Opinion
F076824
04-16-2020
FOSTER TAFT, Plaintiff and Appellant, v. SUKHVINDER BHAJAL et al., Defendants and Respondents.
Foster Taft, in pro. per., for Plaintiff and Appellant. Salinas Law Group, Richard Salinas, and Stacy R. Lucas for Sukhvinder Bhajal, Defendant and Respondent. Shook, Hardy & Bacon, Frank C. Rothrock, Eva M. Weiler, and Victoria P. McLaughlin for Basic Scientific Corporation, Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. VCU268870)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. David C. Mathias, Judge. Foster Taft, in pro. per., for Plaintiff and Appellant. Salinas Law Group, Richard Salinas, and Stacy R. Lucas for Sukhvinder Bhajal, Defendant and Respondent. Shook, Hardy & Bacon, Frank C. Rothrock, Eva M. Weiler, and Victoria P. McLaughlin for Basic Scientific Corporation, Defendant and Respondent.
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After his father died, plaintiff/appellant Foster Taft sued defendants/respondents Sukhvinder Bhajal, M.D. (Dr. Bhajal) and Boston Scientific Corporation (BSC or Boston Scientific). He generally alleged that respondents failed to provide certain medical records; that Dr. Bhajal committed malpractice leading to plaintiff's father's death; and that an implanted defibrillator from Boston Scientific "failed" to render treatment, leading to plaintiff's father's death. The trial court sustained respondents' demurrers to a second amended complaint without leave to amend.
We conclude the trial court properly sustained the demurrer without leave to amend as to the first through fifth causes of action. However, we conclude that leave to amend should have been granted as to the cause of action for wrongful death (i.e., the sixth cause of action). Therefore, we will reverse the judgments of dismissal and remand.
FACTS
On March 14, 2017, plaintiff filed a civil complaint against respondents. The complaint alleged that plaintiff's father died on March 15, 2016. At the time, plaintiff's father had an implanted defibrillator "from" Boston Scientific Corporation. A download of information from the device indicated that the device registered "[e]vents" as having occurred on March 12, March 14, and March 15. The device produced an "eGram" (or ECG) for March 15. A BSC technician indicated there was no eGram for March 12 or March 14, and that no more data was on the device.
The complaint also named Dennis Johnson, M.D., as a defendant. Plaintiff voluntarily dismissed Dr. Johnson from this appeal.
At some later point in time, BSC explained to plaintiff that the device's "storage capacity was limited, to about 17 minutes, [and] the device could and would overwrite old information with new information." The complaint further alleged that "[a]lthough data (egrams, ECG's) is periodically uploaded from devices to BSC, [plaintiff] was told by BSC that any inquiries for data had to be directed to the physician."
Plaintiff's father's widow, Mary, requested medical records from Dr. Bhajal. Thereafter, plaintiff received an eGram from March 12, but not for March 14. Dr. Bhajal ignored several follow-up requests for more records before eventually referring Mary back to Boston Scientific.
The complaint alleges that on March 7, 2017, plaintiff was informed by a "paid consultant" that "the March 14th event probably was never recorded. It would have been considered relatively benign and the limited space would be preserved for more important events."
The complaint asserted causes of action for provision of medical records under Health and Safety Code section 123110; intentional infliction of emotional distress; negligent infliction of emotional distress; medical malpractice; product liability; and wrongful death. The two infliction of emotional distress causes of action were based on the alleged failure to provide medical records. The complaint sought $2 million in damages, plus punitive damages and an order compelling Boston Scientific to maintain all records for one year.
Subsequent Pleadings
On April 21, 2017, plaintiff filed a first amended complaint (FAC), alleging the same six types of claims. Dr. Bhajal and Boston Scientific filed a demurrer, contending each cause of action in the FAC was uncertain and failed to state sufficient facts to support the cause of action. (Code Civ. Proc., § 430.10, subds. (e) & (f).) Boston Scientific also alleged that plaintiff's causes of action were barred by the express preemption clause of the Medical Device Amendments to the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 360k, subd. (a) (FDCA)), as interpreted in Riegel v. Medtronic, Inc. (2008) 552 U.S. 312.
The court sustained Dr. Bhajal's demurrer as to all causes of action, with leave to amend.
Boston Scientific says the court also sustained its demurrer to the FAC. Boston Scientific included in its Respondent's Appendix what appears to be a web printout of the "Case Detail Page" from the superior court's webpage. The document has the date "11/15/2018" at the top. The document has an entry indicating the court sustained Boston Scientific's demurrer to the FAC.
This document was clearly created after the notice of appeal was filed in this case and would, therefore, not be a document in the superior court file. An appendix must only consist of "accurate copies of documents in the superior court file." (Cal. Rules of Court, rule 8.124(g).)
The court also granted, in part, a motion to strike filed by Dr. Bhajal. The court struck plaintiff's prayer for punitive damages and attorney fees.
On August 18, 2017, plaintiff filed a second amended complaint (SAC). The SAC expanded the allegations pertaining to the medical malpractice cause of action, alleging that Dr. Bhajal failed to optimize plaintiff's father's cardiac output, failed to measure his oxygen saturation levels, and failed to prescribe supplemental oxygen. These failures, the SAC alleges, caused him to die sooner than he otherwise would have.
The SAC also expanded the allegations as to the product defect cause of action. The SAC alleged that plaintiff's father died from ventricular fibrillation, and yet the implanted defibrillator indicated that it did not render "treatment" to save the patient. This, the SAC asserts, caused the patient's death.
Defendants filed a demurrer to the SAC. The court sustained the demurrers, this time without leave to amend.
As to the first cause of action (i.e., provision of medical records), the court noted the SAC "asserts nothing to suggest either individual doctor has or ever had the requested data in their records. [The SAC] alleges a representative from Defendant Boston Scientific provided Plaintiff with all data on the device after decedent's death." Therefore, the court held that the first cause of action failed to state sufficient facts. The second and third causes of action, for negligent and intentional infliction of emotional distress based on the failure to provide records, failed for the same reason.
As to the fourth cause of action (i.e., medical malpractice), the court held the SAC failed to state facts showing Dr. Bhajal had a duty to plaintiff's father; that he breached any such duty; that any such breach was the proximate cause of any harm; or that treatment fell below the proper standard of medical care. The court also held that Boston Scientific is a medical device manufacturer, not a medical provider, and therefore was not subject to a medical malpractice claim.
As to the fifth cause of action (i.e., product defect), the court held the SAC failed to state any facts showing Dr. Bhajal was responsible for the alleged product defects.
The court also held that plaintiff lacked standing to bring his fourth and fifth causes of action. The court held decedent's claims must be brought by the decedent's personal representative (Code Civ. Proc., § 377.30), which was Mary, not plaintiff.
As to the fifth and sixth causes of action against Boston Scientific, the court held:
"To the extent [plaintiff] asserts the implant was functioning properly and complains about an inadequate design, his claims appear preempted by the Medical Device Amendments to the federal Food, Drug and Cosmetics Act, 21 USC 360k; Riegel v. Medtronic, Inc.[, supra,] 552 U.S. 312. [Plaintiff's] assertion in his opposition to the demurrer that preemption should not apply is not supported by adequate authority or by sufficient factual allegations. [¶] Any allegation that the device might have malfunctioned is limited to the assertion that it did not record an 'egram' for March 14th. There are no facts to establish how the failure of this recording might have contributed to the death of [plaintiff's] father thus rendering any claim for wrongful death inadequate ([] Sixth Cause of Action). There are no facts asserting that this device malfunctioned in some other manner. [Plaintiff's] product liability claim (Fifth Cause of Action) is also not supported by sufficient facts to state a claim against the BSC."
The court also concluded the sixth cause of action (i.e., wrongful death) was "vague and uncertain" and failed to state sufficient supportive facts.
Finally, the court noted that plaintiff had three previous attempts to state causes of action. And nothing in plaintiff's filings opposing the demurrers suggested he could amend the complaint successfully. Therefore, the court denied leave to amend. Plaintiff appeals.
The court also denied as moot a motion by plaintiff to file "all" health records in the case "under seal." Given that the court did not address the merits of plaintiff's motion, and we have reversed the judgment of dismissal, plaintiff may renew the motion below, and the trial court may rule on its merits in the first instance.
Though plaintiff improperly appealed from the order sustaining the demurrers, rather than from a judgment of dismissal, we previously deemed this appeal to be from the judgment rather than the order sustaining the demurrers.
Appellant's briefs are rife with factual references without citations to the record. Even when appellant attempts to cite the record, his citations are unclear. We address plaintiff's contentions as best we can understand them.
DISCUSSION
"The function of a demurrer is to test the sufficiency of the [pleading] as a matter of law, and it raises only a question of law. [Citations.] On a question of law, we apply a de novo standard of review on appeal. [Citation.]" (First Aid Services of San Diego, Inc. v. California Employment Development Dept. (2005) 133 Cal.App.4th 1470, 1476.)
" ' " 'When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.' " ' [Citation.] In making this determination, we must accept the facts pleaded as true and give the complaint a reasonable interpretation. [Citation.]" (Mathews v. Becerra (2019) 8 Cal.5th 756, 761-762.) However, we do not accept as true "contentions, deductions, or conclusions of fact or law." (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.)
"The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.]" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, italics added.) I. First, Second and Third Causes of Action
With limited exceptions, the personal representative of a patient is "entitled to inspect patient records upon presenting to the health care provider a request for those records and upon payment of reasonable costs ...." (Health & Safety Code, § 123110, subd. (a).) " 'Patient records' means records in any form or medium maintained by, or in the custody or control of, a health care provider relating to the health history, diagnosis, or condition of a patient, or relating to treatment provided or proposed to be provided to the patient." (§ 123105, subd. (d).) " 'Patient records' does not include information contained in aggregate form, such as indices, registers, or logs." (Ibid.)
The personal representative may also obtain paper copies of the records after paying for the costs of making the copies. (Health & Safety Code, § 123110, subd. (b)(1).) The health care provider must transmit the copies to the representative within 15 days of receiving the request. (Ibid.)
Plaintiff spends much of his brief arguing that various elements of the statute are satisfied here - e.g., that Dr. Bhajal qualifies as a "health care provider" under the statute. However, the grounds for sustaining the demurrer were not that the statute does not apply on its face. Rather, that the SAC does not allege Dr. Bhajal has the requested records. Indeed, the SAC alleges that a Boston Scientific technician "reported" that the provided records were "all that was available, and on the device." It further avers that Dr. Johnson told plaintiff he did not have the March 14 ECG; and that Dr. Bhajal's office told Mary they could not provide any more records. Finally, the SAC alleges that a consultant informed plaintiff "the March 14th event probably was never recorded," and that "[i]t would have been considered relatively benign and the limited space would be preserved for more important events."
Neither does the SAC allege facts showing Boston Scientific withheld records. The SAC alleges that a Boston Scientific technician "reported" that the provided records were "all that was available, and on the device."
Plaintiff notes that the SAC does not allege the technician's comment was accurate or truthful. This is true, but neither does the SAC allege facts showing Boston Scientific or Dr. Bhajal actually have records they are refusing to turn over.
When taken as a whole and given a fair reading, the SAC alleges that the device should have created and retained a record of the March 14 eGram, but apparently failed to do so. And it is axiomatic that a health care provider cannot be required to provide records that do not exist.
In his reply brief, plaintiff argues that the SAC says Boston Scientific failed to respond to a request for all 2016 and 2015 ECGs. He contends this allegation "clearly means" that "all 2016 and December 2015 ECGs were not provided." However, as noted above, the SAC makes clear that ECGs from February 12, 2016, and March 15, 2016, were provided to plaintiff. Subsequently, an ECG from March 12, 2016, was provided to plaintiff. A Boston Scientific technician said no more information was available.
The SAC's allegation that Boston Scientific failed to respond to a request for all 2016 and 2015 ECGs is not equivalent to an allegation that additional ECGs exist beyond those previously provided to plaintiff.
On appeal, plaintiff claims he was trying to get records of previous ECGs dating back to 2009 when the defibrillator was implanted. First, the SAC does not allege the defibrillator was implanted in 2009, and plaintiff improperly cites to his opposition to Dr. Bhajal's demurrer to establish that date. Second, a fair reading of the SAC shows that its first three causes of action are predicated on the "missing" March 2016 ECGs, not some unspecified earlier ECGs dating back through 2009.
Since the alleged failure to provide medical records was the basis for the first, second and third causes of action, the court properly sustained the demurrer as to those causes of action.
On appeal, we will uphold the sustaining of a demurrer " 'if any one of the several grounds of demurrer is well taken. [Citation.]' [Citation.]" (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967, italics added.) Therefore, we do not address respondents' other grounds for upholding the demurrer as to these counts.
Fourth and Fifth Causes of Action
Survivor Causes of Action
A survivor cause of action is one "which belonged to the decedent before death but, by statute, survives that event. [Citation.] The survival statutes do not create a cause of action. Rather, '[t]hey merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.' [Citation.]" (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264, italics added.) The personal representative or successor-in-interest who brings a survivor cause of action is limited to recovering for "the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived ...." (Code Civ. Proc., § 377.34, italics added.)
In contrast, a cause of action for wrongful death belongs to certain relatives to compensate for their own "loss of companionship and for other losses suffered as a result of a decedent's death. [Citation.]" (Quiroz v. Seventh Ave. Center, supra, 140 Cal.App.4th at p. 1263.)
Here, the SAC's fourth and fifth causes of action are "survivor" causes of action. The fourth cause of action alleged Dr. Bhajal committed medical malpractice, leading to the patient's death. The fifth cause of action alleged Boston Scientific's defective product caused the patient's death. These are claims that the decedent was personally harmed by respondents. Thus, they are survivor causes of action - a conclusion plaintiff does not dispute.
We deal separately with the SAC's claim that the death caused by these torts resulted in harm to plaintiff (i.e., the sixth cause of action for wrongful death).
We conclude below that plaintiff failed to meet the statutory standing requirements to bring survivor claims.
A survivor cause of action may be commenced by the decedent's personal representative. (Code Civ. Proc., § 377.30.) If the decedent has no personal representative, the action may be brought by the decedent's successor-in-interest (ibid.), provided he or she files a required affidavit. (Code Civ. Proc., § 377.32.)
A successor in interest is "the beneficiary of the decedent's estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action." (Code Civ. Proc, § 377.11.) While plaintiff may well have otherwise qualified as a successor-in-interest, the SAC does not allege that there is no personal representative.
The definition of "personal representative" as used in Code of Civil Procedure section 377.30 is found in section 58 of the Probate Code. (See Sprowl v. City of Barstow (C.D. Cal. 2019) 2019 U.S. Dist. LEXIS 228177, *3 & fn. 4.) " 'Personal representative' means executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to [Probate Code] Section 7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person's status." (Prob. Code, § 58, subd. (a).)
Thus, to establish standing to bring a survivor cause of action, it is not enough to for a plaintiff to merely allege they are related to a decedent, or even that they are the sole surviving heir. (Hayes v. County of San Diego (9th Cir. 2013) 736 F.3d 1223, 1229.) To establish standing to bring a survivorship action, the plaintiff must allege he or she is the decedent's "personal representative." (Ibid.) The SAC contains no such allegations. Therefore, the demurrer was properly sustained as to the fourth and fifth causes of action on that basis. II. Sixth Cause of Action
Or a successor-in-interest (Hayes v. County of San Diego, supra, 736 F.3d at p. 1229), if there is no personal representative. (Code Civ. Proc., § 377.30.) There is no allegation that the decedent had no personal representative. Therefore, we do not reach plaintiff's claim that he should be recognized as a successor in interest.
Indeed, the SAC alleges that plaintiff's father's widow, Mary, is still alive. It also alleges that she is plaintiff's father's "representative."
On appeal, we will uphold the sustaining of a demurrer " 'if any one of the several grounds of demurrer is well taken. [Citation.]' [Citation.]" (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967, italics added.) Therefore, we do not address respondents' other grounds for upholding the demurrer as to these counts.
The SAC's sixth cause of action was for wrongful death. Under the heading, "6. Wrongful Death," the SAC reads: "That the death of FHT [plaintiff's father] was premature and wrongful is addressed above under the Medical Malpractice and Product Defect sections."
At the outset, respondents argue that the cause of action is only one sentence long and fails to provide facts supporting a wrongful death claim. However, the single sentence refers to the factual allegations in the previous two causes of action. "Complaints generally incorporate prior allegations into subsequent causes of action. [Citation.]" (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 931-932.) Indeed, this is a common practice in civil litigation. (Weil & Brown, Cal. Prac. Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 6:236.)
The question is whether the facts alleged in the fourth and fifth causes of action support a claim of wrongful death (i.e., the sixth cause of action).
Wrongful Death Claim Against Boston Scientific
The SAC alleges the following facts, which we must accept as true. An internal defibrillator from Boston Scientific was implanted in plaintiff's father. The device reported an "[e]vent" as having occurred on March 14, and he died the next day of ventricular fibrillation. The defibrillator failed to deliver any treatment, causing the patient's death.
Boston Scientific has not shown why these allegations fail to state a cause of action for wrongful death. Boston Scientific insists the claim is preempted by federal law, which we will now address.
Preemption
Boston Scientific contends that the COGNIS model N119 defibrillator is a class III medical device that must be approved pre-market by the FDA. And the Medical Device Amendments of 1976 (MDA) preempts state laws (and causes of action predicated thereon) that impose a requirement "which is different from, or in addition to, any requirement applicable" to the device under the Federal Food, Drug, and Cosmetic Act. (21 U.S.C. § 360k.) Therefore, Boston Scientific argues plaintiff's claims relating to the defibrillator are preempted by federal law.
However, "[b]ecause a demurrer challenges defects on the face of the complaint, it can refer to matters outside the pleading only if those matters are subject to judicial notice. [Citation.]" (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 834.) Here, the SAC does not establish the factual predicates of Boston Scientific's preemption claim. While the SAC acknowledges that there is extensive FDA oversight behind the approval of medical devices and that some state liability claims are preempted, it does not allege the defibrillator at issue is a Class III device under the MDA, nor does it concede that preemption applies to the allegations of the SAC.
Nor can Boston Scientific establish these matters by resort to judicial notice. While Boston Scientific did file a request for judicial notice in the trial court, there is no indication the court ruled on the request or otherwise took judicial notice as requested. By failing to obtain a ruling on the request for judicial notice, Boston Scientific forfeited the issue for appellate consideration. (See Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1305, fn. 3.)
Boston Scientific requested judicial notice of 67 Fed.Reg. 67,629-630, which lists a pre-market approval for "the CONTAK CD/EASYTRAK Lead System." Nothing in the SAC indicates that this pre-market approval is connected to the defibrillator at issue here.
Boston Scientific also requested judicial notice of two printouts from the FDA's website purportedly indicating the FDA had issued premarket approvals for the COGNIS Model N118 CRTD as a supplement to the CONTAK premarket approval. We doubt these are proper objects of judicial notice. (See Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 279, fn. 12.) Even if these website printouts were proper subjects of judicial notice, they cannot be considered irrefutable proof of the truth of the matters asserted therein. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 [" 'When judicial notice is taken of a document, ... the truthfulness and proper interpretation of the document are disputable.' [Citation.]"]) Moreover, given that the trial court has not ruled on these two requests, we decline to take discretionary judicial notice in the first instance. Finally, we note the SAC alleges the defibrillator at issue was a COGNIS CRTD model N119 (not N118, the model referenced in the request for judicial notice).
In addition to citing statutory authority for discretionary judicial notice, Boston Scientific also cited Evidence Code section 451, subdivision (b), which provides for mandatory notice of certain state regulations and items in the Federal Register. However, these two requests for judicial notice were for website printouts, not citations to the Federal Register. To the extent there is further justification for judicial noticesuch as the relevant information also appears in the Federal Register somewhereBoston Scientific has failed to provide the information necessary to make a determination. (See Evid. Code, § 453, subd. (b).)
Boston Scientific may well ultimately prevail on its preemption claim, either at trial or on summary judgment. We express no opinion on that matter. We only conclude that its preemption defense cannot be established at this early juncture.
Wrongful Death Claim Against Dr. Bhajal
As noted above, the SAC's wrongful death cause of action references the medical malpractice and product defect causes of action. The SAC's medical malpractice cause of action alleges the following facts, which we must accept as true.
Plaintiff's father was a patient of Dr. Bhajal, a cardiologist and electrophysiologist. Supplemental oxygen is given to patients with heart failure "for their health." However, plaintiff's father was not "on" supplemental oxygen when he died. Dr. Bhajal's failure to put plaintiff's father on supplemental oxygen shortened his life and was a breach of Dr. Bhajal's duty to his patient as a cardiologist.
Dr. Bhajal argues in a rather conclusory fashion that these allegations do not speak to duty, breach and causation. We fail to see how. The SAC alleges that, in breach of a cardiologist's duty to his patients, Dr. Bhajal failed to put plaintiff's father on supplemental oxygen and thereby shortened his lifespan. Dr. Bhajal may well be able to eventually disprove these claims as a factual matter, but he does not explain how these allegations fail to satisfy the elements he identifies.
Conclusion
While respondents have failed to show that the SAC cannot state a claim for wrongful death, the cause of action should still be redrafted. It incorporates by reference the allegations of the two prior causes of action, both of which remain subject to dismissal. This renders the wrongful death cause of action sufficiently uncertain so as to warrant redrafting. (See Civ. Proc., § 430.10, subd. (f).) Therefore, we will direct that the demurrer be sustained as to the sixth cause of action, but with leave to amend.
DISPOSITION
The judgments of dismissal are reversed, and the matter remanded. The trial court shall issue an order sustaining the demurrers without leave to amend as to the first, second, third, fourth and fifth causes of action; and sustaining the demurrer with leave to amend as to the sixth cause of action. The parties shall bear their own costs on appeal.
POOCHIGIAN, J. WE CONCUR: HILL, P.J. MEEHAN, J.