Case Number: KC065457    Hearing Date: September 03, 2014    Dept: J

Re: Azike Ntephe, et al. v. Dr. Ali Mesiwala, etc., et al. (KC065457)

DEMURRER TO SECOND AMENDED COMPLAINT

Moving Parties: Defendants Ali Mesiwala, M.D., Gowriharan Thaiyananthan, M.D., The Southern California Center for Neuroscience and Spine, and The Center For Neuroscience and Spine

Respondents: Plaintiffs Azike Ntephe and Diane Fencl

Plaintiff Azike Ntephe underwent surgery for a multiple level decompression fusion by his neurosurgeon, Defendant Ali Mesiwala on 10/16/09. Plaintiff alleges that Dr. Mesiwala installed a spinal cage, rods and screws that came from a medical device company in which Dr. Mesiwala had a financial interest without disclosure, and that he concealed the fact that there were problems with the procedure. Plaintiffs commenced this action on 1/18/13. The operative Second Amended Complaint (“SAC”), filed on 6/18/14, asserts causes of action for:

1. Fraudulent Concealment
2. Breach of Fiduciary Duty
3. Failure to Obtain Informed Consent
4. Intentional Misrepresentation
5. Medical Negligence
6. Violation of Bus & Prof C § 17200
7. Loss of Consortium
8. Elder Abuse – Neglect
9. Elder Abuse – Physical Abuse

The Trial Setting Conference is set for 9/18/14.

Defendants Ali Mesiwala, M.D. (“Dr. Mesiwala”), Gowriharan Thaiyananthan, M.D. (“Dr. Thaiyananthan”), The Southern California Center for Neuroscience and Spine, and The Center For Neuroscience and Spine (collectively “Defendants”) demur to the first, second, fourth, sixth, eighth and ninth causes of action of the SAC on the grounds that they fail to state facts sufficient to constitute a cause of action.

ALLEGATIONS AGAINST DR. THAIYANANTHAN:

Defendants demur to the SAC on the ground that the SAC is silent regarding Dr. Thaiyananthan; all the facts set forth pertain to Dr. Mesiwala, and it cannot be determined what role, if any, Dr. Thaiyananthan played in the care and treatment rendered to Plaintiff.

Plaintiffs, in opposition, acknowledge that there are not many material allegations describing Dr. Thaiyananthan’s conduct. Plaintiffs, however, contend that they have the ability to amend the SAC and state additional facts should the court deem it necessary. Specifically, Plaintiffs contend that they can allege that Dr. Thaiyananthan implanted medical devices with Dr. Mesiwala on October 9, 2009 and that he also participated in the same POD (physician owned distributorship) scheme as Dr. Mesiwala and thus also profited in an undisclosed manner from the implantation of devices into Plaintiff Azike Ntephe on October 9, 2009.

The SAC fails to adequately allege a claim against Dr. Thaiyananthan. Thus, the demurrer is sustained in its entirety as to Dr. Thaiyananthan, with 10 days leave to amend.

FIRST CAUSE OF ACTION FOR FRADULENT CONCEALMENT:

The elements of a fraud-concealment cause of action are: (1) that 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 damages. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.)

A physician has a fiduciary duty to disclose all information material to the patient’s decision. (See Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129; Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1164.)

The SAC alleges that Dr. Mesiwala owed Plaintiffs a fiduciary duty as their doctor (SAC ¶ 33); Dr. Mesiwala, on behalf of himself and as an agent of the entity defendants, concealed from Plaintiffs that he had a financial interest in the company that provided the hardware he implanted in Mr. Netephe’s back (Id. ¶¶ 3, 15-18, 20, 22, 23, 25, 27, 29 33); Defendants intended to deceive Plaintiffs (Id. ¶ 35); had Mr. Netephe known that Dr. Mesiwala had a financial interest in the companies, he would not have had the surgeries recommended by Dr. Mesiwala (Id. ¶¶ 15, 31); the spinal cage that Dr. Mesiwala implanted became dislodged and migrated into Mr. Netephe’s spinal canal (Id. ¶¶ 17, 18); and that as a result, Mr. Netephe suffered damages (Id. ¶¶ 16-29). The SAC adequately alleges facts to support a cause of action for fraudulent concealment.

Defendants contend that there is no fraud because the SAC alleges that Dr. Mesiwala did advise Plaintiffs that he had an ownership interest in certain companies. (SAC ¶ 30.) However, the SAC also alleges that Dr. Mesiwala represented that if he recommenced a medical device for Mr. Ntephe that was produced by a company in which he had a financial interest that he would first specifically inform Mr. Ntephe of that fact and would provide him with alternative devices made by other manufactures, but that this was never done. (Ibid.)

Defendants also contend that the fraud cause of action is not specifically alleged. However, an exception to the strict pleading standard is recognized when it appears that the facts lie more within defendant’s knowledge than plaintiff’s: i.e., less specificity is required where “defendant must necessarily possess full information concerning the facts of the controversy.” (Committee on Children’s Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at 216.) This is especially true where defendant is alleged to be a fiduciary. (Eldridge v. Tymshare, Inc. (1986) 186 Cal.App.3d 767, 777.) Thus, the demurrer to the first cause of action is overruled.

SECOND CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY:

To properly assert a cause of action for breach of fiduciary duty, plaintiff must allege the following elements: (1) the existence of a fiduciary duty; (2) breach of the duty; and (3) damage caused by the breach. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 182.)

As discussed in detail above, the SAC adequately alleges facts demonstrating a fiduciary duty owed by Defendants, breach of the duty and damages caused by the breach. (SAC ¶¶ 15-31, 39-40.) The demurrer to the second cause of action is overruled.

FOURTH CAUSE OF ACTION FOR INTENTIONAL MISREPRESENTATION:

The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See CC § 1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.)

The SAC alleges that Dr. Mesiwala made numerous false representations to Plaintiff, including, but not limited to, the following: (a) he would specifically inform Mr. Ntephe if he planned to recommend or use any medical devices produced by companies in which he had a financial interest in his surgeries; (b) if he wanted to use medical devices from companies in which he had a financial interest in Mr. Ntephe’s surgeries, he would first provide Mr. Ntephe with the option of using medical devices not manufactured by companies in which he had a financial interest; (c) Mr. Ntephe would be able to elect to not use a device made by any companies in which Dr. Mesiwala had a financial interest in his surgeries; (d) he intentionally concealed from Mr. Ntephe that he was using medical devices in his surgeries that were manufactured by companies in which he had a financial interest (SAC ¶ 45); knowledge of falsity. (Id. ¶ 46) The SAC also alleges an intent to deceive (Id. ¶ 47); reasonable reliance (Ibid.); and damages (Id. ¶ 48). The SAC adequately alleges a cause of action for intentional misrepresentation. The demurrer to the fourth cause of action is overruled.

SIXTH CAUSE OF ACTION FOR VIOLATION OF BUS & PROF §§ 17200 ET SEQ.:

In order to properly assert a claim for Bus & Prof C. § 17200, the complaint must allege a business practice that is unfair, unlawful or fraudulent, and an authorized remedy. (Bus & Prof C § 17200.)

The SAC adequately alleges a business practice that is unfair and/or fraudulent, as discussed above. The demurrer to the sixth cause of action is overruled.

EIGHTH AND NINTH CAUSES OF ACTION FOR ELDER ABUSE:

The elements of a cause of action under the Elder Abuse and Dependent Adults Act, Welfare & Inst C § 15600, et seq. (the “Act”) are statutory, and reflect the legislature’s intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect. (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) Like other statutory causes of action, a claim under the Elder Abuse Act must be pled with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

Under the Act, abuse of an elder or a dependent adult entails either of the following: (a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (Welfare & Inst C § 15610.07; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779, fn. 3.) For example, physical abuse of an elder includes unreasonable physical constraint, or prolonged or continual deprivation of food or water, as stated in Welfare & Inst C § 15610.63(d). (Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1517.) Then, also, neglectful elder abuse is the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at 785.)
“Neglect” is defined in Welfare & Inst C § 15610.57, as either (1) the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise or (2) failure to provide medical care for physical and mental health needs. (Mack v. Soung (2000) 80 Cal.App.4th 966, 973.)

Specifically, Welfare & Inst C § 15610.57(a)(1) defines “neglect” as the negligent failure of any person having the care or custody of an elder to exercise that degree of care that a reasonable person in a like position would exercise, and includes failure to provide medical care for physical and mental health needs (Welfare & Inst C § 15610.57(b)(2)), failure to protect from health and safety hazards (Welfare & Inst C § 15610.57(b)(3)), and failure to prevent malnutrition or dehydration (Welfare & Inst C § 15610.57(b)(4)). (Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1517.) Thus, “neglect” within the meaning of Welfare & Inst C § 15610.57 covers an area of misconduct distinct from “professional negligence. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) As used in the Elder Abuse and Dependent Adult Civil Protection Act, Welfare & Inst C § 15600 et seq., “neglect” refers not to the substandard performance of medical services but, rather, to the failure to provide medical care. (Id.) That is, claims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and caregivers that abuse elders and that may or may not, incidentally, also be health care providers. (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at 786.)

With respect to the level of culpability described in the second element of the claim, a plaintiff must allege conduct essentially equivalent to that which would support recovery of punitive damages in order to obtain the Elder Abuse Act’s heightened remedies. (Covenant Care, Inc., supra, 32 Cal.4th at 789 (Compare Welfare & Inst C § 15657, requiring “clear and convincing evidence that a defendant is liable for” elder abuse and “has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse,” with CC § 3294(a), requiring “clear and convincing evidence” that the defendant has been guilty of oppression, fraud, or malice.).) As a statutory “cause of action,” elder abuse needs to be pleaded “with particularity.” (See Covenant Care v. Sup.Ct., supra, 32 Cal.4th at 790.)

The two-year limitations period provided for in CCP § 335.1 is applicable to elder abuse causes of action. (Benun V. Superior Court (2004) 123 Cal.App.4th 113, 125-126.)

Plaintiffs’ elder abuse claims allege that Defendants had care of Mr. Ntephe from late 2009 until late 2010, and took on the responsibility of treating his back injuries. (SAC ¶ 67.) Plaintiffs, however, did not commence this action until January 18, 2013, apparently after the statute of limitations had lapsed. While Plaintiffs contend that the SAC does not allege when they discovered or had reason to discover Defendants’ elder abuse, the SAC does allege specific dates that Mr. Ntephe was under the care of Defendants, i.e., from late 2009 until late 2010. (SAC ¶ 67.) In such cases, plaintiff must “plead around” the defense, by alleging specific facts that would avoid the apparent statute of limitations defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825.)

Further, the eighth cause of action for neglect under the Act is based upon allegations that Defendants failed to use the degree of care that a reasonable person in the same situation would have used in providing medical care for physical health needs, in protecting Plaintiff from health and safety hazards; and from informing Plaintiff of information necessary for him to provide informed consent for any and all procedure that Defendants performed on him. (SAC ¶ 69.) However, such allegations of substandard care are inadequate to support a claim for neglect under the Act. (See Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at 783 – “neglect” refers not to the substandard performance of medical services but, rather, to the failure to provide medical care.)

Similarly, the ninth cause of action for physical abuse under the Act is based upon allegations that Defendants physically abused Mr. Ntephe by performing surgery on Plaintiff and implanting devices into Mr. Ntephe without his informed consent. (SAC ¶ 73.) However, it appears that such allegations are inadequate to support a claim for physical abuse under the Act since Mr. Ntephe agreed to the specific surgical procedure at issue. It is unclear how Dr. Mesiwala’s failure to properly advise Plaintiffs regarding his ownership interest in companies providing the hardware for Mr. Ntephe’s surgeries constitutes as a “physical abuse.” A medical battery predicated on patient consent issues is confined to cases where the patient never gave consent to the particular procedure. (See CACI 530; BAJI 6.10.5.)

Defendants also contend that elder abuse cause of action against health care providers can only be maintained by patients over the age of 65 who are in custodial care, and that since Mr. Ntephe was not in “custodial care,” he cannot claim neglect under the Act. However, “neglect” is not restricted to care custodians but applies to anyone having “care or custody” of an elder. (Mack v. Soung (2000) 80 Cal.App.4th 966, 972–974.)

Finally, the eighth and ninth causes of action do not allege any wrongful acts by any defendant other than Dr. Mesiwala. Thus, the demurrers to eighth and ninth causes of action are sustained. The court will hear from counsel for Plaintiffs as to whether leave to amend these causes of action is requested, and will require an offer of proof if so.