Pomona Valley Hosp. Med. Ctr. v. Superior Court of L. A. Cnty., B245224

• Citation: 153 Cal.Rptr.3d 126,213 Cal.App.4th 828
• Decision Date: 07 February 2013
• Docket Number: No. B245224,B245224
• Parties: POMONA VALLEY HOSPITAL MEDICAL CENTER , Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; April Christine Cabana, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

213 Cal.App.4th 828

153 Cal.Rptr.3d 126

POMONA VALLEY HOSPITAL MEDICAL CENTER , Petitioner,

v.The SUPERIOR COURT of Los Angeles County, Respondent;

April Christine Cabana, Real Party in Interest.

No. B245224

Court of Appeal, Second District, Division 5, California.

Filed February 7, 2013

Petition granted.

See 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, §§ 1600, 1602.

ORIGINAL PROCEEDINGS; petition for writ of mandate. Michael P. Linfield, Judge. Writ granted. (L.A. Super. Ct. No. BC465313)

Lewis, Brisbois, Bisgaard & Smith, Judith M. Tishkoff and L. Susan Snipes, Los Angeles, for Petitioner.

Baum, Hedlund, Aristei & Goldman, Ronald L.M. Goldman, Bijan Esfandiari and A. Ilyas Akbari, Los Angeles, for Real Party in Interest.

No appearance for Respondent.

KRIEGLER, J.

Code of Civil Procedure section 425.13, subdivision (a), ¹ as interpreted in College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 34 Cal.Rptr.2d 898, 882 P.2d 894 ( College Hospital ), precludes a plaintiff from alleging punitive damages against a health care provider unless the plaintiff demonstrates “a substantial probability” that she will “prevail on the claim.” Based on a declaration from counsel for plaintiff and real party in interest April Christine Cabana and three letters obtained from a third party defendant, respondent court granted plaintiff's motion to amend her complaint to allege a claim for punitive damages against petitioner and defendant Pomona Valley Hospital and Medical Center (the Hospital).

We issued an alternative writ of mandate to respondent court, citing, inter alia, College Hospital, which rejected an attempt to amend a complaint to allege punitive damages based on a showing far stronger than plaintiff's. Our alternative writ directed respondent court to reconsider and reverse its ruling, or show cause before this court why a peremptory writ should not issue directing it to do so. Respondent court held a hearing in compliance with the alternative writ but concluded it had properly granted the motion to amend the complaint to allege punitive damages.

Because plaintiff's counsel's declaration and the three letters are insufficient as a matter of law to support the motion to amend the complaint to allege punitive damages, we direct respondent court to set aside its order and enter a new order denying the motion.

Plaintiff's Motion to Amend the Complaint and Seek Punitive Damages

On August 20, 2012, plaintiff filed a motion to amend her complaint against the Hospital to allege three new causes of action: (1) violation of Health and Safety Code section 24170 et seq. (the Protection of Human Subjects in Medical Experimentation Act); (2) fraud; and (3) negligence per se. In addition, plaintiff moved for leave to amend to seek punitive damages against the Hospital in the manner required by section 425.13.

The sworn evidence presented in support of the motion to amend consisted of a declaration from plaintiff's counsel and three attached letters from the Hospital's Institutional Review Board (IRB) ³ to Dr. Mesiwala. Plaintiff's counsel declared that defendant Stryker Biotech had provided discovery of approximately 85,000 pages of documents, including the three letters. Counsel described the three letters as showing the Hospital “was conducting a secret ‘research project’ which included patient ‘randomization’ to test the experimental/humanitarian device OP–1 Putty on patients at the hospital.” Counsel asserted the letters demonstrated plaintiff was an unwitting participant in a secret research project conducted by the Hospital. The balance of counsel's declaration consisted of argument as to why the proposed amendments should be allowed.

The three letters relied upon by plaintiff were on the Hospital's letterhead, addressed to Dr. Mesiwala. Each letter pertained to “Protocol Study: OP–1 Putty: An FDA approved device under the Humanitarian Use Device (HUD) regulations.” The letters were signed by either the chairperson or vice-chair of the Hospital's IRB.

The first letter, dated February 4, 2009, gave approval of “your request” for annual renewal by the IRB of the OP–1 Putty protocol study. The letter indicated that information submitted in connection with the annual renewal showed four subjects in the study, all of whom were “still alive” and “in follow-up.” “While the PVHMC Board has approved the study, we are requesting the following information be submitted as soon as possible in order to better understand your study: 1. How many patients are enrolled nationally? 2. You mentioned that the material and procedure under study are very effective. If efficacy is obvious, should the research project and randomization be continued? Is there an ongoing statistical review process to make sure that the incoming study data do not indicate that the study should be terminated?” Dr. Mesiwala was directed to immediately report any ill effects on patients to the IRB. Approval of the protocol would expire on January 27, 2010.

The second letter from the IRB to Dr. Mesiwala was dated February 4, 2010. This letter also related to “your request” for annual renewal of the OP–1 Putty protocol study. Information submitted showed 17 subjects, all of whom were still alive and in follow-up. The renewal was for ten months, and Dr. Mesiwala was again directed to immediately notify the IRB of any unexpected ill effects on patients.

The final letter to Dr. Mesiwala was dated January 25, 2012. The IRB approved closing the study “since patients are beyond normal follow-up care.” The letter asked what Dr. Mesiwala considered to be normal follow-up, when the last follow-up was done, and how “are the other patients doing generally?” Dr. Mesiwala was directed to submit “this paperwork” to the IRB coordinator.

The proposed amended complaint sought to add causes of action 12–14 against the Hospital. The 12th and 13th causes of action sought punitive damages based on the Hospital's malicious, fraudulent, and oppressive conduct toward plaintiff and alleged plaintiff was unaware she was one of at least 17 patients enrolled in a five-year research project to which she never consented. The 12th cause of action alleged violation of Health and Safety Code section 24170, the Protection of Human Subjects in Medical Experimentation Act, by approving a research project which “randomized patients” to test the safety and efficacy of OP–1 Putty on patients. The 13th cause of action for fraud alleged the Hospital concealed plaintiff's participation in the OP–1 Putty research project.

The Hospital's Opposition to the Motion to Amend

The Hospital argued the motion to amend was untimely. It also filed evidentiary objections to the declaration of plaintiff's counsel and to the three attached documents. On the merits, the Hospital opposed the motion to amend to allege punitive damages on several grounds, including that plaintiff failed to demonstrate a substantial probability of prevailing on the punitive damages claims as required by section 425.13. The Hospital argued that plaintiff had “not presented one scintilla of competent evidence to show that she is entitled to punitive damages” and “[t]here are no facts presented to establish a ‘secret research project.’ There is no evidence of [the Hospital's] role in such a project.”

Plaintiff's Reply to the Opposition

Plaintiff argued she had substantiated that she was enrolled as an unwitting test subject in the Hospital's OP–1 Putty research project. The Hospital is subject to punitive damages for engaging in conduct that constitutes conscious disregard of the rights or safety of others by enrolling plaintiff in nonconsensual human experimentation.

Respondent Court's Ruling

On September 12, 2012, respondent court overruled the Hospital's evidentiary objections, found the motion to amend timely, and granted the motion to amend the complaint to add the 12th–14th causes of action, with punitive damage allegations as to the 12th and 13th causes of action.⁴ Specifically addressing the Hospital's argument that there was insufficient evidence to support a claim for punitive damages, respondent court ruled the copies of the IRB correspondence provided to plaintiff by Stryker Biotech “is sufficient.”

DISCUSSION

The Hospital filed the instant petition arguing, in part, that plaintiff failed to meet her burden of showing a substantial probability of prevailing on a claim of punitive damages under section 425.13. The Hospital contends the three letters from the IRB to Dr. Mesiwala at most establish there was a research project, but plaintiff did not submit any competent evidence the project was secret, that she was enrolled in the project, or that its existence was concealed from her. In addition, nothing in the documents show any misrepresentation by the Hospital, any intent to deceive plaintiff, or reliance. The letters do not establish any evidence of malice or oppression by the Hospital. Plaintiff's return to the petition for writ of mandate ⁵ argues the February 4, 2009 letter to Dr. Mesiwala establishes plaintiff's initial surgery was part of a research project and statistical review of study data involving OP–1 Putty. The second letter, dated February 4, 2010, confirmed a total of 17 “subjects.” The third letter, dated January 25, 2012, informed Dr. Mesiwala the committee approved closing the study to “patient accrual” and inquired as to “[h]ow are the other patients doing generally?” The Hospital's IRB had a duty to obtain consent from plaintiff for use of the experimental putty in her surgery. Based on the three letters, plaintiff argued that respondent court properly ruled plaintiff had substantiated a claim for punitive damages.

Standard of Review

A trial court's ruling on a motion to amend a complaint to allege punitive damages is subject to the de novo standard of review. ( College Hospital, supra, 8 Cal.4th at pp. 719, fn. 6, 772–773, 34 Cal.Rptr.2d 898, 882 P.2d 894.) “[A] motion to...