Alan Marc Freedman v. The Superior Court of Orange County
In the Court of Appeal of the State of California
22 August 2008
G040091 (Super. Ct. No. 06CC12377)

Court Vacates Order to Amend Complaint, Grants Victim’s Relief for New Order

The case arose from a case involving Steven Charbonneau, a patient with a cancerous tumor on one of his kidneys. Charbonneau had undergone surgery to have the tumor removed. The operation was performed by Alan Freedman, a doctor, on December 2005.

However, after the operation, Charbonneau experienced pain and an unexpectedly high urine output through a drain, which was inserted surgically. Freedman concluded that Charbonneau’s ureter was obstructed, thus preventing the normal for flow of urine from the kidney to the bladder.

To remove the obstruction, Charbonneau consented to have a stent placed between the kidney and the bladder. The operation would also allow Freedman to insert a scope to visualize the ureter and found that it was completely blocked, thus preventing stent placement.

During the exploratory surgery, a surgical towel was also discovered in Charbonneau’s abdomen, which compresses the ureter and blocks the flow of urine.

However, Freedman could not reopen the ureter nor insert the stent; instead he removed the plaintiff’s kidney.

After the operation, Freedman told Charbonneau and his family about removing the kidney but not about the surgical towel. Later on, the doctor spoke with the hospital’s risk manager, after which they spoke with the patient and his family to tell them about the towel.

On November 2008, Charbonneau, represented by lawyer James Daily, filed a complaint against Freedman for professional negligence, battery, and fraudulent concealment. He also charged that Freedman acted with malice, oppression, and fraud, but did not assert a claim for punitive damages yet.

The court set a trial date on February 11, 2008 and the last date for Charbonneau to move for leave to add a punitive damages claim was set for May 11, 2007.

However, the record of the case shows no discovery made by Charbonneau during the next few months. Subsequently, the trial court sustained Freedman’s demurrer to the first amended complaint with leave to amend. A second amended complaint was again filed but still without punitive damages claim.

Daily continued representing plaintiff as of May 11, 2007 — the nine-month deadline. The record that Daily had no any written discovery nor deposed any witnesses on plaintiff’s behalf by that date. Neither did he file a motion for leave to amend to add a punitive damages claim.

In late May 2007, plaintiff substituted in Daniel M. Hodes as his counsel. On May 30, Hodes noticed defendant’s deposition for June 14. After discussion between counsel, the deposition was continued to a mutually convenient date in October 2007.

Hodes deposed a codefendant, Dr. Reed, on November 12, 2007. Reed signed his deposition transcript on December 12, 2007.

On December 19, 2007, Charbonneau filed a motion for leave to amend the complaint to add a punitive damages claim. He asserted defendant acted with malice, oppression, or fraud based on the following grounds:

• That Freedman concealed the discovery of the surgical towel until the day after the exploratory surgery
• That Freedman removed the kidney without obtaining consent from plaintiff or his next of kin before or during the exploratory surgery.

Freeman contended the motion was untimely and lacked merit.

The trial court granted the motion for leave to amend the complaint, which in effect excused Charbonneau from the statutory deadline requiring him to file his motion no later than nine months before the scheduled trial date.

Thus, Freedman was compelled to file a petition for extraordinary writ before the Court of Appeal to order the trial court to vacate its order allowing Charbonneau to amend his medical malpractice complaint to add punitive damages claim. The petition was denied.

As a result, Freedman brought the issue to the California Supreme Court and his petition was granted this time. The matter was also remanded back to the Court of Appeal, directing it to vacate the prior order and issue an order to show cause.

Thus in resolving the matter, the Court of Appeal held that the “plaintiff (Charbonneau) knew sufficient facts to file the motion before the statutory deadline. And to the extent (Charbonneau) desired additional evidence, he did not conduct reasonably diligent discovery before the deadline.”

The Court of Appeal therefore concluded that since the merits of the case depend mainly on facts known to Charbonneau at the outset of the case, and there was no written discovery nor any dispositions made before the statutory deadline, the trial court erred in excusing Charbonneau from complying with the statutory deadline.

The decision became final in the Court 10 days after it was filed on 22 August 2008.