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Court of Appeal:
Cause of Action Against Eye Doctor Erroneously Tossed Out
Opinion Says Telling Patient, Without Reasonable Basis, Needed Surgery Would Not Be Covered by Insurance, Alternative Procedure Would Be, Resulting in Undergoing Useless Surgery, Gives Rise to Deceit Action
By a MetNews Staff Writer
A judge erred in dumping a woman’s cause of action for deceit against an ophthalmologist and an eye clinic, the Court of Appeal held Friday, declaring that evidence showing that the doctor told her, erroneously, that her insurance would not cover the surgery she needed but would pay for an alternate procedure—which she underwent, and proved to be of no value to her—was sufficient to overcome summary adjudication.
The opinion by Justice Cynthia Aaron of the Fourth District’s Div. One reinstates an action brought by Alice Jeanne Borman against Dr. Tara Brown and the North County Eye Center, Inc. (“NCEC”).
Borman said in her complaint that she went to Brown, whose office is in Poway, because she had a “droopy eyelid and brow”; that Brown advised that she needed a “brow lift” but her insurance would not cover it; she was further told that there would, however, be coverage for a “blepharoplasty”; that a blepharoplasty was performed and did not correct the problem; and she subsequently learned that a brow lift would have been covered.
Aaron explained that a brow lift “or brow ptosis repair, is a surgical procedure designed to elevate the position of an eyebrow” and a blepharoplasty “or eye lift, is a surgical procedure during which excess eyelid skin is removed.”
Plaintiff’s Declarations
Responding to the defendants’ motions for summary judgment or summary adjudication of the various causes of action, Borman presented a declaration in which she set forth that “Dr. Brown told me that a brow lift would not be covered by my insurance.”
Ophthalmologist Eric Ahn said in a declaration:
“…I believe to a reasonable degree of medical probability that if the proper testing and evaluation had been done by Dr. Brown and NCEC and submitted to Ms. Borman’s insurance, it would be determined that a brow lift, or brow ptosis repair, would be functional and therefore reasonable and necessary. Therefore,...a brow lift should have been covered by her insurance if the proper documentation were submitted to the insurance company by Dr. Brown and NCEC.”
Ahn’s statement, as well as corroboration from a representative from the company which manages Borman’s insurance plan, as well as the insurance coverage guidelines, show that the plaintiff’s insurance “would have covered a brow lift had Dr. Brown done the appropriate documentation of the need for the procedure and submitted it to the insurance company for approval,” Borman argued in opposing summary adjudication.
San Diego Ruling
San Diego Superior Court Judge Timothy M. Casserly granted summary adjudication in favor of the defendants on the cause of action for deceit, holding that Borman could not have shown that Brown had, by expressing doubt that insurance would cover a brow lift, intended to induce reliance on the statement to the patient’s detriment.
He noted that “[t]here is no evidence to suggest that Doctor Brown stood to benefit from inducing” Borman “to undergo the wrong procedure” because a blepharoplasty costs less than a brow lift.
Casserly also granted summary adjudication on Borman’s cause of action for battery. He denied summary adjudication of the causes of action for professional negligence and lack of informed consent causes action which went to a jury, with a defense verdict ensuing.
The only issue on appeal was whether the cause of action for deceit should have gone to the jury.
Intent Element
Aaron wrote:
“We conclude that the record contains evidence from which a reasonable jury could find that Dr. Brown intended for Borman to rely on her statement that a brow lift would not be covered by Borman’s insurance. No more was required for Borman to prove the ‘intent to induce reliance’ element of her fraud and deceit cause of action premised on negligent misrepresentation. Since this is the sole element of a negligent misrepresentation theory of liability that the trial court found Borman would be unable to prove, we further conclude that the trial court erred in granting summary adjudication of Borman’s fraud and deceit cause of action.”
Although the opinion refers at various points to “fraud and deceit,” Aaron spelled out at one point that only deceit is in issue. She said that while the defendants stressed in the trial court that fraud entails an intentional misrepresentation, “a claim of deceit premised on negligent misrepresentation does not require that the defendant knowingly made a false representation or that the defendant intended to deceive.”
The jurist went on to say:
“With respect to the ‘knowledge’ element, defendants claimed that they were entitled to summary adjudication of Borman’s fraud and deceit cause of action because Borman would not be able to establish that Dr. Brown made a statement that Dr. Brown ‘knew...not be true,’ (italics added). However, Borman had to demonstrate merely that Dr. Brown made a misrepresentation without having a reasonable basis to believe it was true, insofar as her fraud and deceit cause of action was premised on a negligent misrepresentation theory. Defendants’ motion for summary adjudication did not address, and therefore, necessarily did not demonstrate as a matter of law, that Borman would be unable to prove that Dr. Borman made a misrepresentation without having a reasonable basis to believe that it was true.”
Less Expensive Procedure
Rejecting Casserly’s reasoning that Brown did not intend to induce reliance on her statement that Borman’s insurance would not cover a brow lift in light of the lack of financial incentive to perform a less expensive procedure, Aaron said:
“[E]ven assuming that defendants are correct that Dr. Brown lacked any financial incentive to tell Borman that her insurance would not cover a brow lift, this fact does not demonstrate that Dr. Brown did not intend for Borman to rely on her alleged statement that a brow lift would not be covered by Borman’s insurance. Stated differently, proof of financial motive is not necessary in order to prove intent to induce reliance. That is because, even assuming that Dr. Brown acted negligently, rather than with an intent to foster her own financial interests, Borman still could prove a cause of action for deceit premised on negligent misrepresentation.”
She observed in a footnote:
“We also question whether evidence that Dr. Brown would have made more money if she had performed a brow lift demonstrated, as a matter of law, that Dr. Brown did not stand to benefit from encouraging Borman to consent to a blepharoplasty, rather than to pursue a brow lift. For example, a reasonable juror could find that Dr. Brown had an incentive to encourage Borman to consent to a procedure that Dr. Brown was certain would be covered by insurance (i.e., a blepharoplasty) rather than performing additional diagnostic testing in the hope of obtaining insurance coverage for a brow lift. In fact, Borman presented evidence tending to support such theory in her opposition to the motion for summary adjudication.”
The case is Borman v. Brown, 2021 S.O.S. 229.
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