Metropolitan News-Enterprise


Friday, March 11, 2011


Page 1


C.A. Rejects Claim Lawyer, Doctor Conspired Against Patient

Suit for Conversion Was Really a Barred Spoliation Action, Panel Says




A patient’s claim that her treating physician conspired with a Los Angeles County Metropolitan Transportation Authority attorney to steal an angiogram so the patient could not sue is actually a prohibited spoliation of evidence claim, the Fourth District  Court of Appeal said yesterday.

Div. Three, in an opinion by Justice Richard Aronson, affirmed the dismissal of Robin Rosen’s suit against St. Joseph Hospital of Orange County, Dr. Kurt Openshaw, and Vascular and Interventional Specialists of Orange County. Orange Superior Court Judge Richard Moss did not err in sustaining demurrers and denying leave to amend, the Court of Appeal said.

Rosen’s complaint alleged that she was injured in an October 2004 accident involving an MTA bus, and suffered a debilitating stroke a month later. Following the stroke, she was admitted to St. Joseph, where Openshaw performed an angiogram.

Theft Alleged

She subsequently sued the MTA and alleged that the bus accident caused the stroke. During the course of that litigation, she alleged, MTA attorney Katherine Pene—of the Tarzana firm Briskin Latzanich & Pene LLP—and Openshaw stole her angiogram.

As a result, she said, her experts could not testify at deposition that the stroke resulted from tearing of the carotid artery caused by the bus collision’s impact. The trial judge then barred those experts from venturing such an opinion at trial, and the jury returned a defense verdict.

That loss, the complaint alleged, cost her at least $400,000 in past medical expenses and $7 million in future care expenses that could have been recovered if she had the angiogram.

In addition to the hospital and doctors, she sued Pene and her law firm, but those claims were stricken on an anti-SLAPP motion.

Barred by Law

In concluding that her claims against the doctors and hospital were barred as a matter of law, Aronson cited Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1 and Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 4. The state high court held in those cases that under tort law, doctors and hospitals generally do not owe patients a duty to preserve medical records for use in litigation.

The appropriate remedies for spoliation, the high court said, are monetary sanctions, evidentiary sanctions—if the doctor or hospital is a party to the underlying litigation—or criminal prosecution. If attorneys are involved in intentional spoliation, the justices said, they can be disciplined by the State Bar.

While Rosen styled her complaint as one for conversion, conspiracy, violation of privacy, and intentional infliction of emotional distress, Aronson wrote, all of her claims hinge on the allegation that the defendants concealed or destroyed evidence, and those claims are foreclosed by Cedars-Sinai and Temple.

“Moreover, even assuming a duty to preserve evidence existed, Rosen cannot allege a cause of action against Openshaw, Vascular Specialists, and St. Joseph Hospital because she cannot allege the breach of that duty caused her any damages,” the justice wrote.

No Causation

The jury in the underlying case, Aronson explained, found that there was no breach of duty on the part of the MTA. Since the issue of causation was never reached, the justice said, the plaintiff cannot show that an angiogram tying the accident to her stroke would have resulted in a favorable verdict.

Nor, Aronson wrote, could the plaintiff have prevailed on an amended complaint alleging breach of a contractual or fiduciary duty to preserve medical records, because the plaintiff could not show that any such duty existed, or that the breach of such a duty was the cause of her losing the underlying suit.

The case is Rosen v. St. Joseph Hospital of Orange County, G043595.


Copyright 2011, Metropolitan News Company