Aquino v. Superior Court

• Decision Date: 15 December 1993
• Docket Number: No. D018889,D018889
• Citation: 21 Cal.App.4th 847,26 Cal.Rptr.2d 477
• Court: California Court of Appeals Court of Appeals
• Parties: Irma AQUINO et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; Robert REICHMAN et al., Real Parties in Interest.

Page 477

26 Cal.Rptr.2d 477

21 Cal.App.4th 847

Irma AQUINO et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent;

Robert REICHMAN et al., Real Parties in Interest.

No. D018889.

Court of Appeal, Fourth District, Division 1, California.

Dec. 15, 1993.

Review Denied March 2, 1994.

McClellan & Associates, Craig R. McClellan and Lamar B. Brown, San Diego, for petitioners.

No appearance for respondent.

Ault, Deuprey, Jones & Gorman, Daniel S. Bodie, Cosgrove & McGill, Michael Popcke, San Diego, Greines, Martin, Stein & Richland, Kent L. Richland and Barbara W. Ravitz, Beverly Hills, for real parties in interest.

HUFFMAN, Associate Justice.

In their petition for writ of mandate, Irma and Agelio Aquino (plaintiffs) challenge the trial court's order denying their petition for leave to amend their complaint for intentional and negligent infliction of emotional distress to add a claim for punitive damages pursuant to Code of Civil Procedure section 425.13. ¹ Real parties in interest, Drs. Robert Reichman, Frank Bender and Max Savin (the doctor defendants), opposed the petition to amend the complaint, arguing the plaintiffs had failed to meet their burden of proof that they would be able to prevail on a claim for punitive damages by clear and convincing evidence. Plaintiffs argue the trial court's order denying their petition denied them their right to a jury trial on the issue of entitlement to punitive damages, and contend they sufficiently presented a prima facie case for such damages to the trial court.

For purposes of analysis, we shall assume there is a right to jury trial on entitlement to punitive damages. Like the court in Looney v. Superior Court (1993) 16 Cal.App.4th 521, 538, 20 Cal.Rptr.2d 182 (review den. Sept. 2, 1993) (Looney ), we then construe section 425.13 as requiring that "a plaintiff demonstrate the existence of sufficient evidence to establish a prima facie case for punitive damages, having in mind the higher clear and convincing standard of proof." The trial court's evaluation of that showing by the plaintiffs is the resolution of a legal issue, in which the court does not make credibility determinations, weigh the evidence, or draw inferences from the facts. (Looney, supra, at p. 539, 20 Cal.Rptr.2d 182.) In this petition, we conduct a de novo review of that determination by the trial court, concluding no such prima facie case for punitive damages was shown by these plaintiffs, and it was appropriate for the trial court to reject the proposed pleading amendment. We accordingly deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs' 26-year-old daughter, Irma Coram, was a passenger in a vehicle driven by her husband, David Coram, when it crashed into the back of a truck. The Coram family, including two daughters, was airlifted to Palomar Medical Center for medical treatment. Plaintiffs arrived at the hospital at approximately 12:30 a.m. on July 2, 1991, and learned that Mrs. Coram was in surgery due to her extensive internal injuries, and Mr. Coram was in surgery for a broken leg. When Mrs. Coram's initial surgery was completed, the trauma surgeon, defendant Dr. Savin, met with plaintiffs and their daughter, Kathleen Noblet, and told them the prognosis was not clear. Plaintiffs contend they told Dr. Savin that they wanted to be kept informed of Mrs. Coram's condition and wanted to be involved in any decisions which needed to be made regarding her treatment. They contend Dr. Savin acknowledged these requests and assured them that he would consult with them regarding her treatment. In his deposition, Dr. Savin states that he doesn't remember the family members requesting to be involved in decisions concerning Mrs. Coram's treatment.

Defendant Dr. Bender, a critical care and pulmonary medicine specialist, was called in to treat Mrs. Coram. While he was examining According to Ms. Noblet, she told Dr. Bender that she wanted to speak to the other doctor involved in Mrs. Coram's care, and Dr. Bender indicated that he would relay the information about the family's wishes and concerns to Dr. Reichman. In Dr. Bender's deposition, he states that his understanding after the "code blue" was that the family members wanted to be kept informed of her progress and to be involved in any decision to cease treatment. He did not recall any discussion about last rites being given.

                her, she went into a "code blue," requiring emergency resuscitative efforts.  Drs. Savin and [21 Cal.App.4th 851] Bender opened Mrs. Coram's chest to perform open heart massage.  They then called in defendant Dr. Reichman to enlist his assistance in hooking up a heart-lung bypass machine, a cardiopulmonary support system (CPS), to oxygenate, warm, and circulate her blood.  Dr. Bender notified plaintiffs and other family members who were present of the "code blue" and the need to connect her to the CPS system.  Plaintiffs' daughter, Ms. Noblet, requested Dr. Bender to allow Mrs. Coram's mother or herself to see Mrs. Coram, and requested that the family be involved in the final decisions regarding her death, as the family did not want her to die alone, and they wanted to make arrangements for a priest to be present.  (Plaintiff Mrs. Aquino states in her declaration in support of the motion to amend that she had promised her daughter that she would not let her die alone.)   Plaintiffs contend that Dr. Bender acknowledged their requests.  Ms. Noblet was then allowed to see Mrs. Coram being treated, although another doctor then had her removed from the area
                

After Dr. Reichman placed Mrs. Coram on the CPS device, he transferred her from the critical care unit to the operating room for further treatment. In his deposition, Dr. Reichman stated that a patient must be weaned from the CPS system before further bypass becomes detrimental rather than beneficial to the patient. At approximately 9:20 a.m., Dr. Reichman weaned Mrs. Coram from the device, and continued treatment for 34 minutes. Mrs. Coram was pronounced dead at 9:54 a.m. Dr. Reichman proceeded to Mr. Coram's hospital room and notified him that Mrs. Coram had died. He called the coroner's office to notify them of the death, and placed calls to Drs. Savin and Bender about the death. Dr. Reichman was then summoned to perform other emergency surgery for a period of about two or two and one-half hours. He asked a nurse to see if Dr. Savin or Dr. Bender could talk to the family. The nurse relayed the message to a social worker, who determined that Dr. Savin was also in surgery, and who decided not to call Dr. Bender to tell the family because he had not been involved in the treatment for some period of time.

In plaintiff Mrs. Aquino's declaration, she states that she saw Dr. Bender about 10:30 in the morning in the hallway, and he told her Mrs. Coram's body temperature was improving. Around 10 a.m., hospital staff asked the family to meet in a conference room so that Dr. Reichman could meet with the family. They waited for three hours for Dr. Reichman to appear. Around 1 p.m., Dr. Savin appeared and notified the assembled family members, including plaintiffs, that Mrs. Coram was dead. According to Ms. Noblet's declaration, the doctor who notified them of the death first stated that Mrs. Coram had died 20 minutes before, when she was taken off of "the machine." Ms. Noblet states that Mrs. Aquino asked to be with Mrs. Coram, and the doctor said that that was not possible because the coroner was there. When Ms. Noblet inquired how the coroner could be there so soon, the doctor responded that she had actually died an hour before. She states that Dr. Reichman then said that the family could not be with Mrs. Coram's body, because the coroner had already taken it away, and she had actually died three hours before.

In Dr. Savin's deposition, he stated that he, not Dr. Reichman, was the one who met with the family and notified them of the death, and stated he did not tell the family she had died 20 minutes before. He notified them that she had died and then the CPS Plaintiffs filed their complaint for intentional and negligent infliction of emotional distress against the doctor defendants, the hospital, and certain of the hospital staff. They brought this motion to amend the complaint to allege a claim for punitive damages, supported by declarations, deposition testimony, and lodged exhibits (hospital records and protocol provisions). All defendants opposed the motion, also filing declarations and lodged exhibits (deposition testimony, medical and coroner's records). The trial court denied the motion "since plaintiffs fail to establish a prima facie case that plaintiff will prevail on the claim for punitive damages." This petition ensued. We issued an order to show cause and solicited supplemental briefing on the applicable standard of review. ²

machine had been shut off, in that order. Dr. Reichman did not meet with the family until approximately an hour after they were told, when all three physicians and a hospital representative met with family members, who were angry and hostile.

In their petition, plaintiffs summarize the evidence for purposes of arguing they should be allowed to plead punitive damages as stating that the doctor defendants violated the plaintiffs' rights by:

"(a) Removing their daughter from life support mechanisms, despite assuring petitioners that no changes in medical treatment would be made without their consent;

"(b) Not advising Petitioners of the death of their daughter and then covering up the actual time of death;

"(c) Telling the Petitioners that their daughter's condition was improving, after they had terminated her support system and pronounced her dead; and

"(d) Failing to allow Petitioners to give last rites to their daughter by having the dead body turned over to the Coroner before telling the waiting Petitioners the truth."

DISCUSSION

I

Section 425.13 sets up a procedure for the trial court to determine...