Answer Response No FeeCal. Super. - 6th Dist.April 1, 2021Law Offices of KOOOQQUI-PUJNb-t NNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-K NGM-PWNHOKDOOQQUI-PWNHO 28 HINSHAW, MARSH, STILL & HINSHAW A Partnership 12901 Saratoga Avenue Saratoga, CA 95070 (408) 861 -6500 21 CV381451 Santa Clara - Civil Y. Cha BARRY C. MARSH, ESQ. (SBN 99908) Electronically Filed HINSHAW, MARSH, STILL & HINSHAW, LLP by Superior Court of CA, 12901 SARATOGA AVENUE County of Santa Clara, SARATOGA, CALIFORNIA 95070 on 8/1 3/2021 2:09 PM §§§flf46§9§25§§6162200 Reviewed By: Y. Chavez Email: bmarsh@hinshaw-law.com case #21 CV331 451 Envelope: 706021 3 Attorneys for Defendant ALLISON CHAN, M.D. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA BRAYDEN LE, a Minor, By and Through His No.2 21CV381451 Guardian Ad Litem, THANHTUYEN THI DINH, , , ANSWER T0 COMPLAINT FOR Plamtlff’ DAMAGES FOR MEDICAL V. NEGLIGENCE GOOD SAMARITAN HOSPITAL; HCA HEALTH SERVICES 0F CALIFORNIA, C 1 . m d_ A .1 1 2021INC; C-HCA, INC; ALLISON CHAN, omp am 16 - P“ = M.D.; and DOES 1 through 100, Inclusive, Defendants. COMES NOW Defendant ALLISON CHAN, M.D., by and through her attorneys of record and answers the unverified complaint herein as follows: GENERAL DENIAL Pursuant t0 the provisions 0f California Code 0f Civil Procedure section 43 1 .30(d) this answering defendant denies each and every, all and singular, generally and specifically, the allegations contained in said complaint, except that Defendant ALLISON CHAN, M.D., admits that she is, and at all times mentioned in the complaint was, a physician duly licensed t0 practice in the State of California. / / / /// 1 ANSWER TO COMPLAINT FOR DAMAGES FOR MEDICAL NEGLIGENCE No. 2 1CV38 1451 leZ Law Offices of KOOOQQUI-PUJNb-t NNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-K NGM-PWNHOKDOOQQUI-PWNHO 28 HINSHAW, MARSH, STILL & HINSHAW A Partnership 12901 Saratoga Avenue Saratoga, CA 95070 (408) 861-6500 AFFIRMATIVE DEFENSES 1. As and for a separate, distinct and affirmative defense, this answering defendant avers that THANHTUYEN THI DINH was herself negligent in and about the things complained 0f in the complaint 0n file herein. 2. AS AND FOR A SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE, this answering defendant alleges that the complaint does not state facts sufficient t0 constitute a cause of action against this defendant in that the causes 0f action are barred by the provisions 0f sections 335.1, 337, 338, 339, 340, 340.4 and 340.5 0f the Code of Civil Procedure. 3. AS AND FOR A SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE, this defendant states that the injuries and damages complained 0fby plaintiff, if any there were, were either Wholly or in part directly and proximately caused by the negligence of persons 0r entities other than this defendant, and said negligence is either imputed to plaintiff, by reason 0f the relationship between plaintiff and said persons 0r entities, 0r comparatively reduces the proportion of negligence and corresponding liability of this defendant. 4. AS AND FOR A SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE this answering defendant alleges that she is entitled t0 the benefits, defenses, rights, immunities and provisions that are enumerated and set forth Within the provisions 0f Assembly Bill l-XX of the State of California for the year 1975 and which is more commonly known as the Medical Malpractice Compensation Reform Act; that said benefits, defense, immunities and provisions are set forth and contained Within Business and Professions Code section 6146; Civil Code sections 1714.8, 3333.1, 3333.2; and, Code 0f Civil Procedure sections 364, 365, and 667.7. 5. AS AND FOR A SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff s complaint on file herein does not state facts sufficient t0 constitute a cause 0f action against this defendant. 6. AS AND FOR A SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE this answering defendants alleges that the injuries complained 0f herein were caused by the 2 ANSWER TO COMPLAINT FOR DAMAGES FOR MEDICAL NEGLIGENCE No. 2 1CV38 1451 Law Offices of KOOOQQUI-PUJNb-t NNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-K NGM-PWNHOKDOOQQUI-PWNHO 28 HINSHAW, MARSH, STILL & HINSHAW A Partnership 12901 Saratoga Avenue Saratoga, CA 95070 (408) 861-6500 natural course of plaintiff s disease or condition, 0r were the natural or expected results of reasonable treatment rendered for this disease 0r condition, and plaintiff s claim herein is barred by California Civil Code section 1714.8. 7. AS AND FOR A SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE t0 said complaint, and each and every cause 0f action allegedly set forth therein, this defendant is entitled to the full benefits and protections provided under sections 143 1 .1 and 143 1 .2 e_t fl; of the Civil Code, otherwise entitled The Fair Responsibility Act 0f 1986. 8. AS AND FOR A SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE, this answering defendant alleges that the complaint does not state facts sufficient t0 constitute a cause of action against this defendant in that the cause 0f action is barred by provisions 0f Business and Professions Code sections 2395, 2395.5, 2396, 2397. 9. AS AND FOR A SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE this answering defendant alleges at all times relevant herein, the liability for damages, if any, 0f any defendant is further limited by the recent decision in Cabrera v. E. Rojas Properties, Inc. (201 1) 192 Cal.App.4th 13 19, Which holds plaintiffs may not recover for “phantom” damages (the billed amount(s) 0f medical expenses that health care providers never actually pursue 0r collect instead 0f the actual amount(s) paid), consistent with the general principle at common law that alleged Victims of tortuous conduct are entitled to compensation, but not windfall recoveries exceeding their actual damages, as now affirmed by the California Supreme Court’s recent decision in Howell v. Hamilton Meats & Provisions (201 1) 52 Cal.4th 541, in Which the Court held plaintiffmay recover as damages for past medical expenses n0 more than the amount the medical providers had accepted as payment in full from plaintiff and his 0r her health insurer. Further, pursuant t0 Howell a defendant found t0 have caused injuries to others receives the benefit of lower medical damages if plaintiffs had health insurance and does not have t0 reimburse plaintiffs the cost(s) of procuring such insurance. 10. AS AND FOR A SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE, this answering defendant Will offer as evidence regarding plaintiff” s claimed damages, applicable portions 0f the Affordable Care Act (“ACA”), The California Preexisting 3 ANSWER TO COMPLAINT FOR DAMAGES FOR MEDICAL NEGLIGENCE No. 2 1CV38 1451 Law Offices of \OOOQQUIAUJNb-t NNNNNNNNHr-tr-th-tr-tr-tr-tr-tr-tr-t NQMhWNV-‘OKDOOQQM-bWNF-‘O 28 HINSHAW, MARSH, STILL & HINSHAW A Partnership 12901 Saratoga Avenue Saratoga, CA 95070 (408) 861-6500 Condition Insurance Plan (“PCIP”) and/or The California Maj0r Risk Medical Insurance Program (“MRMIP”). 11. That by the exercise 0f reasonable effort, plaintiff could have and/or can mitigate the amount of damages suffered by obtaining health insurance coverage as required by the Affordable Care Act. T0 the extent plaintiff failed and/or continues t0 fail t0 obtain health insurance coverage as required by the Affordable Care Act, as an affirmative defense, defendants assert that plaintiff failed and/or continues t0 fail t0 reasonably mitigate and/or reduce damages, including, but not limited t0, failure t0 obtain 0r timely obtain healthcare insurance coverage, as required by federal law under the Affordable Care Act. 12. AS AND FOR A SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE, this answering defendant contends that a medical practitioner is not necessarily negligent just because his/her efforts are unsuccessful or he/she makes an error that was reasonable under the circumstances. A medical practitioner is negligent only if he/she was not as skillful, knowledgeable, 0r careful as other reasonable medical practitioners would have been in similar circumstances. (CACI 505.) 13. AS AND FOR A SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE, this answering defendant contends that a medical practitioner is not necessarily negligent just because he/she chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. (CACI 506.) WHEREFORE, this answering defendant prays that plaintiff recover nothing by reason of his complaint and that this answering defendant have judgment for her costs incurred and expended herein; and for such other and further relief as the court may deem just and proper. Dated: August 13, 2021 HINSHAW, MARSH, STILL & HINSHAW, LLP By: ‘1 4 BARRY C. MARSH, ESQ. Attorney for Defendant ALLISON CHAN, M.D. 4 ANSWER TO COMPLAINT FOR DAMAGES FOR MEDICAL NEGLIGENCE N0. 21CV38 1451 OLOOONODO‘IhOON-‘t NNNNNNNNAAAAAAAAAA NOUCJT¥CDNAOCOWN®CN¥CDNA 28 Law Offices of HINSHAW, MARSH, STILL & HINSHAW A Partnership 12901 Saratoga Avenue Saratoga, CA 95070 (408) 861-6500 PROOF 0F SERVICE (C.C.P. §§ 1013a, 2015.5) I, the undersigned, say: I am now and at all times herein mentioned have been over the age 0f 18 years, a resident 0f the State of California and employed in Santa Clara County, California, and not a party t0 the Within action 0r cause; my business address is 12901 Saratoga Avenue, Saratoga, California 95070. I am readily familiar with this firm’s business practice for collection and processing 0f correspondence for mailing With the U.S. Postal Service, mailing Via Federal Express, hand delivery Via messenger service, and transmission by facsimile machine. I served a copy of each 0f the documents listed below by placing said copies for processing as indicated herein. ANSWER TO COMPLAINT FOR DAMAGES FOR MEDICAL NEGLIGENCE MAILED VIA U.S. MAIL, said copies were placed in envelopes which were then sealed and, with postage fully prepaid thereon, 0n this date placed for collection and mailing at my place 0f business following ordinary business practices. Said envelopes Will be deposited with the U.S. Postal Service at Saratoga, California on this date in the ordinary course 0f business; and there is delivery service by U.S. Postal Service at the place so addressed. X (VIA ELECTRONIC SERVICE) I caused each of the above-named documents t0 be delivered by email t0 the parties Via One Legal E-Service upload link. MAILED VIA FEDERAL EXPRESS, said copies were placed in Federal Express envelopes which were then sealed and, With Federal Express charges t0 be paid by this firm, 0n this same date placed for collection and mailing at my place 0f business following ordinary business practices. Said envelopes Will be deposited With the Federal Express Corp. on this date following ordinary business practices; and there is delivery service by Federal Express at the place s0 addressed. E-MAIL OR ELECTRONIC TRANSMISSION. I caused the documents t0 be sent t0 each party at their e-mail addresses of record (listed herein). I did not receive, Within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. HAND DELIVERED, said copies were provided t0 a delivery service, whose employee, following ordinary business practices, did hand deliver the copies provided to the person or firm indicated herein. RECIPIENTS: Kenneth M. Sigelman, Esq. Andrew R. Chivinski, Esq. Mark A. Birmingham, Esq. KENNETH M. SIGELMAN & ASSOCIATES 1901 First Avenue, 2nd Flr. San Diego, CA 92101-23 82 andrew@chivinskilaw.com markbim@gmail.com PROOF OF SERVICE 1 OLOOONOUO‘l-RCON-‘t NNNNNNNNAAAAAAAAAA Nmm¥WNAO©mNO§Cfl¥WN4 28 Law Offices of HINSHAW, MARSH, STILL & HINSHAW A Partnership 12901 Saratoga Avenue Saratoga, CA 95070 (408) 861-6500 Cyrus A. Tabari, Esq. Sheuerman Martini Tabari Zenere & Garvin 1033 Willow Street San Jose, CA 95 125 ctabari@smtlaw.com dpoint@smtlaw.com I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on August 13, 2021. 0&4“ “WM Lynda Vargem Court: Santa Clara Superior Court Action No: 2 1 -CV-3 8 1451 Case Name: Le v. Chan, MD, et al. PROOF OF SERVICE 2