Jameson v. Desta

• Decision Date: 29 April 2013
• Docket Number: D060029
• Citation: 155 Cal.Rptr.3d 755,215 Cal.App.4th 1144
• Parties: Barry S. JAMESON, Plaintiff and Appellant, v. Taddese DESTA, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

215 Cal.App.4th 1144

155 Cal.Rptr.3d 755

Barry S. JAMESON, Plaintiff and Appellant,

v.Taddese DESTA, Defendant and Respondent.

D060029

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

Filed April 29, 2013

Reversed.

See 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 933, 934.

APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Reversed. (Super.Ct. No. GIS9465)

Barry S. Jameson, in pro. per., for Plaintiff and Appellant.

La Follette, Johnson, De Haas, Gesler & Ames, James J. Wallace II, Russell M. Mortyn, San Diego, and David J. Ozeran, Los Angeles, for Defendant and Respondent.

AARON, J.

I. INTRODUCTION

More than a decade ago, Barry S. Jameson filed a complaint against Dr. Taddesse Desta that asserted numerous claims stemming from Desta's allegedly negligent medical treatment of Jameson's hepatitis while Jameson was incarcerated at the Richard J. Donovan Correctional Facility (Donovan). In two separate prior appeals, this court reversed dismissals of Jameson's lawsuit, concluding that the trial court had erred in dismissing the action on procedural grounds. ( Jameson v. Desta (July 2, 2007, D047284) [nonpub. opn.] opn. mod. July 26, 2007 ( Jameson I ); Jameson v. Desta (Nov. 23, 2009, D053089) [cert. for partial pub. opn.] 179 Cal.App.4th 672, 101 Cal.Rptr.3d 345 ( Jameson II ).)

On remand from Jameson II, Desta filed a motion for summary judgment or summary adjudication of the two remaining claims pending against him—breach of fiduciary duty and professional negligence.¹ The trial court granted Desta's motion for summary adjudication of the breach of fiduciary duty claim on the ground that Jameson could not establish that Desta had breached any legal duty owed to Jameson. The court subsequently concluded that Desta was entitled to judgment as a matter of law on Jameson's professional negligence claim, as well. The court reasoned that Jameson could not establish that Desta's acts had caused him to suffer harm because Desta had cured Jameson of hepatitis. The court granted Desta's motion for summary judgment, and entered judgment in his favor.

On appeal, Jameson claims that the trial court erred in granting Desta's motion for summary judgment. With respect to his claim of breach of fiduciary duty, Jameson maintains that he alleged that Desta breached his duty to obtain Jameson's informed consent prior to prescribing a course of treatment for Jameson's hepatitis, and that Desta failed to address this theory of liability in his motion. With respect to his professional negligence claim, Jameson contends that the record contains evidence that establishes a triable issue of fact with respect to whether Desta's actions caused him to suffer harm.

We agree with Jameson that the trial court erred in granting judgment as a matter of law in favor of Desta on Jameson's claims. With respect to his breach of fiduciary duty claim, Jameson alleged in his complaint that Desta breached his fiduciary duty by prescribing the drug interferon to Jameson without first having obtained Jameson's informed consent. Desta failed to address this theory of liability in his moving papers, and thus failed to carry his burden of making a “prima facie showing of the nonexistence of any triable issue of material fact.” ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493 ( Aguilar ).) The trial court therefore erred in granting summary judgment as to this cause of action.

With respect to Jameson's professional negligence claim, we conclude that the trial court erred in determining that Desta was entitled to summary judgment on the ground that Jameson failed to present admissible evidence that would negate Desta's expert's opinion that Desta had cured Jameson of hepatitis. Jameson's professional negligence claim is not premised on a failure to cure Jameson, but rather, on the allegation that Desta performed below the standard of care in unnecessarily prescribing a medication that had significant and damaging side effects at a time when Jameson was not suffering from hepatitis. The trial court erred in granting judgment as a matter of law in favor of Desta on the ground that Jameson failed to present evidence demonstrating a triable issue of a fact as to whether Desta had cured Jameson, when that fact was not material to Jameson's claim.

Further, Desta was not entitled to summary judgment on the ground that he established that Jameson will be unable to prove that Desta's alleged breach of the standard of care caused Jameson to suffer physical injury. Jameson offered the declaration of a medical doctor, Dr. Allen Cooper, who stated, “It is my professional opinion that [Desta's] care and treatment of Jameson was substandard and a direct cause of the suffering and injury to Jameson and contrary to the prevailing standard of care in the medical community in 2000–2001.” Dr. Cooper also indicated in his declaration that Desta had acted below the standard of care in subjecting Jameson to interferon injections three times a week for a year, and that instead, Desta should have prescribed six months of an alternative treatment. Jameson thus presented expert testimony that Desta's breach of the standard of care caused Jameson to receive numerous unnecessary injections of interferon. A reasonable jury could find that these injections were painful and inherently injurious.

In addition to the statements that Desta's breach of the standard of care caused Jameson to receive unnecessary injections of interferon, at his deposition, Dr. Cooper stated that Jameson had suffered various side effects from the interferon injections. We conclude that Jameson established a triable issue of fact as to the causation element of his professional negligence claim through the deposition testimony and declaration of Dr. Cooper.²

Finally, in light of our remand, we remind the trial court of its obligation to “ ‘ensure indigent prisoner litigants are afforded meaningful access to the courts....' ” ( Jameson II, supra, 179 Cal.App.4th at p. 675, 101 Cal.Rptr.3d 345, quoting Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483, 85 Cal.Rptr.3d 127 ( Apollo ).) As discussed in greater detail in part III.D., post, the record indicates that the trial court failed to carry out this obligation in at least one critical aspect. Notwithstanding Jameson's timely request that the trial court direct defense counsel to ensure that Jameson be permitted to participate telephonically in defense counsel's deposition of Jameson's expert, Dr. Cooper, the trial court failed to rule on Jameson's request prior to the time the deposition was taken. As a result, defense counsel was permitted to depose Jameson's key expert witness without Jameson being afforded the opportunity to participate in the deposition. By failing to ensure Jameson's ability to participate in the deposition, the trial court fell short of its obligation to protect an “ ‘indigent prisoner's right to ... prosecute bona fide civil actions.’ ” ( Apollo, supra, at p. 1483, 85 Cal.Rptr.3d 127.) We reverse the judgment and remand for further proceedings.³

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The operative allegations in Jameson's complaint

In April 2002, Jameson filed a complaint that alleged eight causes of action, including breach of fiduciary duty (lack of informed consent); professional negligence; general negligence; failure to train; battery; violation of civil rights; intentional infliction of emotional distress; and violation of due process against a number of defendants, including Desta and officials of the California Department of Corrections and Rehabilitation (Department). ⁴ Jameson's claims of breach of fiduciary duty and professional negligence against Desta are the sole claims at issue in this appeal.

In his complaint, Jameson alleged that Desta negligently prescribed interferon to Jameson while Jameson was incarcerated at Donovan and Desta was performing services as a physician for the Department. Jameson further alleged that the interferon caused him to suffer serious physical injuries, including irreversible damage to his eyesight. With respect to his breach of fiduciary duty claim, Jameson alleged in part:

“Desta breached his fiduciary duty as a doctor when he started [Jameson] on Alpha–2B Interferon, when [Jameson] had no detectable viral count. [The Department's] written policy ... clearly states if a person has a viral count that does not exceed 3,499, a person is not to be given interferon treatment. Moreover, such treatment is to be reviewed every six (6) months to review whether such treatment should be continued.... Desta simply continued [Jameson] on treatment [Jameson] should never have been on with deliberate indifference and a reckless disregard for the rights[,] health and safety of [Jameson], causing irreparable injury.... This second six months aggravated the injuries to [Jameson] unnecessarily.

“Desta held a position of trust with [Jameson], causing [Jameson] to rely on Desta's statements and recommendation that [Jameson] begin treatment and stay on it. It is only through [Jameson's] research of his own medical file and hepatitis literature that even as a layman he easily discovered the mistaken or malicious prescription by Desta that resulted in such damage.”

In his professional negligence cause of action, Jameson alleged that Desta had been “professionally negligent in his treatment of [Jameson], and there existed a physician-patient relationship.” Jameson also alleged the following:

“Due to Desta's professional negligence and failure to exercise the proper degree of knowledge and skill in diagnosing, treating and monitoring any such treatment, [Jameson] suffered and suffers extreme migraine headaches, vision loss, weight loss, depression and severe emotional duress. [Jameson] suffered such due to Desta ordering that [Jameson] take interferon treatment that [Jameson] did...