Code of Civil Procedure section 425.13 broadly bars untimely punitive damages claims against health care providers arising from professional negligence.
Megan Espinoza died of cardiac arrest during surgery with Dr. Carlos Chacon at Divino Plastic Surgery clinic. Her husband and children sued Divino, Chacon, and the assisting nurse for, among other things, medical malpractice, intentional misrepresentation, promissory fraud, and battery. Less than 6 months before the case was first set for trial, plaintiffs sought leave to add a punitive damages claim. Defendants argued the motion was untimely under Code of Civil Procedure section 425.13. The statute requires plaintiffs to amend their complaints in order to seek punitive damages arising out of a healthcare provider’s professional negligence, and to do so “within two years after the complaint . . . is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.” The trial court granted plaintiffs’ motion, ruling that their intentional tort claims were outside the scope of section 425.13 and that defendants waived their right to assert section 425.13 by not challenging the original complaint’s allegations of malice, oppression, and fraud. Defendants petitioned for a writ of mandate.
The Court of Appeal granted writ relief. First, the court held that section 425.13 applied because defendants were licensed “health care providers” regardless whether they acted outside the scope of their licenses, as plaintiffs alleged. The court also held that plaintiffs’ intentional tort claims all “arose out of professional negligence” because they pleaded conduct “directly related” to rendering professional services. The court explained that the “arising out of” language in section 425.13 is broader than the MICRA statutes, whose case law was inapplicable. Because section 425.13 applied, plaintiffs’ motion was untimely unless their tardiness was excused. Distinguishing situations where a trial is scheduled so early that a plaintiff could not realistically comply with section 425.13, the court held that plaintiffs here had an adequate opportunity to comply. Finally, the court rejected plaintiffs’ waiver argument: defendants had no right or reason to attack pleadings “going to punitive damages” in a complaint that could not lawfully seek punitive damages.
The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, who are partners at the appellate firm Horvitz & Levy LLP, and is republished with permission.