Case Number: BC510784    Hearing Date: August 11, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CASSIDY THIEN HANG,
Plaintiff(s),
vs.

LAWTON TANG, M.D., ET AL.,

Defendant(s).

CASE NO: BC510784

[TENTATIVE] ORDER SUSTAINING DEMURRER IN PART AND OVERRULING DEMURRER IN PART; GRANTING MOTION TO STRIKE

Dept. 92
1:30 p.m. — #15
August 11, 2014

Defendant, Lawton Tang, M.D.’s Demurrer to the Second, Third, and Fourth Causes of Action is Overruled. Defendant’s Demurrer to the Fifth Cause of Action is Sustained Without Leave to Amend. Defendant’s Motion to Strike is Granted Without Leave to Amend. Defendant is ordered to file an answer to the FAC, with the fifth cause of action and the punitive damages allegations deemed stricken, within ten days.

1. Background Facts
Plaintiff, Cassidy Thein Hang filed this action against Defendants, Lawton Tang, M.D., Christopher Tiner, M.D., and Premiere Plastic Surgery for damages arising out of a rhinoplasty procedure. Plaintiff’s operative FAC includes causes of action for medical malpractice, fraudulent concealment, fraud, IIED, and NIED.

Plaintiff alleges she underwent a rhinoplasty in 2002, which caused her nose to be crooked and her right nostril to be larger than the left. In December of 2011, Plaintiff consulted with Defendant to discuss straightening out the nose and correcting the nostrils. On 1/30/12, Defendant performed the revision rhinoplasy the parties had agreed to. Defendant placed a splint over Plaintiff’s nose after the surgery. On 2/09/12, Plaintiff went in for a post-op visit; she informed Defendant that her nose still appeared to be crooked. Plaintiff had been wearing her splint at all times, and Defendant removed it on 2/09/12. Defendant told Plaintiff the apparent crookedness was due to swelling, and it would resolve over time. On 3/08/12, Plaintiff visited Defendant again, and again expressed concern that the nose was crooked. Defendant said this was because he did not remove enough scar tissue, and he would need to perform another surgery to fix the problem.

On 3/16/12, Defendant performed a second surgery. Defendant again placed a splint over Plaintiff’s nose. Plaintiff did not remove the splint, and she saw Defendant on 3/26/12 for a post-op visit. When Defendant removed the splint, it appeared the nose was still crooked. Defendant then said Plaintiff would need a repositioning procedure, using stitches to reposition the implant, to straighten the nose. On 4/13/14, Defendant performed the repositioning procedure. The procedure had little to no effect, and Defendant suggested another repositioning procedure. On 5/11/12, Defendant performed the second repositioning procedure. This procedure was also not successful.

On 6/06/12, Plaintiff saw another surgeon for an evaluation. The surgeon told Plaintiff mistakes had been made by Defendant, and an entirely new procedure would be necessary to straighten the nose. The surgeon performed the procedure, which successfully straightened Plaintiff’s nose.

Subsequent to the procedures, Plaintiff obtained her medical records from Defendant. The records indicated that the failure of the surgery was due to Plaintiff’s removing the splint from her nose prematurely, and that Plaintiff was “non-compliant” with instructions.

2. Matters on Calendar Today
At this time, Defendant demurs to the second through fifth causes of action. Defendant also moves to strike portions of the complaint. Notably, the demurrer indicates it is brought by all three defendants; the subject causes of action and allegations, however, are stated against Defendant, Tang only.

3. Demurrer
a. Second Cause of Action, fraudulent concealment and third cause of action, misrepresentation
Plaintiff’s second cause of action is for fraudulent concealment. Her third cause of action is for intentional misrepresentation. The concealment and misrepresentation causes of action are substantially similar and will be discussed together. The concealment cause of action alleges:
37. Plaintiff is informed and believes and thereon alleges that on or about February 9, 2012, Defendant TANG became aware that he had negligently performed rhinoplasty on Ms. HANG and knew that he could not straighten out her nose through the second rhinoplasty and/or the repositioning procedures, using stitches. Defendant TANG then planned to create falsified
medical reports through the second rhinoplasty and two repositioning procedures and to avoid
liability for his professional negligence by falsely blaming Ms. HANG for the result of the
rhinoplasty.
38. Defendant TANG intentionally and actively concealed the fact that he had negligently performed rhinoplasty on Ms. HANG and that he could not straighten out her nose through the second rhinoplasty and/or the repositioning procedures, using stitches and that the intended purpose of the second rhinoplasty andlor the repositioning procedures was to create falsified medical reports through the second rhinoplasty and two repositioning procedures.
39. Ms. HANG could not have known and did not know that Defendant TANG could not straighten out her nose through the second rhinoplasty and/or the repositioning procedures, using stitches and that the intended purpose of the second rhinoplasty and/or the repositioning procedures was to create falsified medical reports through the second rhinoplasty and two repositioning procedures.
40. Defendant TANG intended to deceive Ms. HANG by concealing the fact and to avoid liability for his professional negligence by creating falsified medical records which blame Ms. HANG for the result of the rhinoplasty.

Defendant argues that the foregoing is not sufficient to state a claim for fraud, because specific facts showing each element of fraud are not pled. The elements of fraud are: (1) 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 Civil Code ¿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.)

Since allegations of fraud involve a serious attack on character, fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense. Accordingly the rule is everywhere followed that fraud must be specifically pleaded, such that: (a) General pleading of the legal conclusion of ¿fraud¿ is insufficient; the facts constituting the fraud must be alleged; and (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect. (Id.)

Defendant argues Plaintiff has failed to allege any facts supporting her conclusion that Defendant knew he was concealing the true facts (that he had botched the procedure) at the time he made those misrepresentations. This is a close call, but at the pleading stage, the Court finds the demurrer must be overruled. Plaintiff alleges Defendant was telling her one thing (that there were certain reasons that the procedures had failed, and that additional procedures were necessary), all the while noting something else in the chart (that the failure of the procedures was the result of Plaintiff’s non-compliance). The foregoing discrepancy is suggestive that Defendant knew something was wrong, and continued to intentionally mislead Plaintiff into having additional procedures.

Defendant also argues Plaintiff could not have relied on the false chart, as she did not learn about it until she had already undergone the corrective procedure with the other surgeon. The causes of action, however, are not premised on reliance on the false chart. The causes of action are premised on reliance on Defendant’s representations about WHY additional surgeries were necessary. The chart merely tends to show that Defendant knew those representations were false when he was making them, as he would not have charted non-compliance as the reason for the failed surgeries if he truly believed that the reasons he was giving to Plaintiff were the reason for the failed surgeries.

Defendant also argues that nothing he did caused her damage. He argues the damage was caused by the initial rhinoplasty, and there was no fraud and no reliance concerning that treatment. While some damage was allegedly caused by the initial rhinoplasty, it cannot be argued that undergoing additional procedures did not create additional damage, in terms of pain and suffering, lost work, etc. Plaintiff’s allegations are that Defendant mis-led her that additional surgery was necessary and would correct the problem, when Defendant did not believe this to be true, as his notes in her chart reflected another cause of the failed surgeries.

Notably, even if the notes in the chart were based on a good faith belief that Plaintiff had not worn her splint properly, if Defendant had told Plaintiff what he believed to be true – that the surgeries failed because she was not wearing her splint – then Plaintiff may have made very different choices. Plaintiff knew she had worn her splint at all times, and so she would have known that the diagnosis was incorrect if it had been discussed.

The demurrer to the fraud causes of action is overruled.

b. Fourth Cause of Action, IIED
Plaintiff’s fourth cause of action is for intentional infliction of emotional distress. It is based on the same facts discussed above. Defendant demurs to the cause of action, contending it does not state any facts tending to support a finding of extreme and outrageous conduct.

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.)

The California Supreme Court has held that a defendant¿s actions could be characterized as “outrageous” for purposes of tort liability for intentional infliction of emotional distress, if he ¿(1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.¿ (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other grounds].)

The Court cannot say, as a matter of law, that a physician’s determination to tell a patient, repeatedly, that additional procedures are necessary, all the while failing to disclose his belief about the true cause of the failed procedures, is not extreme and outrageous. Notably, Defendant was in a position of power over Plaintiff, as a patient places a degree of trust in her physician that is not found in an ordinary relationship. The demurrer is overruled.

c. Fifth Cause of Action, NIED
Defendant demurs to the cause of action for NIED, contending it is duplicative of the first cause of action for medical malpractice (negligence). A claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply. Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.

Plaintiff does not contest the demurrer to the fifth cause of action. The demurrer to the fifth cause of action is therefore sustained. Leave to amend is denied.

4. Motion to Strike
Defendant moves to strike the prayer for punitive damages and all supporting allegations from the FAC, contending he is a health care provider, and therefore Plaintiff was required to seek leave of court to file a complaint including a prayer for punitive damages.

To obtain leave to amend to add a punitive damages claim against a health care provider, CCP ¿425.13(a) requires plaintiff to establish a ¿substantial probability¿ that he or she will prevail on that claim. ¿Substantial probability¿ requires plaintiff to show: (1) a legally sufficient claim; (2) that is substantiated by competent admissible evidence. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719.) In other words, the burden is on plaintiff to produce evidence that, if accepted by the trier of fact, would establish a prima facie showing of malice, oppression or fraud (bearing in mind the clear and convincing standard of proof required by Civil Code ¿3294(a)). (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 538.)

Per §425.13, a prayer for punitive damages cannot be included in the complaint without a motion for leave to include such a prayer. Plaintiff does not meaningfully dispute this in her opposition. The motion to strike is therefore granted without leave to amend. This ruling is without prejudice to Plaintiff’s right to make a proper motion for leave to amend if she believes she has sufficient facts and evidence to do so.

Notably, Plaintiff argues that, even if the prayer for punitive damages is stricken, the supporting allegations should not be. Neither party cites any authority on this issue. The supporting allegations, however, serve no purpose if there is no prayer for punitive damages. They therefore meet the definition of “irrelevant” set forth in §436(a), and are subject to a motion to strike. This ruling, therefore, applies both to the prayer and also to the supporting allegations.

Dated this 11th day of August, 2014

Hon. Elia Weinbach
Judge of the Superior Court