CEDARS SINAI MEDICAL CENTER v. BOWYER

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Court of Appeal, Second District, Division 7, California.

CEDARS–SINAI MEDICAL CENTER, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. Kristopher Schon BOWYER, a Minor, etc., Real Party in Interest.

No. B095038.

Decided: March 13, 1996

O'Flaherty & Belgum and Robert M. Dato, Santa Ana, for Petitioner. Horvitz & Levy, David S. Ettinger and Julie L. Woods, Encino, as Amici Curiae on behalf of Petitioner. No appearance for respondent. Nathaniel J. Friedman and Howard Smith, Los Angeles, for Real Party in Interest.

Petitioner Cedars–Sinai Medical Center (“Cedars”) contends that under College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 34 Cal.Rptr.2d 898, 882 P.2d 894, real party in interest Kristopher Schon Bowyer (“Bowyer”) failed to offer admissible evidence demonstrating a prima facie case entitling him to punitive damages against a health care provider as required by Code of Civil Procedure section 1 425.13.   We conclude that section 425.13 is not applicable to this case and deny the petition for a writ of mandate.

FACTUAL AND PROCEDURAL SYNOPSIS

On July 21, 1995, Bowyer filed a motion for leave to file a third amended complaint to add a claim for punitive damages pursuant to section 425.13.2  In the first cause of action of the proposed third amended complaint, Bowyer alleged that Cedars and the other defendants were negligent in the delivery of Bowyer, resulting in severe and permanent injury.   The second cause of action for negligent spoliation of evidence alleged that certain medical records, including the fetal monitoring strips 3 from delivery, were missing.   The third cause of action for intentional spoliation alleged that:  “This pattern of ‘missing’ records, all of which relate to the specific identification of obstetrical risk factors, and which are the only records ‘missing’ from the medical records of RHONDA BOWYER and KRISTOPHER SCHON BOWYER are indicative of a knowing and purposeful removal of said records after the events which became the subject of litigation between Plaintiff and Defendant CEDARS.”   The third cause of action further alleged that the missing records interfered with his ability to prove his allegations of medical malpractice.

With his motion, Bowyer submitted declarations from his attorneys essentially stating that they believed the fetal monitoring strips had been purposefully destroyed by Cedars' agents, the action had been taken with the express authorization of a managerial agent, and it was highly improbable that only those specific and essential records would be missing.   Bowyer also attached pages from the deposition of Cedars' custodian of records to the effect that she did not know what had become of the missing records and her inquiries of other personnel had been unsuccessful.   Cedars did not file any declarations in opposition to the motion.

In granting the motion to amend, the court stated that it was a matter of permissible pleading, not proof.

Cedars filed a petition for a writ of mandate, requesting that this court direct the superior court to vacate its order granting Bowyer leave to amend.   This court summarily denied the petition citing Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191–192, 10 Cal.Rptr.2d 208, 832 P.2d 924.   Cedars then filed a petition for review in the California Supreme Court asserting that writ relief was necessary to determine whether Bowyer's intentional spoliation claim was subject to section 425.13.   Citing pages 719–720, 34 Cal.Rptr.2d 898, 882 P.2d 894 of College Hospital Inc. v. Superior Court, supra, 8 Cal.4th 704, 34 Cal.Rptr.2d 898, 882 P.2d 894, the Supreme Court granted the petition for relief and transferred the matter back to this court with directions to issue an alternative writ.   This court issued the alternative writ.

DISCUSSION

 Cedars contends that the permissible pleading standard used by the court was contrary to law.   However, before considering that issue, this court must determine whether Bowyer's cause of action for intentional spoliation of evidence was subject to section 425.13.   Because the relevant facts are not in dispute, the application of the statute may be decided as a question of law (cf.  International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611, 38 Cal.Rptr.2d 150, 888 P.2d 1279), subject to independent review (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888, 264 Cal.Rptr. 139, 782 P.2d 278).

In relevant part, subdivision (a) of section 425.13 provides:

“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.   The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended complaint and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.”  (Emphasis added.)

In Central Pathology, the seminal case interpreting section 425.13, plaintiffs filed a complaint based on the failure of defendants to care for and treat the wife.   Plaintiffs moved for leave to file an amended complaint seeking to add causes of action for fraud and intentional infliction of emotional distress.   The complaint alleged the physician and the laboratory failed to notify the wife that she was developing cancer when a pap smear revealed the presence of abnormal cells, the laboratory fraudulently failed to notify her that she should be retested, and the physician denied using the laboratory in an effort to cover up the malpractice.

In arriving at the conclusion that identifying a cause of action as an intentional tort rather than as negligence did not necessarily remove it from the purview of section 425.13, the court considered the meaning of the critical words “professional negligence” and “arising out of” used in section 425.13, subdivision (a).  (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th 181, 186–192, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   The court determined that the Legislature intended to apply the existing definition of “professional negligence” as “ ‘a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.’ ”   (Id., at p. 187, 10 Cal.Rptr.2d 208, 832 P.2d 924.)

Next, the court turned to the question of whether an intentional tort could “arise out of” professional negligence.   As the question was not answered by the words of the statute, the court turned to the legislative history of the statute.  (Id., at p. 188, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   The court noted that as the statute was not limited to medical malpractice when it was originally enacted, the Legislature was concerned that the original version was overbroad in that it could apply to any lawsuit against any health care provider, including “lawsuits unrelated to the practitioner's practice, such as defamation, fraud, and intentional torts.”  (Original italics.)  (Id., at pp. 188–189, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   The intention of the author of the original version “ ‘was to provide protection to health practitioners in their capacity as practitioners.’ ”  (Original italics.)  (Id., at p. 189, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   However, “lawsuits unrelated to a practitioner's conduct in providing health care related services were intended to be excluded from the ambit of section 425.13.”  (Original italics.)   (Id., at p. 190, 10 Cal.Rptr.2d 208, 832 P.2d 924.)

In key language, the court stated:  “We hold that whenever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such, then the action is one ‘arising out of the professional negligence of a health care provider,’ and the party must comply with section 425.13(a).  [¶] ․ The allegations that identify the nature and cause of a plaintiff's injury must be examined to determine whether each is directly related to the manner in which professional services were provided.   Thus, a cause of action against a health care provider for battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13 because the injury arose out of the manner in which professional services are provided.   By contrast, a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute because the defendant's conduct would not be directly related to the manner in which professional services were rendered.”  (Emphasis added.)   (Id., at pp. 191–192, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   Thus, Central Pathology requires that both the nature and cause of the injury for which recovery is sought bear a direct relationship to the manner in which professional services were rendered.   The requisite direct relationship must be to “a matter that is an ordinary and usual part of medical professional services.”  (Id., at pp. 192–193, 10 Cal.Rptr.2d 208, 832 P.2d 924.)

The California Supreme Court, in a subsequent case, observed:  “Because the intentional misconduct alleged in Central Pathology concerned the manner in which medical services were performed, the plaintiff should have been required to comply with section 425.13(a).”  (College Hospital Inc. v. Superior Court, supra, 8 Cal.4th 704, 714, 34 Cal.Rptr.2d 898, 882 P.2d 894.)   The court also noted that it previously had “determined the actions to which the statute applies—those involving the quality and nature of health services.”   (Id., at p. 709, 34 Cal.Rptr.2d 898, 882 P.2d 894.)

In Davis v. Superior Court (1994) 27 Cal.App.4th 623, 33 Cal.Rptr.2d 6, plaintiff alleged that physician/defendant had misrepresented that he would properly treat plaintiff and that he was qualified to perform certain medical procedures, defendant lied about plaintiff's medical condition and falsified his findings—all as part of a fraudulent scheme with the workers' compensation carrier to deprive plaintiff of his workers' compensation benefits.   The court determined that plaintiff was seeking damages from an injury directly related to the professional services rendered by defendant acting in his capacity as a health care provider, and thus plaintiff was required to comply with section 425.13.  (Id., at p. 629, 33 Cal.Rptr.2d 6.)

The court rejected plaintiff's argument that the conduct did not arise out of professional negligence because it was based on criminal conduct and instead focused on the physician's conduct.  (Id., at pp. 627–629, 33 Cal.Rptr.2d 6.)   The court reasoned:  “If the acts performed were those in which a medical practitioner ordinarily would be expected to perform in his or her capacity as a health care provider, we then examine the misrepresentation allegedly made.   If it relates to the acts performed by the physician in his or her capacity as a health care provider, as a matter of law the misrepresentation occurred during the rendition of medical services and section 425.13(a) applies.”  (Id., at p. 629, 33 Cal.Rptr.2d 6.)

In the case at bar, Bowyer alleged that there was a pattern of missing records (purposefully removed after the events which had become the subject of litigation between the parties) relating to the specific identification of obstetrical risk factors and that the missing records interfered with his ability to prove his allegations of medical malpractice.

 The tort alleged in this case was the intentional spoliation of evidence.  “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation.”  (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907, 48 Cal.Rptr.2d 607.)   In Augusta v. United Service Automobile Assn. (1993) 13 Cal.App.4th 4, 8–10, 16 Cal.Rptr.2d 400, the court concluded that a cause of action for spoliation of evidence was subject to the two year statute of limitations because it involved an infringement of a “property right” rather than a “personal right.” 4  The interest interfered with by the tort of spoliation of evidence is the possibility of winning a law suit.  (See Smith v. Superior Court (1984) 151 Cal.App.3d 491, 502–503, 198 Cal.Rptr. 829;  Willard v. Caterpillar, Inc., supra, 40 Cal.App.4th 892, 911, 48 Cal.Rptr.2d 607.)

 “The measure of harm is the effect of the spoliation on the plaintiff's ability to establish his case.  [Citation.]  The harm flowing from spoliation is to a prospective pecuniary interest, a ‘less heavily’ protected harm under the Restatement.  [Rest.2d Torts § 870, com. f, p. 283.]   However, when the prospective economic harm impacts the plaintiff's ability to obtain compensation for physical harm to his person, the economic harm may be deserving of more weight in the determination of whether to impose tort liability.”  (Willard v. Caterpillar, Inc., supra, 40 Cal.App.4th 892, 918, 48 Cal.Rptr.2d 607.)

In Coca–Cola Bottling Co. v. Superior Court, supra, 233 Cal.App.3d 1273, 286 Cal.Rptr. 855, the court held that an employee's cause of action against his employer for negligent spoliation of evidence needed for the employee's third party action was not barred by the exclusivity provisions of the Workers' Compensation Act.   Although not precisely analogous, in that case, the court determined that an injury had to be proximately caused by employment to be covered by workers' compensation.   In the instant case, in order to be covered by section 425.13, the injury had to be directly related to professional services.

The court noted:  “The injury alleged was the disappearance of the evidence which the Joneses allegedly needed to provide their third-party, civil action against Ford and/or County.   This is not an injury (physical, emotional or both) to the person of Jones, the injured employee.   It is an injury to the Joneses' property interests, i.e., an interference with a valuable, probable expectancy of prevailing in their third party actions, particularly against Ford.   It is an interference with the prospective economic advantage they allegedly stand to obtain if they can prove their civil action against either Ford or County.”  (Original italics.)  (Id., at p. 1289, 286 Cal.Rptr. 855.)

The court concluded:  “Here, the Joneses' compensable injury (injury to Jones' person and to his wife's marital relationship with him) and noncompensable injury (the loss of the evidence necessary to prove the Joneses' third-party action) did not even arise from the same general set of facts.   The compensable injury occurred when the vehicle Jones was testing overturned.   The noncompensable injury occurred at least several years later, when various parts from that vehicle disappeared.   Furthermore, the two separate fact situations here—the accident and the loss of evidence—establish the invasion of separate and distinct rights:  the right to be free from bodily injury, and the right to be free from tortious interference with prospective economic advantage.”   (Id., at p. 1291, 286 Cal.Rptr. 855.)

In Jablonski v. Royal Globe Ins. Co. (1988) 204 Cal.App.3d 379, 251 Cal.Rptr. 160, an injured employee and his wife sued his employer's workers' compensation insurer and its agents for numerous causes stemming from the denial of coverage for a work-related injury.   In concluding that plaintiffs could state a cause of action for spoliation of evidence, the Court of Appeal reasoned:  “But when the intentionally destroyed evidence relates to a cause of action which is outside the sphere of the workers' compensation system by virtue of the carrier's reprehensible conduct, then a civil action at law for intentional spoliation of evidence lies against the insurer and its agents.   For it follows that if fraud on the part of the carrier is sufficient to take the offending insurer outside of the protection of the Act, then the intentional destruction of evidence of that fraud would for the same reasons cause the forfeiture of its immunity.   Any other rule would permit an insurer to profit by the destruction of evidence of its own fraud.”  (Id., at p. 394, 251 Cal.Rptr. 160.)

The crux of the dispute in this case is the question of whether or not Bowyer's claim for intentional spoliation of evidence is directly related to the professional services provided by Cedars.   Noting that it has a duty to retain medical records (see Cal.Code Regs., tit. 22, § 70751(a)), Cedars contends that the allegations of Bowyer's complaint are no different than the allegations of fraud/cover up which the court in Central Pathology determined were subject to section 425.13.   Although the claim that Cedars intentionally destroyed medical records certainly is related to the medical services provided by Cedars, we conclude that the claim is only indirectly related to those services, and thus it does not fall within the ambit of section 425.13.

 Section 425.13 applies when the injuries alleged arose out of professional negligence.  (Williams v. Superior Court (1994) 30 Cal.App.4th 318, 324, 36 Cal.Rptr.2d 112.)  “The test of whether a health care provider's negligence constitutes professional negligence is whether the negligence occurred in rendering services for which the health care provider is licensed.”  (Id., at pp. 324–325, 36 Cal.Rptr.2d 112.)   Thus, the professional services relevant here are professional medical health-related services.

 In Central Pathology, the physician's alleged misrepresentation about not using the laboratory probably occurred after the time of treatment.   In Davis, some of the fraud was alleged to have been committed prior to the formation of the provider/patient relationship.   Unlike those cases, but similar to Coca–Cola, the misconduct alleged here (the destruction of medical records), occurred after the medical services had been rendered.   Although maintaining and referring to medical records is part and parcel of a patient's treatment, i.e., it is directly related to professional services, safeguarding medical records is akin to ordering supplies and accounting services.   Safeguarding records is not an ordinary and usual part of rendering medical services.

Moreover, at the time of Bowyer's injury from spoliation (the disruption to a possible lawsuit), Cedars was not rendering services for which it was licensed.   Even if Cedars did not commit professional negligence, it could still have committed spoliation of evidence.   Bowyer's various causes of action seek to recover for different types of injuries.   The nature and cause of the injury due to spoliation of evidence is different from that resulting from professional negligence.   The damages from spoliation of evidence are not directly related to the manner in which the professional services were rendered and, therefore, did not arise out of professional negligence.   Accordingly, we conclude that the tort of intentional spoliation of evidence falls within the category of unrelated intentional torts that the Legislature intended to be excluded from the purview of section 425.13.

As we have determined that Bowyer's cause of action for intentional spoliation of evidence is not subject to section 425.13, we need not address whether the evidence submitted with the motion for leave to amend established a substantial probability that he would prevail on that claim.  (Nicholson v. Lucas (1994) 21 Cal.App.4th 1657, 1664, 26 Cal.Rptr.2d 778 [“A decision which is correct on any legal theory will be affirmed.”].)

DISPOSITION

The alternative writ is discharged.   The petition for a writ of mandate is denied.   Real party in interest to recover costs of this appellate proceeding.

FOOTNOTES

FN1. Unless otherwise noted, all statutory references are to the Code of Civil Procedure..  FN1. Unless otherwise noted, all statutory references are to the Code of Civil Procedure.

2.   The motion did not concede the applicability of section 425.13.

3.   According to Cedars, fetal monitoring strips are a graphic representation of the baby's heart rate during delivery.

4.   An injury is of two kinds;  (1) to the person, and (2) to property:  An injury to property consists in depriving its owner of the benefit of it, which is done by taking, withholding, deteriorating, or destroying it, and every other injury is an injury to the person.   (Coca–Cola Bottling Co. v. Superior Court (1991) 233 Cal.App.3d 1273, 1287, 286 Cal.Rptr. 855.)

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.

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