Appellate Updates

McGovern v. BHC Fremont Hospital, Inc. (Dec. 21, 2022, A161051) __ Cal.App.5th __ [2022 WL 17828959], ordered published Jan. 4, 2023

On November 7, 2015, Shannon McGovern was attacked and injured by a fellow patient at BHC Fremont Hospital, Inc. Her counsel sent Fremont a letter on March 9, 2016 stating McGovern had “serious” injuries “to her head, and back, including a broken clavicle,” requesting the hospital preserve evidence, and stating that counsel was gathering information to present a prelitigation demand to the hospital’s insurance carrier. On October 27, 2016, McGovern’s counsel sent Fremont a “Notice of Intent to Commence Action for Medical Negligence Pursuant to Code of Civil Procedure [section] 364” detailing her specific injuries. McGovern sued Fremont on January 20, 2017, and demanded discovery of Fremont’s mental health records for the patient who attacked her.

Dominguez v. Bonta (F082053 & F082208, Dec. 19, 2022) __ Cal.App.5th ___ [2022 WL 17752246], ordered published Jan. 6, 2023

Heirs of deceased patients sued healthcare professionals for medical malpractice and filed this declaratory relief action against the California Attorney General challenging the constitutionality of two pre-A.B. 35 MICRA statutes: (a) Civil Code section 3333.2, which caps noneconomic damages in professional negligence actions against health care providers; and (b) Business & Professions Code section 6146, which limits attorneys’ contingent fees in such actions.

Wisner v. Dignity Health (Oct. 18, 2022, C094051) __ Cal.App.5th __ [2022 WL 16706648], certified for partial publication Nov. 4, 2022.

Dr. Gary Wisner was criminally charged with making false insurance claims. The Medical Board of California also issued an accusation seeking to revoke or suspend his license for gross negligence and repeated negligent treatment of multiple patients. Six months later, Dr. Wisner asked Dignity Health St. Joseph’s Medical Center (SJMC) to place him on its on-call panel. He held courtesy staff privileges at SJMC, but had not treated patients there for two decades. SJMC’s chief of staff “began an investigation” and asked Dr. Wisner for all available information about the accusation and the indictment. 

Vigil v. Muir Medical Group IPA, Inc. (Sept. 26, 2022, A160897) __ Cal.App.5th __ [2022 WL 10239738], ordered published Oct. 18, 2022

A former Muir Medical Group employee downloaded and retained the private medical information of over 5,000 patients. Muir patient Maria Vigil filed a class action complaint against Muir alleging violations of the Confidentiality of Medical Information Act (CMIA) (Civ. Code, §§ 56 et seq.) and seeking statutory damages for each class member. The trial court denied Vigil’s motion for class certification, ruling that common issues would not predominate because, under Sutter Health v. Superior Court (2014) 227 Cal.App.4th 1546, each class member would need to show that his or her confidential information was “actually viewed” by an unauthorized party to obtain CMIA remedies. Vigil appealed.

Kruthanooch v. Glendale Adventist Medical Center (Oct. 4, 2022, B306423) __ Cal.App.5th __, 2022 WL 5126799

Daniel Kruthanooch, an elderly man, presented to Glendale Adventist Medical Center (GAMC) after experiencing weakness. A GAMC doctor ordered an electrocardiogram (EGC) and an MRI. A GAMC technologist failed to remove the EGC pads prior to the MRI, resulting in burns to Kruthanooch’s abdomen following the scan. Kruthanooch sued GAMC for professional negligence, elder abuse, and elder abuse per se. When he died, his estate was substituted in his place and abandoned all claims other than elder abuse.  A jury found GAMC liable for elder abuse, but awarded no damages. The trial court then granted GAMC’s motion for JNOV, ruling there was no substantial evidence that GAMC had care or custody of Kruthanooch, or that it acted with neglect or recklessness. The estate appealed.