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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Richard Cain vs Sansum Clinic et al

Case No: 1402957
Hearing Date: Fri Apr 18, 2014 9:30

Nature of Proceedings: Motion: Summary Judgment/Adjudication

MOTION:  Separate Statement of Facts Plaintiff’s Fourth Amended Complaint alleges causes of action for medical battery, violation of Civil Code section 52.7, fraudulent concealment and nondisclosure, and professional negligence. Defendant Shoemaker’s involvement in plaintiff’s care and treatment was limited to three of his visits to the West Side location of the Santa Barbara Neighborhood Clinic, on 3/31/11, 1/18/12, and 1/26/12. The visits related to his hypertension and history of dyslipidemia. Defendant Shoemaker never performed any medical treatments or procedures on plaintiff, and has no knowledge of whether plaintiff has had an implanted device or not. Defendant has never concealed from or failed to disclose any facts or information to plaintiff. Defendant has not taken part in, has no knowledge of, and has not furthered, has not made any agreement with or communicated with any defendant or individual, has never lent aid or encouragement to anyone involved in, has never ratified or adopted any acts regarding, has never been offered, received, nor accepted financial benefits arising from, any alleged plan (a) to implant Mr. Cain with anything to induce illness, so that he would have to return to medical facilities for medical services; (b) related to the concealment of or failure to disclose anything related to Mr. Cain; (c) relating to any improper care, treatment, ore recommendations pertaining to Mr. Cain, or (d) relating to any experimentation on Mr. Cain.

 

Defendant has never performed a surgical procedure on plaintiff, has never placed a subcutaneous device within plaintiff’s body, and was not present when any subcutaneous device was placed in his body. She did not treat or speak to plaintiff during his 3/08 hospitalization. She had no involvement with his cardiac catheterization performed at St. John’s Regional Medical Center. She never placed plaintiff on an intravenous machine. Defendant never treated or spoke with plaintiff during his 4/04 hospitalization at Goleta Valley Cottage Hospital. Defendant did not place an implant lead in plaintiff. Defendant had no involvement in the alleged implantation of subcutaneous devices within plaintiff’s body. Defendant has never read or reviewed plaintiff’s X-rays or CT scans. She never modified or altered any of plaintiff’s medical records. The care and treatment defendant rendered to plaintiff at all times met the applicable standard of care prevailing in the community for physician’s assistants for evaluating, assessing, and treating patients such as plaintiff under the same or similar circumstances. To a reasonable degree of medical probability, no act or omission on the part of defendant Shoemaker negligently caused or contributed to plaintiff’s injuries or damages.

 

Argument  First, plaintiff’s verified admissions of facts establish there is no genuine issue of material fact that defendant had no involvement in the implantation of subcutaneous devices in plaintiff’s body, and never performed a surgical procedure on him. Plaintiff specifically admitted that defendant never performed a surgical procedure on him, never placed a subcutaneous device within his body, was not present when a subcutaneous device was placed within his body, did not treat or speak to him during his 3/08 hospitalization, had no involvement with his catheterization performed at St. John’s Regional Medical Center, never placed him on an intravenous machine, never treated or spoke with him during his 4/04 hospitalization at Goleta Valley Cottage Hospital, did not place an implant lead in him, had no involvement in implantation of subcutaneous devices within him, never read or reviewed his X-rays or CT scans, and never modified or altered any of his medical records.

 

Second, plaintiff’s claim for medical battery fails, because plaintiff has admitted that defendant never performed a medical procedure on him.  Medical battery requires that defendant have performed a medical procedure without plaintiff’s consent, or that plaintiff consented to one medical procedure but defendant performed a substantially different one, that plaintiff was harmed, and that defendant’s conduct was a substantial factor causing the plaintiff’s harm CACI 530A. Plaintiff has admitted that Shoemaker never performed any treatments or procedures on plaintiff. Plaintiff also cannot establish that Shoemaker conspired with anyone to commit medical battery. She has never taken part in, had any knowledge of, or done anything in furtherance of, made any agreement with or communicated with anyone with respect to, lend aid or encouragement to anyone involved in, ratified or adopted any acts regarding, or ever offered, received, or accepted any financial benefits arising from, any plans to implant plaintiff with anything to induce illness so that plaintiff would return to medical facilities for medical services, any plans relating to the concealment of or failure to disclose anything related to plaintiff, any plans relating to improper care, treatment or recommendations pertaining to plaintiff, or any plans relating to any experimentation on plaintiff.  

 

Third, plaintiff’s claim for violation of Civil Code § 52.7 has no merit. Section 52.7 prohibits anyone from requiring, coercing, or compelling any other individual to undergo the subcutaneous implanting of an identification device. Plaintiff admitted that defendant Shoemaker had no involvement whatsoever in the implantation of subcutaneous devices within his body, conduct of any surgical procedure, or placement of any implant leads, and does not know of any such devices implanted within plaintiff. She saw him on only 3 occasions at the Santa Barbara Neighborhood Clinic (3/31/11, 1/18/12, and 1/26/12), regarding hypertension and dyslipidemia. Again, she provided evidence of the lack of knowledge of, or any act in furtherance of, any plan or conspiracy related to the claim.

 

Fourth, plaintiff’s claim for fraudulent concealment and non-disclosure has no merit. The claim requires that defendant intentionally failed to disclose an important fact that plaintiff did not know and could not reasonably have discovered, defendant intended to deceive plaintiff by concealing the fact, plaintiff relied on the defendant’s deception and the reliance was reasonable under the circumstances, and defendant’s concealment was a substantial factor in causing harm to plaintiff. CACI 1901. Here, there is no evidence that defendant failed to disclose anything to plaintiff, or concealed anything from him, and defendant has affirmatively confirmed that she never concealed from, or failed to disclose to, plaintiff any facts or information. She had no involvement in his medical care or treatment other than his three visits to the clinic, and had no involvement in or knowledge of any implantation of subcutaneous devices, never read or reviewed any scans, and never modified or altered any medical records. She had no knowledge of or participation in any agreement or plan to conceal anything from plaintiff.

 

Fifth, the medical care rendered by defendant complied with the standard of care, and did not cause or contribute to plaintiff’s alleged injuries and damages. Internal medicine physician John Lyster Brodhead, Jr., M.D., has provided expert testimony to establish that defendant’s care and treatment of plaintiff complied with the standard of care for physician’s assistants at all times, and to a reasonable degree of medical probability that no act or omission by her negligently caused or contributed to his injuries and damages. Additionally, defendant had no involvement in, or any knowledge of, any conspiracy or plan to commit professional negligence or any other untoward act against plaintiff.  

 

Evidence Attorney Goldie Miller provides a declaration authenticating discovery documents, a notice of the court’s ruling on the demurrer to the Fourth Amended Complaint, and medical records.

 

Defendant Shoemaker has also provided a declaration, in which she describes her three encounters with him at the Neighborhood Clinic, including his 3/31/11 visit where she ordered standard labs and prescribed Lisinopril for his hypertension; his 1/18/12 visit when he requested blood work and complained of an electronic device implanted by the CIA and Homeland Security, in which she ordered his requested labs and again started him on Lisinopril; and his 1/26/12 visit when he complained of “electronic harassment,” in which she continued his blood pressure medication and suggested that his complaints of implants and electronic harassment sounded delusional. He did not return to see her after that date. Other that those encounters, she has never seen or assessed plaintiff, never performed any medical treatments or procedures on him, has no knowledge of whether or not he had any implanted devices, has never concealed anything from him, has no knowledge of and has not taken part in any plan to implant him with anything, to conceal anything from him, to provide improper care, treatment or recommendations to him, or with respect to any experimentation on him. She never assisted or ratified any such plan. She has never been offered, received, nor accepted any financial benefits arising from any such plan.

 

John Lyster Brodhead, Jr. M.D. provided a declaration, attaching his c.v., which shows that he is an M.D. with a Geriatric and Internal Medicine practice. He declares that he is familiar with the standard of care as it relates to physician’s assistants, and that he has reviewed the medical records for plaintiff from the Santa Barbara Neighborhood Clinic. He describes the encounters, including defendant’s assessments, advice, and recommendations. He opines that, based upon his education, training, and experience, and his review of the medical records, that all care and services provided to plaintiff by defendant at all times met the standard of care in the community by physician’s assistants for evaluating, assessing and treating patients such as plaintiff. On each visit, she appropriately documented her assessment and recommendations. At no time did she do anything to conceal or deprive him of any proper treatment modality. At no time did she conspire with any other healthcare provider or individual regarding his conditions or complaint. To a reasonable degree of medical probability, he opines that her care and treatment of plaintiff did not cause any of his alleged injuries, and was appropriate under the circumstances.

 

Plaintiff has not filed opposition to the motion.

 

The motion by defendant Lynn A. Shoemaker, P.A. for summary judgment is granted.

 

Defendant has established that she had no involvement or knowledge of any implantation of any device within plaintiff, and in fact performed no medical treatments or procedures on plaintiff, never read or reviewed any of plaintiff’s scans, and never altered or modified any of his medical records. She has established that she has never concealed any facts from plaintiff. She has presented expert testimony establishing that all care she provided to plaintiff was at all times within the standard of care for a physician’s assistant, and that, to a degree of reasonable medical probability, no act or omission of defendant caused or contributed to plaintiff’s claimed injuries and damages. In presenting such evidence, defendant has established that she has no direct liability for any of the four causes of action alleged in this action, i.e., medical battery, violation of Civil Code section 52.7, fraudulent concealment, and professional negligence.

 

Defendant Shoemaker has also presented evidence which establishes that she has no liability for any of plaintiff’s claims, based upon an alleged conspiracy entered into with others. She has provided evidence that she did not participate in, and in fact has no knowledge of, any conspiracy or plan to implant plaintiff with any devices, to conceal any facts from plaintiff, to commit professional negligence on plaintiff, or to experiment on plaintiff. She further established that she has not agreed or communicated with anyone regarding any such plan, has never ratified or adopted any acts regarding any such plan, has never been offered, received, or accepted financial benefits arising from any such plan.

 

Having met her burden of establishing entitlement to judgment on all causes of action as a matter of law on undisputed facts, summary judgment must be entered in defendant’s favor, unless plaintiff has presented evidence sufficient to create a triable issue of material fact. However, defendant Shoemaker joined in the sanction motion filed in February 2014 by defendant SimonMed Imaging, Inc., and obtained a separate order in her favor imposing issue and evidence sanctions against plaintiff, based upon plaintiff’s failure to comply with this court’s order that he appear for deposition and allow himself to be deposed in this action. Plaintiff is therefore prohibited from submitting any evidence or argument in opposition to defendant Shoemaker’s motion. Since the motion met its burden, and since plaintiff is legally prohibited from presenting evidence or argument against defendant Shoemaker, the motion must be granted.

 

Tentative Ruling:

The motion by defendant Lynn A. Shoemaker, P.A. for summary judgment is granted.