Biter v. Scripps et al

7/27/2019 Biter v. Scripps et al.

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LAW OFFICE OF JEREM Y J. ALBERTSJeremy J. Alberts (SBN 27 3290)125 West Amerige AvenueFullerton, California 92832Telephone: (714) 441-1144Facsimile: (714) 441-1546Attorney for Plaintiff,ROBER T M. BITER, M.D.

LF os*o l th e S w e a r c o u r t

1 A P s1 2 .1D e p u t yBy:

ROBER T M. BITER, M.D.,Plaintiff,

VS .

SCRIPPS H EALTH, a C aliforniaCorporation; SCRIPPS MEMORIALHOSPITAL, a California Corporation;JAMES LABELLE, an individual; RONALDMACC ORM ICK, an individual; SCOT TMASINSK I, an individual; RANDA LLGOSKOWICZ, an individual; LAWRENCEEISENHAU ER, an individual; MICHAELLOBATZ, an individual; DOUG LASFENTON , an individual; CHRIS VANGOR DER , an individual; CARY M ILLER, anindividual; and D OES 1 through 50,inclusive,Defendants.

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ORIGINALa F f K i t u', Uk 1 2 1 A 1 1 : b b

M A Y 2 1

SUPERIOR COURT O F THE STATE CALIFORNIAFOR THE COUNTY OF SAN DIEGO

Case No. 37-2013-00049670-CU-FR-CTLCOMPLAINT FOR DAMAGES

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Intentional Misrepresentation2 Fraudulent Concealment3 Negligent Misrepresentation4 Defamation5 Restraint of TradeUnlimited Civil Case AmountDemanded Exceeds $25,000.00JURY TRIAL REQUESTED

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COM ES N OW Plaintiff, Robert M. Biter, M.D., and, for cause of action againstDefendants, alleges and states as follows:

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Parties1. Plaintiff: Richard M. Biter, M.D. (hereinafter "Plaintiff") is, and at all times

herein mentioned was, over the age of 18 and a resident of the County of San Diego,State of California.

2. Defendant: Scripps Health (hereinafter "Scripps") is, and at all times hereinmentioned was, a California corporation conducting business in the County of SanDiego, State of California.

3. Defendant: Scripps Memorial Hospital (hereinafter "Scripps Memorial") is,and at all times herein mentioned was, a California corporation conducting business inthe County of San Diego, State of California.

4. Defendant: James Labelle (hereinafter "Labelle") is, and at all times hereinmentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial.

5. Defendant: Ronald MacCormick (hereinafter "MacCormick") is, and at alltimes herein mentioned was, a physician affiliated with Defendants Scripps and ScrippsMemorial.

6. Defendant: Scott Masinski (hereinafter "Masinski") is, and at all times hereinmentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial.

7. D efen dan t: Randall Goskowicz (hereinafter "Goskowicz") is, and at all timesherein mentioned was, a physician affiliated with Defendants Scripps and ScrippsMemorial.

8. Defendant: Lawrence Eisenhauer (hereinafter ''Eisenhauer") is, and at alltimes herein mentioned was, a physician affiliated with Defendants Scripps and ScrippsMemorial.

9. Defendant: Michael Lobatz (hereinafter "Lobatz") is, and at all times hereinmentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial.

10 . Defendant: Douglas Fenton (hereinafter "Fenton") is, and at all times hereinmentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial.

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11, Defendant: Chris Van Gorder (hereinafter "Van Gorder") is, and at all timesherein mentioned was, a physician affiliated with Defendants Scripps and ScrippsMemorial.12. Defendant: Cary Miller (hereinafter "Miller") is, and at all times hereinmentioned was, an individual residing in the County of San Diego, State of Californiaand a licensed California attorney.

1 3. Plaintiff does not know the true names and capacities of Defendantsdesignated DOES 1 50, inclusive, and therefore sues them by those fictitious names,as with "all persons unknown, claiming any legal or equitable right, title, estate, lien orinterest in the property described in the Complaint adverse to Plaintiffs title, or anycloud on Plaintiffs title thereto." Plaintiff is informed, believes and thereon alleges thateach of these Defendants was, in some manner, proximately responsible for Plaintiff'sdamages. Once these parties' true identities and capacities are ascertained, Plaintiffwill amend this Complaint accordingly.

1 4. Plaintiff is informed, believes and thereon alleges that, at all times hereinmentioned, Defendants were acting as the agents, servants, employees, alter egos,superiors, successors in interest, joint venturers, and/or co-conspirators of each of theirco-defendants and, in committing the acts herein alleged, were acting were acting withinthe course and scope of their authority as such, and with the permission and consent oftheir co-defendants. Consequently, each Defendant sued herein is jointly and severallyliable to Plaintiff for damages sustained as a result of the conduct alleged.

1 5. Plaintiff is informed, believes and thereon alleges that Defendants, and eachof them, are in sole possession, custody or control of e-mails, notes of telephoneconversations, log entries, recorded messages and other forms of communication orcorrespondence that identify the dates, times, and persons, including, but not limited to,Defendants' employees, representatives and/or agents who spoke with Plaintiff; thecontent of those conversations, including, but not limited to information, disinformation,false promises, etc. that form the basis of Plaintiff's allegations.

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1 6. Plaintiff is informed, believe and thereon alleges that reasonable discoveryand investigation will reveal the dates, times, and persons, including, but not limited toDefendants' employees, representatives, and/or agents, who spoke with Plaintiff; thecontent of those conversations, including, but not limited to information, disinformation,false promises, etc. that form the basis of Plaintiffs causes of action. Plaintiff isinformed, believes and thereon alleges that such discovery and investigation will allowPlaintiff to successfully amend this Complaint to satisfy the requisite specificity forallegations of misrepresentation, as well as for "knowing" or "willful" statutory violations.

Jurisdiction and Venue1 7. Jurisdiction in this Court is proper in that the acts and/or omissions

constituting the basis of this action occurred in the County of San Diego, State ofCalifornia.

1 8. Venue in this Court is likewise proper in that at least one named Defendantis subject to this Court's exercise of personal jurisdiction; thus, all remaining Defendantsmay properly be subject to suit in this Court.

1 9. Any applicable statutes of limitations have been tolled as a result ofDefendants' continuing, knowing, and active concealment and/or suppression of thefacts alleged in this complaint. Despite the exercise of reasonable diligence, Plaintiffcould not have discovered, did not discover, and was prevented from discovering, thewrongdoing herein alleged.'

2 0. In the alternative, Defendants should be estopped from relying on anyapplicable statutes of limitations. As set forth in greater detail below, Defendants'conduct was intended to, and did, induce Plaintiff to refrain from pursuing legal recourseuntil the filing of the instant suit. 2

1 See Cal. Code Civ. Proc. 338(d).2 See Battuello v. Battuello (1998) 64 Cal.App.4th 842 (equitable estoppel used to preclude defendant'sassertion of a statute of limitations defense where defendant's conduct induced plaintiff to forbear fromfiling suit w ithin the applicable limitations period).

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Factual Background2 1 . Plaintiff is a licensed physician, specifically an obstetrician and gynecologist

("OB/Gyn"), who has worked at Scripps Memorial Hospital in Encinitas, California formany years. During that time, he developed a reputation, among patients andcolleagues alike, as a skilled medical practitioner. However, beginning in 2006 andcontinuing to this day, Plaintiff has nevertheless been the target of a calculated andmalicious effort, on the part of a small circle of Scripps physicians, to have himterminated, his medical license revoked, and to seriously jeopardize his future ability topractice medicine. This scheme was nearly accomplished by Defendants' imposition ofunwarranted reporting and proctoring requirements and their biased peer reviewprocedures, culminating in an internal hearing before the Scripps Medical ExecutiveCommittee ("MEC") in late 2009. In that hearing, Plaintiff's counsel successfullyexposed the utter baselessness of each of the multitude of charges lodged against him.After prevailing in May of 2010, Plaintiff resigned and, having since exhausted hisadministrative remedies, brings the instant action against Defendants.

First Cause of Action Intentional Misrepresentation(Against All Defendants)

2 2 . Plaintiff re-alleges and incorporates herein by reference each and everyallegation set forth in paragraphs 1 through 21 of this Complaint.

2 3. As stated above, Defendants routinely and systematically misrepresentedthe standard of care Plaintiff provided by coercing and/or influencing subordinate staff toalter medical documentation to reflect this. Even after Plaintiff's resignation, Defendantsfurther made false and misleading statements to the governing bodies of other SanDiego area hospitals, charging Plaintiff with egregious acts of medical malpractice.

2 4. At the time these representations were made, Defendants were fully awareof their falsity; moreover, the documentation premised upon these false statements wasintended to be relied upon by the MEC, with the aim of influencing the latter torecommend Plaintiffs termination, and to ultimately ruin Plaintiff's career.

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2 5. The MEC took these falsified documents are true and accurate reportsconcerning Plaintiff's medical practice; given that no cause existed to question theirtruth, such reliance was both reasonable and justified.

2 6. As a direct and proximate result of Defendants' numerousmisrepresentations, Plaintiff has suffered, and continues to suffer, damages in anamount to be determined according to proof at the trial of this action.

Second Cause of Action Fraudulent Concealment(Against All Defendants)

2 7. Plaintiff re-alleges and incorporates herein by reference each and everyallegation set forth in paragraphs 1 through 26 of this Complaint.

2 8. Plaintiff and Defendants, as licensed health care providers, were partners ina common enterprise which itself imposed upon all members an affirmative duty totruthfully report all material facts concerning the standard of care being provided.

2 9. By regularly falsifying documentation concerning Plaintiff's performance,Defendants intentionally concealed the truth, namely, that Plaintiff's provision of medicalservices met or exceeded the applicable standard of care at all times. Defendantsfurther intended to deceive each and every party in receipt of such documentation.

30 . Each and every party in receipt of these falsified reports were entirelyunaware of the truth of the matter; moreover, as the reports were purportedly composedby percipient witnesses to Plaintiff's conduct, the parties in receipt thereof were in noposition to discover Defendant's concealment.

31 . As a direct and proximate consequence of Defendants' concealment,Plaintiff has suffered, and continues to suffer, damages in an amount to be determinedaccording to proof at the trial of this action.

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Third Cause of Action Negligent Misrepresentation(Against All Defendants)

32. Plaintiff re-alleges and incorporates herein by reference each and everyallegation set forth in paragraphs 1 through 31 of this Complaint.

33. Defendants, as partners in a common enterprise, were under a continuingduty to exercise the level of care and skill expected of a competent health care provider;moreover, upon undertaking the task of proctoring and reporting Plaintiff, Defendantswere under a duty to do so fairly and accurately.

34. In light of the allegations above, Defendants clearly breached this duty byissuing and/or allowing to be issued the false statements concerning Plaintiff's level ofperformance.

35. As a direct and proximate result of Defendants' negligentmisrepresentations, Plaintiff has suffered, and continues to suffer, damages in anamount to be determined according to proof at the trial of this action.

Fourth Cause of Action Defamation(Against All Defendants)

36. Plaintiff re-alleges and incorporates herein by reference each and everyallegation set forth in paragraphs 1 through 35 of this Complaint.

37. Defendants' malicious campaign against Plaintiff consisted of innumerablefalse statements, made to the MEC, as well as to the governing bodies of local areahospitals and the public at large, and was an attempt to cast serious doubt as toPlaintiff's ability to competently practice medicine.

38. Among countless other acts constituting medical malpractice, thesestatements charged Plaintiff with dereliction of duty, surgery resulting in death,unnecessary surgery, conducting surgery without an assistant, inappropriatecounseling, violation of informed consent, deficient documentation and makingmisleading operating notes.

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39 . Each and every one of these statements was false; moreover, Defendantsmade such statements knowing that they were untrue, and with reckless disregard as totheir ultimate truth or falsity.

40 . As a direct and proximate result of Defendants' conduct in this respect,Plaintiff has suffered harm to his profession; Defendants have effectively made itimpossible to secure a position as a physician at another medical facility within the SanDiego area. As such, Plaintiff has suffered, and continues to suffer, damages in anamount to be determined according to proof at the trial of this action.

First Cause of Action Restraint of Trade(Against All Defendants)

41 . Plaintiff re-alleges and incorporates herein by reference each and everyallegation set forth in paragraphs 1 through 40 of this Complaint.

42 . Per hospital protocol, as well as per custom within the healthcare industry,Plaintiff was precluded from securing a professional position elsewhere while he wasunder investigation by the MEC and as such, subject to mandatory reporting andproctoring requirements.

43 . Beginning in 2006, the MEC's sham investigation effectively amounted to aserious and unreasonable restraint on Plaintiffs ability to practice medicine anywhereother than at Scripps Memorial; Plaintiff was subject to this restraint for nearly fouryears, until his voluntary resignation in May of 2010, after the final MEG hearing.

44 . As a direct and proximate result of such restraint, Plaintiff has suffered, andcontinues to suffer, damages in an amount to be determined according to proof at thetrial of this action.

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Prayer for ReliefWHEREFORE, Plaintiff prays for judgmen t in his favor, and against De fendants,

as it applies to Plaintiffs causes of ac tion, for:(a ) Com pensatory damages, according to proof;(b ) General damages, according to proof;(c ) Special damages, acco rding to proof;(d ) Costs of suit herein incurred;(e ) Any prejudgment interest, according to law; and(f ) Such other and further relief that the Court deem s just and proper.

Jury Trial RequestPlaintiff hereby requ ests a trial by jury of all ma tters so triable as a matter of right

DATED: May 15, 2013ertsA 0rfir Plaintiff,ROBERT M. BITER, M.D.

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Biter v. Scripps et al