdiagnosed Rhee with a miscarriage even though Rhee’s symptoms were not indicative of a spontaneous abortion.

Rhee alleged Park failed to exercise the proper degree of knowledge and skill in examining, diagnosing, treating and caring for Rhee to determine she was suffering an ectopic pregnancy. As a result, she “experienced severe physical pain, collapsed to the ground, suffered uncontrollable bleeding and vomiting, dizziness, lost consciousness, and suffered other injuries which resulted in emergency surgical treatment on January 29, 2013 to save [Rhee’s] life.”

After the emergency surgery, Park altered Rhee’s medical records. Park changed the records to include assessments and testing that —had they been performed— would have detected the ectopic pregnancy. Park also altered the symptoms Rhee reported in order to support his spontaneous abortion diagnosis.

Rhee filed this suit, originally asserting a single cause of action for medical negligence. After obtaining leave of court, Rhee and her husband Peter filed an amended complaint against Park alleging six causes of action: (1) Medical Negligence; (2) Negligent Alteration of Medical Records; (3) Fraudulent Alteration of Medical Records; (4) Intentional Infliction of Emotional Distress; (5) Negligent Infliction of Emotional Distress; and (6) Bystander Negligent Infliction of Emotional Distress. The sixth cause of action was brought by Peter only.

In response, Park filed a demurrer. As noted above, the trial court sustained the demurrer to four of Rhee’s five causes of action, leaving only the original claim for medical negligence. The trial court also sustained Park’s demurrer to Peter’s cause of action. The parties later settled Rhee’s only remaining claim: her cause of action for medical negligence. She then dismissed her case and filed this appeal.

DISCUSSION

1. Standard of Review
2.
We review the court’s decision to sustain the demurer de novo. (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 637.) “[W]e accept the truth of material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.” (State Hospitals, supra, 61 Cal.4th at p. 339, 346.)

3. Second through Fifth Causes of Action
4.
Rhee’s argument hinges on the claim that she was harmed because Park violated Penal Code section 471.5. Rhee alleges the violation, i.e., alteration of her medical records, caused her to suffer “severe headaches, palpitations, insomnia, severe emotional distress, anxiety . . . mental anguish, anger” and other damages. She also claims the “medical records have been rendered uncertain and unreliable, and will substantially and adversely affect [her] future medical care.”

Rhee, however, fails to identify any authority that would support her alleged causes of action. In her opening brief, she combines the claims asserted in her second through fifth causes of action under the heading “Rhee is entitled to Damages for the Harm Resulting from the Alteration and Fabrication of Her Medical Records Independent from the Uncertainty Created by the Falsification of the Records.” Rhee admits there is an “absence of a statutory authority to sue.” But she claims she is entitled to bring suit over Park’s alteration of her medical records because “for every wrong there is a remedy.”(See, e.g., Civ. Code § 3523 [maxim of jurisprudence].)

While Rhee may have had remedies available to her for Park’s alteration of her medical records, she did not have a tort remedy. Our Supreme Court has made it quite clear that “[t]here is no tort remedy for the intentional spoliation of evidence . . . in cases [where] the spoliation victim knows or should have known of the alleged spoliation before the trial or other decision on the merits of the underlying action.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 17-18 (Cedars); See also Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1085.)

“The intentional destruction of evidence is a grave affront to the cause of justice and deserves our unqualified condemnation. There are, however, existing and effective nontort remedies for this problem. Moreover, a tort remedy would impose a number of undesirable social costs, as well as running counter to important policies against creating tort remedies for litigation-related misconduct.” (Cedars, supra, 18 Cal.4th 1 at p. 11.)

Here, Rhee knew of the spoliation before any decision on the merits. She had custody of her original unaltered medical records as of 2013. During Park’s deposition in July 2016, he provided Rhee with a copy of her altered medical records. Park had altered the records to include fabricated, backdated progress notes. The alteration was discovered by comparing Rhee’s original unedited medical records from 2013 with the records Park had falsified. Park admitted to altering the documents in December 2016, while discovery was ongoing.

Our Supreme Court embraced a “strong policy favoring use of nontort remedies rather than derivative tort causes of action to punish and correct litigation misconduct . . . . In particular, there are a number of nontort remedies that seek to punish and deter the intentional spoliation of evidence.” (Cedars, supra, 18 Cal.4th 1 at p. 11.) Additionally, “[t]he remedies already available in . . . spoliation cases . . . provide a substantial deterrent to acts of spoliation, and substantial protection to the spoliation victim.” (Ibid.) These “nontort remedies include[ ] (1) an evidentiary inference against the party who destroyed the evidence or rendered it unavailable; (2) discovery sanctions ranging from monetary and contempt sanctions to issue, evidence, and even terminating sanctions; (3) State Bar discipline against any attorney involved in spoliation of evidence; and (4) criminal penalties.” (Rosen v. St. Joseph Hospital of Orange County (2011)193 Cal.App.4th 453, 459 citing Cedars, supra, 18 Cal.4th at pp. 11–13.) Penal Code section 471.5, referenced by Rhee, is one such nontort remedy. The trial court therefore properly sustained the demurrer to Rhee’s second through fifth causes of action.

5. Sixth Cause of Action: “Bystander Negligent Infliction of Emotional Distress- alleged by Plaintiff Peter Park Only”
6.
a. Notice of Appeal
b.
Rhee also asserts the trial court erred by sustaining Park’s demurrer to Peter’s “Bystander Negligent Infliction of Emotional Distress” claim. The trial court sustained the demurrer to Peter’s cause of action because it was time-barred.

Park’s respondent’s brief points to the Notice of Appeal, which fails to include Peter as a party to the appeal. Park notes the issue is therefore not before us and Peter’s appeal is barred. In Rhee’s reply brief, she claims the “[t]he notice of Appeal was filed by both ‘Jong Rhee and Peter Park,’” citing to the Notice of Appeal contained in the clerk’s transcript. At oral argument, Rhee’s counsel repeated this claim. But a review of the Notice demonstrates Rhee’s attorneys misrepresented the record. The Notice of Appeal was filed only by Jong Rhee. Peter’s name is not listed.

“As a general rule, where only one of several parties appeals from a judgment, the appeal includes only that portion of the judgment adverse to the appealing party’s interest, and the judgment is considered final as to the nonappealing parties. [Citations.] (Estate of McDill (1975) 14 Cal.3d 831, 840.) “We lack jurisdiction to review” Park’s demurrer to Peter’s claim because Peter “did not appeal.” (People v. Indiana Lumbermens Mutual Ins. Co. (2014) 226 Cal.App.4th 1, 10, disapproved on another ground in K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 888.) Rhee has briefed the dismissal of Peter’s claim, but “that, in itself, is not controlling” and does not constitute a notice of appeal on Peter’s behalf. (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1237.) Because we do not have jurisdiction over Peter’s claim, we do not consider the trial court’s dismissal of the sixth cause of action. (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.)

DISPOSITION

The judgment of dismissal is affirmed. Park is awarded his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

WE CONCUR:

MANELLA, P. J.

WILLHITE, J.