Markous vs Leuin

Motion to Strike

Cal. Super. - 4th Dist.February 6, 2018

Oo oo ~ AA W n Ee 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELECTRONICALLY FILED Superior Court of California, County of San Diego 11/02/2018 at 07:26:00 PM Clerk of the Superior Court By Jessica Pascual Deputy Clerk CARROLL, KELLY, TROTTER, FRANZEN, McBRIDE & PEABODY NATALIE J. BUCCINI (SBN: 259636) JAKE W. SCHULTE (SBN: 293777) 225 Broadway, Suite 1500 San Diego, California 92101 Telephone No. (619) 814-5900 / Facsimile No. (619) 814-5999 Attorneys for Defendant SHELBY LEUIN, M.D. (Erroneously sued and served herein as SHELBY LEUIN) (Governmental Entities and Employees of Governmental Entity; No Filing Fee Required Pursuant to Gov. Code § 6103 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO MARY MAGDALENE MARKOUS, CASE NO.: 37-2018-00006387-CU-PO-CTL ASSIGNED FOR ALL PURPOSES TO: Plaintiff, JUDGE GREGORY W. POLLACK DEPARTMENT C-71 VS. DEFENDANT SHELBY LEUIN, M.D.’S SHELBY LEUIN; RADY’S CHILDREN’S NOTICE OF MOTION AND MOTION TO HOSPITAL and DOES 1-250, STRIKE PLAINTIFF'S PRAYER FOR PUNITIVE DAMAGES FROM FIRST Defendants. AMENDED COMPLAINT [Filed Concurrently with Declaration of H. Daniel Haro, Esq., in Support] Date: November 2, 2018 Time: 9:30 am Dept.: C-71 Complaint Filed: 02/06/18 Trial Date: NONE SET TO PLAINTIFF, MARY MAGDALENE MARKOUS: PLEASE TAKE NOTICE that on November 2, 2018, at 9:30 a.m., or as soon thereafter as counsel may be heard in Department C-71 of the above-entitled Court located at 330 West Broadway, San Diego, CA 92101, Defendant, SHELBY LEUIN, M.D. (erroneously sued and served herein as SHELBY LEUIN) (“Defendant”) will move pursuant to Code of Civil Procedure sections 435 and 436 for an order to strike the prayer for punitive damages (page 3 of the Amended Form Complaint, section 14(a), prayer #2) because same may not be pled against F:\322976-190\PLD\2nd Demurrer And MTS\MTS To FAC.Docx 1 MOTION TO STRIKE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dr. Leuin, a healthcare provider, without leave of court pursuant to Code of Civil Procedure section 425.13. Defendant will also move to strike the following words, paragraphs, and causes of action contained in Plaintiffs’ Complaint: FACTS RELEVANT TO ALL CAUSES OF ACTION 1. Page 3 of Amended Form Complaint: Prayer for punitive damages STATEMENTS REGARDING PUNATIVE DAMAGES 2. “Defendants acted with malice and oppression and with a conscious disregard of Plaintiffs rights, making them liable for punitive damages under California Civil Code §3294.” a. Stated on: Page 7, § 39; Page 8-9, 45; Page 10, § 51; Page 11, § 57; Page 13, 9 63; Page 14, § 71; Page 15, § 77; Page 17, § 84; Page 20, § 101; Page 22, | 109; Page 26, 129; Page 27, 4 135; Page 32, § 158; Page 33, § 164; PRAYER FOR RELIEF 3. “For punitive damages and/or exemplary damages in an amount appropriate to punish Defendants and deter others from engaging in similar misconduct.” a. Stated on: Page 34, lines 1-2, 7-8, 13-14, 19-20, 25-26; Page 35, lines 3-4, 9- 10, 15-16, 21-22, 27-28; Page 36, lines 5-6; Page 37, lines 9-10, 15-16, 21-22, 27-28. This Motion is based upon this Notice, the attached Memorandum of Points and Authorities, the Declaration of H. Daniel Haro, Esq., the evidence in support of the motion, upon all records, pleadings, and papers filed and/or served to date, and upon such further oral and documentary evidence as may be properly presented before or at the time of the hearing of this motion. PLEASE TAKE FURTHER NOTICE that this Court will issue a tentative ruling by 4:00 pm. on the day prior and the ruling may be obtained by | logging onto http://www.sandiego.courts.ca.gov/v3tr/scsdrulings.aspx. Personal appearances will be required at the hearing time and date set forth in the caption of this notice. If either party wishes to argue I F:\322\976-190\PLD\2nd Demurrer And MTS\MTS To FAC.Docx 2 MOTION TO STRIKE No Oo 0 NN S N nn R W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the matter further, no notice of intent to appear is required. If no one appears at the hearing on this matter, the court's tentative ruling will become the ruling of the court. DATED: November 2, 2018 CARROLL, KELLY, TROTTER, FRANZEN, McBRIDE & PEABODY By: NATALIE J. BUCCINI JAKE W. SCHULTE H. DANIEL HARO Attorneys for Defendant, SHELBY LEUIN, M.D. F:\322\976-190\PLD\2nd Demurrer And MTS\WMTS To FAC.Docx 3 MOTION TO STRIKE 0 3 O N nn hx W N \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES LL INTRODUCTION On February 6, 2018, Plaintiff, Mary Markous, filed her original Complaint. (Exhibit A.) Plaintiff then filed a First Amended Complaint (“FAC”) on September 19, 2018. Moving Defendant requests the Court strike Plaintiff’s prayer for punitive damages in the FAC because same may not be pled against Dr. Leuin, a healthcare provider, without leave of court pursuant to Code of Civil Procedure section 425.13. Although Plaintiff filed a Second Amended Complaint on October 12, 2018, she did so without leave of court pursuant to Code of Civil Procedure section 472. The FAC is therefore the operative complaint. IL. AUTHORITY Code of Civil Procedure section 435 provides that “any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” Code Civ. Proc., § 435, subd. (b)(1). Code of Civil Procedure section 436 authorizes the court on motion or st any time in its discretion and on terms it deems proper to “strike out any irrelevant, false, or improper matter inserted in any pleading [or] strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” III. PLAINTIFF’S PRAYER FOR PUNITIVE DAMAGES IS IMPROPER A. Plaintiff has not complied with Code of Civil Procedure section 425.13. Plaintiff is prohibited from claiming punitive damages against Dr. Leuin without seeking leave of court. Code of Civil Procedure, §425.13(a) provides in pertinent part: (a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a * complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The 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 F:\322\976-190\PLD\2nd Demurrer And MTSWTS To FAC Docx 4 MOTION TO STRIKE BN ~~ O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier. California courts have uniformly held that this statute applies to any action filed against a health care provider that is directly related to the professional services provided. In other words, it would not apply to a case where a plaintiff sued a defendant, who just happened to be a physician, in connection with an automobile accident. But if the action in any way relates to the defendant acting in his capacity as a health care provider, the statute applies and punitive damages may not be pled without a court order. Central Pathology Services Medical Clinic, Inc. v. Super. Ct. (1992) 3 Cal.4th 181. In 1992, the California Supreme Court issued the controlling law on this issue. In Central Pathology, supra, 191-192, the Court held that section 425.13 was applicable to causes of action for fraud and intentional infliction of emotional distress, stating: “[Wlhenever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such, then the action is one ‘arising out of the professional negligence of a health care provider,” and the party must comply with section 425.13(a).” The Court further held that “identifying a cause of action as an ‘intentional tort’ as opposed to ‘negligence’ does not itself remove the claim from the requirements of section 425.13(a)." 1d. at 192. Dr. Leuin is a physician licensed to practice medicine in the state of California and rendered treatment to Plaintiff in this capacity. Therefore, she is entitled to the protection of Code of Civil Procedure section 425.13(a). Based on the controlling Supreme Court case of Central Pathology, supra, and related authority, section 425.13 applies to Plaintiff’s claims for general negligence and intentional tort (sic). Accordingly, any prayer for punitive damages against Dr. Leuin must first be processed through the requirements of Code of Civil Procedure section 425.13(a). Since Plaintiff has not yet done so, this statute mandates the Court strike Plaintiff’s prayer for punitive damages (page 3 of the form Complaint, section 14(a), prayer #2) from the Complaint. 1 F:\322\976-190\PLD\2nd Demurrer And MTS\MTS To FAC.Docx 5 MOTION TO STRIKE No ~~ O N n n B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiff’s Complaint fails to state facts sufficient to allege Punitive Damages against Defendant. Punitive damages are not favored, and reserved only for those defendants who engage in conduct intended to cause injury, or who engage in despicable conduct with a conscious disregard to the safety of others. Henderson v. Security National Bank (1977) 72 Cal.App.3d 764, 771, and PPG Industries, Inc. v. Transamerica Insurance Co. (1999) 20 Cal.4™ 310. These acts are typically associated with crimes and refer to conduct which is vile, contemptible, miserable, retched or loathsome, which would be looked down upon, and despised by ordinary decent people. Angie M. v. Superior Court (1995) 37 Cal. App.4™ 1217, 1228. California law is well settled that simple negligence will not justify an award of punitive damages. Even gross negligence or recklessness is insufficient to warrant an award of punitive damages. Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87. Plaintiff has alleged no acts (vile, retched, contemptible, etc.) tantamount to what is required to state a claim for punitive damages. Although Plaintiff has made numerous conclusory statements regarding intent and maliciousness, she has provided little or no facts to support her contentions. Plaintiff has failed to satisfy the heightened pleading standard for punitive damages. See Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87. Therefore, the Court must strike Plaintiff's prayer for punitive damages (page 3 of the Amended Form Complaint, section 14(a), prayer #2) from the Complaint. | 1 1" 1 1 1 1 1" 1 1 F:\322\976-190\PLD\2nd Demurrer And MTS\MTS To FAC.Docx 6 MOTION TO STRIKE EN ~N O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the foregoing reasons, Defendant Shelby Leuin, M.D. respectfully requests this Court grant her Motion to Strike. DATED: November 2, 2018 CARROLL, KELLY, TROTTER, FRANZEN, McBRIDE & PEABODY By: NATALIE J. BUCCINI JAKE W.SCHULTE H. DANIEL HARO Attorneys for Defendant, SHELBY LEUIN, M.D. F:\322\976-190\PLD\2nd Demurrer And MTS\MTS To FAC.Docx 7 MOTION TO STRIKE nS ~~ O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF H. DANIEL HARO I, H. Daniel Haro, declare: 1. I am an attorney duly licensed to practice law before all the Courts of the State of California. Iam an associate with the Law Offices of Carroll, Kelly, Trotter, Franzen, McBride & Peabody, attorneys of record for Defendant SHELBY LEUIN, M.D. (erroneously sued as Shelby Leuin). Z I have personal knowledge of the matters contained herein and if called as a witness, and placed under oath, I would competently testify to the facts described herein. 3. Attached to the Demurrer is the following: EXHIBIT A: A true and correct copy of Plaintiff’s First Amended Complaint. EXHIBIT B: A true and correct copy of a meet and confer letter dated October 2, 2018. 4, My colleague Jake W. Schulte complied with the meet and confer requirements pursuant to Code of Civil Procedure section 435.5. First, he spoke with Plaintiff telephonically on July 6, 2018, and July 10, 2018, regarding her original Complaint, after which Plaintiff filed her First Amended Complaint on September 19, 2018. However, instead of curing the defects in her original complaint, Plaintiff included 17 additional causes of action and maintained her prayer for punitive damages, 5. In response to Plaintiffs First Amended Complaint, further meet and confer was engaged with Plaintiff by sending her a letter on October 2, 2018, which detailed the defects in her First Amended Complaint. Plaintiff responded by filing a Second Amended Complaint without leave of court, thereby making this Motion to Strike necessary. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 2, 2018, in San Diego, California. H. DANIEL HARO, ESQ. F:\322\976-190\PLD\2nd Demurrer And MTSWMTS To FAC.Docx 8 MOTION TO STRIKE PLD-Pi-001 FOR COURT USE ONLY ATTORNEY OR PARTY WITHOUT ATTORNEY Name, State Bar number, and ies EAE © Mary Marksws 10%] Tarte c+, A104 gq. 1§0 - 4% C8 . TELEPHONE NO: Gl . FAXNO. {Optionaij. . 018 SE Pp [9 H E-MAIL ADDRESS (Opllorial): mary. PEATEs © 3 ewd ¢ m % 0 ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA, COUNTY oF STREET ADDRESS: MAILING ADDRESS: ~ Superior Court CITY, AND ZIP CODE: 330 West Broadway | y CA 92101 BRANGH NAME: San Diego, PLAINTIFF: Marg MarR as? DEFENDANT: shelby Lew © Ro-8Y Thildrens Mosgikal =F poes 170 AO COMPLAINT—Personal Injury, Property Damage; Wrongful Death AMENDED. (Number): 0 WE : Type (check allthat apply): CC 1'moTOR: VEHICLE ..[—] OTHER (specify): Property Damage _ J Wrongful Death” ~*~ ‘Personal. Injury a | Other Damages (spocify): Jurisdiction (check all that apply): Co | caseiumBEr: f- ACTION IS A LIMITED CIVIL CASE - Ce ~~ Amount demanded . [1 does not. exceed $10, 000 FE LL "[] exceeds $10,000, but does not exceed $25, 000 |, A. 201 g- oovob3 87. ACTION IS AN UNLIMITED CIVIL: CASE (exceeds $25,000) 5 i [_] ACTION IS RECLASSIFIED by this amended complaint Lo fd Po (Te [1 from limited to unlimited [=] from unlimited to limited .. “Ld 1. Plaintiff (name or names): MOY Mawes S alleges causes of action against defendant (fame ornames): Cpe AL ows) shelly Lew, Eady childrens fotital 2 bogs \-to (elo 2. This pleading, including. attachimen and exhibits, ‘consists of the Tollewing number of pages: or 3. Each plaintiff named above i s a sampetprt adult a. [_] except plaintiff (name): ; (1s [ol a ‘corporation qual jed fo do business in California 2) i) an unincorporated entity (describe): "(3)"[F_] A public entity (describe): @ -aminor [_] an adult 0x Awe me of operative (a), I for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b) [_ other (specify): (8) [_] other (spiacify): Te b. = br plaintiff (name): # ualified to do business in California ( 6SGHibe): } @ =i a public entity (describe): Ci [J aminor [_] anadult” CL (a) [1 forwhom a guardian or conservator of the estate or a guardian ad litem has been appointed : Le = (by ("1 other (specify): HT 1d other (Epedy; i Information about additional plaintiffs who are not competent adults is shown in Attachment 3. . + Judiclal Caunchl of California a oo PLD-PI-001 (Rev, January 1, 2007] hry Damage, Wrongful Death Page lofd . - Form Approved for Optional Use Co COMPLAINT—Personal Injury, Property ey OF Code of ChE Procem, § 22512 SHORT TITLE 4. = Plaintiff (name): is doing business under the fet ctitious name (specify): . ‘and has complied with the fi ctitious business name laws. . pots ‘ \-\b - 5. Each defendant named above i is a natural person a. [1] except defendant. (nam NNW wy: oc - Joe] except defondaiit (name): ; (1) [1 a business an form urkin’ = (1) [] a business arg erbEdst; form unknown (2) [_] a corporation (2) [_] a corporation 3 [Jan unincorporated entity (describe): (3) C1 an unincorporated entity (describe): 4) LJ a public entty (describe): (5) [ZT other (specify): ~ ’ : oo 5) {| other (specify): nen Cee Tieesaad } Ce x pu Jo. Seep b. — except defendant (name): ~~ d = except defendant (name): i a {= a business SraeEBEE form unknown ® = an n unincorporated nity (d Soribg): @ — a, pubic ent. (sce) oo “@ J a ‘Publier (describe) (6) [J other (specify): . (8) le other loci): J Information. about adtonal defendants who 6.. Thetrue names of defendants sued as Does are unknown to pan. ‘a. = Doe defendants (specify Doe numbers): __._-. : were the agents or “employees of other named defendants and acted within 4 Fiat agency ‘or-employment. b: = Doe. defendants (specify Doe Aiumb 1S); : AS are persons whose capactis are sink to - plaintiff, oy PE > 7 J Defendants whi are © joined under. Code of Civil § Procedure section 382 are — 8. This courtis the pro e i a [A at least oné defehdant how Tesidgé-in its juftsdictional ; area. Co b. the principal place’ of business ofa defendant corporation or unincorporated association is in ts jurisdictional area. i Ee injury to pefoo oF damage to personal p property occurred in. its jurisdictional area. d. C1 other (speci): 9. [] Plaintiffis required to Comply with a claims statute, and | a. has complied with applicable claims statutes, or b. [1 is excused "from com . PUD-PTGDT Rev, Jarry 3.2007 >ersonal Hom; Property _ | Page2ofd ® Wrongful L Death PLD-PI-001 SHORT TITLE: = EE "CASE NUMBER 10. The following causes of action are attached and the. statements above apply t to each (each complaint mist have 0 one or more causes of action attached): - a. [_] Motor Vehicle b. Eve Negligence 6 Intentional Tort ; d. [] Products Liability e. [_] Premises Liability Co CT f. JZ] Other (specify): F&A NY 11. Plaintiff has suffered a. [|] wageloss b. [~] loss of use of property C. hospital and medical expenses . d. general damage LT, e. [__] property damage a om f. = loss of earning capacity Mm: S af 0A ODIS : i [ other damage (specify): Co MR | ; > Pe defor rig (deviated sept) | Fei . posal dale lapse _— 12. ] The damages claimed for wrongful death and tha relationships of plaintiff to the deceased are a. [__] listed in Attachment 12. b. [__| as follows: 13. The relief sought in this complaint is within the jurisdiction of this court. £ 14. Plaintiff prays for judgment for coste of suit; for such relief asis fai, just, and equitable; and for a. (1) = compensatory damages 2 punitive damages The amount of damages is (in cases for personal injury or wrongful death, you must check (1): (1) [C1] according to proof (2) [Zin the amount of: $ Revist Wn Sepopl ost 45. [] The paragraphs: of this complaint alleged fot informa ation and belief are as follows: (specify paragraph. numbers): 5€L otal . Alive oo | vay Maes pg {TYPE OR PRINT NAME) LL . {SIGNATURE OF PLAINTIFF slizrerien PLD:PHO01 (Rev. dantary 1 2007) - Co COMPLAINT Personal Injury, Property - Pages or3 “ Damage, Wrongful Death Co ER RS 10. 11 12 13] 14 15 16. 17 18 19 20 21 22 23 24 . 2 26 21 28 Mary Markous, IN PRO PER K e ) «0 ~~ AN Wn ~ wa | Mary Markous 1037 Tarlo Ct. El Cajon, CA 6197509568 - marymarkous@jcloud.com SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO ‘Case No.: 37-2018-00006387-CU-PO-CTL BATTERY WITH INTENTIONAL MALICE, INTENTIONAL DECEIT AND FRAUD, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, FALSE PROMISE, FALSE ADVERTISING, FRAUDULENT CONCEALMENT OF FACTS , HUMAN EXPERIMENTATION; HEALTH AND SAFETY CODE § 24171-24176, BREACH OF FIDUCIARY DUTY, GHOST SURGERY/. - UNAUTHORIZED SURGEONS; INTENTIONAL DEVIATION FROM CONSENT, FALSE IMPRISONMENT, BREACH OF WARRANTY, GROSS NEGLIGENCE, FALSIFICATION OF RECORDS HEALTH AND SAFETY ‘CODE HSC § 1424, FATLURE TO WARN, INJUNCTIVE REIEF, RES IPSA LOQUITOR MARY MARKOUS, Plaintiff Vs. | | SHELBY LEUIN, MD RADY CHILDREN'S HOSPITAL. DOES 1-10 INCLUSIVE - "Defendants Il'To ALL PARTIES AND THEIR COUNSEL OF RECORD, Ms. Markous submits her first amended complaint to include material facts previously unknown. 1 FIRST AMENDED COMPLAINT BY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ~N oa wm A w Dr. Leuin is using deceit to get patients to consent, then allowing a fellow to injure and disfigure them. She, James, and other past fellows at Rady Children’s Hospital are conducting non-therapeutic research on Human Subjects, that are children without their consent. GENERAL ALLEGATION Plaintiff Mary Markous (“Ms. Markous”) hereby complains and alleges as follows: 1. At all times herein mentioned, Ms. Markous was an individual residing in the county of San Diego, Califoritia and a natural person under the United States Constitution and thereby should be granted a jury trial under the Fifth and Fourteenth Amendments. 2, The true names, identities or capacities, whether individual, associate, corporate or ‘otherwise of Defendants “DOES 1 through 10, inclusive are unknown to Plaintiffs who, therefore, sue said Defendants by such fictitious names. When the true names, identities or capacities of such fictitiously-designated Defendants are ascertained, Plaintiffs will ask leave of Court to amend the Complaint and insert said true names, identities and capacities, together with the proper charging allegations. 3. Plaintiff is informed and believes and thereon alleges that each of the Defendants sued herein as a DOE is responsible in some manner for the events and happenings herein referred to, thereby legally causing the injuries and damages to the Plaintiffs as herein alleged. 19. Further, the state-action doctrine prohibits agents of the government to engage in conduct that protects interests of the government instead of the people. Since LEUIN conducts clinical trials many times and that the Medical Board is a state government regulation agency run by | 2 FIRST AMENDED COMPLAINT T O a oy t r A 10 11 12 13 14 15 16 17 18 19 20° 21 22 23 24 25 26 © 27 28’ || practicing doctors that support ‘Leuin shows a conflict of interest in terms of carefully protected consumer, and citizen rights to grieve their government. 21. The Law that forces a victim to hire a witness in these cases must be enjoined to protect the state’s citizens and grant equal protection under the law. That these “false” Surgeons are entirely unregulated poses a serious health issue. That there are so many that this specific surgeon and her counterparts harmed, is one thing, but the state that needs to protect its citizens from a largely unregulated industry needs to enact protections to help the citizens. That said, I move the court to enact a law that each surgeon who violates this provision of providing their patients with the true techniques performed on them, even. though itis a matter of law, be enforceable in court by suspension, or revocation of their license. 1. PLAINTIFF MARY MARKOUS ALLEGES A CAUSE OF ACTION FOR BATTERY WITH | INTENTIONAL MALICE CAUSING SERIOUS BODILY INJURY AGAINST ALL DEFENDANTS, | | | Defendants and each of them deliberately undertook actions exactly opposite and permanently disfigured plaintiff, in a way that affected her physical well being. 28. MARY MARKOUS sought Defendants, and each of them, to diagnose and treat Plaintiff and to do all things necessary for Plaintiff’s care including, but not limited to finally addressing bilateral right sided atresia, “nasal obstruction”, and septo-rhinoplasty which was a result of malicious misdiagnosis. 29. While Plaintiff was under the sole and exclusive care and control of the Defendants, and |- each of them, Defendants, and: ‘each of them willfully, wantonly and cruelly, cruelly, carelessly, deceitfully, unskillfully, without permission, exaniined, treated, cared for, disgnosed, operated 3 FIRST AMENDED COMPLAINT No v «0 2 o N wv AN Ww 10° 11 12 13 14 15° 16 17 18 19 20 21 22 23 24 | 23 26. 27 28 on, unlawfully hid- information, lied about accreditation, attended and otherwise harmfully, lied about what they would perform to maintain identity about the accreditation and skill set of said Defendants, offensively and with intent written and explicit, handled and controlled Plaintiff herein, thereby offensively touching and directly causing serious bodily inj uries and damages to the Plaintiff against her explicit right of self-determination and. deprived her of her own human right to decide what should be done with her body. MS. MARKOUS’ right to self:determination to what should be done with her face was unlawfully denied, willfully, knowingly, harmfully destructive to her mind, her well-being and her life. Defendants and their agents knowing, willful, ‘wantonly and cruelly departure from traditional disclosure standards of their profession, were done with a sense of malice. MARY MARKOUS’ right to freedom from non-consensual interests as “bodily integrity” were not only breached, but willfully and knowingly unlawfully breached and willfully denied. No right is more sacred than the self-determination of what should be done with one’s body, Defendants knowingly, willfully and with intent went against the self-determined wishes of PLAINTIFF and thereby violated her First Amendment right to self-expression (her own face and requests to preserve it) and right to redress the government for grievances (due to costs of suit, deprivation of legal counsel - due to exorbitant costs and harassment by opposing counsel); Fourth amendment right to be secure in her person; Fifth Amendment right to no loss of limb (nor shall private property be taken for public usd) without explicit informed consent; Fourteenth Amendment rights to guaranteed safeties and equal protection under the law were all violated and all at issue in this case. 30. Thereafter, her nose looked very different and her septum had been deviated and drastically disfigured instead of straightened as was the plan, when she asked what happened, she was told it was swelling. After trying to heal, there was obvious violation to her well-being, and complete destriction of the septum, and general nose internally, It was realized that they performed an opposite procedure on MARY MARKOUS, SHELBY LEUIN, M.D., concealed information of the true techniques: used, and who actually did the operation. Knowing that 4 FIRST AMENDED COMPLAINT bo 10 11 12 13 14 | 15 16 17 18 19 20 21 22 23 25 26 27 Ow o o N N t h D w 28 they had intentionally misdiagnosed MARKOUS with an intention to let a fellow doa dosed septoplasty for research. Dur ing the visits MS. MARKOUS additionally asked what happened to her columella and to the bottom of her nose. DR. LEUIN not only informed her that was not operated ow; but claimed that it would require a rhinoplasty, FR EIsed MS. MAROUS to get another rhinoplasty. Either DR, LEUIN did not have the skill set to reattach what had been detached during surgery, or continued to hide the true techniques ‘done to her by OMISSION from her operative report and withheld the crucial details of deliberately letting ATTRA give MARKOQUS’ septum a severe deformity. Consequently, as a direct result of LEUIN’S omissions, nialiciousness, knowing, and reckless actions MS. MARKOUS was forced to seek medical advice elsewhere and was informed that she needed multiple procedures done in her complex revision septoplasty case. Left nasal wall was placed irrationally and stitched inside of her septum causing severe traction between upper lateral cartilage due to narrow airway and nasal valve collapse. Additionally, Shelby claimed to have done the rhinoplasty procedure which only disfigured the natural, and beautiful ethnic nose she was born with. SHELBY LEVIN, M.D., JAMES ATTRA, and Defendants each know that all medical procedures must be justified by a Patient’s clear and free consent, yet deprived this right knowingly, willfully, and maliciously to minor at the time, MARY MARKOUS. These omissions show malice and coverup against standards of disclosure of the ratession and with intent to cause further harm to plaintiff and elongate her suffering. 31. Defendants neglected to adequately select a competent medical staff and to periodically review the competency of its medical staff and failed to adequately monitor its staff such that Plaintiff was caused to, and did suffer damages. 32.-As a legal result of the willful, offensive, harmful, destructive touching and departure of the given plan and the written intent to do an opposite procedure and the offensive touching ‘that permanently disfigured the nose of Plaintiff, MS. MARKOUS suffered flashbacks and serious bodily harm, including severe s deformity, and missing caudal septum. MS. 5 FIRST AMENDED COMPLAINT 10 11 12 13 14 15. 16 17 18. 19 20 21 22 23 24 25 26. 27 28 © ce Nu an w m a I MARKOUS was injured i in many aspects of health, as the nose plays a very important role in one’s health, strength, and activity, sustaining severe shock, and i njury to the face, all of which said injuries have caused and continue to cause Plaintiff great physical and nervous pain, discomfort, and suffering, and which said injuries Plaintiff is ‘informed and believes, and thereon alleges, will result in permanent disability, until revision surgery. 33. As a further legal result of the willfully malicious, reckless, oppressive actions and deliberate omissions of the Defendants, and each of them, and the ¥esnltug 4 injuries to the Plaintiff, Plaintiff was compelled to, and will indeed, incur expenses for medical and surgical attention, hospitalization, nursing, medication and incidentals for said Plaintiff in an amount unknown to Plaintiff at present. 34. As a further legal result of the willful, recklessness, knowledgeable deviation and intent to offend the quality of life, and dignity of MS. MARKOUS, the Defendants, and each of them, and of the resulting. injuries, Plaintiff will be obliged to incur expenses for medical care and | hospitalization, and hospitalization for an indefinite period in the future and to pay for these expenses in the treatment and relief of injuries for medical and surgical attention, hospitalization, nursing, ‘medication, and incidentals for Plaintiff in an amount unknown to plaintiff at present, 35. As a farther legal result of the intentional, unauthorized, not permitted, intentional acts, unlawfully, knowingly departing substantially from Plaintiffs wishes, which knowingly would cause harm to her, with written intent and written proof of surgical plans that were substantially opposite and very disfiguring. 36. It was reasonably foreseeable and easily predictable that any acts of offensive touching and willful, reckless deviation fromthe consented to plan to augment the nose, by removal of caudal septum, and osteotomies, resulting in a closed off left airway and inability to ever 6 FIRST AMENDED COMPLAINT . oo 0 N y nn A W N 10 Tr 12 13 14 16 17. 18 19 20 21 022 23 24 5 | 27 28 26 breathe properly. Because the risk of harm to the Plaintiff was foreseeable and easily predictable, Defendants owed Plaintiff a duty to exercise judicial thoughtfulness in| diagnosing, caring for and treating plaintiff. 1137. As a legal result, said Defendants reckless, oppressive disregard of the probability that their actions, in failing to provide the necessary medical treatment to Plaintiff and resulting deceit on the operative report, caused Plaintiff severe emotional distress. SHELBY LEUIN, M.D., did not bother mentioning any hidden intentions, or that she was not intending on doing the surgery herself.’ x 38. As a legal result, and by reason of the intentional, willful, un-consented to, unpermitted, unlawful, acts of said defendants, Plaintiff suffered severe and significant distress, shock, impairment, and disfigurement following injury. Resulting in general damage in a sum within the jurisdiction of this court, 39. Defendants acted with malice and oppression and with a conscious disregard of Plaintiff ’s rights, making them liable for punitive damages under California Civil Code §3294. 2. PLAINTIFF MARY MARKOUS ALLEGES FOR A SEPARATE AND DISTINCT CAUSE OF ACTION FOR ASSAULT WITH MALICIOUS INTENT AGAINST DEFENDANTS, 40. Plaintiff Mary Markous repeats and rep-leads each and every allegation contained in all | prior paragraphs and incorporates the same herein by reference as to all defendants. 41. On the date: of surgery, as the anesthesia began LEUIN AND ATTRA and her “team”/ fellows laughed at MS. MARKOUS, and when she protested, the anesthesia kicked in and 7 FIRST AMENDED COMPLAINT BY NN o n t n N w 10: 11 12 | 13 14 15 16 17 18 19 20 21 22 23 | 24 26 a7 28 late oo 25° then proceeded to mutilate her intentionally with malice. Though the anesthesia had already started, when MS. MARKOUS tried to say she wanted to leave, but the laughing only | continued, and she felt very scared and at risk with all the students in there, but it was too 42. As a direct and proximate result of aforesaid conduct of Defendants, SHELBY LEUIN, M.D, caused fear in her patient while she was going under general anesthesia. While under sole control of defendants and each of them caused her injuries and stood by and did nothing to prevent them. 43. As a direct and proximate result of the aforesaid conduct of Defendants and each of them and the resultant injuries to Plaintiff MARY MARKOUS, It is clear that SHELBY LEVIN, M.D., knew beforehand that what lie allowed to happen would be offensive and that final threat comes into MS. MARKOUS?’ brain every second she struggles to get air through her left airway, causing her to remember being targeted for the intentional disfiguration of her nose. This action alone causes suffering, that a doctor she trusted, enacted a plot to harm, knowing she would harm, and did violence to her Person. This disfiguration and the threat has cost MS. MARKOUS her feelings of safety in this world. As a result of SHELBY LEUIN’S lack of care, and actions, it is clear that the resulting damage shows SHELBY LEUIN ’s intent to allow her fellow(s) including but not limited to, JAMES ATTRA harm. 44. As a legal and factual result of the aforementioned conduct, Plaintiff was physically, and financially damaged. Defendants and each of them by their conduct and lack of activity to stop said procedures knowingly and intentionally and unlawfully deprived her the right to direct her own medical care. 45, Defendants acted with malice and oppression and with a conscious 8 FIRST AMENDED COMPLAINT 10. 11 12 13 14 15 16 17 18] 19 20 21 2 23 24 25 26 27. 28 No disregard of Plaintiff’s rights, making them liable for punitive damages under California Civil Code §3294. PLAINTIFF MARY MARKOUS ALLEGES FOR A DISTINCT CAUSE OF ACTION FOR HUMAN EXPERIMENTATION AGAINST DEFENDANTS 46. Plaintiff Mary Markous repeats and repleads each and every allegation contained in all prior paragraphs and incorporates the same herein by reference as to defendants. 47. While under care, control of the Defendants and each of them, MS. MARKOUS? face was used for experimentation and research that included destructive obliteration of tissue, That Defendants, and each of them operate a fellowship program, and the resulting non consented to procedures unlawfully and unpermitted, were forcibly applied to MS. MARKOUS nose were done in conjunction with that fellowship, she was a subject used for teaching, experimentation and underwent procedures not consented to that destroyed tissue for that purpose, 48. She was not told of the study or that she was part of a medical experiment. The administration of an experiment without the patient’s knowledge is clearly an offensive contact, something that the defendants certainly must have known. The laws on experimentation detail that no deceit shall be used to undertake destructive obliteration of tissue from the subject without explicit consent. 49. As a direct and proximate result of the aforesaid conduct of Defendants and each of them and the resultant injuries to Plaintiff MARY MARKOUS, It is clear that. SHELBY LEUIN, M.D. knew beforehand that placing a patient in a study without their consent, or using her as a method to teach without her consent, would be highly offensive. Using her as a subject to 9 FIRST AMENDED COMPLAINT © OW 9 a N wn A 11 12 B 14 15 16 17. 18 19 20 21 22 23 24 25 26 27 28 perform opposite procedures to train a fellow would be highly offensive and harmful to her | and there is no justification for imposing these procedures without full and free consent. The resulting procedure has yet to be reversed. am 50. As a legal result of the aforementioned conduct of defendants sid] each of them, MARY MARKOUS was physically damaged. She cannot breathe correctly and is in daily. chronic pain resulting from the use of permanent stitching to the septum and nasal wall, that radiates | to her face, and leads to daily discomfort. This procedure goes against the interests and best interests for the plaintiff and was unlawfully, unauthorized and intentionally performed an aggressive procedure. 51. Defendants acted with malice and oppression and with a conscious disregard of Plaintiff’s rights, making them Liable for punitive damages under California Civil Code §3294, 4. PLAINTIFF MARY MARKOUS ALLEGES A DISTINCT AND SEPARATE CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST DEFENDANTS. 52, Plaintiff Mary Markous repeats and repleads each and every single allegation contained in all prior paragraphs and incorporates the same herein by reference as to defendants 53. Defendants and each of them awl her a duty. Physicians must obey the patient’s interests above their own financial ones and inform them of any economic interests that conflict with patients goals especially research or studies that would cause them to veer from their plas. SHELBY LEUIN, M.D, was bound by law to disclose all studies and the Fellowship training that might cause her/him to perform an opposite procedure for the sake of personal interest. 10 FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "|| conflicted with here A O c o 9 o n w R 54. As a legal result this intentional. action, Defendant's misconduct, including self-dealing or personal interest conflicts; ‘Defendants and each of them unlawfully and willfully did not tell MS. MARKOUS of the. research studies and clinical trials and personal interests that 53 Though she knew there ‘was a fellow, she was never introduced and was not told her own face would be used as a teaching opportunity to perform highly radical procedures that she did not consent to. The resulting harm was a direct result of these malicious intentional acts and the right to know about the conflict of interest _— a flagrant, intentional denial of rights that due to the patient/doctor relationship substantiated an intentional departure from professional norms. As a legal result of this breach and direct and. proximate result of ‘this breach, MS. MARKOUS nose and facial nerves were injured and she | sustained many injuries. This breach was contrary to the interests and explicit wishes of patient. Defendants by this breach caused Plaintiff to suffer damages to her tissue, bodily integrity and well-being, 56. As a legal result of Defendants and each of them their unlawful actions, MS. MARKOUS suffered permanent major injuries to her face and nerves, The destructive tissue obliteration and physical harm resulted as she didn’t have a free and clear picture of the motives of SHELBY LEVIN, MD. and DEFENDANTS. She sustained damages that are very complex and and Tom a very negative affect on her overall health and well being. SHELBY LEUIN, M.D., did not bother informing patient for the sake of erpedimantsion, maliciously without regard for the integrity of Plaintiff’s tissue or features and willfully went against her rights to self-determination of medical treatment. 57, Defendants acted with malice and oppression and with a conscious disregard of Plaintiff’s rights, making them liable for punitive damages under California Civil Code §3294, ‘11 FIRST AMENDED COMPLAINT e e N y Un A W N 10) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF MARY MARKOUS ALLEGES A DISTINCT AND SEPARATE CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST DEFENDANTS, | | BRT 58, Plaintiff Mary Markous repeats and repleads each and every allegation contained in all prior paragraphs and incorporates the same herein by reference as to Defendants 59. In committing the acts described herein, Defendants and each of them engaged in extreme and outrageous conduct that transcended the bounds of human decency. 60. Defendants and each of them intended to cause, and did cause, Plaintiff to experience severe physical injury and distress and they each acted with reckless disregard of the probability that Plaintiff would suffer such inj uries. Defendants KNEW these drastic invasive procedures would harm plaintiff’s well-being. Instead of helping her- as is the duty of the professional obligation of the physician, post operation, she maliciously advised her to get a revision rhinoplasty, 61. As a legal result of Defendants’ and each of their conduct Plaintiff experienced severe] distress and as a direct result severe bodily injury. The severe departure from what was agreed to and consented to ‘caused the distress and bodily injury. The omissions from the report caused her years of study and careful research to unearth what happened to her. 62. As a further legal result of everything that was mislead LEUIN, and Defendants and each of them by their actions, Plaintiff has lost quality in life, The violence committed upon her is so — that it is hard io physically function at times, which triggers her PTSD. MS. MARKOUS is obligated to seek medical care. 12. FIRST AMENDED COMPLAINT \O IL 12 13- 14 15 16 17 18 19 20 21 22 23 24 25 26 27 | 28 6 | || PLAINTIFF MARY MARKOUS ALLEGES DISTINCT AND SEPARATE CAUSE OF | ACTION FOR FALSE ADVERTISING AGAIN ST DEFENDANTS. 0] 1 63. Defendants acted with malice and oppression and with a conscious disregard of Plaintiff’s rights, making them liable for punitive damages under California Civil Code §3204. 64. Plaintiff Mary Markous- repeats and repleads each and every allegation contained in all prior paragraphs and incorporates the same herein by reference as all Defendants. 65. Defendants and each of them put LEUIN out to the public as a specialist in otolaryngology and plastic surgery which was very misleading. In committing the acts described herein, Defendants defrauded the plaintiff over false credentials to lure the public. These defendants did knowingly and willfully mislead the public with intent to gain business and lure them into a sense of trust regarding LEUIN’s credentials. LEUIN puts herself out to the public as a otolaryngology specialist who does rhinoplasties, yet is actively performing, or letting fellows preform, aggressive disfiguring surgeries, on patients who are asking for the opposite. Ms. Markous was lured in, and consequent to that false advertising she suffered permanent damages and serious bodily harm. 66. As a legal result of the misleading advertising Defendants have lured and caused MS. MARKOUS to be maimed by a doctor with improper training and virtually no consideration | for facial nerves or human dignity as purported as the very reason to choose a member of the ABPS, and most importantly, otolaryngology. . 67. As a further legal result, Professional doctors are not allowed to present false statements on any. form of advertisement with intent to lure the public and to that end MS. MARKOUS suffered damages to her well being, and experienced severe shock. Fellow(s) never consulted 13 FIRST AMENDED COMPLAINT ro B o w 12 13 14 15. 16 7: 18 19 . 20. 21 22 23 25 2. 27 28 [| 68. As a legal resul¢bFthese-nctions, Defendants nd each of them intended to ture and harm |[ injury and emotional distress and they each acted with reckless disregard of the probability OO © 3 OO wn [| MS. MARKOUS has damages to her life, well-being, sense of justice, body, and mind and will 101 11 with MS. MARKOUS, and LEUIN was nowhere to be seen one week post operation, where it is most crucial. the public and did harm the public by unlawfully and falsely claiming Defendants and each of them were qualified to work on MS. MARKOUS, and Plaintiff experienced severe physical that Plaintiff would suffer such injuries due to false/misleading advertisements. To that end, have to seek professional help to get damages fixed. 69. As a further legal result of Defendants’ conduct which was a substantial factor in causing Plaintiff’s severe harm, MS MARKOUS ‘has suffered undue stress, loss of her vitality, inability to cope and total loss of faith that she can get well until complex revision septoplasty. 70. As a legal result of these actions by Defendants, Plaintiff has accordingly been damaged in | an amount to be determined at the time of trial. 71. Defendants acted with malice and oppression and with a conscious disregard of Plaintiff’s rights, making them liable for punitive damages under California Civil Code §3294. 7. PLAINTIFF MARY MARKOUS ALLEGES A DISTINCT AND SEPARATE CAUSE OF ACTION FOR MAYHEM AGAINST DEFENDANTS. 72. Plaintiff Mary Markous repeats and repleads each and every allegation contained in all | prior paragraphs and incorporates the same herein by reference as all defendants, 14 FIRST AMENDED COMPLAINT f o m o w g w 10 11 12: 13 14 15. 16 17 18 19 20 21 22 23 24 25 26 27 28 73. In committing the. acts described herein, defendants willfully, wantonly and cruelly, knowingly and unlawfully permaitently disfigured the nose of plaintiff, causing it on never be able to function properly. 74. ‘Without consent or legal privilege and against state law, Defendants unlawfully, unpermitted, Mnanthorzedly); willfully and knowingly without egard for rights, overall wellbeing, and feelings. Defendants intended to maim and did maim Ms. Markous’ nose for the purpose of making money through fellowship programs and data collection and used her |! as a subject for a teaching opportunity. 75. As a legal result, Plaintiff suffered Serious Facial Damages to her nerves in her nose. functionality and. aesthetics. Defendants’ conduct was a substantial factor in causing] Plaintiff’s severe physical damages and distress. 76. As further legal result, Plaintiff has accordingly been damaged in an amount to. be determined at the time of trial. 77. Defendants acted with malice and oppression and with a conscious disregard of Plaintiff’s rights, making them liable for punitive damages under California Civil Code §3294, 8. PLAINTIFF MARY MARKOUS ALLEGES A DISTINCT AND SEPARATE CAUSE OF ACTION FOR IN TENTIONAL DECEIT/FRAUD AGAINST DEFENDANTS. 78. Plaintiff MARY MARKOUS repeats and repleads each and every allegation contained in all prior paragraphs and incorporates the same herein by reference as all Defendants. 15 FIRST AMENDED COMPLAINT meg] oo 0 3 O N Wn 10 11 12. 13 14 15 16 17 18 19 20 21 22 23 24 25 2% 27. 28 79. Without consent tor legal privilege, willfully and unlawfully, Defendants and each of them intentionally misled, lied to and deceived Plaintiff with the intent to harm Plaintiff only for the furtherance of scientific projects and fellowship goals. Against State law SHLEBY LEUIN, M.D., OMITTED most of the procedures she and her fellows undertook upon MS MARKOUS face and refused to tell her directly and realistically when she asked. She intentionally : deceived MS. MARKOUS by telling her she would make her nose more aesthetically pleasing, yet she did the opposite, and rule the ability for the nose to function, Such conduct was extreme and outrageous and would be deemed highly offensive to a reasonable person. 80. Without consent or legal privilege, Defendant willfully, knowingly, wantonly and cruelly, deliberately and intentionally knew she was misleading Plaintiff, as any surgeon would have told her she did i. have a deviated septum, therefore the septoplasty procedure would not benefit her. Defendant has done this repeatedly to others, doing very risky permanent procedures by misleading patients into intent to induce reliance and then performing a markedly opposite procedure for the money and data collection and teaching opportunities. MS.- MARKOUS did justifiably rely on SHELBY LEUIN, M.D. as she claimed to be a specialty surgeon who was board certified. 81. MARY MARKOUS was only seeking treatment to open her right choanal atresia. SHELBY LEUIN willfully knowingly, wantonly and cruelly and intentionally put herself out fol the public as an otolaryngology surgeon who was experienced in rhinoplasties and Septoplasiies. The reliance was justifiable and she was in a fiduciary relationship with her. The departure of disclosure. and intentional fraud is against professional standards. 82. As a legal result of SHELBY LEUIN and her agents, misleading statements and fraud. MS. MARKOUS was deceitfully told by LEUIN that she would make it easier for her to breathe, and make her nose look more pleasing. However, defendants undertook to do the opposite, removing part of her nose and cut her septum only to be moved improperly high up, and to 16 FIRST AMENDED COMPLAINT ar o oo ~ aN wn the left. Resulting in MS. MARKOUS having severe breathing difficulties due to deformity caused after surgery affecting her airway and causing nasal valve collapse, 83. As a legal result-of the aforementioned conduct, Plaintiff was physically and psychologically damaged and financially damaged through deceit to and by and through the willful, knowing and reckless intentional actions of Defendants and each of them. Under the 22 CCR §7049, ‘which governs patient health content; (12) Operative report including | preoperative and postoperative diagnoses, description of findings, technique used, tissue | removed or altered, if surgery was performed. Although no technique is stated, and much of | . Nl her tissue obliterated, this left MS. MARKOQUS, who is not a doctor to ‘research for herself. “fl Removal of the base of her septum because clear do to caudal septum deformity. 84, DEFENDANTS and each of them acted with malice and oppression and with a conscious disregard of Plaintiff’s rights, making them liable for punitive damages under California Civil Code §3294. 9. PLAINTIFF MARY MARKOUS ALLEGES A DISTINCT AND SEPARATE CAUSE OF ACTION FOR INTENTIONAL CONCEALMENT OF FACTS (FRAUD) AGAINST DEFENDANTS 85. Plaintiff MARY MARKOUS repeats and repleads each and every allegation contained in all prior paragraphs and incorporates the same herein by reference as all Defendants. 86. Markous was ina fiduciary relationship with Leuin and Defendants and each of them and Physician/Patient relationships carry special duties of disclosure and ethical intentions 17 FIRST AMENDED COMPLAINT Po d { A . 4 4 = . © O e u a Ln A w n i N 18 87. Defendants willfully, knowingly, wantonly and cruelly and intentionally failed to disclose {{that they intended to experiment on her. She willfully, wantonly and cruelly, knowingly unlawfully concealed what was actually done after the surgery as well. Records were falsified for defendants sake. 88. Defendants, and each of them willfully, knowingly, wantonly and cruelly and intentionally did not tell MARY MARKOUS of this intent to experiment on and disfigure her septum. 89. Defendants and each of them intentionally, willfully, knowingly failed to disclose that she would permanently damage needed structural elements of MARY MAROUS’ nose that was needed for her ability to breathe. Or that she was working with fellow, JAMES ATTRA. | 90. Defendants and each of them willful and knowing concealment induced reliance of MS | MARKOUS to gain ill-gotten consent. Had she been informed of even the very intent written in her own medical records, she never would have undergone surgery. MS MARKOUS reliance was justifiable given she isa supposedly a board certified otolaryngologist, working at a well known children’s hospital. 91. Defendants and each of them willfully, knowingly and wantonly and cruelly concealed the || fact that she had no intention of making my straight septum any straighter, and instead | willfully, knowingly and wantonly and cruelly given her a drastic disfiguring surgery that removed the base of her nose and gave her severe septal deformity. She now knows she does || the same disabling procedures on many of her patients and does it by inducing false reliance || on facts that he intentionally conceals to gain consent o lure patients into the operating room. 92. SHELBY LEUIN, M.D, intentionally, willfully, wantonly and cruelly and deceitfully || concealed these. facts of her intent to have fellows remove tissue for her own economic gain and Research, to gain consent to do the opposite to MS MARKOUS. 18 FIRST AMENDED COMPLAINT 1 12 13 14 15° 16 17 18 19 20 21 22 23 25 26. 27 28 © ® u a Ut BA W w 10 93. As a legal result of Defendants and each of them the willfulness, recklessness, knowing ‘actions to mislead, Plaintiff MARKOUS relied on her words that she would actually be giving |. her a rhinoplasty dusinyy the choanal atrésia repair done by Dr. Maggot. 94, As a legal result of Defendants and each of them willful, reckless, intentional, fraudulent concealment of facts, Markous was harmed irreparably, her well being was stripped from her for the convenience and economic pectessional gain of the surgeon. It was concealed that LEUIN intended to do the opposite. procedure for the fellowship a ——— Resulting in MARKOUS’ nitude including but not limited to having severe septal deformity limiting her ability to breathe. 95, ‘Had this willful, knowing, reckless and deceitful concealment not taken place and had SHELBY. LEUIN, M.D. acted with Transparency, MS. MARKOUS would never have ‘undergone treatment with her “team”. Her concealment has robbed her years of her life, hurt her professionally, physically, emotionally. Had she informed her of the hidden intentions MS. MARKOUS would have sought treatment for bilateral atresia elsewhere to avoid intentional misdiagnosis. 10. PLAINTIFF MARY MARKOUS ALLEGES A DISTINCT AND SEPARATE CAUSE OF ACTION FOR INTENTIONAL FALSF. PROMISE (FRAUD) AGAINST DEFENDANTS. all prior paragraphs and incorporates the same herein by reference as all Defendants. 97. In committing the acts described herein, Defendants engaged in extreme and outrageous conduct that transcended: the bounds of human decency. Surgical plan was made willfully, 19 FIRST AMENDED COMPLAINT [N =] 10 11 12 13 14 15 16 17 18. 19 - 20 21 2 23 24 25° 26 227 28 ‘wantonly and cru elly and with intend to induce deformity through fellowship program which © Le NY AN w h Ww 101. Defendants acted with malice and oppression and with a conscious disregard of PLAINTIFF MARY MARKOUS. ALLEGES A. DISTINCT AND SEPARATE CAUSE OF was reckless, intentional and permanently disfiguring to MARY MARKOUS. Defendants KNEW they would not parform a procedure MS. MARKOUS needed or would ‘have ever benefited from, evidence-of which i s'in hér medical records where suddenly SHELBY LEUIN, MD intentionally misdiagnosed her with a deviated septum, and continued to confuse which side was deviated. This shows complete disregard of the patients well being. 98. Defendants intended to cause, and did cause a disabling deformity. Preforming procedures without free and clear consent or justification to perform procedures is malicious. 99. Defendants’ and each of them, who willfully, knowingly, wantonly and cruelly and ) intentional falsely promised without intent of performing said pr omise to induce. reliance to gain consent was substantial factor in causing Plaintiff’s severe distress. The severe departure from what was agreed to and consented to caused the distress. The willful deceit with a knowing, studied, conniving intentional goal of gaining consent through false promise was | unlawful and against the standards of conduct of the profession and caused permanent bodily | injury, and psychological harm to MARY MARKOUS. 100. As a legal result of Defendants, Plaintiff has accordingly been damaged in an amount to" be determined at the time of trial physically, eth omally professionally and her vitality from |. the violent act. Plaintiff’s rights, making them liable for punitive damages under California Civil Code §3294, 11. ACTION FOR DEFAMATION OF CHARACTER AGAINST DEFENDANTS. 20 FIRST AMENDED COMPLAINT 10 1 12 13 14 15 16 17 18 19 20 21 22° 23 24 25 26 27 28 W o a a N wv RA W N 102. Plaintiff MARY MARKOUS repeats and repleads each and every allegation contained in all prior paragraphs and incorporates the same herein by reference as all Defendants. 103. In committing the acts described herein, Defendants and each of them permanently disfigured the nose of plaintiff. Disabling her nose from ever functioning properly due to intentional misdiagnosis with an intent to disfigure. 104. Defendants purposeful and willful intentional departure from plan, caused disfiguration, which harmed MARY MARKOUS. She willfully and fraudulently told her in front of others that the reason she was not breathing well and has internal and external asymmetry due to her own natural features, not a procedure she had performed. She fustiuatsd that MS. MARKOUS get another rhinoplasty aside from the revisions being very risky, MARY MARKOUS had a natural, beautiful, and unifiqus appearance which was intentionally stolen from her with intent to strip all unique qualities from her face without regard for her life ox dignity or human bodily integrity, all because of fellowship training, 105. As a legal consequence, Defendants’ and each of them ‘willfully, knowingly and irreparably hurt MS. MARKOUS’ reputation, mental state, emotional well-being and livelihood and insinuate that she herself, or her lack of care “caused her disfigurement” and did willfully cause her disfigurement resulting in never ending healing process. Being irreparably altered is conduct that is outside the bounds of human decency and anyone would feel shame, embarrassment and humiliation at the effects of such a violent undertaking. 106. As a legal consequence Defendants and each of them caused harm to MS MARKOUS physically, professionally, personally, emotionally and financially. 21 FIRST AMENDED COMPLAINT WO a ay th BA w e 10 11 12 13 14 15 16 17 18 19 20 21. 22 23 4 25 26 27 28 107. Defendants and each of them acted with reckless disregard of the truth of the statement and hid the real reason her septum was sewn to. her nasal wall with deliberate callousness and with intended malice to cause her more suffering. Woe mga 108. Plaintiff has accordingly been damaged in an amount to be determined at the time of trial. {{ 109.. Defendants acted with malice and oppression and with a conscious disregard of Plaintiff ’s rights, making them Jiable for punitive damages under California Civil Code §3294. 12, PLAINTIFF MARY MARKOUS ALLEGES A DISTINCT AND SEPARATE CAUSE OF |" ACTION FOR EACH OF CALIFORNIA BUSINESS AND PROFESSIONS CODE §17500, et seq. including but not limited to AND §17535 AND §17536, but also §17200 -AGAINST DEFENDANTS, oo 110. Plaintiff MARY MAROUS repeats and repleads each and every allegation contained in all prior paragraphs and incorporates the same herein by reference as all Defendants. 111. This act states the unlawfulness and misleading advertising of inducing to destroy property and as such Ms, Markous body is her own property and she has consequently been deprived of finances and suffered damages due to Defendants advertisements supporting SHELBY LEUIN and as such Defendants nd each of them are responsible she was misled by | false statements that were unlawful, untrue and willfully, WANTONLY, cruelly, intentionally misleading to the degree that is a departure from standards of the medical profession and against state law to procure, - Defendants. and each of them violated state laws by 22 FIRST AMENDED COMPLAINT Oo 0 NN o N ui Bn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 || 28 misrepresenting and fraudulently: and misleadingly. Defendants knowingly misrepresented the truth. 112. Defendants and each of them niisled by ratifying continual support, that LEUIN iidéed was a children’s otolaryngologist who also did plastic surgery. Defendants and éach of them knew and should have knows due to the number of complaints to the hospital. LEUIN does whatever she wants and typically allows fellows to disfigure her patients resulting i n more harm, and more complex treatment needing. to be sought out in otolaryngology once her. patients are no longer minors. These actions are not traditional practice in the profession for or standard in the practice of medical professionals, The numbers of complaints are growing and widespread. 113. As a legal result of Defendants and each of them willful, ongoing, intentional representations to the public MS MARKOUS was lured and suffered damage to her “bodily: integrity,” fraudulently deceived on purpose due to actions of the Defendants and to each are responsible for her damages to Her face, well-being by using false means, falsification of Credentials and other means to lure the public. 114. As a further legal result of Defendants and each of them willful, reckless intentional representation to the public Ms. MARKOUS will have legal fees, medical care, and will continue to have a disabled nose until future revision. 115. As a result of the harms caused and will continue to cause MS MARKOUS harm, she will move the court for injunctive relief and statutory relief and civil penalties and any and all remedies available under this provision that she knows about or is unaware to protect the | public from deliberate mutilation. 23 FIRST AMENDED COMPLAINT No Oo O X 9 YY B P W 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 25 2 27 28 falsely advertised the skillset, mindset, accreditation, and falsely misrepresented facts on their 116. Under civil code whereas civil penalties. must be applied by the court, it is proper that Defendants and each of them under §17500, et seq be fined. 117. Under state daw;*MS MARKOUS seeks ‘injunctive relief to protect the public from | undergoing the same harm that her and others who have also endured such and similar harm. And that this harm is ongoing will seek injunctive relief to stop any and all future harm. 13. PLAINTIFF MARY MARKOUS ALLEGES A DISTINCT AND SEPARATE CAUSE OF ACTION FOR VIOLATIONS AND RESTITUTION UNDER LANHAM ACT 43) - AGAINST DEFENDANTS SHELBY LEUIN, M.D., RADY CHILDREN’S HOSPITAL AND | = DOES 1 THROUGH 10: 118. Plaintiff MARY MARKOUS repeats and repleads each and every allegation contained in all prior paragraphs and incorporates the same herein by reference as all Defendants. 119. LEUIN and Defendants and each of them, willfully, knowingly, wantonly and cruelly. websites and other public forums to lure customers for service. 120. LEUIN and DEFENDANTS and each of them misled, falsely stated, ratified untrue information in commercial advertising or promotion, misrepresented the nature,| characteristics, qualities, services, of their doctors and their facilities. Defendants and each of them committed falsification of credentials, skillset and reputation of Defendants, 121. As a legal result of Defendants and each of them, lured and caused MARY MARKOUS to suffer a material harm to her commercial interests, persona, professional life and reputation. -24 FIRST AMENDED COMPLAINT 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 © o o ~~ aN w n BN w nN all prior paragraphs and incorporates the same herein by reference as all Defendants 124. In committing the ‘acts described herein, Defendants and each of them illegally, things being concealed and lied about and kept off medical records. 122. As a legal result, this injury was the direct and proximate cause of the false, untrue false advertising and as such Defendants and each of them are responsible for her suffering and ongoing damages due to their irresponsible and willful representations. 14, PLAINTIFF MARY MARKOUS ALLEGES A DISTINCT AND SEPARATE CAUSE OF| ACTION FOR PAIN AND SUFFERING 3905A -AGAINST DEFENDANTS SHELBY | LEUIN, M.D., RADY CHILDREN’S HOSPITAL AND DOES 1 THROUGH 10 123. Plaintiff MARY MARKOUS repeats and repleads each and every allegation contained in unlawfully, unpermitted, | permanently disfigured plaintiff, caused anxiety, mortification, humiliation, loss of life enjoyment, embarrassment, inconvenience, grief, physical pain, | physical impairment, harm, and ongoing suffering over the violation. 125. PURPOSEFULLY, willfully, intentionally, wantonly and cruelly Defendants and each of them are legally responsible for unlawfully and without consent acting against Plaintiff's | explicit rights to bodily integrity and the right to self-determination by maiming her face, omitting actual procedures done to her nose obliging Ms. Markous to plan to travel to geek help and advice and surgical intervention. She suffers daily and she cannot be helped due to 126. As a. legal result of the foregoing actions, and due to Dr. Leuin and Defendants and each of willfully, knowingly, - deceptively, wantonly and cruelly and intentionally withholding information and their inability to. tell the: truth about Ms. Markous’ surgery post op by|- omission, deflection, evasion and bullying tactics, she has been unable to sleep due to | 25 FIRST AMENDED COMPLAINT 10 11 BY 13 14 15 16 17 18 19 20 21 22 23 24 25 2% 27 28 wakefulness and constant research, her left nostril is permanently closed and she does not get | - air through properly whatsoever due to the actions of defendants. 127. As a legal result, Defendants and each of them acted with reckless disregard of the rights and feelings for Ms. Markous and caused daily suffering and pain since the incident. 128. As a legal result of these intentional actions, Defendants and each of them are responsible for MS MARKOUS® constant discomfort, and PTSD. 129. Defendants acted with malice and oppression and with a conscious disregard of Plaintiff’s rights, making them liable for punitive damages under California Civil Code §3294 15. PLAINTIFF MARY MARKOUS ALLEGES A DISTINCT AND SEPARATE CAUSE OF ACTION FOR VIOLATION OF EACH DISTINCT CIVIL RIGHT INCLUDED IN THE FIRST AMENDMENT, FOURTH AMENDMENT, FIFTH AMENDMENT AND| FOURTEENTH AMENDMENT AGAINST DEFENDANTS. 130. Plaintiff MARY MARKOUS repeats and repleads each and every allegation contained in all prior paragraphs and incorporates the same herein by reference as all Defendants. 131. As such, in committing these acts herein, Defendants and each of them are obligated to obey the laws of fhe state and the constitution and the private laws and rights given to its citizens and each of them violated I MS MARKOUS’ civil rights to property, body, saf human dignity and the right to self-determination and bodily integrity and suffered extreme. hardship and damages as a result of such violations. She is entitled to equal protection by law. and under the law. Rights to. privacy, autonomy and choice, Defendants conducted severe, extreme disfiguration to her own fimctionality and look denying her self expression. Fourth 26 FIRST AMENDED COMPLAINT No 10 i 12 13 14 15 16 || 17 18 1g 20 21 22 23 24 25 26 27. 28 Oo co NN a wn b w Amendment right to privacy of the body by deceitfully and fraudulently gaining consent to | perform a surgery she had no intent of performing. Fifth amendment rights to a fair trial due to her Insurance Company being in the pocket of the courts and thereby prevents patients. 132. As a legal result of these damages, MS MARKOUS was denied all things proper to her well being and show a deliberate malice on the part of such Defendants and each of them. 133. As a legal result, Defendants and each of them acted with wanton disregard of the rights and feelings for Ms. Markous. 134. As a legal vesult of these intentional actions, Defendants and each of them are responsible | for MS MARKOUS’ damages. While the Fourteenth amendment, nullifies and makes void all State legislation, and State action of every kind, which impairs. the privileges and immunities of citizens of the United States, or which i injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws. 135. Defendants acted with malice and oppression and with a conscious disregard of Plaintiffs rights, making them liable for punitive damages under California Civil Code §3294. SIXTEENTH (Against the State For ¢ STATE ACTION) UNCONSTITUTIONALITY OF CCp REQUIREMENTS OF THE EXPERT WITNESS are unconstitutional on their face and in their actions to deprive citizens to a fair trial. 136. Plaintiff MARY MARKOUS repeats and repleads-each and every allegation contained in |. ‘all prior paragraphs and incorporates the same herein by reference as all Defendants the State of California, et al. 27 FIRST AMENDED COMPLAINT OL 0 NN a wv Bb» 10 11 12 13 14 15 16 17 18 19. 20 21: 22 23 24 25 26 27 28 137. As a legal result of denying the constitutional rights to civil rights and liberties by the state’s refusal to sanction a known dangerous surgeon, Ms. Markous’ rights to bodily integrity and personal liberties have been denied repeatedly and knowingly and over time. 138. As a legal result of the actions of the state to fail to investigate the claims of patients which is well documented and which is run by active participants in the Medical Community shows a abnormality that allows dangerous surgeons to practice “Surgery” without any medical credentials to do so. MS MARKOUS was misled and disfigured. 139. As a legal result of the health and welfare of the citizens of the state, the states lack of actual investigation makes this Board a threat to the well being of its citizens, MS MARKOUS has incurred inordinate suffering to her well being. 140. As a legal and constitutional right to “grieve her government” the government turned | their. collective back on her and ratified, condoned and allowed conduct which is ruining lives | . in her community, and will continue to. 141. As a legal restilt of failure to protect its citizens, by enforcing laws that force them to pay for litigation against billion dollar insurance companies, shows double dealing and lack of | access to the court system. 142. Asis common for plaintiff’s claims to be thrown out given they have no resources to fight a Goliath, they incur financial ruin and ruination of their sense of dignity to access to the law as a given right and a matter of law. This right is fundamental under the US constitution and under the state-action. | 143. And whereas hospitals, surgical centers shall not deprive citizens of their bodily integrity. 28 FIRST AMENDED COMPLAINT nN 10 11 12 13 14 15 16 | 17 18 19 20 21 C22 23 24 25 26 27 28 OO 0 39 a wn b w 144. Instead, the state action doctrine stands for the proposition that the people have the right to determine for themselves, through: their state and federal elected representatives, how individuals are tostrext each other and how generous society will bé in the distribution of wealth when it acts collectively. 145. The state’s failure to revoke or suspend licenses of known dangerous doctors pretending to be certified surgeons is well documented and deprives its citizens fair choice under the law because all of the complaints are suppressed and not acted upon. 146. Our inalienable rights of equality, liberty, and fairness are protected from interference oo even when—especially wheri—the majority of the people wish to violate those rights. And because the Constitution is regarded as law, the duty to enforce its prohibitions against state, action is the responsibility of the courts.. 147. However, when a person invokes the power of the judicial system to enforce a contract, this does constitute state action, and the enforcement of the contract must conform to both . procedural and substantivé requirements of the Constitution. 148. U.S. Supreme Court Holds That State Action Immunity Does Not Apply to State Boards If the Board Is Controlled by Active Market Participants. 149. Thereby and therefore, this state is responsible for the injuries to MS MARKOUS by acts and omissions that deny her rights. 29 FIRST AMENDED COMPLAINT oo 0 NN o n w i A 10 11. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 'Unprofessional Conduct 150. [“Due process” means that all state agencies are required by the federal constitution to obey existing state and federal law in dealing with the liberty and property interests of citizens.) 151. Ms. Markous’ nose was permanently disfigured, inside and out, and she is not alone. The Board did nothing to investigate under the Jaw of state-action doctrine are responsible in part for the allegations herein. 152. In order to protect citizens, the APA also grants the judiciary oversight over all agency actions.[2] It is one of the most important pieces of United States administrative law. The Act became law in 1946. “La. Bus. & Prof. Code § 2234 provides that “the board shall take action against any license who is charged ‘with unprofessional conduct.” Without limiting the definition of unprofessional | conduct, the statute names —— examples, such as violating or attempting to violate a provision of the Medical Practice Act, gross negligence, repeated negligent acts, incompetence, dishonesty or corruption, actions that would have “warranted the denial of a certificate,” the unauthorized practice of medicine in another state or country, and the repeated failure to ‘attend an interview with the Medical Board if the licensee is under investigation.[5] Subsequent case law has taken an expansive view of § 2234. In Kearl v. Board of Medical Quality Assurance, the court held that the statute “does not limit. . . unprofessional conduct to’ the sichusl treatment of a patient--as opposed to administrative work—and does not require injury or harm to the patient before action may be taken against the physician or surgeon, California’s Business and Professions Code governs much of the practice of medicine in California, The - portion of the Businéss and Professions Code specifically relating to physicians and other allied health professionals is the Medical Practice Act, codified at Bus. & 30 FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 Prof. Code § 2000, et seq. Tn addition to the Medical Practice Act, physicians are constrained by the regulations of the Medical Board of California, codified in Title 16 of the California Code of Regulations at § 1300, et seq., including the Disciplinary Guidelines incorporated by |. reference at 16 C.CR§1361. Finally, should a physician be disciplined, Metlical Board proceedings are carried out under the Administrative Procedure Act. But the real tragedy of the Christopher Duntsch story is how preventable it was. Over the course of 2012 and 2013, even as the Texas Medical Board and the hospitals he worked with received repeated complaints from a half-dozen doctors and lawyers begging them to take | action, Duntsch continued to practice medicine. Doctors br ought in to clean up his surgeries Co decried his emegical, misadventures,” according to hospital records. His mistakes were obvious and well-documented. And still it took the Texas Medical Board more than a year to stop Duntsch—a year in which he kept bringing into the operating room patients who ended up seriously injured or dead. In Duntseh’s case, we see the weakness of Texas’ unregulated system of health care, a system built to protect doctors and hospitals. And a system in which there’s no way to know for sure if your doctor is dangerous. Seventeenth LOSS OF CHANCE Against all Defendants. 153. Plaintiff MARY MARKOUS repeats and repleads each and every allegation contained in all prior paragraphs and incorporates the same herein by reference of all defendants. ~re—mmmmnime ren 154. As such, in committing these acts and omissions, Defendants and each of them are obligated to obey thie laws of the. state and the constitution and the private laws and rights given to its citizens and each of them violated MS MARKOUS and her civil rights to property, body, safety, human dignity and - the right to self-determination and bodily integrity and © 31 FIRSTAMENDED COMPLAINT | NY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27. 28 © ® u y wn p w suffered extreme hardship and damages as a result of such violations. She is entitled to equal protection by law and under the law. Rights to privacy, autonomy and choice. 155. As a legal result of these damages, MS. MARKOUS was denied all things proper to her well being and show a deliberate malice on the part of such Defendants and each of them. 156. As a legal result, Defendants and each of them acted with wanton disregard of the rights and feelings for Ms. Markous and damaged her chances to getting fixed and having a good Life. 157. As a legal result of these intentional actions, Defendants and each of them are responsible for MS MARKOUS® damages. 158." Defendants acted ‘with malice and oppression and with a conscious disregard of Plaintiffs rights, making them liable for punitive damages under California Civil Code §3294. | INFORMED CONSENT - | 159. Plaintiff MARY MARKOUS repeats and repleads each and every allegation contained in all prior paragraphs and incorporates the same herein by reference as all defendants. 160. As such, in committing, these acts and omissions, Defendants and each of them are obligated to obey the jo of the state nid the constitution and the private laws and rights given to its citizens and each of them violated MS MARKOUS? civil rights to property, body, | safety, human dignity and the right to self-determination and bedily integrity and suffered extreme hardship and’ dais as a result of such violations. She is entitled to equal | protection by law and under the law. Rights to privacy, autonomy and choice. As such she did not give informed consent. Defendants conducted research and disfigured her — for no reason without ever giving her any information about what she intended. She was deprived 32 FIRST AMENDED COMPLAINT A w o N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 if 24 25 26 27 28 Oo ee ] ~ 3 aN w o COMPLAINT FOR DAMAGES the right of informed consent, She péptarmed procedures she did not consent to among other irreparable procedures to her n nose. 161. As a egal result of these damages, MS. MARKOUS. was denied all things proper to her well being and show a deliberate malice on the part of such Defendants and each of them and as such and for her nose to be repaired and fixed 162. As a legal result, Defendants and each of them acted with wanton disregard of the rights | . and feelings for Ms. Markous and ‘damaged her chances to getting fixed. easily and having a | - good quality life where breathing did not turn into daily traction and severe deformity. 163. As a legal result of these intentional actions, Defendants and each of them are responsible | for MS MARKOUS’ damages. 164. Defendants acted with malice and oppression and with a conscious disregard of | Plaintiffs rights, making them liable for punitive damages under California Civil Code §3294. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows: ON THE FIRST CAUSE OF ACTION: 1. For general damages according to proof; 2. For special damages according to proof; 33 FIRST AMENDED COMPLAINT oO o o ~ 3 AN W A 10 11 12 is" 14 15 16 17 18 19 20 21 22. 23 24 25 26 27 28 3. For punitive and/or exemplary damages in an amount appropriate to punish {| Defendants and deter others from engaging in similar misconduct; ON THE THIRD CAUSE OF ACTION; eo TT 1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive and/or exemplary damages | in an amount appropriate to jpigh Defendants and deter others from engaging in similar misconduct; ‘ON THE FOURTH CAUSE OF ACTION; 1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive and/or exemplary damages in an amount appropriate to punish - Defendants and deter others from engaging in similar misconduct; ON THE FIFTH CAUSE OF ACTION; 1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive anor exemplary damages in an amount appropriate to punish Defendants and deter others from engaging in similar misconduct; ON THE SIX CAUSE OF ACTION; L. For general damages according to proof; 2. For special damages according to proof; | 3. For punitive and/or xeiilary damages in an amount appropriate to punish Defendants and deter others from engaging in similar misconduct; ON THE SEVENTH CAUSE OF ACTION; 34 FIRST AMENDED COMPLAINT 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 - 24 25 26 27 28 Oo 0 2 BA Ww ‘ON ELEVENTH CAUSE OF ACTION 1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive and/or exemplary damages in an amount appropriate to punish Defendants aiid deter others from engaging in similar misconduct; ON THE EIGHTH CAUSE OF ACTION; 1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive and/or exemplary damages i n ‘an amount appropr iate to punish Defendants and defer others from engaging in similar misconduct; ON THE NINTH CAUSE OF ACTION; 1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive and/or exemplary damages in an quo appropriate to PORES Defendants and deter others from engaging in similar misconduct; ON THE TENTH CAUSE OF ACTION; 1. For general damages according to proof; 2. For special ‘damages according to proof; 3. For pimliive and/or exemplary damages in an amount appropriate to punish Defendants and deter others from engaging in similar misconduct; 1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive and/or exemplary damages i n an amount appropriate to punish Defendants and deter others from engaging in sini misconduct; 35 FIRST AMENDED COMPLAINT ~N OW 3 ON A w 10 11 12 13 14 15 16 17 18 19. 20 21 52 23 24 25 26 27 28 ON TWELFTH CAUSE OF ACTION 1. For general damages according to proof; 2, For special damages sckrdlng to proof; TTT 3. For punitive and/or exemplary damages in an amount appropriate to punish Defendants and deter others from engaging in similar misconduct; AND INJUNCTIVE RELIEF AS OUTLINED ABOVE Revocation of license Return of monies to all unhappy patients over the last 3 years. Apology letters to humans he disfigured. Mandatory drug and alcohol testing. Mandatory pre-operative plan issued for each tended procedure and each scientific study or research ON THIRTEENTH CAUSE OF ACTION 1. For general damages according to proof; 2. For special damages according to proof; 4. Injunctive relief: a. Revocation of medical license b. Further non-disclosure orders from this doctor to be prohibited ¢. Apology letters to all that have written to him asking for why he did this to them. d. Accurate operative reports from all injured that include actual procedures done can be fined for not ot tlltiz the exact procedures up front they intend to do to their patient. : f. A court order prohibiting threats, coercion or Swsiiis.o or non-disclosure agreements by LEUIN upon his patients he disfigured: 36 FIRST AMENDED COMPLAINT 10 111 12 13 14 15. 16 ¥7 18 19 20 21 22 23 24 25 26 27 28 vo oo 9 a un A w o N g. Under 17200, the threat of objectionable conduct is likely to occur and has occurred and will keep occurring if 2 an order is not made to stop the Defendants and. specifically LEUIN from operating, harming, misleading, deliberately disfiguring and then lying on operative reports, depriving the-vights'and self-determination of patients for ppersonal gain. Lo ON FOURTEENTH CAUSE OF ACT TON 1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive and/or exemplary damages in an amount appropriate to punish Defendants and deter others from engaging in similar misconduct; ON FIFTEENTH CAUSE OF ACTION 1. For general damages according to.proof; 2. For special damages according to proof; 3. For punitive and/or exemplary damages in an amount appropriate to punish Defendants and deter others from engaging in similar misconduct; ON SIXTEENTH CAUSE OF ACTION 1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive and/or exemplary damages in an amount appropriate to punish Defendants and deter others from engaging in similar misconduct; ON SEVENTEENTH CAUSE OF ACTION 1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive and/or exemplary damages in an amount appropriate to punish Defendants and deter others from engaging in similar misconduct; 37 FIRST AMENDED COMPLAINT no 10° 11 12. 13 14 15 16 17 18 19 20. 21 22 23 24 25 26 27 28 Ow «© 3 Oa tw» hh Ww AND ON ALL CAUSES OF ACTION : 1. For an award of interest at the maximum allowable rate from. the present date to the date of entry of judgment; a. For costs of suit, “ficluding reasonable attorney’s fees; b. For all medical costs, travel costs, consult costs, and reconstruction costs for plaintiff c. For pre-judgment interest and post-judgment interest according to law; and 2. For any other and further relief as the Court deems just and proper JURY TRIAL DEMAND Plaintiff hereby demands a jury trial on all issues so triable as is her right under the constitution fifth and fourteenth amendments to seek redress for harms deliberately | committed upon her person. Ms. Markous is not a lawyer and respectfully asks the court, that if they do not feel this pleading is sufficient, that they allow her further leave to amend. In all cases, it should say, knowingly; unauthorizedly, —— to, cruel treatment that denied rights by DEFENDANTS and as to each, and she suffered by each action, even if not properly pleaded. She requests the court “to read - liberally and understand this is an ongoing, devious, devastating problem that is ongoing and MS. MARKOUS is not the only one affected as will | be proven by witness testimony, there is evidence of ongoing public harm as well as personal one. DECLARATION & AFFIDAVIT | I, I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. I submit this First Amended Complaint ; to court. The items are amended by consulting with attorneys and finding wording to substantiate malice, willfulness, unconsented to, intentional procedures committed upon the person of MS. MARKOUS and the resulting damages caused by Defendants. 38 FIRST AMENDED COMPLAINT OL O W 3 a wv NN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘I, Mary Markous have filed this in court in the: state of California in San Diego. 1 served the Proof of Service following documents to the pedple’s at these addresses today: Attorneys for Rady Children’ s Hospital: 701 B. Street, suite’ 1900, Sai Diego, California 92101 Attorneys for Shelby Leuin: 225 Broadway, suite 1500, San Diego, California 92101 DATED: September 19, 2018 39 FIRST AMENDED COMPLAINT F T N , CARROLL, KELLY, TROTTER, FRANZEN, MCBRIDE & PEABODY LAWYERS A PROFESSIONAL CORPORATION | 225 BROADWAY, Suite 1 500, SAN DIEGO, CALIFORNIA S2101 ” WWW, CKTFMLAW,.COM NEVADA DFFIGE LONG BEACH OFFICE hos REPLY TO F.0. Box 22636 LC co: MAILING ADDRESS B329 WEST SUNSET RDAD, SUITE 260 LONG BEACH, CALIFORNIA 90801-5636 ©" 225 BROADWAY, Suite 1500 LAS VEGAS, NEVADA 89113 TELEPHONE (562) 432-5855 SAN DIEGO, CALIFORNIA 92101 TELEFHONE (702) 792-5855 FACSIMILE (S562) 432-8785" © TELEPHONE (619) B14-5900 FACSIMILE (702) 796-5855 i! FACSIMILE (619) B14-5999 October 2, 2018 Mary Magdalene Markous, In Pro Per 1037 Tarlo Court El Cajon, CA 92019 Re: Markous v. Shelby Leuin, M.D.. etal. Dear Ms. Markous: This correspondence is an attempt to “meet and confer” regarding our objections to your First Amended Complaint. If you fail to address the deficiencies outlined below, we intend to file a demurrer. Objections to First Amended Complaint 1. Paragraphs 4-18 of the general allegations are omitted. a. Defendant cannot adequately respond without a complete understanding of Plaintiff’s allegations. . 2. Improper prayer for punitive damages. a. Plaintiff prayed for punitive damages against Dr. Leuin, a healthcare provider, without first obtaining leave of court pursuant to Code of Civil Procedure section 425.13. 3. Cause of Action #1 [Battery] fails to state a claim. a. Plaintiff consented to undergo the surgical procedure at issue. (Rains v. Superior Court (1984) 150 Cal. App.3d 933, 938). 4. Cause of Action #2 [Assault] fails to state a claim, ) : a. “The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff's harm.” (So v. Shin (2013) 212 Cal. App.4th 652, 668-669). b. Plaintiff consented to undergo the surgical procedure at issue. F:\3221976-190\COR\PLAINTIFF 03 MEET & CONFER.Docx i Mary Magdalene Markous Re: Markous v. Leuin, et al. October 2, 2018 Page 2 5. Cause of Action #3 [Human Experimentation] fails to state a claim, a. Human Experimentation [sic] is not a valid cause of action in the state of California. 6. Cause of Action #4 [Breach of Fiduciary Duty] fails to state a claim. a. California courts have only recognized a breach of fiduciary duty where a health care provider fails to disclose “personal interests unrelated to the patient’s health, whether research or economic, that may affect the physician’s professional judgment.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129.) b. Plaintiff admits she “knew there was a fellow” who would be involved. c. A fellow’s participation, in surgery, at a teaching hospital, is not a personal interest subject to disclosure. 7. Cause of Action #5 [Intentional Infliction of Emotional Distress] fails to state a claim. a. In Christensen v. Superior Court (1991) 54 Cal.3d 868, the Supreme Court held "that a proper claim for ITED must include the following elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. b. Plaintiff is upset about the outcome of a surgical procedure of which she consented to. - c. These allegations do not rise to the level of outrageous conduct that is “so extreme to exceed all bounds of that usually tolerated in a civilized community.” (Id. at 903.) 8. Cause of Action #6 [False Advertising] fails to state a claim. a. Business and Professions Code section 17500 makes it unlawful "with intent directly or indirectly to dispose of real or personal property ... to make or disseminate ... before the public in this state ... [by any] means whatever, ... any statement, concerning that real or personal property .., which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading." (National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336, 1342). b. Plaintiff does not claim that Defendants disposed of real or personal property. 9. Cause of Action #7 [Mayhem] fails to state a claim. a. Mayhem is a criminal charge. (Penal Code 203). 10. Cause of Action #8 [Fraud] fails to state a claim. a. The elements of a cause of action for fraud are well established: (1) a representation; (2) falsity; (3) knowledge of the falsity; (4) an intent to deceive; (5) reliance; and (6) resulting damage. (Wilhelm v. Prey (1986) 186 Cal.App.3d 1324.) The absence of any one of these elements precludes recovery for fraud. Id.) b. Plaintiff has not sisiablisiied that the alleged representations made by Defendant were false, made with knowledge of their falsity, and/or made with the intent to ° deceive. F:\3221976-190\COR\PLAINTIFF 03 MEET & CONFER Docx ) i 3 Mary Magdalene Markous Re: Markous v. Leuin, et al. October 2, 2018 Page 3 11. Cause of Action #9 [Concealment] fails to state a claim. a. Concealment is a duplicative of Plaintiffs fraud cause of action. 12. Cause of Action #10 [Intentional False Promise] fails to state a claim. a. Intentional False Promise is duplicative of the Plaintiffs fraud cause of action. 13. Cause of Action #11 [Defamation] fails to state a claim. a. The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720). b. Plaintiff contends Defendant gave a medical opinion, which she found unflattering. Further, Plaintiff surmises that Defendant “insinuate[d]” something nefarious. In sum, a privileged medical opinion expressed by a physician, in the context of a medical appointment, fails to state a claim for defamation. 14. Cause of Action #12 [Business and Professions Code §17500, et seq.] fails to state a claim. a. Business and Professions Code §17500, et seq. is a criminal offense. 15. Cause of Action #13 [Lanham Act] fails to state a claim. a. The Lanham Act is a federal statute. 16. Cause of Action #14 [Pain & Suffering] fails to state a claim. a. Pain & Suffering [sic] is not a valid cause of action in the state of California. 17. Cause of Action #15 [Violation of Civil Rights] fails to state a claim. a. Defendant is not a state actor. : 18. Cause of Action #16 [Unconstitutionality of Expert Witness Requirement] fails to state a claim. a. California case law is clear that, unless a matter is within the common knowledge of the layman, an alleged breach of the standard of care “must be established by expert testimony.” Schiff v. Prados (2001) 92 Cal. App.4th 692, 701; See also, Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal. 4th 992, 1001. Moreover, a plaintiff must prove that the physician’s breach in the standard of care was a legal cause of their alleged injury. Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 107. “[CJausation must be proven within a reasonable medical probability based on competent expert testimony.” Dumas v, Cooney (1991) 235 Cal.App.3d 1593, 1603. 19. Cause of Action #17 [Business & Professions Code §2234] fails to state a claim. a. Wrong venue, 20. Cause of Action #18 [Loss of Chance] fails to state a claim. a. Loss of Chance [sic] is not a valid cause of action in the state of California. 21. Cause of Action #19 [Informed Consent] fails to state a claim. a. The elements of a cause of action for lack of informed consent are (1) that the defendant performed an medical procedure on plaintiff, (2) that the plaintiff did not give his or her informed consent for the procedure, (3) that a reasonable person in plaintiff’s position would not have agreed to the medical procedure if he or she had been fully informed of the results and risks of the procedure, and, (4) that plaintiff was harmed by a result or risk that defendant should have explained before the procedure was performed. (CACI 533.) b. Plaintiff contends she experienced an undisclosed complication of the procedure — “a deviated septum.” F:\322\976-190\COR\PLAINTIEF 03 MEET & CONFER Docx Mary Magdalene Markous Re: Markous v. Leuin, et al. October 2, 2018 Page 4 c. "[W]hen the patient consents to certain treatment and the doctor performs that - treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation, the action should be pleaded in negligence." (Cobbs v. Grant (1972) 8 Cal.3d 229, 240-241). \ Please contact me at your convenience to discuss the above. Lastly, I ask that you provide a 30-day extension for me to file a responsive pleading. Thank you for your anticipated cooperation. Sincerely, mss J W. SCHULTE JWS:maf F:A322\976-190\COR\PLAINTIFF 03 MEET & CONFER .Docx No H W Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2% 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO I am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action. My business address is 225 Broadway, Suite 1500, San Diego, CA 92101. On November 2, 2018, I served a true and correct copy of the following document on the attached list of interested parties: DEFENDANT SHELBY LEUIN, M.D.’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFE’S PRAYER FOR PUNITIVE DAMAGES FROM FIRST AMENDED COMPLAINT Mary Magdalene Markous Marilyn R. Moriarty 1037 Tarlo Court Lewis Brisbois Bisgaard & Smith LLP El Cajon, CA 92019 701 B Street, Suite 1900 (619) 750-9568 San Diego, CA 92101 marymarkous@jicloud.com Marilyn. Moriarty@lewisbrisbois.com Plaintiff In Pro Per Attorney for Rady’s Children’s Hospital By United States Mail (CCP §§1013a, et seq.): I enclosed said document(s) in a sealed envelope or package to each addressee. I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, with postage fully prepaid. O By Overnight Delivery/Express Mail (CCP §§1013(c)(d), et seq.): I enclosed said document(s) in a sealed envelope or package provided by an overnight delivery carrier to each addressee. I placed the envelope or package, delivery fees paid for, for collection and overnight delivery at an office or at a regularly utilized drop box maintained by the express service carrier at 111 West Ocean Boulevard, Long Beach, California. 0 By Fax Transmission (CRC 2.306): Based on a written agreement of the parties to accept service by fax transmission, I faxed said document(s) to each addressee's fax number. The facsimile machine that I utilized, (562) 432-8785, complied with California Rules of Court, Rule 2.301(3), and no error was reported by the machine. Pursuant to Rule 2.306(h)(4), I caused the machine to print a record of the transmission, a copy of which is attached to the original of this proof of service. a By Messenger Service: I enclosed said document(s) in a sealed envelope or package to each addressee. I provided them to a professional messenger service (Nationwide Legal) for service. An original proof of service by messenger will be filed pursuant to California Rules of Court, Rule 3.1300(c). Od Electronic Mail. Via e-mail to the address shown above. I declare under the penalty of perjury under the laws of the State of Califagnia and of the United States that the foregoing is true and correct. Executed on November 2, 2018 at San Diego, Cafifornia. MARY Frost — \ F:\322\976-190\PLD\2nd Demurrer And MTSWMTS To FAC.Docx 9 MOTION TO STRIKE