Brittany Hernandez vs. Hoag Memorial Hospital Presbyterian

Motion for Leave to Amend

Cal. Super. - 4th Dist.September 9, 2016

A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 © 0 9 O N n m b s W N = - _ e m e d e d e d e d A N Ln » B A WL W = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 N D D N N o N o N O \® ) N D -_ - - - _ a N W n i N w o \ ] - S O o 0 J N o 3 28 & PRINT RECYCLED PAPER RICHARD A. COHN, ESQ. (SBN # 145156) AITKEN 4+ AITKEN +COHN 3 MACARTHUR PLACE, SUITE 800 SANTA ANA, CA 92707-2555 (714) 434-1424 Telephone (714) 434-3600 Facsimile Attorneys for Plaintiffs, Brittany Hernandez and Rene Calderon, SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE- CENTRAL JUSTICE CENTER Case No. 30-2016-00874030 Assigned for all Purposes to Honorable Martha K. Gooding Dept. C/34 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT, DECLARATION OF RICHARD A. COHN; [PROPOSED] FIRST AMENDED COMPLAINT BRITTANY HERNANDEZ, an individual; RENE CALDERON, an individual Plaintiffs VS. Date: November 6, 2017 Time: 01:30 p.m.HOAG MEMORIAL HOSPITAL Dept: C/34 PRESBYTERIAN; RICHARD C. AGNEW, M.D; CLARENCE P. SINKHORN, M.D.; MAGELLA MEDICAL GROUP, INC. and DOES 1 TO 100, INCLUSIVE Defendants. N e N e ” N e N e ” N e ” N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N N TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:PLEASE TAKE NOTICE that on November 6, 2017 at 1:30 p.m., in Department C/34 ofthe above-entitled court, plaintiffs will move for leave to file a first amended their compliant in1PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT,DECLARATION OF RICHARD A. COHN;[ A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 © 0 3 9 O o w n hs s L N = -_ - e m e m e m e m A A W n B A W N = O O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 n o N o N o N O N o N o \® ) - - _ - A N W n ~ ~ W w N o - o S o O o o J N o J 28 9 PRINT RECYCLED PAPER this matter. This motion is made and based on this notice, the memorandum of points and authorities attached hereto, the declaration of Richard A. Cohn, the pleadings and papers on file herein, and such other oral and documentary evidence as may be presented at the hearing ofthis motion. Dated: October 19, 2017 AITKEN+4AITKEN+COHN = \ \ - \ RICHARD A. COHN Attorneys for Plaintiffs By: 2 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT, DECLARATION OF RICHARD A. COHN;[ A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 O O © 0 N N O N w n B A W N - _ e m e m e m e m e m SA A w n B A W N D = O o 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 N O N O N N N N m e m aA hh BA WO W NN = OS © © = N o ~ 28 & PRINT RECYCLED PAPER INTRODUCTION: This is a complex medical Malpractice case arising out of the negligent management of plaintiff Brittany Hernandez/ labor and delivery - which resulted in the death of their baby. Plaintiffs filed their original complaint on September 9, 2016 alleging such medical negligence caused the death oftheir baby. Plaintiffs now bring the instant Motion to file a First Amended Complaint in that defendants’ have filed Motions for Summary Judgment with hearing dates set by the court of December 18, 2017. As is discussed in the Statement of Facts which follows, plaintiff’s counsel has deemed it necessary (out of an abundance of caution) to move to amend plaintiffs’ Complaint to assure that the pleadings are framed so that there is not confusion as to whether the facts and circumstances of the instant case allowsplaintiffs to proceed with their medical malpractice claim arising out of the negligently caused death oftheir full-term infant during delivery, With the dates for the upcoming motions for summary judgment approaching, Plaintiffs appeared Ex Parte on October 18, 2017 for an order shortening time to allow this motion to be timely heard prior to the Motions for Summary Judgment. As currently entitled, plaintiffs’ complaint is for “wrongful death” due to medical malpractice oftheir baby. However,the First Cause of Action is entitled simply “Medical Negligence” as against all defendants. Factually the original complaint alleges that defendants undertook the duty of care to treat plaintiff Brittany Hernandez for delivery of her baby. The complaint further alleges that defendants negligently undertook said care and treatment, which resulted in the death of their baby. The complaint alleges damages from this set of facts including a prayerfor general damages according to proof. (See plaintiffs’ original Complaint.) However, defendants’ Motion for Summary Judgment asserts that plaintiffs cannot make a claim for “wrongful death” of a stillborn baby, (under the case of Justus vs Atchison (1977) 19 Cal 3d 564.) While plaintiffs dispute whether the babyfactually died in utero (versus just after birth); plaintiffs are nonetheless entitled to claim, in the alternative, damages arising from the death oftheirstillborn full-term infant pursuant to a Cause of Action for Negligent Infliction of 3 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT, DECLARATION OF RICHARD A. COHN; [ 1 2 3 4 5 6 7 8 9 10 11 12 S 13 = Es 8 14 [REN => 74339 43352 © EASSs “241g 16 ZEST Zz 3gd “E 18 19 20 21 22 23 24 25 26 27 28 €9 PRINT RECYCLED PAPER Emotional Distress- Direct Victim Therory (for plaintiff Brittany Hernandez) and for loss of consortium (for plaintiff Rene Calderon due to injury to his wife Brittany Hernandez.) As is discussed in detail herein, such cause of action is supported by the cases of Zavala vs Arce (1997) 58 Cal App 4" 915, 927-933, and Burges vs Superior Court (1992) 2 Cal.4" 1064. This Motion is brought in order to assure that there is not legal confusion as to whether plaintiffs are entitled to claim damagesin this case (regardless of whether the claim is for the wrongful death of the baby if he was born “alive” and died immediately; or for “Direct Victim” Negligent Infliction of Emotional Distressif he was delivered “still born.”) Plaintiffs therefore herebyrequest leave to allow plaintiffsto file the attached (proposed) First Amended Complaint prior to the hearing of defendant’s Motions for Summary Judgment. Due to the upcoming Motions for Summary Judgment filed by defendants, GOOD CAUSE clearly exists for this Motion. It is also noted, as discussed in detail below, that leave to amend must be liberally granted where the facts and circumstances alleged in the complaint (no matter how they are “labeled”) can be construed so as to constitute facts sufficient to state any valid cause of action. Here, plaintiffs’ initial complaintis labeled “wrongful death”bytitle; but just as in the Zavala case (cited supra) the general medical negligence facts plead within the complaint clearly also support a cause of action for Negligent Infliction of Emotional Distress (Direct Victim Theory), such that leave to amend priorto the hearing of defendants Motions for Summary Judgment must be permitted. It is lastly noted that plaintiffs herein are taking the appropriate procedural step to seek to amend the complaint prior to the time that the Motions for Summary Judgmentsare to be heard. However,it is also noted in passing that pursuant to Zavala, supra, plaintiffs complaint as currently pleaded, (even if “labeled” a wrongful death complaint) still contains general negligence facts sufficient to support a claim for Direct Victim Negligent Infliction of Emotional Distress under Zavala, supra. Still, in the abundance of caution, and to assure no legal error or confusion, plaintiffs respectfully hereby request that the instant Motion be granted. 4 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT, DECLARATION OF RICHARD A. COHN;| A I T K E N +4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 © 0 N N O o w n h e W N E E e e lo ) EV , N S E E a = ) 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 D D \ ] N o N o N o N o \® ) - - _ - _ a N W n E S W w N o - _ S O o 0 3 N o 3 28 9 PRINT RECYCLED PAPER STATEMENT OF FACTS AND LEGAL ARGUMENT Plaintiff Brittany Hernandez and Rene Calderon (married) filed the instant complaint arising out of the facts and circumstances resulting in the death of their full-term infant. Plaintiffs filed their complaint (entitled “Complaint for Wrongful Death”) based on the following briefly summarized facts: Plaintiff Brittany Hernandez was pregnant and was admitted to defendant Hoag Hospital where she received medical care and treatment for the delivery of her full-term infant. Defendants Agnew, M.D., Sinkhorn, M.D. and Magella Medical Group also undertook the medical care and treatment of plaintiff for said delivery. Plaintiffs further allege that all defendants negligently provided such care and treatment, which resulted in the death of the baby. Plaintiffs allege “general damages according to proof” in the prayer of the complaint based upon the facts above. (See Declaration of Richard A. Cohn,attached. See also, Plaintiffs’ original complaint.) Defendants have now filed Motions for Summary Judgment alleging the that baby was “stillborn” (as opposed to death immediately following delivery.) Based on this allegation, defendants assert in their Motions for Summary Judgementthat plaintiffs cannot assert a claim for the wrongful death of an “unborn fetus”, citing Justus vs Atchison (1977) 19 Cal 3d 564. While plaintiffs dispute factually whether the baby was “stillborn”, (versus died within the first momentafter being delivered); even if defendants’ contention was correct, plaintiffs are still entitled to claim damagesarising out of these facts (medical negligence resulting in death of unborn child) under a Negligent Infliction of Emotional Distress (Direct Victim Theory) cause of] action pursuant to Zavala vs. Arce (1977) 58 Cal App 4% 915, 927-933 and Burges vs Superior Court (1992) 2 Cal 4% 1064. Zavala, supra is directly on point legally, factually, and procedurally. In Zavala, plaintiffs filed a complaint for medical malpractice alleging that defendants caused the death of their still born fetus. In their First Amended Complaint the Zavala plaintiffs alleged causes of action for wrongful death medical negligence and for negligent infliction of emotional distress. Just as in the instant case, Defendants brought a Motion for Summary Judgment based upon the 5 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT, DECLARATION OF RICHARD A. COHN; [ A I T K E N 4 A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 © ©© 0 N N O N w n B A W N - _ e m p m p m e m A A U n B A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 N o N o N o N o N o N o N D - - _ - A N w D = W w B N - _ o S \ O o o ~ N o ~ 28 €& PRINT RECYCLED PAPER Justus case supra. The court rejected the motion, holding that although plaintiffs had essentially made “wrongful death” allegations; the general allegations of medical negligence contained in the complaint (that defendant undertook plaintiff’s care, and did so negligently, resulting in the death ofthe unborn fetus) were sufficient to support a Negligent Infliction of Emotional Distress (Direct Victim Theory) cause of action. The Zavala court cited the California Supreme Court holding in Burges, supra, extensively, and specifically rejected defendant’s reliance on Justus, supra. Likewise, in the instant case, plaintiffs have alleged in their complaint that defendant undertook Brittany Hernandez’ medical care and negligently did so, legally causing the death of their infant during labor and delivery. Assuming defendants’ contention that the infant was “still born”is correct, then under Zavala, supra, plaintiffs are still entitled to claim for Negligent Infliction of Emotional Distress under these facts. (And, of course,if the baby died after birth, then a wrongful death cause of action remains appropriate.) Based on the concerns of plaintiffs’ counsel due to the contentionsraised in defendants Motions for Summary Judgement, plaintiffs therefore hereby seek leave to file a First Amended Complaint adding an alternative cause of action for Negligent Infliction of Emotional Distress. As noted in the caselaw discussed below, such leave to amend should be liberally granted, and plaintiffs’ request for leaveis timely sought prior to the time for the hearing of defendant’s Motion for Summary Judgment. Plaintiffs (Proposed) First Amended Complaint is attached. LEAVE TO AMEND SHOULD BE LIBERALLY GRANTED A motion for leave to amend may be made at any time before the hearing on, Summary Judgment, or at the hearing, or indeed any time before judgment. See, e.g. Kirby vs Albert D. Seeno Const. Co. (1992) 11 CA 41 1059, 1069; Mediterranean Const. Co. vs State Farm Fire & Casualty (1998) 66 CA 4" 257, 264 - citing Weil & Brown, The Rutter Group, California Practice Guide Civil Procedure before Trial at Chapter 10, pgs. 10-27 § 10:52.6. Motions to amend the pleadings are to be granted liberally. See Nestle vs Santa Monica (1972) 6 Cal 3d 920, 131; Mabie vs Hyatt (1988) 61 CA 4th 581, 596. Public policy favors 6 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT, DECLARATION OF RICHARD A. COHN;| A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 © 0 9 O N w n h r W N J A A Ww » B A W N = O O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 D D N o N o N o D N N o D D - _ - _ - lo ) w n = ~ © N o - _ (= ) O o = ) R Y n N ~ 28 €9 PRINT RECYCLED PAPER amendment and resolution of all disputed matters between the parties. Id. Indeed,it is an abuse of discretion to deny leave to amend when there is any reasonable possibility that a defect in pleading can be cured. Id. See also Bettencourt vs Hennessy Indus. Inc. (2012) 205 CA 4th 1103, 111. It should also of course be noted that where the proposed amendmentis based on the same set of general facts as pleaded in the original complaint (as in the instant case), then there is no barto the claim by virtue of any statute of limitations defense. (See,e.g. Hobson vs Raychem Corp (1999) 73 CA 4614, 626.) Here, plaintiffs seek to essentially “relabel”the exact same facts as originally pleaded, so as to allow for the amended cause of action for negligent infliction of emotional distress. As such, because the amended complaint will be based upon the “same general set of facts”, and seeks recovery against the same defendants for the same injury, and refers to the same incident, the “relation back” doctrine prevents the claim from being barred by the statute of limitation, See, e.g. Amaral vs Cintas Corp. No. 2 (2008) 163 CA 4h 1157, 1199- 1200; Pointe San Diego Residential Community L.P. vs Procopio, Cory, Hargraves and Savitch LLP (2011) 195 CA 4265, 277 - emphasizing again the strong state policy in favor of amendment. It is also noted that there is no prejudice to defendant by virtue ofthe proposed amendment. Plaintiffs’ claims for damages are factually the same based on the proposed amended complaint as they were in the initial complaint. And, defendants have been made aware ofplaintiffs’ claim for damages for emotional distress/personal injury type damages as asserted both in discovery responses and at plaintiffs’ depositions. (See Declaration of plaintiffs’ counsel Richard A. Cohn.) Further, this request to allow amendment is brought well in advance of defendants’ summary judgment motions. By contrast, in Falcon vs Long Beach Genetics (2014) 224 CA 4% 1263, 1280, the court stated that even as late as at the hearing on summary judgement, if plaintiff “finds his pleadings inadequate, the court may and should permit him to amend.” 111 7 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT, DECLARATION OF RICHARD A. COHN; [ 1 2 3 4 5 6 7 8 9 10 11 12 S 13 = SEs 3 14 »n a = 237 g3d3z 15 EAZSs