Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Paulette D. Barkley, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Super. Ct. No. RIC497529.
Reback, McAndrews, Kjar, Warford & Stockalper, Robert K. Warford, Larry E. White; Cole Pedroza LLP, Curtis A. Cole, and Cassidy E. Cole for Petitioner.
No appearance for Respondent.
Law Offices of Patricia A. Law, Patricia A. Law; Arias & Lockwood and Christopher D. Lockwood for Real Parties in Interest.
OPINION
RAMIREZ P. J.
INTRODUCTION
In this matter, we have reviewed the petition and the answer/opposition filed by real parties in interest. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
DISCUSSION
In order to be permitted to state a claim for punitive damages against a health care provider for medical malpractice, a plaintiff must present a showing of “substantial probability” that he or she will prevail on the claim. (Code Civ. Proc., § 425.13.) Furthermore, the plaintiff is bound by the standards set out in Civil Code section 3294—that is, the requisite showing must be made by “clear and convincing” evidence. (Little Co. of Mary Hospital v. Superior Court (2008) 162 Cal.App.4th 261, 264-268.) Because the intent of Code of Civil Procedure section 425.13 is to protect physicians and other health care professionals from having to defend weak claims, courts should look carefully at an application before granting leave to add such a claim. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 785-788; College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 717-721.)
First, we note that we are not concerned with the issue of real parties in interest’s standing to seek punitive damages, which we consider adequately shown by the record. However, we agree with petitioner that the showing was not sufficient and was largely based on unsupported speculation.
Even if we accept the evidence tending to show that decedent was seriously ill when she last consulted petitioner, and that she should have been immediately hospitalized, petitioner’s failure to take such action was on its face only negligent. Real parties in interest’s heavy reliance on the absence of any notation that he prescribed antibiotics for decedent on that date, is misplaced. First, although petitioner originally denied having issued such a prescription, this is not strong evidence of deception if he in fact relied on the case chart, which did not show such a prescription. Of course, if it was erased, that might tend to show consciousness of some kind of error. However, there was no forensic or other evidence to show that petitioner wrote down a prescription notation and later erased it. Real parties in interest’s assertion that petitioner also erased or deleted other chart notes relating to decedent’s worsening condition in order to conceal his misdeeds is entirely speculative and supported only by the most circular logic imaginable.
We also note that the fact that petitioner did prescribe antibiotics at the time of decedent’s last visit proves nothing. Real parties in interest presented no evidence concerning the nature of the drugs prescribed or appropriate circumstances for their use. For example, there was no expert testimony to the effect that “these antibiotics would only have been prescribed for a life-threatening infection for which a patient should always be hospitalized.” We do not hold that such evidence would be “clear and convincing” evidence that petitioner acted with legal malice; we only point out the absence of any evidence which could possibly support such a conclusion.
DISPOSITION
Accordingly, the petition for writ of mandate is granted. Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order granting real parties in interest’s motion for leave to amend pursuant to Code of Civil Procedure section 425.13 and to enter a new order denying said motion.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioner to recover his costs.
We concur: KING, J., MILLER J.