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Bomersheim v. Los Angeles Gay and Lesbian Center

May 26, 2010

GEORGE BOMERSHEIM ET AL., PLAINTIFFS AND APPELLANTS,
v.
LOS ANGELES GAY AND LESBIAN CENTER, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County. Robert L. Hess, Judge. Reversed and remanded with directions. (Los Angeles County Super. Ct. No. BC330173).

The opinion of the court was delivered by: Chaney, J.

CERTIFIED FOR PUBLICATION

In this negligence case the trial court denied plaintiffs' motion to certify a class, finding no community of interest existed and the class action vehicle was not a superior method of resolving the claims of putative class members. Because we conclude the order is based on improper criteria and is not supported by substantial evidence, we reverse and direct the trial court to grant the motion.

FACTS AND PROCEEDINGS BELOW

The following allegations, facts, and evidence are drawn from the fifth amended complaint, the motion seeking leave to file the fifth amended complaint, and the motion to certify a class.

Defendant Los Angeles Gay & Lesbian Center (defendant or the Center) provides medical services in Los Angeles County. From January 1999 to March 2004 defendant treated with Bicillin C-R more than 600 patients presenting with confirmed syphilis infection or reported sexual contact with someone who was known or suspected to be infected with syphilis. Bicillin C-R is not recommended for such use. The proper formulation would have been Bicillin L-A. Though both medications contain the same amount of penicillin, Bicillin C-R is a mixture of short- and long-acting penicillin, while Bicillin L-A is composed wholly of long-acting penicillin. Robert Bolan, M.D., the Center's medical director, admitted in deposition that Bicillin C-R "was incorrect for the condition . . . treated."

After defendant learned of its mistake in March 2004, in coordination with the Los Angeles County Health Department and the Centers for Disease Control and Prevention it drafted and issued press releases to advise the public of the error and attempted directly to contact every patient who had been treated to offer retreatment and retesting. To provide consistent information, defendant prepared common language to be included in letters to patients and developed two scripts to be used in telephone calls.

The letter sent to plaintiff Raymundo Aguilar read in pertinent part as follows: "We recently reviewed our records and found that the preparation of penicillin you received at the L.A. Gay & Lesbian Center for treatment of syphilis was below the dosage recommended by the Centers for Disease Control and Prevention (CDC). [¶] To assure that we are addressing this situation, we urge you to come in as soon as possible for evaluation, repeat blood testing and re-treatment. [¶] . . . [¶] We urge you to call [the Center] to schedule an appointment for follow up and more information."

Approximately 442 patients returned to the Center and were offered retesting and retreatment regardless of their medical condition or the retesting results. Retesting involved a blood draw and, in 19 cases, a lumbar puncture. Retreatment involved receiving between one and three intramuscular injections of Bicillin L-A.

Plaintiffs George Bomersheim, Rox Brassfield, Aguilar, and Odie Rauch were treated with Bicillin C-R and then retested and retreated with Bicillin L-A. They filed this action on March 11, 2005. The fifth amended complaint is operative. In it, plaintiffs allege one cause of action, for negligence. They allege defendant accepted a duty to provide medical care consistent with the applicable standard of care and breached that duty by "negligently administer[ing] the Bicillin C-R." They allege they suffered damages "associated with the notification and retreatment process" and "underwent a retreatment process with proper medication, and thus suffered damages in an amount subject to proof at trial."

Plaintiffs do not seek damages associated with the initial mistreatment.

Bomersheim, Brassfield and Aguilar seek to represent "All California residents who, from 1999 to 2004, received from CENTER an improper dosage of penicillin for the treatment of syphilis, specifically Bicillin C-R, rather than Bicillin L-A, and who therefore underwent the retreatment process, whether at [the Center] or elsewhere." They seek "special and general damages," attorney fees, costs of suit, and any other appropriate relief.

In its answer, defendant denied "each and every allegation" in the fifth amended complaint; denied plaintiffs suffered any injury or loss; if they did suffer injury or loss, denied that the injury or loss was caused "by reason of any act or omission on the part of" defendant; and asserted that any injury or loss was the "natural or expected result of reasonable treatment rendered for the disease or condition."

Soon after filing the complaint, plaintiffs sought to discover treatment and contact information for putative class members and, when defendant resisted, filed motions to compel discovery. Defendant opposed the motions. After several rounds of briefing and the passage of almost two years, defendant apparently made some production, though the record on appeal does not reflect its content.

Plaintiffs moved for certification in August 2007. The motion was supported by plaintiffs' declarations and citations to the deposition testimony of Dr. Bolan and Darrel Cummings, defendant's chief of staff.

Defendant opposed the motion. It argued that because no class representative or putative class member contracted syphilis as a result of administration of "a non-recommended medication," i.e., "a nonstandard dosage" of penicillin, no one suffered "any injury supporting a claim," and because there was an "absence of injury," no class was ascertainable. In support of defendant's "absence of injury" argument, Dr. Bolan declared that blood testing, lumbar puncture and retreatment are "aspects of medical care which are generally considered to be [innocuous] and generally associated with very minimal discomfort or pain." He further declared that no individual reported any untoward effects as a result of the retesting or retreatment. Based on Dr. Bolan's review of the Center's records and his personal performance of about half of the lumbar punctures, no patients reported headaches as a result of the lumbar puncture. Dr. Bolan opined that the inconvenience of returning to the Center for retesting and retreatment was likely minimal in most instances. He represented that no one who returned to the Center had developed syphilis.

Defendant argued causation could not be established on classwide proof because some putative class members, including plaintiffs Aguilar and Rauch, received retreatment from other providers before they discovered they had been mistreated at the Center. Defendant also argued individual issues predominated because the putative class presented "up to 663 claims of convoluted and subjective claims of emotional distress, all based upon variations in individual responses to information that a patient had received a non-standard dosage, had been requested to return for retesting, and had been offered retreatment."

In a supplemental brief in opposition to the certification motion, defendant argued that its only duty to plaintiffs "was treatment of syphilis," and "[i]t is undisputed that the Center complied with its duty for the treatment of syphilis, even though it used a non-standard dosage of medication to do so." As Dr. Bolan declared, "'there was no evidence of treatment failure.'" Dr. Bolan also declared that "[t]esting following treatment of a syphilis infection is common practice. There are occasions when treatment of syphilis with the recommended medication does not produce results indicating effective treatment. To assess whether treatment has been adequate, such post-treatment tests are an important and usual part of the treatment process."

In their reply, plaintiffs argued they suffered physical injury from the "retesting and hurtful retreatment" process: a second, otherwise unnecessary, series of painful and sickening Bicillin injections. They argued that "[b]y definition, the class is composed of individuals who had to suffer the retreatment process as a direct result of having been administered the wrong medication by Defendant" and describe how the Bicillin L-A injections were painful and made them sick. "Were they given the correct medication in the first instance," plaintiffs argued, they "would not have had to endure the pain, physical changes and distress brought on by the retreatment process." Plaintiffs stated they were not making any damage claim based on the fear of possibly developing a disease.

Plaintiffs' reply declarations described their reactions to retreatment. Each received three intramuscular Bicillin L-A injections over a several week period and experienced aches, sweating, and pain in the injection site.

The declarations were silent as to what reactions plaintiffs had to the administration of Bicillin C-R.

The trial court found the putative class to be ascertainable and sufficiently numerous, Bomersheim and Brassfield presented typical claims, and Bomersheim would adequately represent the class. (The court found Aguilar's claims were "potentially atypical" because he asserted that his syphilis had not been cured by the administration of Bicillin C-R, and thus potentially had a treatment failure claim. The court found Brassfield was not a suitable class representative because he had recently been convicted for ...


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