2017-00221323-CU-MM

Rodney Kuehne vs. Gilbert Martinez, M.D.

Nature of Proceeding: Motion to Strike Portions of the 1st Amended Complaint

Filed By: Gosling, Sarah C.

This matter was continued to this date from 3/29/2018 for oral argument

Defendant Gilbert Martinez, M.D.’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED.

Plaintiffs’ First Amended Complaint sets forth causes of action for medical negligence and wrongful death, survivor’s action C.C.P., sec. 377.30, fraud and deceit. Based on the fraud cause of action, plaintiffs pray for punitive damages.

Moving party defendant requests that the Court strike the prayer for punitive damages, arising out of the professional negligence of a medical provider, subject to C.C.P., sec. 425.13, rendering a prayer for punitive damages, without leave of court as irrelevant, improper and not drawn in conformity with California law.

Code Civ. Proc., § 425.13 provides in pertinent part:

(a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the

plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier. [emphasis added]

Moving party defendant asserts that as this is an action arising out of medical negligence (the alleged failure to inform plaintiffs’ decedent of his high PSA results

(79) in March 2016, and failure to refer him immediately to urology and/or oncology for follow up treatment the causes of action all arise out of the doctor’s alleged failure to meet the standard of care. Instead, when plaintiff’s decedent again had his PSA tested on July 27, 2017, his PSA was now at 1377.5, indicating that his cancer was advanced and untreatable.

Defendant asserts that in the absence of the grant of a motion for leave to allege punitive damages by plaintiffs, the prayer for punitive damages must be stricken.

In opposition, plaintiffs cite to Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, in which the California Supreme Court analyzed the legislative history of CCP § 425.13, and concluded that “relief was sought from unsubstantiated claims of punitive damages in actions alleging professional negligence. There was no intent to protect practitioners in any other capacity.” (Id. at 189.) “The Assembly subcommittee’s comment emphasizes that lawsuits unrelated to a practitioner’s conduct in providing health care related services were intended to be excluded from the ambit of section 425.13” (Id. at 190)

Here, plaintiffs’ cause of action for fraud of the FAC alleges that: “On or about the time defendant Martinez obtained Decedent’s RODNEY KUEHNE’s PSA results from the July 27, 2017 laboratory blood work, defendant Martinez solicited his employee, Leila Lopez, and requested she alter Decedent RODNEY KUEHNE’s medical chart. Specifically defendant Martinez requested Ms. Lopez add to Decedent’s medical records from 2016 that Decedent was referred to a Urologist and that Decedent declined the referral. Ms. Lopez refused defendant Martinez’s request to alter the record and she was subsequently terminated from his employment. Thereafter, defendant Martinez himself went into Decedent’s chart and falsified the chart note from May 5,2016 inserting ‘referral to Hematology, Oncology’ and ‘referral to Urology’ and ‘deferred’ as to both referrals.” (FAC, para. 13)

These facts are certainly sufficient to allege fraud. As alleged, defendant’s acts are a separate wrong not related to or arising out of professional negligence. Pleading facts in ordinary and concise language is as permissible in fraud cases as in any others, and liberal construction of the pleading is as much a duty of the court in these cases as in other cases.” (Comm. on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 fn 17, quotations, citations omitted, superseded by statute on other grounds; see Sanchez v. Bear Stearns Residential Mortg. Corp. (SD Cal. 2010) 2010 U.S.Dist. LEXIS 46043 at *18 fn. 4.).) “Thus the pleading should be sufficient ‘to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” (Id. at 217, quoting Scafidi v. Western Loan and Building Co. (1946) 72 Cal.App.2d 550, 553.) Here, Plaintiffs have alleged that defendant’s act of falsifying plaintiff’s decedent’s’ medical record was done with the intent to conceal and defraud others, and does not arise out of defendant’s

professional services.

Under the holding of Central Pathology supra, 3 Cal.4th 181, the Court finds that the factual allegations of the fraud cause of action are separate from defendant’s professional negligence. Indeed the court must examine the conduct giving rise to the claim; in that regard, the court must ask whether the acts performed were such as a medical practitioner ordinarily would be expected to perform in his or her capacity as a health care provider. See, e.g. Davis v. Superior Court (1994) 27 Cal App. 4th 623, 628-629. Falsifying decedent’s medical records and terminating an employee to cover -up the medical negligence, as alleged, is not within the acts the doctor “ordinarily” would be expected to perform.

The motion to strike is therefore denied.

Defendant shall file and serve his Answer to the First Amended Complaint not later than Monday, April 9, 2018.