Sample Motion for Punitive Damages 01

_____________________________________________________________________________________________MOTION TO AMEND TO ADD PUNITIVE DAMAGES [C.C.P. § 425.13]

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Kevin G. Liebeck, SBN 224317HODES MILMAN, LLP9210 Irvine Center DriveIrvine, CA 92618-4661Tel: (949) 640-8222Fax: (949) 640-8294

Attorneys for Plaintiffs,DEBORAH SHELLER; KENNETH SHELLER

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,

COUNTY OF ORANGE, CENTRAL JUSTICE CENTER

DEBORAH SHELLER; KENNETH SHELLER,

Plaintiffs,

vs.

ACIC PHYSICAL THERAPY, a business entity, form unknown; ANDREW STEELE, DPT, an individual; and DOES 1 through 30, inclusive,

Defendants.

))))))))))))))))))))

CASE NO.: 30-2008-00113708

Assigned for all purposes to:Judge: Hon. Franz E. MillerDept: C14

NOTICE OF MOTION AND MOTION TO AMEND COMPLAINT TO ADD PUNITIVE DAMAGES

[C.C.P. § 425.13]

[Filed concurrently with: Declaration of Kevin G. Liebeck and Supporting Exhibits; Declaration of Deborah Sheller; Declaration of Joyce Campbell, Ph.D., P.T.; Proposed Order; Proposed First Amended Complaint]

DATE: August 4, 2009TIME: 1:30 P.M.DEPT: C14

Action Filed: October 23, 2008Trial Date: March 15, 2010

TO THE COURT AND TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS

OF RECORD:

PLEASE TAKE NOTICE that on August 4, 2009 at 1:30 P.M. in Department C14 of the

above-entitled court located at 700 Civic Center Drive West, Santa Ana, California,

/ / /


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plaintiffs, DEBORAH SHELLER and KENNETH SHELLER, will and hereby do move for an

Order granting plaintiffs leave to amend their Complaint to include a prayer for punitive

damages against defendants ACIC PHYSICAL THERAPY and ANDREW STEELE, DPT

pursuant to C.C.P. § 425.13.

This motion will be based on this Notice, the attached Memorandum of Points and

Authorities, the Declaration of Deborah Sheller, the Court’s file herein, and on any oral

argument or discussion which may occur at time of hearing.

DATED: June 14, 2009 HODES MILMAN, LLP

By____________________________________ KEVIN G. LIEBECK, ESQ. Attorneys for Plaintiffs, DEBORAH SHELLER; KENNETH SHELLER


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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

This is a medical malpractice action wherein plaintiff DEBORAH SHELLER suffered

severe and permanent injury from the misuse of a powerful ultrasound therapy device. In

summary, plaintiff was attending physical therapy with defendants following a surgery on her

low back. [Sheller Dec. ¶ 2, 3] During that therapy, defendants, without plaintiff’s knowledge

or consent, directed an untrained and unlicensed high-school student to operate, without

supervision of any kind, complicated medical equipment which, in the hands of an untrained

user, is extremely dangerous. [Sheller Dec. ¶ 8, 9, 11, 13, 14; Campbell Dec. ¶ 5] This untrained

and unlicensed high-school student then misapplied ultrasound to Ms. Sheller’s surgical site,

causing heating of the metal hardware on her spine, and literally burning the nerve roots exiting

her lumbar spine and, possibly, the spinal cord itself. [Liebeck Dec., Ex 1, 2, 3] As a result of the

burning of her nerves, Ms. Sheller is severely injured. She has severe neuropathic pain that

cannot be addressed surgically or medically, and her condition continues to degrade. [Liebeck

Dec., Ex 1, 2, 3] As a result of instability due to her nerve damage, Ms. Sheller recently fell,

fracturing her wrist and causing further damage to her spine, for which Ms. Sheller will require

spinal surgery. [Liebeck Dec., Ex 1, 2, 3] She is further beginning to lose control of her bowels

and bladder. [Sheller Dec. ¶ 12] All of this arises from the injury suffered at ACIC, and is the

direct result of defendant’s decision to substitute, without the knowledge or consent of Ms.

Sheller, a high-school student for a trained medical professional.

At the outset of her treatment, defendants were warned that Ms. Sheller had just

undergone a multi-level laminectomy and fusion of her lumbar spine, and that her condition was

such that extreme care and caution needed to be used in performing therapy on her. Defendants

clearly recognized this: defendant Steele informed Ms. Sheller at her first appointment that he

would perform no therapy on her until he had the opportunity to speak to her surgeon regarding

her condition and postponed Ms. Sheller’s first therapy session. Mr. Steele further informed

Ms. Sheller that she would only be seen by him due to the seriousness of her condition. Ms.


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Sheller accepted defendant Steele’s representation, and was very comfortable with ACIC’S

facility, which appeared to her to be state-of-the-art and staffed by trained professionals. [Sheller

Dec. ¶ 4, 5, 6]

For the first few sessions of therapy, Mr. Steele exclusively performed Ms. Sheller’s

treatments, including ultrasound therapy. On or about November 29, 2007, however, Mr. Steele

introduced her to a physical therapist assistant by the name of “Chris” and informed her that

Chris would be performing her exercises that day. Mr. Steele then went through an extensive

demonstration with Chris as to precisely how he wanted Ms. Sheller’s exercises performed.

Chris struck Ms. Sheller as conscientious and professional, and performed Ms. Sheller’s

exercises without any apparent incident. [Sheller Dec. ¶ 6]

At the terminus of Ms. Sheller’s exercises, a female ACIC staffer was instructed to take

Ms. Sheller to a treatment room for ultrasound therapy. She wore no nametag or other

identification, but Ms. Sheller believed her to be a physical therapist. This woman took Ms.

Sheller back to the ultrasound room, prepared her for the treatment, and began performing the

ultrasound. Shortly after the therapy commenced, Ms. Sheller began to feel an odd sensation,

which quickly progressed into a sensation of burning deep beneath her skin. She yelled out that

she was burning, and jumped off of the table. [Sheller Dec. ¶ 7, 8, 9]

The woman performing the ultrasound attempted to resume the treatment, but Ms. Sheller

refused. Ms. Sheller asked her if she had performed ultrasound before and the woman informed

her either that she had performed it once before or that Ms Sheller was the first time. Shocked,

Ms. Sheller asked her if she was a physical therapist, and was informed that she was not. The

woman informed her she was a high-school student, and was working there in order to obtain

five credits toward her graduation. Indeed, the woman informed her that she was not even in

training to be a physical therapist. [Sheller Dec. ¶ 10]

Ms. Sheller consented to be treated by trained physical therapy professionals, not high-

school students in an elective course. Had Ms. Sheller been aware of the fact that this individual

was a high-school student, unlicensed, untrained and unskilled in physical therapy, she would not

have consented to the treatment. [Sheller Dec. ¶ 13, 14]


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II.

THERE IS A SUBSTANTIAL PROBABILITY THAT PLAINTIFF

WILL PREVAIL ON HER CLAIMS OF FRAUD AND BATTERY

Pursuant to C.C.P. § 425.13, where a medical-malpractice plaintiff demonstrates a

substantial probability that she will prevail on a claim for punitive damages under Civil Code §

3294, the court may allow plaintiff to file an amended complaint seeking punitive damages.

In evaluating a C.C.P. § 425.13 motion, the weight of the proffered evidence, and

defendants ability to supply contrary allegations, is not in issue before the court. In Looney v.

Superior Court (1993) 16 Cal.App.4th 521 the court made very clear that the only required

showing was a set of facts that, if credited by the trier of fact, would sustain a favorable verdict:

“We therefore conclude that, in the words of the Hung court, it is only necessary that plaintiff

provide “a sufficient prima facie showing of facts to sustain a favorable decision if the evidence

submitted by the [plaintiff] is credited.” [citation omitted] The trial court is not required to make

any factual determination or to become involved in any weighing process beyond that

necessarily involved in deciding whether a prima facie case for punitive damages exists. Once

the court concludes that such a case can be presented at trial it must permit the proposed

amended pleading to be filed.” [Looney v. Superior Court, supra,16 Cal.App.4th 521 at 539].

Here, plaintiff can demonstrate that she is entitled to punitive damages at this stage

because defendant’s conduct, if accepted by the trier-of-fact, establishes a prima facie showing

of “malice, oppression or fraud,” as required under Civil Code § 3294.

A. Fraud:

Defendant’s conduct constitutes fraud as defined by Civil Code § 3294. Stevens v.

Superior Court, 180 Cal.App. 3d 605 is almost precisely analogous to the situation here in issue.

In Stevens, a hospital permitted foreign physicians to perform procedures on patients without

supervision, and without informing patients of the fact that said physicians were not licensed to

practice medicine in the State of California. The court found that “The concealed lack of

required supervision and medical qualification is a fact material to the patient-health care

provider transaction and defendant hospital had a duty to disclose.” (Stevens, supra at 610)


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The Stevens court went on to hold that an action for fraud and deceit based on

concealment exists where (1) the defendant concealed or suppressed a material fact; (2) the

defendant had a duty to disclose the fact to the plaintiff; (3) the defendant intentionally concealed

or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff was unaware of the

fact and would not have acted as he did if he had known of the concealed or suppressed fact; and

(5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained

damage. (Stevens, supra at 609, FN3)

Here, plaintiffs meet the aforementioned elements of fraud as follows: (1) defendants

concealed from plaintiff the material fact that the person who would be performing ultrasound on

her was an unlicensed, untrained high-school student [Sheller Dec. ¶ 13, 14; Campbell Dec. ¶ 6,

7]; (2) that is a fact which, pursuant to Stevens, and the accepted standard of care for physical

therapists, defendants had a duty to disclose [Campbell Dec. ¶ 6, 7]; (3) such concealment was

intentional—the high-school student who performed ultrasound on Ms. Sheller was not wearing

the identification required of aides in a physical therapy center, and Mr. Steele was well aware of

the fact that Ms. Sheller was someone who was very sensitive about her condition and extremely

unlikely to permit anyone who was not experienced in physical therapy to perform any procedure

on her. As such, Mr. Steele knew full-well that Ms. Sheller would not permit an unlicensed,

untrained high-school student to perform ultrasound on her, and with intent to defraud Ms.

Sheller into believing she was in the care of a trained and licensed professional, actively

concealed from her that pivotal fact.1 [Sheller Dec. ¶ 4, 5, 13, 14; Campbell Dec. ¶ 6, 7] (4) Ms.

Sheller was unaware of the fact that the person performing the ultrasound procedure on her was

an unlicensed, untrained high-school student until after she had been injured [Sheller Dec. ¶ 13,

14] and (5) the ultrasound applied by this unlicensed, untrained high-school student caused

severe injury to the nerves in her back. [Sheller Dec. ¶ 12; Liebeck Dec. Ex. 1, 2, 3]

1 Further, placing Ms. Sheller’s specific health issues aside, plaintiffs would note that it is absurd to imagine that anyone would knowingly permit an unlicensed, untrained, and unsupervised high-school student to perform a medical procedure on them using a complex and powerful piece of equipment which, if used improperly, could and would cause severe and permanent injury.


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Should the allegations of fact in the foregoing paragraph be credited by the jury in this

matter, a finding of fraud would be had and plaintiff would be entitled to punitive damages under

Civil Code § 3294. As such, plaintiff has met her burden under C.C.P. § 425.13, and this court

should permit plaintiff to amend her complaint to add a prayer for punitive damages.

B. Battery:

Battery is defined as “…an offensive and intentional touching without the victim’s

consent.” Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645. In medical malpractice

situations, “[w]here a doctor obtains consent of the patient to perform one type of treatment and

subsequently performs a substantially different treatment for which consent was not obtained,

there is a clear case of battery.” Cobbs v. Grant (1972) 8 Cal.3d 229, 239. Further, “Even where

the particular treatment is by consent, mishandling of the patient or use of unnecessary force is

tortuous.” (Witkin Summary of California Law (10th Ed.), Vol. 5, Torts, Assault and Battery, §

394 Exceeding Scope of Consent).

In the instant situation, the holding of Stevens v. Superior Court, 180 Cal.App. 3d 605,

610 that “The concealed lack of required supervision and medical qualification is a fact material

to the patient-health care provider transaction and defendant hospital had a duty to disclose” is

further instructive, in that it demonstrates that, from a legal perspective, the skill and certification

of the person performing an otherwise consented-to procedure is material to the question of

consent.

Here, although Ms. Sheller consented to the ultrasound treatment, she did so while under

the erroneous belief that the person performing the procedure was a licensed, trained, qualified

professional. [Sheller Dec. ¶ 13, 14] That belief was certainly reasonable—few patients would

imagine that an ostensibly professional physical therapy center would permit a high-school

student, with no training or experience, to perform a potentially dangerous medical procedure on

them—but that is just what defendants herein did. Defendants had, under the Stevens holding, a

duty to inform her of the fact that the person performing the procedure was not licensed or

qualified to do so. They had a duty under the standard of care for physical therapists to inform

Ms. Sheller that this individual was not a physical therapist. [Campbell Dec. ¶ 6, 7], they had a


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duty to ensure that this individual wore identification clearly identifying her as an aide or intern

so that patients, such as Ms. Sheller, would not mistakenly believe her to be a physical therapist

[Campbell Dec. ¶ 6, 7] Finally, defendants had a duty, pursuant to Business & Professions Code

§ 2630 and Title 16, California Code of Regulations § 1399 to directly supervise aides and

interns in the performance of patient-related tasks. [Campbell Dec. ¶ 8, 9, 10] Defendants failed

to do any of these things, and in fact the employment of an unlicensed, untrained high-school

student in such a setting represents the illegal use of assistive personnel. [Campbell Dec. ¶ 8, 9,

10, 11, 12]

As noted in Ms. Sheller’s declaration, her consent to be touched by ACIC staff was

limited to persons who were trained, qualified, and acting within the law. At no time did she

consent to have physical therapy modalities performed on her by untrained, unlicensed aides or

interns, and had she been informed that the person who would be performing her therapy was so

situated, she would have refused to be treated by them. [Sheller Dec. ¶ 13, 14]

Should the allegations of fact in the foregoing section be credited by the jury in this

matter, a finding of battery would be had and plaintiff would be entitled to punitive damages

under Civil Code § 3294, as the act of substituting a high-school student for a licensed physical

therapist clearly constitutes oppression, fraud, or malice. As such, plaintiff has met her burden

under C.C.P. § 425.13, and this court should permit plaintiff to amend her complaint to add a

prayer for punitive damages.

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III.

CONCLUSION.

In the interests of justice, plaintiff Deborah Sheller respectfully requests that this court

grant leave to amend his complaint to request a prayer for punitive damages. Good cause exists

in that plaintiff possesses facts supporting plaintiff’s claims for fraud and battery against

defendants, and this evidence establishes a substantial probability of plaintiff’s success on those

claims that entitle her to punitive damages.

DATED: June 14, 2009 HODES MILMAN, LLP

By____________________________________ KEVIN G. LIEBECK, ESQ. Attorneys for Plaintiffs, DEBORAH SHELLER; KENNETH SHELLER

Documents

Sample Motion for Punitive Damages 01