Metropolitan News-Enterprise


Monday, April 25, 2022


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Punitive-Damage Claim Barred Based on Untimeliness of Motion to Amend—C.A.


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal held yesterday that the widower and minor children of a woman who died following surgery may not add a claim for punitive damages because a motion for leave to amend to include such relief was made too late, rejecting the argument that the statute setting a time limit could not be invoked where a surgeon and a nurse acted outside the scope of their licenses.

At issue was an application of Code of Civil Procedure §425.13. The section provides that where a health care provider is sued, “[t]he 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.”

That provision, the plaintiffs contended, does not apply given that the decedent, Megan Espinoza, had been assured by the surgeon, Carlos Chacon, that an anesthesiologist would be present during an augmentation mammoplasty and monitor her but, instead, Chacon and a nurse, Heather Lang, administered the anesthesia, a task for which they were not trained and were not qualified to perform. Allegedly due to their negligence in administering an overdose, the patient experienced cardiopulmonary arrest and died about six weeks later.

Writ Granted

San Diego Superior Court Judge Eddie C. Sturgeon permitted the amendment; Chacon and his plastic surgery clinic, Divino Plastic Surgery, Inc., sought a writ of mandate ordering that the amendment be disallowed; the writ was granted.

Justice Joan K. Irion said:

“The evidence of the misconduct of the surgeon and the employees of his clinic that the survivors submitted with their motion for leave to amend, if believed by the trier of fact, might well support an award of punitive damages. Nevertheless, because the survivors did not move to amend within the time mandated by statute, we grant the requested relief.”

Scope of Licenses

The jurist explained that under Business & Professions Code §251, Chacon, as a licensed doctor and surgeon, is allowed “to use or upon human beings and to sever or penetrate the tissues of human beings” which administering an anesthesia entails, and “Lang, as a registered nurse, could administer anesthetics and other drugs ordered by a physician without supervision by the physician.” Also, a medical assistant who was present, “did not have to be licensed and could administer drugs and perform other supportive services under the authorization and supervision of a physician,” she said.

Irion declared:

“In sum, Chacon and Divino, through its employees, were acting as health care providers in administering anesthesia and providing other services to Megan as part of the augmentation mammoplasty.

“Chacon and Divino did not lose their status as health care providers entitled to the protections of section 425.13 merely because the Espinozas allege the manner in which Chacon and Divino’s employees performed the acts that caused Megan’s death fell outside the scope of the applicable licenses….Were the rule otherwise, a plaintiff could sue a health care provider for punitive damages without complying with section 425.13 simply by alleging the provider acted outside the scope of the license.”

The plaintiffs’ causes of action “for intentional misrepresentation, promissory fraud, and battery all arise out of conduct directly related to Chacon’s provision of medical services to Megan,” she wrote.

The case is Divino Plastic Surgery, Inc. v. Superior Court, D079661.


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