2013-00141712-CU-MM
Gary Drake vs. Michael C Karason DPM
Nature of Proceeding:
Filed By:
Motion to File Amended Complaint
Pazdernik, Michael K.
Plaintiff Gary Drake’s (“Drake”) motion for leave to file a first amended complaint,
including leave to add punitive damages allegations pursuant to CCP § 425.13,
(“FAC”) is GRANTED.

This medical malpractice case involves allegations of professional negligence,
unnecessary surgical procedures and fraudulent billing practices. Defendant Michael
C. Karason, DPM (“Dr. Karason”) apparently is serving a federal prison term based on
a federal indictment for Medicare fraud. The federal criminal action is not directly
related to the instant case.

Since filing the original complaint, Drake has obtained medical records that Dr.
Karason created and which allegedly, falsely provide that Drake requested the
unnecessary procedure (an extension of his left Achilles tendon), when Dr. Karason is
the one who proposed the procedure. The records also indicate that Dr. Karason
warned of risks of the procedure, whereas he did not provide such warnings. Drake
alleges that he suffered an extended hospital stay and a heart attack as the result of
Dr. Karason’s negligent, fraudulent care.

Based on the liberal policy allowing amendment of pleadings, the court grants Drake
leave to amend. No trial date has been set, and the court discerns no prejudice
undermining the liberal policy favoring amendments. The fact that Dr. Karason will be
required to respond to new allegations and causes of action is not prejudice of the type
that requires a denial of leave to amend. Moreover, Dr. Karason may reassert his
statute-of-limitations arguments in a demurrer or other appropriate motion challenging
the FAC.

The court further grants leave to add punitive damages allegations under CCP §
425.13. Drake’s evidence establishes the statutorily required substantial probability that he will prevail on such allegations and the underlying causes of action. (See
Pazdernik Decl. and Exhs. thereto.)

Drake’s request for judicial notice of documents filed in Dr. Karason’s federal criminal
case is GRANTED.

Conclusion
The motion is GRANTED.

No later than April 14, 2014, Drake may file and serve the proposed FAC; Dr. Karason
to file and serve his responsive pleading(s) within 10 days thereafter, 15 days if the
FAC is served by mail. (Although not required by any statute or rule of court, Drake is
requested to attach a copy of the instant minute order to the FAC to facilitate the filing
of the pleading.)

Note that the clerk will not file the proposed FAC lodged with the moving papers.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.