Case Number: BC515829    Hearing Date: September 02, 2014    Dept: J

Re: Seto M. Chice, et al. v. Tyson Shih, M.D. (BC515829)

DEMURRER TO COMPLAINT; MOTION TO STRIKE

Moving Party: Defendant Tyson Shih, M.D.

Respondents: Plaintiffs Seto M. Chice and Rosanne Chice

This is an action filed by a patient and his wife against the patient’s doctor. The Complaint alleges that Defendant concealed his suspicion that Plaintiff Seto Chice had nasopharyngeal cancer and failed to diagnose the cancer. The Complaint, filed on 7/22/13, asserts causes of action for:

1. Willful-Reckless Misconduct
2. Fraud-Concealment
3. Negligence
4. Loss of Consortium

A status conference is set for 9/2/14.

DEMURRER:

Defendant Tyson Shih, M.D. (“Defendant” or “Dr. Shih”) demurs to the first and second causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action.

FIRST CAUSE OF ACTION FOR WILLFUL-RECKLESS MISCONDUCT AND SECOND CAUSE OF ACTION FOR FRAUD-CONCEALMENT:

To assert a cause of action for willful misconduct, plaintiff must allege intentional wrongful conduct, i.e., actual or constructive knowledge of peril, actual or constructive knowledge that injury is probable, and conscious failure to act to avoid the peril, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results. (Nazar v. Rodeffer (1996) 184 Cal.App.3d 546, 552, disapproved on other grounds by Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1108.)

The elements for a fraud-concealment cause of action are: (1) defendant concealed or suppressed a material fact; (2) defendant was under a duty to disclose the fact to the plaintiff; (3) defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) plaintiff was unaware of the fact and would not have acted in the same way knowing of the concealed or suppressed fact; (5) causation; and (6) the plaintiff sustained damage. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.)

The Complaint alleges that Plaintiff Seto M. Chice (“Plaintiff”) first came under the care of Dr. Shih sometime in 2005 (Complaint ¶ 6); Dr. Shih suspected that Plaintiff had nasopharyngeal carcinoma, and knew it was necessary to rule out this cancerous condition by ordering various diagnostic tests, procedures, biopsies and follow up imagining studies (Id. ¶ 34); Dr. Shih knew that Plaintiff, as a patient of Chinese origin, with a history of both his parents having cancer, has a significant probability of such disease and that he was susceptible to nasopharyngeal carcinoma (Ibid.); Dr. Shih made a conscious decision to withhold and deny necessary diagnostic tests or follow up care for Plaintiff, and made a conscious decision to withhold certain important information from him, including his suspicion of nasopharyngeal carcinoma (Ibid.); these decisions to withhold critical information, diagnostic tests and follow up care by Dr. Shih was dangerous and harmful to Plaintiff as a matter of law (Ibid.); and that as a result, Plaintiff suffered damages (Id. ¶¶ 35-36).

The Complaint further alleges that Dr. Shih owed a fiduciary duty to Plaintiff to disclose certain information and facts, including but not limited to whether or not Dr. Shih suspected or was concerned that Plaintiff had, or was prone or susceptible to nasopharyngeal cancer (Complaint ¶¶ 38-44); Dr. Shih intentionally concealed such facts (Id. ¶ 47); and that as a result, Plaintiff was harmed (Id. ¶ 49).

Both the first and second causes of action are essentially based on the allegations that Dr. Shih’s withheld and denied necessary diagnostic tests and that he failed to disclose his suspicion of nasopharyngeal carcinoma. However, the Complaint also alleges facts demonstrating that Dr. Shih diagnosed (or at least attempted to diagnose) Plaintiff’s condition and treated him accordingly, and that he referred Plaintiff to other specialists for further testing. (See Complaint ¶¶ 6-15, 19, 21.) The fact that Dr. Shih’s diagnosis was incorrect and/or that he was unable to correctly diagnose Plaintiff’s condition is inadequate to support Plaintiff’s claims. Moreover, the Complaint alleges facts demonstrating that Plaintiff’s condition was not easily detected, i.e., various diagnostic tests were ordered when Plaintiff was admitted to an emergency room in New Mexico, including an MRI, CT scan, and MRA, but Plaintiff was not diagnosed with nasopharyngeal carcinoma. (See Complaint ¶ 17.) Further, Dr. Shih’s own notes demonstrate that while he suspected possible nasopharyngeal carcinoma, Plaintiff has had no progression of symptoms since initially seen on 2005, 7 years ago, until on or about November 15, 2012. (See Complaint ¶ 30.) The Complaint fails to adequately allege facts demonstrating that Dr. Shih’s actions were taken either with a knowledge that serious injury to Plaintiff would probably result, or with a wanton and reckless disregard of the possible results. Likewise, the Complaint fails to adequately allege facts demonstrating that Dr. Shih intentionally concealed or suppressed the fact with the intent to defraud the Plaintiff. Thus, the demurrers to the first and second causes of action are sustained. Plaintiff may seek leave to amend the Complaint at a later date should discovery reveal additional facts to support these causes of action.

MOTION TO STRIKE:

Defendant also moves to strike the first and second causes of action, and any prayer for damages and related costs and fees arising from the first and second causes of action. The motion, based on the above ruling on the demurrer, is deemed moot.