APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. (Super. Ct. No. GIS9465)
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PUBLICATION
More than a decade ago, Barry S. Jameson filed a complaint against Dr. Taddesse Desta that asserted numerous claims stemming from Desta's allegedly negligent medical treatment of Jameson's hepatitis while Jameson was incarcerated at the Richard J. Donovan Correctional Facility (Donovan). In two separate prior appeals, this court reversed dismissals of Jameson's lawsuit, concluding that the trial court had erred in dismissing the action on procedural grounds. (Jameson v. Desta (July 2, 2007, D047284) [nonpub. opn.] opn. mod. July 26, 2007 (Jameson I); Jameson v. Desta (Nov. 23, 2009, D053089) [cert. for partial pub. opn.] 179 Cal.App.4th 672 (Jameson II).)
On remand from Jameson II, Desta filed a motion for summary judgment
or summary adjudication of the two remaining claims pending against
him--breach of fiduciary duty and professional negligence.*fn1
The trial court granted Desta's motion for summary
adjudication of the breach of fiduciary duty claim on the ground that
Jameson could not establish that Desta had breached any legal duty
owed to Jameson. The court subsequently concluded that Desta was
entitled to judgment as a matter of law on Jameson's professional
negligence claim, as well. The court reasoned that Jameson could not
establish that Desta's acts had caused him to suffer harm because
Desta had cured Jameson of hepatitis. The court granted Desta's
motion for summary judgment, and entered judgment in his favor.
On appeal, Jameson claims that the trial court erred in granting Desta's motion for summary judgment. With respect to his claim of breach of fiduciary duty, Jameson maintains that he alleged that Desta breached his duty to obtain Jameson's informed consent prior to prescribing a course of treatment for Jameson's hepatitis, and that Desta failed to address this theory of liability in his motion. With respect to his professional negligence claim, Jameson contends that the record contains evidence that establishes a triable issue of fact with respect to whether Desta's actions caused him to suffer harm.
We agree with Jameson that the trial court erred in granting judgment as a matter of law in favor of Desta on Jameson's claims. With respect to his breach of fiduciary duty claim, Jameson alleged in his complaint that Desta breached his fiduciary duty by prescribing the drug interferon to Jameson without first having obtained Jameson's informed consent. Desta failed to address this theory of liability in his moving papers, and thus failed to carry his burden of making a "prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) The trial court therefore erred in granting summary judgment as to this cause of action.
With respect to Jameson's professional negligence claim, we conclude that the trial court erred in determining that Desta was entitled to summary judgment on the ground that Jameson failed to present admissible evidence that would negate Desta's expert's opinion that Desta had cured Jameson of hepatitis. Jameson's professional negligence claim is not premised on a failure to cure Jameson, but rather, on the allegation that Desta performed below the standard of care in unnecessarily prescribing a medication that had significant and damaging side effects at a time when Jameson was not suffering from hepatitis. The trial court erred in granting judgment as a matter of law in favor of Desta on the ground that Jameson failed to present evidence demonstrating a triable issue of a fact as to whether Desta had cured Jameson, when that fact was not material to Jameson's claim.
Further, Desta was not entitled to summary judgment on the ground that he established that Jameson will be unable to prove that Desta's alleged breach of the standard of care caused Jameson to suffer physical injury. Jameson offered the declaration of a medical doctor, Dr. Allen Cooper, who stated, "It is my professional opinion that [Desta's] care and treatment of Jameson was substandard and a direct cause of the suffering and injury to Jameson and contrary to the prevailing standard of care in the medical community in 2000-2001." Dr. Cooper also indicated in his declaration that Desta had acted below the standard of care in subjecting Jameson to interferon injections three times a week for a year, and that instead, Desta should have prescribed six months of an alternative treatment. Jameson thus presented expert testimony that Desta's breach of the standard of care caused Jameson to receive numerous unnecessary injections of interferon. A reasonable jury could find that these injections were painful and inherently injurious.
In addition to the statements that Desta's breach of the standard of care caused Jameson to receive unnecessary injections of interferon, at his deposition, Dr. Cooper stated that Jameson had suffered various side effects from the interferon injections. We conclude that Jameson established a triable issue of fact as to the causation element of his professional negligence claim through the deposition testimony and declaration of Dr. Cooper.*fn2
Finally, in light of our remand, we remind the trial court of its obligation to " 'ensure indigent prisoner litigants are afforded meaningful access to the courts. . . .' " (Jameson II, supra, 179 Cal.App.4th at p. 675, quoting Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483 (Apollo).) As discussed in greater detail in part III.D., post, the record indicates that the trial court failed to carry out this obligation in at least one critical aspect. Notwithstanding Jameson's timely request that the trial court direct defense counsel to ensure that Jameson be permitted to participate telephonically in defense counsel's deposition of Jameson's expert, Dr. Cooper, the trial court failed to rule on Jameson's request prior to the time the deposition was taken. As a result, defense counsel was permitted to depose Jameson's key expert witness without Jameson being afforded the opportunity to participate in the deposition. By failing to ensure Jameson's ability to participate in the deposition, the trial court fell short of its obligation to protect an " 'indigent prisoner's right to . . . prosecute bona fide civil actions.' " (Apollo, supra, at p. 1483.)
We reverse the judgment and remand for further proceedings.*fn3
FACTUAL AND PROCEDURAL BACKGROUND
A. The operative allegations in Jameson's complaint
In April 2002, Jameson filed a complaint that alleged eight causes of action, including breach of fiduciary duty (lack of informed consent); professional negligence; general negligence; failure to train; battery; violation of civil rights; intentional infliction of emotional distress; and violation of due process against a number of defendants, including Desta and officials of the California Department of Corrections and Rehabilitation (Department).*fn4 Jameson's claims of breach of fiduciary duty and professional negligence against Desta are the sole claims at issue in this appeal.
In his complaint, Jameson alleged that Desta negligently prescribed interferon to Jameson while Jameson was incarcerated at Donovan and Desta was performing services as a physician for the Department. Jameson further alleged that the interferon caused him to suffer serious physical injuries, including irreversible damage to his eyesight. With respect to his breach of fiduciary duty claim, Jameson alleged in part:
"Desta breached his fiduciary duty as a doctor when he started [Jameson] on Alpha-2B Interferon, when [Jameson] had no detectable viral count. [The Department's] written policy . . . clearly states if a person has a viral count that does not exceed 3,499, a person is not to be given interferon treatment. Moreover, such treatment is to be reviewed every six (6) months to review whether such treatment should be continued. . . . Desta simply continued [Jameson] on treatment [Jameson] should never have been on with deliberate indifference and a reckless disregard for the rights[,] health and safety of [Jameson], causing irreparable injury. . . . This second six months aggravated the injuries to [Jameson] unnecessarily.
"Desta held a position of trust with [Jameson], causing [Jameson] to rely on Desta's statements and recommendation that [Jameson] begin treatment and stay on it. It is only through [Jameson's] research of his own medical file and hepatitis literature that even as a layman he easily discovered the mistaken or malicious prescription by Desta that resulted in such damage."
In his professional negligence cause of action, Jameson alleged that Desta had been "professionally negligent in his treatment of [Jameson], and there existed a physician-patient relationship." Jameson also alleged the following:
"Due to Desta's professional negligence and failure to exercise the proper degree of knowledge and skill in diagnosing, treating and monitoring any such treatment, [Jameson] suffered and suffers extreme migraine headaches, vision loss, weight loss, depression and severe emotional duress. [Jameson] suffered such due to Desta ordering that [Jameson] take interferon treatment that [Jameson] did not need and local regulations precluded or excluded [Jameson] from taking. [Jameson] and Desta shared a position of trust, and Desta acted in the capacity of a 'specialist' in the field of [h]epatology.
"[Jameson's] liver condition never showed what is called a 'viral count,' and at all times relevant to this matter, [Jameson's] viral count was undetectable. Therefore, [Jameson] should have never been subjected to what amounted to cancer treatment and all the suffering that is attached thereto."
B. Desta's motion for summary judgment or adjudication
In October 2010, on remand from Jameson II,*fn5 Desta filed a motion for summary judgment or summary adjudication. Desta supported his motion with the declaration of Dr. Tarek Hassanein, who stated that Desta had complied with the standard of care in his treatment of Jameson, and that Desta's acts had not caused Jameson to suffer any damages. Desta argued that he was entitled to summary adjudication of Jameson's professional negligence claim, unless Jameson could present conflicting expert evidence on these issues.
With respect to Jameson's claim for breach of fiduciary duty, Desta outlined the elements of the tort: the existence of a fiduciary duty, breach, and damage proximately caused by that breach. Desta then argued the following:
"Back in 2000, Dr. Desta was employed by Careview Medical Group, who was subcontracted by Alvarado Hospital to provide outpatient services to Donovan inmates. [Citations.] As seen in Special Interrogatory No. 10, [Jameson] asked what payment arrangements Dr. Desta had with Donovan. In response to this interrogatory, Dr. Desta responded that he was paid hourly as subcontracted by Alvarado Hospital through his employer, Careview Medical Group. Therefore there was no breach of fiduciary duty by Dr. Desta and he fulfilled his obligations and he never abandoned the patient. In fact Dr. Hassanein opines that Dr. Desta 'cured' [Jameson] of the [hepatitis] infection.
"Consequently, without any admissible evidence to support all three elements: the existence of a fiduciary duty between Dr. Desta [and] [Jameson]; that Dr. Desta breached said duty; and the alleged damage was proximately caused by said breach, [Jameson's] cause [of] action fails and summary adjudication of this issue should be granted."
Desta supported his motion with a declaration from Dr. Hassanein, a licensed physician who is board certified in internal medicine, gastroenterology, and transplant hepatology. In his declaration, Dr. Hassanein states, "[I]t is my professional opinion that Dr. Desta's care and treatment of Mr. Jameson was at all times completely within the standard of care in the community." Dr. Hassanein further states:
"At the time Dr. Desta assumed care, this patient had been correctly diagnosed with Hepatitis C, genotype 3. This is a favorable category of viral hepatitis, which generally has about an 80% statistical likelihood of 'cure' with treatment. The medical literature generally defines a patient with a negative lab result after six months of treatment as being 'cured' in this context.
"The treatment in this case began in March 2000 and was alpha-Interferon injections three times per week for one year. This was appropriate and within the standard of care.
"This patient had negative lab results at the end of his treatment, and again consistently through 2008. Thus he meets the generally accepted definition of a patient who has been 'cured' of this disease.
"[I]t is my further opinion, to a reasonable degree of medical probability that no act or omission on Dr. Desta's part caused or contributed to any alleged damages on the part of Barry Jameson."
Desta also supported his motion with medical records showing that Jameson's hepatitis C viral load in March 2000 was 574,660 and that by February 2001, his viral load was less than 600.
In his opposition to Desta's motion, Jameson began by clarifying the precise nature of his claim. Jameson explained that, after he filed the complaint in this case, he obtained documents that stated that he did in fact have a detectable hepatitis C viral count in March 2000, when he commenced treatment with Desta. However, Jameson stated that medical records demonstrated that he had no detectable viral count as of May 2000, approximately two months after he began the interferon treatment. Jameson explained that in light of this information, he was claiming that Desta's conduct in prescribing the "second six-month regimen [of interferon] was medically unjustified."
With respect to his claim of professional negligence, Jameson argued that to the extent that he was required to present expert testimony to counter the expert testimony that Desta presented in support of the summary judgment motion, Jameson was relying on Dr. Hassanein's statement in his declaration that a person with a negative lab result after six months of treatment for hepatitis C is considered cured. Jameson argued that since medical records showed that he had a negative lab result for hepatitis C as of May 2000, there was no medically justifiable reason for Desta to have subjected Jameson to additional interferon injections.
With respect to Desta's argument that Jameson would be unable to establish the causation element of his professional negligence claim, Jameson argued in part as follows, "[I]gnoring the permanent eye damage and constant headaches Jameson suffers as a result, no party can dispute that injecting themselves three times a week itself causes pain and suffering."*fn6 Jameson also noted that the common side effects of interferon include flu-like symptoms, depression, and other physical and mental disorders.
With respect to his claim of breach of fiduciary duty, Jameson argued that Desta had breached his duty to Jameson by subjecting Jameson to unnecessary treatment after Desta knew or should have known that Jameson was cured. Jameson also incorporated the remainder of his brief, which including the following:
"Jameson was told by Desta at the commencement of treatment he would be treated for six months and Desta would see how well the Alpha-2B Interferon injections worked for Jameson. Within a month after taking the injections, Jameson had no viral count, but he was never informed of such and the documents showing such, which Jameson repeatedly requested to see from Desta and his medical team, were not being kept in Jameson's medical file. At the six month date, Desta simply stated Jameson was doing fine and he was going to start Jameson on a second [six]-month regimen of Interferon."
Jameson filed a declaration with his opposition to the motion in which he provided support for his claims that he had not been fully informed concerning his condition, stating:
"I was never informed of any of the [hepatitis C] viral assays before being placed on Alpha-2B Interferon and only discovered a few of them stating I did not have any [hepatitis C] viral assay in my twelfth month of injecting myself with Interferon when a nurse-aide showed me two that were in the file.
"I spent months, while being injected with Interferon, asking all medical staff and Desta for the [hepatitis C] viral assay documents and was never allowed to see any . . . ."
With respect to pain and suffering that he allegedly endured, Jameson stated:
"Although I suffered from 'regular' symptoms such as headaches during the initial [six]-month regimen, when I was started on another [six]-month regimen by [Desta], the pain and suffering increased dramatically and I started having severe eye pain. At times, I even had to walk outside with my hand over my eye left eye (which was now seeing double or triple) because sunlight was so painful, pressing on my eyeball to try and relieve the pain."
Jameson also lodged medical records that indicated that his hepatitis C viral load in May 2000 was less than 2000.
D. The trial court's tentative ruling and Jameson's objections thereto
After Desta filed a reply,*fn7 the trial court issued a tentative ruling granting the motion for summary judgment on the ground that Jameson could not "establish an element of either the professional negligence or the fiduciary duty claim: that defendant breached any legal duty to [Jameson]." The trial court further stated, "[Jameson] has failed to negate Dr. Hassanein's opinion with any admissible evidence." The court also stated, "The lab tests [Jameson] refers to in his . . . Opposition . . . raise an inference that [Desta] was successful in curing [Jameson] (not the reverse)."
Jameson filed an objection to the trial court's tentative ruling in which he argued that he was not required to designate an expert because Desta had failed to make a written demand for such a designation. In the alternative, Jameson stated that he had retained an expert and requested "the opportunity to present a declaration of his retained expert."
On January 20, 2011, the trial court held a hearing.*fn8
At the hearing, the court declined to adopt its
tentative ruling granting the motion for summary judgment. Instead,
the court granted Jameson's motion to continue the summary judgment
hearing to allow Jameson to file an expert declaration from Dr.
E. Dr. Cooper's declaration
On or about February 14,*fn9 Jameson filed the declaration of Dr. Cooper, a licensed physician and Professor of Medicine in the Division of Gastroenterology and Hepatology, Department of Medicine, Stanford School of Medicine. In his declaration, Dr. Cooper states that in his opinion, "Desta's care and treatment of Jameson was substandard and a direct cause of the suffering and injury to Jameson and contrary to the prevailing standard of care in the medical community in 2000-2001." Dr. Cooper explained the basis for his conclusion that Desta had acted below the standard of care in treating Jameson, as follows:
"Jameson was given [alpha-2B interferon] commencing in 2000. [Alpha-2B interferon] . . . was known as monotherapy, as only [alpha-2B interferon] was used. The response rate with [alpha-2B interferon] was quite poor and in 1998, [a] two-drug therapy was introduced, which consisted of interferon and ribavirin. With this combination therapy available in 1998 it was found that six months of therapy was adequate for patients with genotype 2 or 3. Therefore, Jameson should not have been subjected to the monotherapy for one year, when combination therapy had been available for approximately two years [and] was well known in the medical community at the time of Jameson's treatment."
Dr. Cooper stated that he agreed with Dr. Hassanein that "a person can be considered 'cured' after six (6) months of treatment with Alpha-2B Interferon if they have no detectable viral count within this period," and that "[t]he documents of record in this matter demonstrate that [by] May of 2000 Jameson's viral count was less tha[n] . . . 2000, which shows it was undetectable, and Jameson was considered ...