April 28, 2022

Divino Plastic Surgery, Inc. v. Superior Court of San Diego County (D079661, April 22, 2022) __ Cal.App.5th __ [2022 WL 1197962]

Code of Civil Procedure section 425.13 provides that no claim for punitive damages arising out of the professional negligence of a health care provider may be included in a complaint unless the court allows it in an amended pleading.

Plaintiff’s wife died after she had a heart attack during a surgical procedure. The doctor and nurses administering anesthesia were not licensed to do so, and a licensed anesthesiologist was not present, despite alleged promises to the contrary. Plaintiffs’ husband and two minor children sued the doctor, clinic, and assisting nurses. Their operative complaint did not include a prayer for punitive damages. Plaintiffs filed a motion for leave to amend their complaint to include additional factual allegations that the doctor had misrepresented his credentials and a claim for punitive damages based upon plaintiffs’ intentional misrepresentation and promissory fraud claims. Under section 425.13, plaintiffs’ request to add a punitive damages claim was untimely. The trial court granted the motion, however, ruling that plaintiffs’ intentional tort claims were based on conduct outside the scope of section 425.13 and its timing requirements therefore did not apply. Defendants filed a petition for writ.

The Court of Appeal granted writ relief. The court found that section 425.13 applies because the defendants retained their status as health care providers despite allegedly acting in a manner outside the scope of their professional licenses, and plaintiffs’ claims arose out of conduct directly related to the provision of medical services. The doctor’s misrepresentation to the decedent that he was a board-certified plastic surgeon and the nurses’ administration of anesthesia without physician supervision or decedent’s consent were both directly related to the manner in which professional services were provided. The court further found that plaintiffs failed to comply with the statute’s time requirements, and the trial court erred in granting the untimely motion. Finally, the court found that defendants did not waive the section 425.13 compliance argument because they challenged the punitive damages claims as soon as they were asserted.