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Ortegoza v. Kho

United States District Court, Ninth Circuit

May 16, 2013

FRANK ORTEGOZA, et al., Plaintiffs,
v.
PETER KHO, M.D., et al., Defendants.

ORDER GRANTING MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT [DOC. 41]

M. JAMES LORENZ, District Judge.

On March 1, 2012, Defendant United States of America removed this medical-malpractice action to this Court from the San Diego Superior Court. Plaintiffs Frank Ortegoza and Portia Ortegoza, who were married at all times relevant to this complaint, were both patients of Defendant Peter Kho, M.D. This action arises from Dr. Kho's extramarital relationship with Mrs. Ortegoza. After proceeding under two separate operative complaints, the Court ordered Plaintiffs to request leave to file a single consolidated complaint. Plaintiffs now move for leave to file a consolidated Third Amended Complaint ("TAC"). Dr. Kho opposes.

The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 45.) For the following reasons, the Court GRANTS Plaintiffs' motion for leave to file a TAC.

I. BACKGROUND[1]

Dr. Kho was Mrs. Ortegoza's primary care physician from approximately 2003 to May 2010. (PTAC § 11.) In 2006, Dr. Kho also became Mr. Ortegoza's primary care physician. ( Id. ) During all times relevant to the TAC, Mr. and Mrs. Ortegoza were married and had children together. ( Id. §§ 9, 43.) Also, during this time period, Dr. Kho was a California-licensed physician and surgeon, providing primary-care services to patients at the Navy Medical Center San Diego ("NMCSD") TRICARE Outpatient Clinic in Chula Vista, California. ( Id. § 10.) Mr. Ortegoza is a disabled Navy veteran, and Mrs. Ortegoza worked in the Medical Records Department at the TRICARE facility. ( Id. §§ 9, 23.)

A. Allegations Pertaining to Mrs. Ortegoza

Between July 2007 and October 2009, Mrs. Ortegoza sought medical care at the NMCSD from TRICARE doctors, including Dr. Kho. ( See PTAC §§ 12-22.) In August 2007, Dr. Kho diagnosed Mrs. Ortegoza with "Reaction to Chronic Stress" and noted that "she was having anxiety and problems at home because of Frank's dysphoric mood and verbal abuse.'" ( Id. § 13.) Dr. Kho advised Mrs. Ortegoza to go to family counseling and prescribed Klonopin. ( Id. ) In June 2008, Dr. Milnes Henson diagnosed Mrs. Ortegoza with "Anxiety" and noted that she was "under a lot of stress due to family issues." ( Id. § 14.) A month later, Mrs. Ortegoza saw that same doctor to request a referral for family counseling. ( Id. § 15.) She had reported that Mr. Ortegoza had "pulled their daughter on the ground by the hair and later hit her daughter." ( Id. ) The police and child protective services were called. ( Id. ) Also, Mrs. Ortegoza stated to the doctor that Mr. Ortegoza had hit her approximately five times during their marriage. ( Id. ) Dr. Henson diagnosed Mrs. Ortegoza with "Adult Maltreatment (Victim)." ( Id. )

In July 2008, a social worker with the NMCSD contacted Mrs. Ortegoza after Dr. Henson reported the domestic violence. (PTAC § 16.) The social worker noted in Mrs. Ortegoza's medical record that she wanted a representative from Child Welfare Services to encourage Mr. Ortegoza to pursue family counseling and parenting classes, and that she also expressed an interest in couples therapy for herself and Mr. Ortegoza. ( Id. )

In October 2008, Mrs. Ortegoza was experiencing anxiety symptoms because of Mr. Ortegoza's verbal and physical abuse. (PTAC § 23.) She was crying in the hallway at the TRICARE facility, and Dr. Kho brought her into his office and closed the door. ( Id. ) Plaintiffs allege that with the understanding that Dr. Kho was acting as Mrs. Ortegoza's doctor, "she told him during the October 2008 discussion in his office about the problems she was having in her marriage, specifically the verbal and physical abuse by Frank, and said she needed Frank to love and respect her.'" ( Id. § 24.) Weeks later, in November 2008, Dr. Kho called Mrs. Ortegoza, but she missed his call. ( Id. § 25.) Mrs. Ortegoza called back, and he talked about the stress that she was experiencing, referring to their October 2008 discussion. ( Id. ) Dr. Kho then asked her to go to the beach with him, "saying they could walk together and she could get the stress out, " also adding that "it would help her relax." ( Id. ) Plaintiffs allege that based on that explanation, Mrs. Ortegoza thought the proposed outing was a kind of therapy that Dr. Kho believed would help handle the stress and anxiety that she was experiencing. ( Id. )

Between November and December 2008, Dr. Kho continued to call Mrs. Ortegoza nearly every day. (PTAC § 26.) During these phone calls, he repeatedly stated, "I can give you the love and respect you deserve, " and he also secretly handed her his personal email address to email him if she needed someone to talk with. ( Id. )

A sexual relationship between Dr. Kho and Mrs. Ortegoza started shortly thereafter, beginning in January 2009 and lasting until June 2010. (PTAC § 27.) During the duration of their sexual relationship, Plaintiffs allege that Dr. Kho "continued to use information he learned in the doctor-patient relationship he had with both Frank and Portia and to counsel Portia regarding her psychological and family issues, and Portia continued to provide information to Kho regarding her family and Frank." ( Id. ) Plaintiffs also allege that

Kho told Portia that she married the wrong man, that he and not Frank could make her happy, that they belonged together, and that he wanted her to get out of her marriage. Kho stated to Portia that he wanted to move with her to the Philippines once he retired, and he stated that he would never give her the kind of stress she was experiencing from Frank and that her life would be better with him. Kho stated to Portia that he would help her in regard to the domestic violence she reported to him and would protect her from future abuse. In mid-May 2009, he gave Portia a photo and listing of a property in the Philippines where he said they would live together.

( Id. ) Throughout the sexual relationship, Dr. Kho continued to act as Mrs. Ortegoza's physician, treating her for "multiple physical and mental issues, " and prescribing various prescription medications. ( Id. § 28.) Plaintiffs allege that "[l]ater, multiple physicians informed [Mrs. Ortegoza] that she should not take all of these medications contemporaneously." ( Id. )

Shortly after they had sex for the first time in late January 2009, Mrs. Ortegoza informed Dr. Kho that she had just been "physically abused" by Mr. Ortegoza and had pain in her ear as a result. (PTAC § 29.) In response, Dr. Kho told her to "avoid contact with Frank by staying in her bedroom and locking the door, " and that "he wished he could be with her in her bedroom and wanted to express his love for her." ( Id. ) Plaintiffs allege that he also said that "he wanted to have sex with [Mrs. Ortegoza] for a second time, that he could feel her love for him, and that when they had sex for the first time it was the happiest day of his life." ( Id. ) In the following days, Mrs. Ortegoza continued to tell Dr. Kho of the ear ...


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