KRIEGER v. KHAN (1993)

INTRODUCTION

Robert C. Krieger and Jeri Krieger petition for a writ of mandate by which they seek to compel respondent superior court to vacate its order granting the motions of real parties in interest, Iftikhar Khan, M.D. and Aziz Khan, M.D., to strike the fourth cause of action for fraud from petitioners' first amended complaint.

FACTUAL BACKGROUND

On October 10, 1991, petitioners moved for leave to file a first amended complaint.   They sought to amend the complaint to state a fourth cause of action for fraud and for which they sought an award of punitive damages.

The fourth cause of action alleges the following:  On June 22, 1990, real parties in interest conducted an angiogram, treadmill test and other workup related to Robert Krieger's cardiac condition.   Thereafter, real parties in interest misrepresented to petitioners that the results of the tests performed indicated Robert Krieger required immediate coronary artery bypass surgery.   They also misrepresented that Robert Krieger's condition was critical and, as a consequence, he could not be transported to Phoenix, Arizona for a second opinion.   Additionally, real parties in interest misrepresented that Robert Krieger had had a heart attack.   All of these statements were false, and real parties in interest knew they were false.   Contrary to real parties' representations, they knew Robert Krieger's condition was not life threatening, he safely could be transported to Phoenix, Arizona for a second opinion, immediate bypass surgery was unnecessary and he had not suffered a heart attack.

Real parties in interest made the false representations to induce Robert Krieger to undergo bypass surgery at great expense, thus enriching real parties, and to convince him to forego obtaining a second opinion before proceeding with surgery.   Petitioners had no reason to suspect real parties in interest's representations were false.   Given real parties' apparent expertise, petitioners relied on these representations in deciding Robert Krieger would undergo the recommended coronary artery bypass surgery, as he did on June 23, 1990.   Had Robert Krieger known real parties in interest's representations were false, he would have discontinued their care and treatment of him immediately and would not have undergone surgery on June 23.   As a result of the fraud perpetrated, petitioners suffered significant physical, emotional and financial injury.   Real parties' actions constituted conduct which would justify an award of punitive damages.

Real parties in interest opposed petitioners' motion for leave to file an amended complaint, contending petitioners had made an inadequate showing they were likely to recover on their claim for punitive damages as is required by Code of Civil Procedure section 425.13.   On November 19, 1991, respondent granted petitioners leave to file an amended complaint on the ground section 425.13 did not apply to the fraud cause of action.

Real parties in interest moved for reconsideration of respondent's order;  petitioners opposed the motion.   Respondent denied the motion.   Thereafter, real parties in interest filed separate motions to strike the fourth cause of action of the first amended complaint, citing the recently decided case of Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 10 Cal.Rptr.2d 208, 832 P.2d 924.   Respondent denied the motions on November 2, 1992, holding Central Pathology should not be applied to this case retroactively.

Real parties in interest petitioned this court for writs of mandate and, on November 12, 1992, this court issued alternative writs directing respondent to vacate its order denying the motions to strike the fourth cause of action or show cause why a peremptory writ of mandate should not issue.   On December 2, 1992, respondent complied with the alternative writ by vacating its orders denying the motions to strike and entering new orders granting the motions.   The instant petition followed.

DISCUSSION

Subdivision (a) of Code of Civil Procedure 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 pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.   The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”

Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th 181, 10 Cal.Rptr.2d 208, 832 P.2d 924 construes the phrase “any action for damages arising out of the professional negligence of a health care provider.”   The court assumes the Legislature was familiar with existing statutory definitions of “professional negligence” and intended the existing definition to apply.  (At p. 187, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   Thus, “professional negligence” is “ ‘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 ․, 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.’  [Citations.]”  (Ibid.)

The court then notes it is unclear whether intentional tort causes of action in a professional negligence case “arise out of,” i.e., “originate, grow, or flow from ‘professional negligence.’ ”  (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at p. 188, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   Originally, Code of Civil Procedure section 425.13 provided “No claim for punitive damages against a health care provider 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.”  (Stats.1987, ch. 1498, § 7, p. 5782.)  (Central Pathology Service Medical Clinic, Inc., supra, at p. 188, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   In amending the statute to read as it presently does, the Legislature expressed its concern that the original version was overbroad and might include lawsuits unrelated to the medical practitioner's practice.  (Id. at p. 189, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   The intent of the statute “ ‘was to provide protection to health practitioners in their capacity as practitioners' ” only.  (Ibid., emphasis omitted.)   In short, “[t]he Legislature expressed no intent to extend the protection of the original version of [the statute] to actions unrelated to the practice of a health practitioner.”  (Ibid.)

After examining the intended purpose of the statute and the current state of the law, the court holds:  “[W]henever 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).”  (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at pp. 191–192, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   In determining whether the nature and cause of a plaintiff's injury is directly related to the manner in which professional services were provided, each must be examined.   (Id. at p. 192, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   Hence, a “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.”  (Ibid.)  Similarly, a claim for fraud which emanates from the manner in which defendants performed tests and communicated medical test results falls within the scope of the statute.  (Id. at pp. 192–193, 10 Cal.Rptr.2d 208, 832 P.2d 924.)

The gravamen of petitioners' fourth cause of action is that real parties in interest knowingly and intentionally misrepresented the facts to Robert Krieger so they could enrich themselves by inducing him to undergo unneeded and very costly surgery.   Far from stating a claim which emanates from the manner in which real parties performed tests and communicated medical test results, petitioners allege real parties engaged in a confidence game.   This is no “ordinary and usual part of medical professional services.”  (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at p. 193, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   Rather, it is no different in character from the con-artistry of any snake-oil salesman.   Disregarding test results and fraudulently inducing an individual to undergo unneeded medical treatment cannot be characterized as playing any part whatever in the rendition of professional medical services.   In short, it falls completely outside the realm of medical practice as that term ordinarily is defined.   We hold the Legislature cannot have intended to protect health practitioners from punitive damages claims arising out of this sort of unprofessional, unethical and possibly illegal conduct.   Accordingly, Code of Civil Procedure section 425.13, subdivision (a), does not apply to petitioners' fourth cause of action.

The petition for a writ of mandate is granted.   Let a peremptory writ issue requiring respondent superior court to vacate its orders granting the motions to strike the fourth cause of action of petitioners' first amended complaint and to enter new and different orders denying the motions.

SPENCER, Presiding Justice.

ORTEGA and VOGEL, JJ., concur.