CARR VS UNIVERSAL HEALTH SERVICES OF RANCHO SPRINGS, INC.

2. CASE # CASE NAME HEARING NAME CARR VS UNIVERSAL CVME2500568 HEALTH SERVICES OF MOTION FOR LEAVE TO AMEND RANCHO SPRINGS, INC. Tentative Ruling: Motion for Leave to Amend Complaint to add Punitive Damages against Grant Schumaker, MD is Granted. FAC to be filed within 5 days of this order.

Plaintiff Ryan Carr moves under CCP § 425.13(a) to add punitive damages against Dr. Schumaker on the medical battery claim, arguing he has made a prima facie showing of malice: Dr. Schumaker, a first-year resident, attempted a forceful closed reduction without consent and continued manipulating Mr. Carr’s arm, despite Mr. Carr screaming and pleading with him to stop, until it audibly snapped. Mr. Carr contends this “total disregard” of his right to consent to medical treatment constitutes despicable conduct under Civ. Code § 3294(c)(1).

Dr. Schumaker opposes, arguing that Mr. Carr cannot show a substantial probability of prevailing under section 3294 by clear and convincing evidence. He contends that consent is a disputed fact (he recalls discussing the procedure with Mr. Carr, and Mr. Carr did not object until the pain became severe), and that, supported by Dr. Barcay’s declaration, he met the standard of care and did not cause the humeral head fracture. In any event, he argues that lack of informed consent sounds in professional negligence, not malice.

In reply, Mr. Carr counters that the opposition misframes the case as one for negligent lack of informed consent and ignores his actual claim for medical battery, where the harm is the unauthorized procedure itself, irrespective of skill or care. He stresses that section 425.13(a) does not permit the Court to weigh the merits or resolve the consent dispute against him, and that his prima facie showing is sufficient.

Evidentiary Objection - Mr. Carr objects to the Declaration of David Barcay, M.D., submitted in support of Dr. Schumaker’s opposition, on the ground that Dr. Barcay does not satisfy Health & Safety Code § 1799.110(c), which requires expert testimony in actions arising out of emergency medical services to come from a physician with “substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department.” Mr. Carr also objects for lack of foundation, improper opinion, insufficient qualification, speculation, and relevance.

The Court overrules the objection. Even assuming the declaration is admissible, Dr. Barcay’s opinions address standard of care and causation, which go to the negligence theory rather than to the medical battery claim on which the section 425.13(a) motion rests. The Court therefore needs not reach the section 1799.110(c) qualification question to decide the motion.

Legal Standard - A plaintiff in a professional negligence action against a health care provider may not include a punitive damages claim in the complaint unless the court first enters an order permitting it. (CCP § 425.13(a).) The court may allow the amendment only where “the plaintiff has established that there is a substantial probability that the

plaintiff will prevail on the claim” pursuant to Civ. Code § 3294. (Id.) The California Supreme Court has construed this “substantial probability” language to require the plaintiff to both “state and substantiate a legitimate, triable punitive damages claim.” (Coll. Hosp., Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 709.)

On the other hand, “section 425.13(a) does not authorize the trial court to reject a wellpled and factually supported punitive damages claim simply because the court believes the evidence is not strong enough for probable success before a jury.” (Id.) The statute “operates like a demurrer or motion for summary judgment in ‘reverse’” and “requires the plaintiff to demonstrate” “a legally sufficient claim” that is “supported by competent, admissible evidence.” (Id. at 719 [italics in original].) The motion must be granted unless the court concludes that “the allegations made or the evidence adduced in support of the claim, even if credited, are insufficient as a matter of law to support a judgment for punitive damages.” (Id. at 719, fn. 6.)

The requirements for punitive damages are set out in section 3294. “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1) [emphasis added].) “‘[D]espicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’” (Id. at 725.) “[A]bsent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (Id. [internal quotations omitted] [emphasis added].)

The distinction between medical battery and negligent lack of informed consent is significant here. In Cobbs v. Grant (1972) 8 Cal.3d 229, the California Supreme Court stated that “[t]he battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.” (Cobbs, supra, 8 Cal.3d at 240.) Where consent is given but the doctor fails to disclose an inherent risk that later materializes, the claim sounds in negligence, not battery, because the doctor has not deviated from the consent given but instead may have breached a duty of reasonable disclosure. (Id. at 240–41.)

Notably, the Cobbs Court recognized that “expert opinion as to community standard is not required in a battery count, in which the patient must merely prove failure to give informed consent and a mere touching absent consent” and that “a doctor could be held liable for punitive damages under a battery count.” (Id. at 240.)

Mr. Carr moves under CCP § 425.13(a) to add a punitive damages claim to the surviving medical battery cause of action. His basis is a prima facie showing of “despicable conduct” under section 3294(c): that Dr. Schumaker, a first-year resident, initiated a forceful closed reduction without consent and continued manipulating Mr. Carr’s arm, after Mr. Carr screamed and pleaded with him to stop, until it audibly snapped. (Compl. ¶¶ 11, 13–14.) If credited, that showing goes beyond a technical touching. It describes a provider persisting with a forceful physical manipulation over the patient’s contemporaneous objection until the patient’s bone broke.

Because the operative claim is battery, and not negligent lack of informed consent, several of Dr. Schumaker’s arguments are directed at a different theory than the one on

which the motion actually rests. Under Cobbs, battery is reserved for procedures performed without consent, while a failure to disclose an inherent risk that later materializes sounds in negligence. (Cobbs, supra, 8 Cal.3d at 240–41.) As Mr. Carr’s reply notes, “The harm in a medical battery claim is the performance of the unauthorized procedure itself, irrespective of the skill or care used.” (Pl.’s Reply 2:7–9.) Dr. Barcay’s opinions that Dr. Schumaker met the standard of care and did not cause the humeral head fracture therefore do not address the battery theory on which the section 425.13 motion rests.

On section 3294’s substantive elements, Mr. Carr’s evidence, if credited, would permit a jury to find “despicable conduct” carried on “with a willful and conscious disregard of the rights or safety of others.” (Coll. Hosp., supra, 8 Cal.4th at 725.) Proceeding without consent and then persisting through the patient’s screams and pleas until his humerus fractured is conduct a trier of fact could reasonably characterize as “base,” “vile,” or “contemptible” within the meaning of College Hospital. (Id.) That is what section 425.13(a) requires at this stage—a legally sufficient claim “supported by competent, admissible evidence.” (Id. at 719.)

Dr. Schumaker’s factual disputes do not defeat the motion. His argument that consent is “an issue of fact” (Def.’s Opp. 2:16–17), supported by his own recollection of a preprocedure discussion (Whitehead Decl. ¶ 5, Ex. B), Dr. Kuzmack’s custom and practice testimony (Whitehead Decl. ¶ 7, Ex. D), and the point that Mr. Carr did not object until the pain became severe (Def.’s Opp. 9:21–23), establishes only that the evidence is contested. That is not the section 425.13(a) test. The statute does not authorize the Court to “weigh the merits of the claim or consider its likely outcome at trial.” (Coll. Hosp., supra, 8 Cal.4th at 719.) The existence of a triable dispute is precisely what the reverse-summary-judgment framework contemplates. It is a reason to grant the motion, not to deny it.

Dr. Schumaker’s related contention that Mr. Carr “never asserts that he would not have consented if provided informed consent beforehand” (Def.’s Opp. 9:26–27) imports a causation element from the negligence theory of informed consent into a claim where it does not readily fit. Under Cobbs, in a battery count “the patient must merely prove failure to give informed consent and a mere touching absent consent.” (Cobbs, supra, 8 Cal.3d at 240.) The community standard and hindsight consent inquiries belong to the negligence theory. (Id.) Neither section 425.13(a) nor section 3294 imports a “wouldhave-consented” element into the punitive damages analysis for battery.

Because Mr. Carr has stated a legally sufficient punitive damages claim tied to the surviving medical battery cause of action and substantiated it with competent, admissible evidence that, if credited, would support a jury finding of despicable conduct under section 3294(c), the motion satisfies the statutory threshold.