On 09/30/2015 DAVID CHANG filed a Personal Injury - Medical Malpractice lawsuit against GOOD SAMARITAN HOSPITAL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RUTH ANN KWAN, DAVID J. COWAN, DANIEL S. MURPHY, MICHELLE R. ROSENBLATT, SUSAN BRYANT-DEASON and DAVID SOTELO. The case status is Other.
RUTH ANN KWAN
DAVID J. COWAN
DANIEL S. MURPHY
MICHELLE R. ROSENBLATT
BINIWLE MANOJ A. M.D.
GOOD SAMARITAN HOSPITAL
LEE MI-JEONG. M.D.
SARDESAL. SMEETA. M.D.
BINIWALE MANOJ A. M.D.
LEE MI-JEONG M.D.
SARDESAI SMEETA M.D.
CHANG DONOVAN J
FREIDENBERG LAUREN IDA
HENRIKS YANA GAYANE
MCMURRAY HENRIKS LLP
CARROLL KELLY TROTTER FRANZEN & MCKENNA
FRASER WATSON & CROUTCH LLP
TOMLINSON RODNEY G. ESQ.
CYNOWIEC JESSICA E.
JAMES ADAM ROBERT ESQ.
MARTINO ALEXANDRA CONCETTA
MCKENNA ROBERT LOWELL III
REBACK ROBERT CARL
WATSON ALEXANDER M
Court documents are not available for this case.
Docketat 09:30 AM in Department 40; Order to Show Cause Re: Dismissal (Settlement) (with prejudice) - Not Held - Vacated by CourtRead MoreRead Less
DocketRequest for Dismissal (With prejudice, Entire Action); Filed by David Chang (Plaintiff)Read MoreRead Less
DocketReceipt and Acknowledgment of Order for the Deposit of Money Into Blocked Account; Filed by David Chang (Plaintiff)Read MoreRead Less
Docketat 09:30 AM in Department 40; Jury Trial (and Mandatory Settlement Conference pursuant to California Rules of Court 3.1380) - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 09:30 AM in Department 40; Final Status Conference - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 2:00 PM in Department 40; Order to Show Cause Re: Dismissal (Settlement) ( with prejudice) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 10:00 AM in Department 40; Hearing on Petition to Confirm Minor's Compromise - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 10:30 AM in Department 40; Order to Show Cause Re: Dismissal (Settlement) ( with prejudice) - Held - ContinuedRead MoreRead Less
Docketat 10:30 AM in Department 40; Hearing on Petition to Confirm Minor's Compromise - Held - Motion GrantedRead MoreRead Less
DocketOrder Approving Compromise of Disputed Claim or Pending Action or Disposition of Proceeds of Judgment for Minor or Person With a Disability (Miscellaneous); Filed by David Chang (Plaintiff)Read MoreRead Less
DocketProof-Service/Summons; Filed by Donovan J Chang (Legacy Party); David Chang (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by Donovan J Chang (Legacy Party); David Chang (Plaintiff)Read MoreRead Less
DocketSummons; Filed by Donovan J Chang (Legacy Party); David Chang (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketOrd Apptng Guardian Ad Litem; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVILRead MoreRead Less
DocketApplication ; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketCOMPLAINT FOR DAMAUES 1. PROFESSIONAL NEGLIGENCE (MEDICAL MALPRACTICE); ETCRead MoreRead Less
DocketComplaint; Filed by David Chang (Plaintiff)Read MoreRead Less
Case Number: BC596419 Hearing Date: December 17, 2019 Dept: 40
MOVING PARTY: Defendant Good Samaritan Hospital
OPPOSITION: Plaintiffs David Chang and Donovan Chang
At the November 14, 2019 hearing on Good Samaritan Hospital's (“Defendant”) motion for summary adjudication, the Court allowed further briefing on the Unfair Business Practices Act/Unfair Competition Law claim (“UCL”) (Bus. & Prof. Code § 17200).
The Unfair Competition Law (“UCL”) defines unfair competition as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [California’s false advertising law].” (Bus. & Prof. Code, § 17200.) “Because section 17200 is written in the disjunctive, a business act or practice need only meet one of the three criteria- unlawful, unfair, or fraudulent- in order to be considered unfair competition under the UCL.” Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.
The unlawful prong borrows violations of other laws and makes those unlawful practices actionable under the UCL. Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383. Violation of almost any law, federal or state, may serve as a sufficient predicate for a claim under the UCL’s unlawful prong. (Id.) “A business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits. The determination whether a business practice is unfair involves an examination of [that practice’s] impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant’s conduct against the gravity of the harm to the alleged victim….” McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.
Scope of the Pleadings: Defendant argues that Plaintiffs’ theory of UCL liability, fraudulent record keeping, is not in the pleadings and was alleged at the last minute. At the hearing, Plaintiffs argued that they seek injunctive relief prohibiting Defendant from making and maintaining fraudulent records that state that certain healthcare professionals provided care to patients when they did not do so. Plaintiffs contend that Defendant allows physician assistants to list any supervising physicians’ name on the records.
Defendant cites to Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648, in which the court held that the pleadings set the boundaries of the issues to be decided on summary judgment.
Plaintiffs state that the theory is alleged in the complaint and cite Paragraph 67 of the third amended complaint (“TAC”), which states:
“DEFENDANT GSH engaged in “unfair” business practices because its conduct was, unethical, oppressive, and substantially damaging to PLAINTIFF. Specially, DEFENDANT GSH through its agent, servants and/or employees failed to provide proper examination, consultation, and determination of causes of BABY CHANG’s symptoms and proceeded with an invasive procedure known as a Frenotomy based on the recommendation of a lactation consult to be performed by a physician assistant without any oversight.”
As noted by Defendant, Paragraph 69 of the TAC ties the harm of the unfair business practice to billing. Paragraph 69 reads as follows:
“Despite the fact that the procedure was performed by a less qualified and experienced physician assistant without any supervision, the consent form and GSH records indicate Dr. Smeeta Sardasai as the primary surgeon for the procedure. On information and belief. it was done for the purpose of billing Dr. Smeeta Sardesai's billing rate which is higher than a physician assistant.”
The Court finds that the fraudulent records claim was alleged in the pleadings. Defendant is correct that the TAC’s prayer, asks “[f]or injunctive relief prohibiting fraudulent billing practices of Good Samaritan Hospital.” (TAC, Pg. 13, lns 15-16.) Moving defendants have the “burden on summary judgment of negating only those theories of liability as alleged in the complaint and [are] not obliged to refute liability on some theoretical possibility not included in the pleadings simply because such a claim was raised in plaintiff’s declaration in opposition to the motion for summary judgment." Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1254. However, Paragraph 69 of the TAC indicates that Sardesai was listed as performing the frenotomy which was done for the purpose of fraudulent billing. Therefore, the fraudulent records claim was properly alleged in the TAC
Unfair/Unlawful Business Practice: Plaintiffs argue that Defendant failed to supervise the physician assistant as required by the relevant regulations.
Section 3502 (a) provides: “Notwithstanding any other law, a physician assistant may perform those medical services as set forth by the regulations adopted under this chapter when the services are rendered under the supervision of a licensed physician and surgeon who is not subject to a disciplinary condition imposed by the Medical Board of California prohibiting that supervision or prohibiting the employment of a physician assistant.” The parties do not dispute that a physician assistant may perform a frenotomy if supervised. The issue is whether the physician assistant was in fact supervised.
Title 16 California Code of Regulations, § 1399.545(a) states that a “supervising physician shall be available in person or by electronic communication at all times when the physician assistant is caring for patients.” Section 1399.545 (e) outlines how a supervising physician may adopt protocols for the adequate supervision of the physician assistant, which must include one or more of the following mechanisms:
“(1) Examination of the patient by a supervising physician the same day as care is given by the physician assistant;
(2) Countersignature and dating of all medical records written by the physician assistant within thirty (30) days that the care was given by the physician assistant;
(3) The supervising physician may adopt protocols to govern the performance of a physician assistant for some or all tasks….The supervising physician shall review, countersign, and date a minimum of 5% sample of medical records of patients treated by the physician assistant functioning under these protocols within thirty (30) days. The physician shall select for review those cases which by diagnosis, problem, treatment or procedure represent, in his or her judgment, the most significant risk to the patient;
(4) Other mechanisms approved in advance by the board.”
There is a triable issue of material fact as to whether Defendant complied with the regulations. Defendant argues that they complied with the regulations because when Denslow, the physician assistant, performed the frenotomy there was a supervising physician, Dr. Biniwale, available in person or by electronic communication. Defendant also argues that it was proper for physician assistant Barbara Jones to sign her name and write Sardesai’s name on the labor and delivery summary on June 30, 2014. Defendant argues that Sardesai’s name was required by 16 CCR § 1399.546(a), which states “[e]ach time a physician assistant provides care for a patient and enters his or her name, signature, initials, or computer code on a patient's record, chart or written order, the physician assistant shall also record in the medical record for that episode of care the supervising physician who is responsible for the patient.” Therefore, the burden shifts to Plaintiffs to raise a triable issue of material fact.
The Court finds that Plaintiffs have met their burden and raised a triable issue of material fact as to Defendant’s compliance with the regulations. Denslow testified that for the frenotomy Sardesai was her supervising physician but that did not mean that she had to report back to her. (UMF No. 23.) Instead, it meant that Sardesai was the one who documented Denslow’s proficiency with the procedure. Sardesai was not at the hospital or available via electronic communication on the day of the frenotomy. Therefore, she could not have been “the supervising physician who is responsible for the patient.” There is a triable issue as to whether the supervising physician was Biniwale or whether there was no supervising physician. There is also a triable issue as to whether Sardesai was not the supervising physician responsible for the patient on June 30, 2014. Although Sardesai indicates that she was working at the hospital at that date, she also indicates that she never examined the baby. (Reply, Ex. A.)
Injunctive Relief: Defendant argues that Plaintiffs are not entitled to injunctive relief. Generally, injunctive relief is appropriate only when there is a threat of continuing misconduct. Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 463.
The Court finds that Plaintiffs fail to establish that there is a threat of continuing misconduct. Plaintiffs states that Defendant continues to fraudulently bill and to make fraudulent records. Other than the allegations in this case, there is no evidence that such misconduct is continuing. "Injunctive relief
will be denied if, at the time of the order of judgment, there is no reasonable probability that the past
acts complained of will recur." Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th
1302, 1326-1327. There is no record indicating that the acts are currently occurring.
Conclusion: Defendant’s summary adjudication of the UCL cause of action is GRANTED.
Case Number: BC596419 Hearing Date: November 14, 2019 Dept: 40
MOVING PARTY: Defendant Good Samaritan Hospital
OPPOSITION: Plaintiffs David Chang and Donovan Chang
Plaintiffs David Chang ("David") and his son Donovan J. Chang ("Donovan"), through his father Guardian Ad Litem (collectively, "Plaintiffs"), sue Defendant Good Samaritan Hospital (“Defendant”).
On June 30, 2014, Mira Chang (“Mira”), David’s wife, gave birth to Donovan. Shortly, thereafter Donovan became ill. Plaintiffs allege that Donovan was born with an imperforated anus, which Defendant’s employees failed to discover. Instead, Defendant incorrectly diagnosed Donovan's condition causing him to undergo an unnecessary surgery, a frenotomy (tongue tie clipping). The July 2, 2014 frenotomy was performed by Anne Denslow, a physician assistant. Plaintiffs never consented to Denslow performing the frenotomy and instead consented that Dr. Smeeta Sardesai, a neonatologist, perform the misguided frenotomy. Plaintiffs allege they were misled by defendant because Sardesai was not in the hospital during the entire time in which the events took place. Plaintiffs allege that the unconsented to frenotomy left Donovan with an elongated tongue which has prevented him from properly enunciating words and has caused delay in Donovan’s speech competence.
Plaintiffs’ remaining operative third amended complaint (“TAC”) alleges:
1) Professional Negligence;
3) Lack of Informed Consent;
4) Fraudulent Concealment;
5) Unfair Business Practices.
Defendant now brings summary adjudication as to the Third, Fourth and Fifth causes of action.
Objections: Plaintiffs object to the Declaration of Dr. Vijay Dhar (“Dhar”). Plaintiffs specifically object to Dhar stating that it was not fraudulent for a physician assistant to place the name of their neonatology supervisor next to their own name. Plaintiffs object on the ground that this is a legal conclusion and that Dhar lacks a proper basis for this statement. The Court finds that Dhar is stating that the practice is a common one, he is not stating that the practice is not legally fraudulent. Plaintiff’s objection is OVERRULED.
Defendant objects to Plaintiffs’ separate statement. Defendant argues that Plaintiffs’ responses are non-responsive. Plaintiffs dispute all of Defendants’ facts and provides clarifications for every fact. Some of the Defendant’s undisputed facts are not reasonably subject to dispute. (See DUMF, ¶ 3.) However, the Court will not disregard Plaintiffs’ responses to the separate statement.
Plaintiffs argue that the Court already adjudicated this motion when it denied Sardesai’s December 2016 motion for summary judgment. Sardesai and Defendant are not the same party. Moreover, the December 2016 motion is substantively different than the instant motion. The December 2016 motion only addressed the first cause of action, professional negligence, while the instant motion addresses the three causes of action Plaintiffs added in 2018.
Burden of Proof: Defendant argues that it has met its initial burden of proof because Plaintiffs’ discovery responses were devoid of facts. A defendant can meet its initial burden of proof in a motion for summary judgment if plaintiff’s discovery responses are devoid of facts. Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590. Plaintiffs respond by stating that they have supplied supplemental responses to Defendant’s discovery requests. The Court finds that the issue is moot because, as discussed in the following sections, Defendant provides sufficient evidence to meet its initial burden and to shift the burden to Plaintiffs.
Third Cause of Action, Lack of Informed Consent: DENIED
To establish a claim for Lack of Informed Consent, a plaintiff must prove: 1) Defendant performed the procedure, 2) Defendant did not disclose to Plaintiff important potential results or risk of the procedure, 3) A reasonable person in Plaintiff's position would not have agreed to the procedure if they had been fully informed of the results and risks of (and alternatives to) the procedure, and 4) Plaintiff was harmed by a result or risk that Defendant should have explained before the procedure was performed. (CACI 533.)
Defendant has met their burden of proof and demonstrated that Plaintiffs consented to the frenotomy. In her deposition, Denslow stated that she informed Mira and David that she would perform the frenotomy and that if she was unable to do it, then one of her colleagues would perform it. (DUMF, ¶ 20.) Denslow stated that she informed Donovan’s parents about the risks of the procedure. Denslow declared that this was the reason the consent form said that the surgeon who would perform the frenotomy was “Dr. Sardesai & Associates”. Denslow signed the physician certification form on the consent form. (DUMF, ¶ 17.) According to Dr. Vijay Dhar, Defendant’s Expert, Denslow as a physician assistant was qualified to perform the frenotomy. (DUMF, ¶ 27.) Dhar also states that an evaluation of Donovan by a neonatologist was not necessary because he had already been evaluated by Dr. Mi-jeong Lee (“Lee”), the lactation consultant, and Denslow. (DUMF, ¶ 29.) Finally, Dhar states that it is not fraudulent or uncommon for a physician assistant to put the name of their neonatology supervisor next to their own name in records. The burden shifts on Plaintiffs to demonstrate that there is a triable issue as to consent.
Plaintiffs consented to Sardesai, a neonatologist, to perform the frenotomy. (David Decl., ¶¶ 3-9.) Plaintiffs state that they were informed that Sardesai had evaluated Donovan and would be the one to perform the frenotomy. Plaintiffs were never informed about the procedures’ risk of having a speech impediment and an abnormally large tongue. (Mira Decl., ¶ 6.) Moreover, the consent forms they signed indicated that “Dr. Sardesai & Associates” would perform the frenotomy. Plaintiffs assert that they would not have consented to a physician assistant performing the frenotomy. Plaintiffs provide the declaration of Dr. Maureen Ellen Sims (“Sims”), their expert. Sims states that Lee, the attending pediatrician, ordered that a neonatologist evaluate the baby for a frenotomy, and that it fell below the standard of care for a lactation consultant and a physician assistant to evaluate him. (Sims Decl., ¶ 33(a).) Finally, Sims declares that the unnecessary frenotomy caused Donovan to suffer from a physical speech impediment. (Sims Decl., ¶ 33(j).)
The parties make several arguments challenging the other parties’ evidence that the Court now addresses.
Plaintiffs argue that Dhar has made inconsistent statements between the 2016 motion for summary judgment and the instant motion. They point out that in 2016, Dhar declared that it was within the standard of care for a physician assistant to perform a frenotomy with an attending physician’s supervision. In the instant motion, Dhar declares that there is no requirement that the physician assistant be supervised by a neonatologist. These two statements can be reconciled. The relevant California Code of Regulations establish that a physician assistant may perform a frenotomy without direct supervision, but a supervisor must be available in person or via electronic communication. (16 CCR § 1399.541(i)(1); 16 CCR § 1399.545(a).)
Defendant argues that Plaintiffs’ declarations contradict their depositions and thus should be disregarded. For example, defendant states that Plaintiffs previously stated that their medical providers, unlike their expert, were not critical of the frenotomy. However, this is not a contradiction and goes to the weight of Sim’s testimony. Similarly, Plaintiffs previously testified that they did not know who Sardesai was or whether they performed the frenotomy. This statement goes to the weight of Plaintiffs’ testimony as to whether they only consented as to Sardesai.
Considering the above, the Court finds that Plaintiffs have raised a triable issue of material fact as to consent. Plaintiff has presented sufficient evidence that they consented for Sardesai to perform the frenotomy rather than Denslow. The declaration of Plaintiffs’ expert rebuts Defendant’s expert because she states that it was below the standard of care for Donovan not to be evaluated by a neonatologist and that the frenotomy caused injury.
Fourth Cause of Action, Fraudulent Concealment: DENIED
“[T]he elements of an action for fraud and deceit based on concealment are: ¿(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or ¿suppression of the fact, the plaintiff must have sustained damage.” Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.
Defendant argues that nothing was concealed from Plaintiffs because they were informed that Denslow would perform the frenotomy and that there was no negligence in the performance of the frenotomy. Conversely, Plaintiffs argue that Defendant concealed from them that a neonatologist had not evaluated Donovan and that Denslow rather than Sardesai would perform the frenotomy. Similarly, to the previous section, the Court finds that while Defendant meets it initial burden, Plaintiffs raise a triable issue of fact as to whether Defendant concealed that Denslow rather than Sardesai would perform the frenotomy.
Fifth Cause of Action, Violation of the Unfair Competition Law (“UCL”): GRANTED
California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq., prohibits unfair competition, which is defined as any unlawful, unfair or fraudulent business act or practice. Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 609. A claim may be brought under the UCL by a person who has suffered injury in fact and has lost money or property as a result of unfair competition. Cal. Bus. & Prof. Code § 17204. “[O]nly two remedies are available to redress violations of the UCL: injunctive relief and restitution.” Feitelberg v. Credit Suisse First Boston, LLC, (2005) 134 Cal.App.4th 997, 1012.
Plaintiffs allege that they were fraudulently billed for the frenotomy because the billing record indicates that Sardesai performed it and they were charged $8,145.60.
Defendants have met their initial burden of proof. Defendant provides the declaration of Toni Relerford, defendant’s business office manager. Relerford provides “Exhibit A” which is a copy of Plaintiffs’ billing record. There is no charge for the frenotomy in the billing record. (Defendant’s Evidence, Relerford Decl., ¶ 7.)
Plaintiffs cite to the “attestation statement” which indicates that Sardesai performed the frenotomy and that they were billed $8,145.60. In their reply, Relerford states that the $8,145.60 sum in the attestation statement refers to the reimbursement rate under Medicare and was only included in the statement for reference. Relerford states that Defendant did not charge Plaintiffs for the frenotomy. (Defendant’s Reply, Relerford Decl., Declaration, ¶ 7.) The Court is inclined to grant summary adjudication because Plaintiffs were not billed for the frenotomy and therefore there was no fraudulent billing. Accordingly, Defendant’s Motion for Summary Adjudication of the fifth cause of action is GRANTED.
Conclusion: Defendant’s Motion for Summary Adjudication is DENIED as to the Third and Fourth Causes of Action. Defendant’s Motion for Summary Adjudication is GRANTED as to the Fifth Cause of Action.
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