Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC355468, Mark Mooney, Judge.
Cole Pedroza, Curtis A. Cole, Kenneth R. Pedroza, and Ashfaq G. Chowdhury; Morrison & Foerster, Miriam A. Vogel and Linda E. Shostak for Defendants and Appellants.
Charles T. Matthews & Assoc., Charles T. Matthews; The Rager Law Firm and Jeffrey A. Rager; and Law Offices of Roxanne Huddleston and Roxanne Huddleston for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
A doctor provides grossly negligent care which causes the authorities to investigate his malpractice. Also, he is fired. Prior to being interviewed by an investigator, the doctor is advised by a lawyer with a conflict of interest. The lawyer tells the doctor to tell the truth. But the doctor, due to the shame of having been terminated and other factors, lies to the investigator. To the investigator, the doctor admits he did it. Disciplinary proceedings are instituted and the doctor retains a different lawyer. During the administrative hearing the doctor now testifies he did not do it. His license is revoked (in part because he told two different stories). Can the doctor now sue the first lawyer (who advised the client to tell the truth) for damages flowing from the license revocation because of the conflict of interest? The common sense answer is, “Of course not.” The simple truth is a person (who is advised to tell the truth but is found to have made false statements under oath) cannot recover legal malpractice and emotional distress damages because he lied. The foregoing, which is dependent on the application of collateral estoppel principles, describes much, but not all, of this litigation and we have thus far provided the short answer to the issue. We turn now to the long answer.
This is an appeal from a judgment entered in favor of plaintiff, Irvin Strub, M.D., resulting from legal advice provided by defendant, Paul Deiter, M.D. Dr. Deiter is an attorney and a physician. Dr. Deiter advised plaintiff regarding a March 24, 2005 interview with staff members of the Medical Board of California (“the board”). An accusation was filed with the board against plaintiff regarding his performance of a sigmoidoscopy on a woman (the patient) in June 2004. Plaintiff’s medical license was revoked after the board found that he: inserted a sigmoidoscope into the patient’s vagina rather than into her rectum; was grossly negligent in placing the sigmoidoscope in the patient’s vagina; was dishonest in recording information about the procedure in the patient’s medical records; caused an unnecessary cancer test and colonoscopy to be performed on the patient; and testified falsely at the administrative hearing. The board’s decision was upheld by the Sacramento County Superior Court in a judgment entered on April 8, 2008. No appeal was taken from the judgment upholding the board’s decision to revoke plaintiff’s medical license.
Plaintiff, who was 83 years old at the time of the patient’s examination, had been employed on a per diem basis by defendants, Southern California Permanente Medical Group and Kaiser Foundation Health Plan, Inc. since March 2003. Dr. Deiter was also employed as in-house counsel for these entities. The current action is based on Dr. Deiter’s conduct in failing to disclose a conflict of interest and inadequately preparing plaintiff prior to the initial March 24, 2005 interview with the board staff. The jury returned a verdict in plaintiff’s favor.
We conclude defendants’ judgment notwithstanding the verdict motion should have been granted under well-established collateral estoppel principles and applicable legal malpractice causation standards. Defendants are correct that certain of the board’s findings are binding based upon collateral estoppel principles. Those findings were plaintiff: inserted a sigmoidoscope in a patient’s vagina; was thus grossly negligent; falsified medical records; caused the patient to undergo an unnecessary colonoscopy and cancer test; and lied while testifying before the board. Given these findings, any legal advice plaintiff received in this matter was not the “cause in fact” of his injuries and any damages he sustained are speculative in nature. Finally, established public policy considerations present here alter normal causation rules and prevent plaintiff from recovering any damages on any legal theory asserted at trial.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Medical Examination
Plaintiff obtained a license to practice medicine in California in 1952. Plaintiff was also licensed to practice medicine in the State of Illinois. Plaintiff had a substantial background in gastroenterology. Plaintiff had a master’s degree in gastroenterology and worked at Chicago Mercy Hospital in the State of Illinois for 48 years. While at Chicago Mercy Hospital, plaintiff practiced and served as chair of the Academic Affairs Council, president of the medical staff, and chief of gastroenterology.
After moving to California in 2002, plaintiff was hired in March 2003 by James Wang, M.D., the chief of gastroenterology at defendants’ Riverside facility. Plaintiff was 82 years old at the time. Plaintiff was hired to work two days a week on an hourly per deim basis. According to plaintiff, he was hired to do colonoscopies two nights a week. He was very familiar with colonoscopies because he had performed several thousand of them. Dr. Wang changed the arrangements because in order to have nighttime colonoscopies, the nurses would have to be paid double time. In 2003, Dr. Wang had a conversation with plaintiff. In that conversation, plaintiff was told he would be watched more closely because an octogenarian had injured some people by driving a car through a mall in Santa Monica.
On June 22, 2004, plaintiff was scheduled to perform a flexible sigmoidoscopy on the patient who was 64 years old. The procedure does not require an anesthetic and involves an insertion of a tube into the anus and colon. A flexible sigmoidoscope is inserted into the rectum where the physician can look all the way into the colon as far as the instrument will go, about 60 to 65 centimeters. Certain types of things such as colon cancer or scarring from a prior surgery can obstruct the instrument and prevent the physician from going further. A patient is normally prepared before the examination by cleaning out the colon with oral agents or enemas. This is because stool prevents the physician from clearly seeing the colon. Sometimes patients do not prepare themselves well enough before the examination. The procedure does not require the insertion of any instrument into the vagina.
The patient was referred to plaintiff after she complained of diarrhea. Plaintiff performed the sigmoidoscopy on the patient. During the procedure, plaintiff took three photographs through the sigmoidoscope. At trial, plaintiff testified that he took the instrument out and told the patient that he could not make any diagnosis because there was too much stool. Plaintiff recommended that the patient have a colonoscopy and a test for cancer. Plaintiff’s notes from the procedure state: “PROCEDURE IN DETAIL: Unfortunately, there had been quite an emergency going on in here in the laboratory, so the patient had to wait several hours after preparation. She did admit to having diarrhea. Nevertheless, the flexible sigmoidoscope was passed to only approximately 20 centimeters. At this point, there appeared to be the suggestion of several polypoid lesions. The mucosa seemed to narrow down, as well. There was, as mentioned, diarrhea which could not be completely removed. In view of the above, it was strongly suggested the patient undergo a colonoscopy with better preparation from above. A [(carcinoembryonic antigen test)] is to be drawn today.” Twenty centimeters is equivalent to about eight inches. A carcinoembryonic antigen test is a blood test to look for cancer. A polypoid lesion means something that looks like a polyp. A polyp is a growth in the lining of the colon. The cancer blood test was taken the same day as the sigmoidoscopy. The patient was ultimately scheduled for an urgent colonoscopy, which was performed by Dr. Wang, the physician who hired plaintiff. The parties disputed whether the procedure was ordered as urgent on plaintiff’s direction.
Silvia Torres, a licensed vocational nurse, began working in the Riverside facility in 1989. She assisted in gastroenterology procedures. Ms. Torres assisted plaintiff in the sigmoidoscopy. Ms. Torres did not see plaintiff insert the scope into the patient. Ms. Torres was observing the video image on the monitor during the sigmoidoscopy. Ms. Torres thought that plaintiff had not inserted the sigmoidoscope in the patient’s colon. Ms. Torres based her opinion based on what she could not see on the video image. Ms. Torres did not see the normal things she would have seen in a colon as she had seen in thousands of cases. Ms. Torres believed the video image did not look like a colon because she did not see blood vessels, normal pink mucosa, or the folds. Ms. Torres testified at the trial that she “saw something that reminded her of when” she had seen a cervix. Ms. Torres had seen a cervix once about 17 years before when another gastroenterologist said they were viewing a cervix. Ms. Torres does not remember telling Dr. Wang that she saw a cervix during the sigmoidoscopy. Ms. Torres did not recall the patient having active diarrhea during the sigmoidoscopy. Ms. Torres did not observe any diarrhea as she watched the images on the monitor. Ms. Torres did not hear the patient complain.
The colonoscopy was performed two days later by Dr. Wang on June 24, 2004. Prior to performing the colonoscopy, Dr. Wang reviewed the photographs that had been taken by plaintiff. When Dr. Wang was about to perform the colonoscopy, he looked at the sigmoidoscopy photographs. He made a funny look and asked, “[W]hat’s this?” Ms. Torres told Dr. Wang that she did not think that plaintiff had inserted the sigmoidoscope into the colon. Dr. Wang thought that the photographs did not appear to be of a colon. However, Dr. Wang performed a colonoscopy on the patient. Ms. Torres observed the images on the monitor during Dr. Wang’s colonoscopy on the patient. According to Ms. Torres, the images on the monitor from the colonoscopy “looked exactly” like a colon.
Dr. Wang’s examination revealed that the patient’s colon was normal. Dr. Wang did not find any narrowing of the mucosa or any polypoid lesions. The carcinoembryonic antigen test was normal meaning there was no cancer. Dr. Wang took four photographs of the colon during the colonoscopy. Dr. Wang then compared them to the three photographs taken by plaintiff. Dr. Wang testified that the photographs taken by plaintiff did not appear to be of a colon. Dr. Wang also believed there was no clinical reason for plaintiff to state that there was a narrowing during the June 22, 2004 sigmoidoscopy. Dr. Wang concluded that, based on the two different sets of photographs plus the different findings from the examinations, plaintiff had placed the sigmoidoscope in the patient’s vagina. Dr. Wang believed that plaintiff had done this without realizing a mistake had occurred. Dr. Wang observed blood vessels in the colonoscopy photographs. The photographs taken by plaintiff did not have the right color and there were no blood vessels, which is consistent with a vagina.
Dr. Wang then discussed the patient’s treatment with another physician in the gastroenterology department, Dr. Adam Chen. Dr. Wang asked Dr. Chen to conduct an independent review of the case. Dr. Chen compared the sigmoidoscopy and the colonoscopy reports. Dr. Chen reviewed the photographs from both procedures. Dr. Chen concluded that the sigmoidoscope had been inserted into the vagina. He also concluded that the colonoscopy did not show any obstruction or “narrowing” of the colon. Dr. Chen testified that the lining of the vagina and the colon are different. The two look different in appearance and color. They have different folds. Dr. Chen had done many examinations himself and could tell the difference between colon and vaginal wall linings. The vaginal wall looks whiter and the colon is pinker as it has more blood vessels. The colon also has folds. Plaintiff’s photographs did not have a colon lumin (or opening) which is what he had called a narrowing. The colonoscopy results were normal. There was no narrowing and no obstructions or polypoid lesions were found during the colonoscopy. There are certain landmarks that one expects to see in a colon. Dr. Chen did not see any of the landmarks he would have expected to see in a colon in the photographs provided by plaintiff. The photographs of the sigmoidoscopy did not show a cervix. The sigmoidoscopy photographs did not show the presence of any stool or diarrhea. Dr. Chen concurred with Dr. Wang that plaintiff had placed the sigmoidoscope in the patient’s vagina. Dr. Chen also believed that Dr. Strub had placed the sigmoidoscope in the patient’s vagina without realizing it. Ms. Torres told Dr. Chen that what she observed on the monitor did not look like colon. Dr. Chen had reviewed the patient’s chart. There was no indication that she complained of pain on June 22, 2004. The chart does not state the patient complained that the sigmoidoscope was in the wrong orifice.
Dr. Wang instructed Dr. Chen to fire plaintiff. On July 6, 2004, Dr. Chen spoke to plaintiff. In that conversation, plaintiff was told he was terminated. Plaintiff demanded an explanation as to why he was being terminated. Plaintiff was advised he was being fired because had inserted the sigmoidoscope into the wrong orifice. Plaintiff was also told that Dr. Chen had reached the same conclusion. Plaintiff replied, “This could happen to any doctor.” Plaintiff did not ask the patient’s name nor ask to see a chart. Plaintiff did not deny he had placed the sigmoidoscope into the patient’s vagina.
On July 13, 2004, defendants’ medical credentials and privileges committee met. The committee discussed whether the June 22, 2004 procedure leading to plaintiff’s termination warranted the filing of a Business and Professions Code section 805 report to the board. Such a report is required by law when the hospital or employer takes action against a physician for medical disciplinary cause or reason. The medical credentials and privileges committee did not reach a conclusion due to an absence of group consensus. The minutes from the meeting stated further investigation would occur.
All further statutory references are to the Business and Professions Code unless otherwise indicated. Section 805 states in part: “(b) The chief of staff of a medical or professional staff or other chief executive officer, medical director, or administrator of any peer review body and the chief executive officer or administrator of any licensed health care facility or clinic shall file an 805 report with the relevant agency within 15 days after the effective date of any of the following that occur as a result of an action of a peer review body: [¶]... (2) A licentiate’s membership, staff privileges, or employment is terminated or revoked for a medical disciplinary cause or reason. [¶]... (d) For purposes of filing an 805 report, the signature of at least one of the individuals indicated in subdivision (b) or (c) on the completed form shall constitute compliance with the requirement to file the report. [¶] (e) An 805 report shall also be filed within 15 days following the imposition of summary suspension of staff privileges, membership, or employment, if the summary suspension remains in effect for a period in excess of 14 days. [¶] (f) A copy of the 805 report, and a notice advising the licentiate of his or her right to submit additional statements or other information pursuant to Section 800, shall be sent by the peer review body to the licentiate named in the report. [¶] The information to be reported in an 805 report shall include the name and license number of the licentiate involved, a description of the facts and circumstances of the medical disciplinary cause or reason, and any other relevant information deemed appropriate by the reporter.... [¶] (g) The reporting required by this section shall not act as a waiver of confidentiality of medical records and committee reports. The information reported or disclosed shall be kept confidential except as provided in subdivision (c) of Section 800 and Sections 803.1 and 2027, provided that a copy of the report containing the information required by this section may be disclosed as required by Section 805.5 with respect to reports received on or after January 1, 1976. [¶] (k) A willful failure to file an 805 report by any person who is designated or otherwise required by law to file an 805 report is punishable by a fine not to exceed one hundred thousand dollars ($100,000) per violation. The fine may be imposed in any civil or administrative action or proceeding brought by or on behalf of any agency having regulatory jurisdiction over the person regarding whom the report was or should have been filed. If the person who is designated or otherwise required to file an 805 report is a licensed physician and surgeon, the action or proceeding shall be brought by the Medical Board of California. The fine shall be paid to that agency but not expended until appropriated by the Legislature. A violation of this subdivision may constitute unprofessional conduct by the licentiate....”
Neither Dr. Wang nor Dr. Chen wanted to file the section 805 report because they did not want to do that to plaintiff. Dr. Wang was concerned that the patient might file a lawsuit. Both Dr. Wang and Dr. Chen had inserted the sigmoidoscope into the wrong orifice once or twice while practicing medicine. Both physicians recognized they were in the wrong orifice, pulled the sigmoidoscope out, and reinserted it correctly. On the occasions that Dr. Wang and Dr. Chen inserted the scope into the wrong orifice, they were not terminated and no section 805 report was filed against them. Both Dr. Chen and Dr. Wang testified that the error in this case was not the inadvertent insertion of the sigmoidoscope into the patient’s vagina—that happens. The error was plaintiff’s failure to recognize he had placed the sigmoidoscope in the wrong orifice. Dr. Wang testified the ability to differentiate between a view of the vagina and the rectum is a basic skill. On July 13, 2004, defendants’ peer review quality management committee met. No recommendation was made at that time. After the July 13, 2004 medical credentials and privileges committee meeting, Dr. Wang decided a section 805 report should be filed with the board. Dr. Wang did not know the procedure for filing the section 805 report. But Dr. Wang prepared the report and gave it to defendants’ risk manager, Heidi Waechler. Ms. Waechler then spoke to Dr. Deiter, who worked in defendants’ legal department. Dr. Deiter instructed the risk manager that notice had to be given to plaintiff. Dr. Wang then telephoned plaintiff. Plaintiff was advised he would be the subject of a section 805 report to the board. However, plaintiff did not receive written notice of the section 805 report before it was filed. Plaintiff was not advised of the credential committee meeting. On August 4, 2004, defendants filed a section 805 report with the board. The report was signed by Dr. Richard Rajaratnam, defendants’ Medical Director for the Riverside area. The section 805 report was filed under the following circumstances.
On August 24, 2004, Dr. Kathleen Fanning, a board certified internist and chairwoman of the peer review quality management committee of Southern California Permanente Medical Group, sent a letter to plaintiff regarding the sigmoidoscopy, asking him to contact her with any questions or concerns. On September 16, 2004, plaintiff sent a handwritten letter to Dr. Fanning explaining: “The patient on whom I was to perform the flexible sigmoidoscopy had extensive diarrhea for 4-6 weeks. Although she had received the standard preparation for a sigmoidoscopy (2 [Fleet’s] enemas) she still had extensive diarrhea. I advanced the scope but in view of the tremendous diarrhea, I could not visualize normal landmarks. Rather than trying again, I felt it was preferable for her to undergo a colonoscopy with a full colon prep. Fortunately, no actual injury occurred.”
B. Dr. Deiter’s Representation of Plaintiff
The board began its review process with an interview of plaintiff, which was scheduled for March 24, 2005. It is not disputed that Dr. Deiter, who was employed by Southern California Permanente Medical Group and Kaiser Foundation Health Plan, Inc. provided legal representation to plaintiff at the March 24, 2005 board interview. The circumstances surrounding the March 24, 2005 board interview are the crux of plaintiff’s legal malpractice claim.
After learning that the board was investigating the incident, plaintiff called defendants’ legal department of Southern California Permanente Medical Group and Kaiser Foundation Health Plan, Inc. and spoke with Dr. Deiter. The two subsequently had a meeting to discuss the legal issues raised by the section 805 report. By the time they met, plaintiff had already been terminated. Dr. Deiter agreed to represent plaintiff at the interview. Dr. Deiter knew the section 805 report had been filed.
At the jury trial, plaintiff called Dr. Deiter to testify. Dr. Deiter began working for defendants as an attorney in 1982. In 2002, Dr. Deiter began working on a per diem basis in the legal department. Dr. Deiter agreed to provide legal representation to plaintiff at the March 24, 2005 board interview. They met sometime in March 2005 and both attended the March 24, 2005 interview.
Prior to the interview, they met at Dr. Deiter’s office. Dr. Deiter had the patient’s chart. Conflicting evidence exists as to what occurred at the meeting. According to Dr. Deiter, they discussed the entries in the chart about the sigmoidoscopy. Plaintiff told Dr. Deiter that the patient had diarrhea. There were feces on his glove and plaintiff tried to wash off the feces. When plaintiff put the sigmoidoscope into her body, he could not identify the landmarks. Plaintiff did not know where the sigmoidoscope had been inserted. Plaintiff thought that he might have inserted the sigmoidoscope in the patient’s vagina. Plaintiff did not state where the sigmoidoscope had been placed in the patient’s chart because he was too embarrassed to do so. Plaintiff said he knew he had made a mistake. Plaintiff also knew that the section 805 report dealt with putting a sigmoidoscope in a patient’s vagina and not recognizing that he had done so. According to Dr. Deiter, plaintiff said that he had made the entry into the patient’s vagina. Dr. Deiter did not remember showing the chart to plaintiff.
By contrast, plaintiff testified that Dr. Deiter did not mention the section 805 report had been filed or that Dr. Deiter had provided legal advice before it was lodged with the board. Plaintiff testified that Dr. Deiter said, “‘This really doesn’t sound like that major of a deal....’” Plaintiff explained that he did not know the patient’s name and that he had been unable to see the chart. Dr. Deiter testified he had the patient’s chart on his desk during their initial interview. Plaintiff did not know the chart was on Dr. Deiter’s desk during the interview. Plaintiff testified: “I was amazed he said he had it in front of him. Whether he had papers in front of him or not I have to be honest with you I don’t recall what he had but I certainly did not suspect that he had the patient’s chart in front of him, because if he had, I would have at least liked to peek over and see what that name was....”
Dr. Deiter testified that generally physicians speak to board investigators. Dr. Deiter had never counseled a physician against speaking to a board investigator. This was because the investigator would typically then subpoena the physician. Dr. Deiter told plaintiff to tell the truth at the interview with the board investigator. Dr. Deiter told plaintiff that the board responded affirmatively to a person telling the truth to the board investigator. Plaintiff stated before and after the meeting that he could not complain. He had made a mistake. In their first meeting, plaintiff never said that he did not place the sigmoidoscope into the patient’s vagina. Rather, plaintiff said that he suspected he had done so.
At the trial, plaintiff focused on these facts to establish liability: Dr. Deiter never investigated the incident; Dr. Deiter never called the patient or spoke to her; and Dr. Deiter did not suggest retaining an outside expert to review the photographs. Rather, before the March 24, 2005 board interview, Dr. Deiter told plaintiff, “[D]on’t argue with them” and “[T]ry and agree with them as much as you can, and this should turn out to be no big deal.”
Dr. Deiter knew as early as July 2004 about the section 805 report when the risk manager, Ms. Waechler, contacted him. Dr. Deiter advised Ms. Waechler to give notice to plaintiff before filing the section 805 report. Dr. Deiter testified that plaintiff should have been, but was not, given written notice of the intent to file the section 805 report. The section 805 report should not have been filed without notice to plaintiff. Dr. Deiter did not tell plaintiff that the section 805 report should not have been filed without notice and an opportunity to be heard. However, Dr. Deiter did not believe that it was necessary to challenge the section 805 report on plaintiff’s behalf for lack of compliance with section 809.1 at the board interview. This is because the board would have investigated the incident once it was reported. Dr. Deiter did not know of any procedure for withdrawing a section 805 report once it is filed with the board.
Dr. Deiter continued talking to plaintiff until November 2005. By that time, plaintiff was being represented by the law firm of Iungerich & Spackman. Defendants had utilized the law firm before and had a contractual relationship with them. Plaintiff’s son, Michael Strub (Dr. Strub), is a Kaiser physician. The son asked Dr. Deiter to represent plaintiff. Dr. Deiter did not advise either of them of any potential conflict of interest resulting from representing plaintiff based on information supplied to the board by their mutual employer.
Dr. Jerry Wu, the District Medical Consultant, appeared at the March 24, 2005 board interview. Dr. Wu appeared on behalf of the board. Dr. Deiter knew that Dr. Wu’s daughter is a physician and partner at Southern California Permanente Medical Group. Dr. Deiter did not object to Dr. Wu’s presence at the interview. Nor was any request made to Dr. Wu to recuse himself.
C. March 24, 2005 Board Interview
At the interview, plaintiff stated that, when the examination room was ready, he ran down the hall to see the patient. She was in the washroom when he arrived. He waited until she came out and then put her on the table. Plaintiff stated: “[T]he history that I got was that she had had diarrhea for at least two or three months and I think she was 63 or 64 or something like that. [¶] And while we were getting ready to it, stool was still coming out. Now, at Kaiser when they prepare a patient for a flexible sigmoidoscopy, they do not give a laxative. They only have the patient take enemas. And I mentioned to the nurse, I said, you know, I wonder if this is the best time or the best day to be doing this procedure, and the lady suddenly looked up at me and said, ‘Doctor, I’ve been taking the enemas since 5:00 o’clock this morning, and if you don’t do it today, I’m never coming back for this exam.’... [¶] And-- which happens, you know. And I tried explaining to her that perhaps this was not the best day and the nurse said why don’t we just try it and see how we can do. And when I started to do the... enter the (indiscernible) very, very easily, and there was so much stool there, there was stool on my hand. I kept flushing in water and aspirating and I have to be honest with you. I’ve done over 2,000 colonoscopies and this just didn’t seem—I’m not the world’s greatest, but I’ve had a little experience at doing these things. Like the normal landmarks just did not seem to be there. [¶] Now some people when they develop an obstructing lesion—a low lying obstructive lesion, the good Lord has them pass through stool in the form of diarrhea so it will come through and I just was looking for that. I could not see exactly where I was going, and I finally decided -- and to be truthful about it, I was even afraid that it might be [a] cervix. I could not say for sure. [¶] And I did not dictate that because I was a little embarrassed to be truthful about it.”
Plaintiff removed the instrument from the patient and told her she should have a colonoscopy but with better preparation. Plaintiff was subsequently approached by Dr. Chen and Dr. Wang. Dr. Chen and Dr. Wang confronted plaintiff about the examination. According to plaintiff, they would not listen to him. Instead, they told plaintiff that he had caused the patient to have a colonoscopy. Plaintiff stated: “I said I really couldn’t see what was such a big thing. You know, I didn’t perforate her, thank God. I didn’t cause any injury. [¶] I thought I was doing the right thing. I had -- many times we did between five and ten flexible sigs in our office, my partner and I, and if a patient wasn’t prepared, we would have them prepare with a better preparation and so on so we wouldn’t miss something. [¶] And the lady agreed to this and they said—this is interesting because they said we want you to get out because if you don’t get out, we’re going to report you the Medical Board. I said what did I [do] wrong, which is what I’m asking you now too. I—really I made a mistake, I’m not denying that, but I thought I had done everything appropriately, and then the next thing I hear is I’m being reported, and that’s all I can say about that.”
Plaintiff stated that he took some photographs because he was unsure if there were any polyps. Dr. Wu asked if plaintiff thought there was an obstructive lesion. Plaintiff responded he did not honestly think so but he did not want to miss anything so he felt she should undergo better preparation and a colonoscopy. He read from his notes which indicated that there were several polyps, a narrowing, and diarrhea. Plaintiff strongly suggested that the patient undergo a colonoscopy with better preparation and a cancer test.
Ms. Alva asked plaintiff, “So when you did the procedure, there was a possibility that you were entering the vagina rather than the rectum?’ Plaintiff replied, “After I did the procedure and got up there.” Plaintiff then stated: “I’m not going to say, I realized that immediately or I’d have stopped right there. But there was no question about that.” He stated: “I mean I made a mistake. I admitted that. In fact the day that they talked to me like that, I said I did make a mistake. I admitted it, you know, and tried explaining this, and they wouldn’t even let me talk.”
On March 24, 2005, Dr. Wu prepared a summary based on the records and the interview. He recommended that the matter be submitted for “expert review.” Dr. James Huang, who is board certified in internal medicine, reviewed the matter. Dr. Huang concluded: “Flexible sigmoidoscopy is a safe and common procedure performed by physicians and nurse practitioners.... [Plaintiff’s] care provided in this case was an extreme departure from standard of practice. He inserted the sigmoidoscope into the vagina, thus never performing the sigmoidoscopy procedure which was consented to by the patient. He failed to recognize the proper anatomy by misidentifying the cervix as a possible colon pathology. This led to an unnecessary urgent colonoscopy procedure which exposed the patient to potential dangers of general anesthesia and colon perforations. An appropriate course of action would have been an immediate admission of mistake to the patient and a request to repeat the flexible sigmoidoscopy.”
D. The Referral And Change Of Counsel
On June 29, 2005, the board referred the case to the Office of the Attorney General. The Attorney General filed an accusation against plaintiff on July 25, 2005, requesting a hearing. The Attorney General further requested plaintiff’s license be revoked. Dr. Deiter referred plaintiff to the law firm of Iungerich & Spackman. Because plaintiff was not a partner, he did not have a contractual right to legal representation. However, at Dr. Deiter’s request, Southern California Permanente Medical Group agreed to pay the Iungerich & Spackman firm to defend the accusation filed by the Attorney General’s office. Before the hearing, plaintiff retained Frank Albino to provide representation before the board.
E. Administrative Hearing And Decision
At the actual administrative hearing, held before an administrative law judge, plaintiff was represented by Mr. Albino. Among the witnesses testifying at the hearing were the patient and Ms. Torres. After the board hearing, plaintiff’s license was revoked. The board found plaintiff inserted the sigmoidoscope into the patient’s vagina and falsely documented that he placed the instrument into her colon. In rendering its finding, the board resolved conflicting evidence of whether plaintiff had actually inserted the sigmoidoscope into the vagina or the rectum. The board relied on the following evidence and analysis to reach its conclusion that plaintiff’s license should be revoked. Plaintiff spoke to Dr. Chen two weeks after the incident. In that conversation, plaintiff admitted he placed the sigmoidoscope in the patient’s vagina. In March 2005 board interview, plaintiff admitted that he inserted the sigmoidoscope in the patient’s vagina but did not chart the mistake because he was too embarrassed to do so. In addition, the board specifically rejected plaintiff’s attempts to disregard his admissions that he had inserted the sigmoidoscope in the patient’s vagina rather than the colon. The board noted that plaintiff had provided testimony that there was actually a rectum insertion. The board rejected the testimony as biased. Instead, the board found that the evidence supported the conclusion that there was a vaginal insertion. The board cited Ms. Torres’ testimony that what she saw did not look like a colon. The board conceded Ms. Torres testified that she saw a cervix. The board recognized the patient ultimately disclosed that her cervix had been removed in 1972. But Ms. Torres testified that the images appeared to be from a vaginal insertion. Ms. Torres saw the images twice when plaintiff inserted, removed, and then reinserted the instrument. Ms. Torres stated that each time it appeared to be vaginal images that she was seeing. Ms. Torres observed the closed area where the cervix used to be before its surgical removal.
Dr. Dean Rider, a board certified internist and gastroenterologist, testified on behalf of plaintiff at the hearing. Dr. Rider corroborated plaintiff’s admissions in part: “Dr. Rider testified that, in patient whose cervix has been removed, it is not possible to insert a sigmoidoscope through the area where the cervix used to be. [The patient] testified that, after she complained of pain upon the insertion of the scope, [plaintiff] inserted the instrument again, and then terminated the procedure, informing her ‘I can’t go any farther.”’
In addition, the board found that plaintiff’s and Dr. Wang’s colonoscopy findings were inconsistent. The board’s decision states: “The photographs from [plaintiff’s] procedure are different in appearance than the photographs from Dr. Wang’s procedure. [Plaintiff’s] findings of the ‘suggestion of several polypoid lesions’ and ‘narrowing down’ of the mucosa are inconsistent with Dr. Wang’s examination of the colon, which revealed no polypoid lesions and no narrowing. Dr. Rider’s opinion that cramps from diarrhea may have caused the mucosa to appear to ‘narrow down’ during [plaintiff’s] examination is contrary to [plaintiff’s] admission that he scoped the vagina, and contrary to [the patient’s] testimony that, on the day of the procedure, she did not have cramps or diarrhea. Dr. Rider’s opinion that [plaintiff’s] findings are not inconsistent with Dr. Chen’s findings, because Dr. Chen ‘may have missed a polyp,’ is based on speculation. Dr. Rider’s opinion that [plaintiff’s] pictures are inconclusive because they lack ‘context’ disregards [plaintiff’s] admissions that he scoped the vagina, and disregards the fact that [plaintiff’s] pictures and Dr. Wang’s pictures look different.” The board further found: “[Plaintiff’s] exculpatory testimony at hearing, which is not trustworthy in light of his prior admissions to Dr. Chen and the board, was also contradicted in every material respect by Ms. Torres and [the patient]. [Plaintiff] testified that [the patient’s] procedure was in the morning, but [Ms.] Torres and [the patient] both stated that it was in the afternoon. [Plaintiff] testified that [the patient] had active diarrhea the day of the procedure, but [the patient] testified that she did not. [Plaintiff] testified that there was stool on [the patient’s] gown and the examining table, but [Ms.] Torres and [the patient] both state that there were was not. [Plaintiff] testified that [the patient] had to use the bathroom after she was placed on the examination table – ‘not just before the examination like most patients’ – but [the patient] states that she did not. [Plaintiff] testified that fecal matter obscured his ability to visualize where he was, but [Ms.] Torres saw no fecal matter on the monitor and [the patient] stated that she did not have active diarrhea. [Plaintiff] testified that he inserted the scope only once; [Ms.] Torres and [the patient] both testified that he inserted it twice. [Plaintiff] testified that he could have gone farther with the scope, but chose not to; at the time of the procedure, however, [plaintiff] told [the patient] that he could [not] insert the scope any farther. [Plaintiff] testified that he did not order the colonoscopy on an urgent basis, but both [Ms.] Torres and [the patient] testified that he did. The testimony of [Ms.] Torres and [the patient] was credible and persuasive. [¶]... Notwithstanding the evidence that he scoped the vagina, [plaintiff] argues that he must have scoped [the patient’s] colon because he observed stool, which would not be present in the vagina, and because the vagina cannot accommodate insertion of the sigmoidoscope to 20 centimeters. [Plaintiff’s] report regarding the presence of stool, however, was not accurate. [Plaintiff] admitted, and the evidence establishes, that he scoped the vagina, where there is no stool; [Ms.] Torres saw no fecal matter on the monitor, and no fecal matter is seen in [plaintiff’s] photographs. And it is difficult to be confident in [plaintiff’s] report that he passed the scope to 20 centimeters, because that finding is incorporated in a report that falsely reports an examination of [the patient’s] colon. But, by accepting [plaintiff’s] report at face value, [plaintiff] stated that he could pass the scope ‘only to approximately 20 cm.’ There is no evidence that the scope would not pass to ‘approximately’ 20 centimeters in this patient with a history of a surgical hysterectomy, during a procedure in which the scope was inserted to the point that it would ‘not go any farther,’ and inserted it to the point that it caused the patient so much pain that the procedure had to be terminated. [¶]... [Plaintiff’s] written and dictated chart notes... falsely document an examination of [the patient]’s colon, and falsely report findings that [plaintiff] did not observe. Relying on [plaintiff’s expert’s] testimony, [plaintiff] argues that he would not have taken pictures if he had known he was in the vagina, because the purpose of the procedure was an examination of the colon. But the issue is not whether [plaintiff] knew he was in the vagina when he took the pictures, but whether he knew he was in vagina when he wrote and dictated his findings. On that point, the evidence is clear: [plaintiff] admits that he knew he had inserted the instrument into the vagina but that he was ‘too embarrassed to write that down.’”
The board found that plaintiff had provided dishonest testimony at the administrative hearing in the following ways. The board found plaintiff made untrue statements that: the stool prevented him from identifying where he put the sigmoidoscope; the sigmoidoscope did not slip out of the patient and he did not reinsert it; he did not order an urgent colonoscopy; and he did not fail to document the vaginal insertion out of embarrassment but claimed he thought it was the colon. The board found all this testimony to be untruthful.
The board ruled: “It was established by the expert opinion of James J. Huang, M.D., that, in performing a vaginal examination of [the patient], reporting false findings, ordering a test that raised [the patient’s] suspicion of an obstruction and colon cancer, and exposing [the patient] to the risks of another procedure, [plaintiff] made an extreme departure from the standard of care. It was established by the testimony of Dr. Huang that, while it is appropriate to offer a colonoscopy to a female patient who is over age 60 and has never had a colonoscopy, it is never appropriate to order a colonoscopy on false findings.”
The board found there was clear and convincing evidence of a reasonable certainty that: plaintiff’s treatment of the patient was grossly negligent; plaintiff reported false findings of his examination of the patient; plaintiff failed to maintain adequate and accurate records regarding his provision of services to the patient; and plaintiff’s testimony at the administrative hearing was dishonest in certain respects which constituted additional cause for discipline. The board concluded that these findings required that plaintiff’s license be revoked: “Of the many legal duties imposed on a physician, none is more fundamental than the duty to accurately report his findings [following his] examination [of the patient].... To [plaintiff’s] credit, he was forthright about the procedure in his physician interview. His candor during the interview suggested that his false documentation of [the patient’s] procedure might have been due to panic rather than dishonesty. No such explanation, however, is available for [plaintiff’s] testimony at hearing, where he offered an account of [the patient’s] procedure that was diametrically opposed to his statements in the physician interview, and which was false in every material respect. Although [plaintiff] may be capable of practicing medicine in other respects, the evidence establishes that he cannot be trusted to truthfully report his medical findings. There is no choice but to revoke [plaintiff’s] certificate.”
F. The Mandamus Petition
Plaintiff challenged the board’s decision by filing a petition for writ of administrative mandamus. (Strub v. Medical Board of California, (Super. Ct. Sacramento County case No. 07CS00684)). The Sacramento Superior Court judgment denying the petition was entered on April 8, 2008. No appeal was taken from the judgment upholding the board’s decision to revoke plaintiff’s license.
G. The Legal Malpractice And Fraud Action
The operative pleading is the second amended complaint and contains causes of action for professional negligence (first), fraud (second), violation of section 809.1 (third), and unfair business practice (fourth). The only claims pursued at the trial were the negligence and fraud claims. The second amended complaint alleges that plaintiff did not insert the sigmoidoscope into the patient’s vagina. Rather, defendants fabricated the incident as a pretext to fire plaintiff because of his age. Even if he had performed a flexible sigmoidoscopy in the patient’s vagina, it was not such a departure from the appropriate standard of care to justify defendants’ actions towards him. The second amended complaint further alleged defendants ignored their own internal procedures and section 809.1 by failing to give plaintiff the opportunity to respond to the charges and intentionally refused to give him access to the patient’s chart. Further, it was alleged: plaintiff was misled as to Dr. Deiter’s level of participation in the termination decision; Dr. Deiter misled plaintiff about the seriousness of the matter and available legal remedies; Dr. Deiter failed to advise plaintiff of a conflict of interest; and Dr. Deiter was not adequately prepared to represent plaintiff at the March 2005 board interview. Plaintiff alleged Dr. Deiter’s misconduct caused economic damages and emotional distress as a result of the termination process. The amended complaint does not mention that plaintiff lost his licenses to practice medicine in California and Illinois. Rather, the amended complaint is couched in terms of losses suffered from the circumstances in which plaintiff was terminated from defendants’ employment and from the section 805 report to the board which led to the administrative proceedings. Defendants answered the amended complaint and asserted as affirmative defenses the lack of causation (fifth), collateral estoppel and res judicata doctrines (eleventh), and unclean hands (twelfth).
At the trial, defendants filed a number of in limine motions. Motion in limine No. 3 requested exclusion of evidence defendants caused plaintiff’s license to be revoked because the issue had been fully and fairly litigated before the board. Motion in limine number No. 12 requested that plaintiff be barred from introducing evidence that he did not in fact place the sigmoidoscope in the patient’s vagina under collateral estoppel and res judicata principles. The trial court deferred ruling on the causation and issue preclusion motions. The trial court also deferred ruling on defendants’ in limine motion No. 13 which sought to exclude testimony on whether filing the section 805 report or the section 809.1 violation caused plaintiff to lose his license. A material portion of the trial was dedicated to whether the filing of the section 805 caused plaintiff to lose his license. However, the trial court subsequently granted in limine motion No. 13 and finding the lack of compliance with section 809.1 had no bearing on plaintiff’s claims. The trial court, however, then gave instructions on sections 805 and 809.1.
Plaintiff presented evidence that he did nothing inappropriate during the patient’s June 22, 2004 examination. The legal malpractice action proceeded on the theory that: the circumstances of plaintiff’s termination were fabricated; the filing of the section 805 report to the board was made without due process; and Dr. Deiter acted unprofessionally before and at the March 24, 2005 board interview. Plaintiff asserted he never actually inserted the sigmoidoscope into the patient’s vagina. Plaintiff denied ever admitting inserting the sigmoidoscope into the patient’s vagina. And if any such an admission was made, it was only after being badgered or as a result of Dr. Dieter’s unprofessional conduct. Finally, plaintiff denied making any false statements during the March 24, 2005 interview. But if any false statements were made, plaintiff asserted they were the result of Dr. Deiter’s misconduct.
Plaintiff testified that sometime in 2004, he was told that a full-time gastroenterologist would be hired. Plaintiff asked if he could stay long enough to perform some colonoscopies in order to assist his efforts to find a different job. However, Dr. Wang kept giving excuses as to why plaintiff could not perform the colonoscopies. Dr. Wang stated that plaintiff had to take a conscious sedation test before performing colonoscopies but that they were not scheduled that often. However, plaintiff was subsequently told that he could take the test anytime. Plaintiff testified he passed the written the test on June 30, 2004.
On June 22, 2004, plaintiff performed two flexible sigmoidoscopies. He was then was asked to relinquish his examination room for an emergency. The emergency ended up lasting about 90 minutes. The patient was quite annoyed about the wait even though plaintiff apologized. After the patient was placed on the examination table, she had an episode of diarrhea because she had to suddenly go to the washroom. Once she returned, plaintiff observed that the patient’s anal area was very red. Plaintiff asked if the enemas were bothering her. The patient subsequently stated that she had to go the washroom again. Plaintiff then said to Ms. Torres, “‘You know, I wonder if this is really the best day to perform this test.’” Plaintiff did not want to perform the test because of the diarrhea and the patient’s sore anal area. The patient said, “‘Doctor, I’ve been taking enemas since 5:00 this morning and if you don’t do this test today I’m never coming back.’” Plaintiff did not want any complaints and advised the patient that she might feel uncomfortable. Ms. Torres said, “‘Why don’t we just try it.’”
Plaintiff began the procedure by using lubricant. But, there was still a fair amount of stool. Plaintiff did not see any of the usual landmarks such as the valves of Houston, which are three valves near the anal orifice. Plaintiff could not really make it out. So, he decided this was not the day to do the procedure. Plaintiff got up to about 20 centimeters before he took the sigmoidoscope out of the patient.
Plaintiff denied that he inserted the sigmoidoscope in the patient’s vagina. Plaintiff testified: “When I put it in, as I say, her anal area was quite sore, and using a little lubricant, to be truthful about it, did not make it feel too much better, and I asked her, ‘Can we continue?’ and she said, ‘Go ahead,’ and I kept going ahead, and I kept squirting in water, which you can do with one of these buttons over here.” He stated that the water squirts helped to flush stool away from some areas but that he was not fast enough to take photographs without showing stool. According to plaintiff, the photographs he took showed the lining was covered with whitish stool. There was one spot that plaintiff thought was a possible polypoid area. Plaintiff could not proceed any further than 20 centimeters. He could not make out anything and thought it was unfair to patient to continue.
Plaintiff suggested the patient have a colonoscopy because of her age. Colonoscopies are recommended for patients over 50 years of age. Plaintiff also ordered the carcinoembryonic antigen test because he thought he saw a possible polypoid area. Plaintiff did not tell the patient he was looking for cancer but said he wanted to do the blood test to insure they were not missing something. The patient seemed delighted and asked when she should have the test done. Plaintiff said that because of the diarrhea history and her age, the colonoscopy should be done but there was no hurry. Plaintiff suggested that because she was already partially prepared, the patient might want to have the procedure done soon.
On July 6, 2004, plaintiff was directed to speak with Dr. Chen. Plaintiff thought it was because he had taken the conscious sedation test on June 30, 2004. Dr. Chen and Dr. Lee were at the meeting. Dr. Chen asked, “‘Do you know you did a terrible thing?’” Plaintiff asked if the terrible thing was taking the conscious sedation test. Dr. Chen replied, “‘No, but you did a terrible thing and if you don’t leave the hospital right now, we’re going to turn you over the Medical Board of California.’” Plaintiff asked what had he done because he thought he might have perforated a patient. Dr. Chen finally said, “‘You put the instrument in the wrong place.’” Dr. Chen would not answer questions about which patient was involved. Nor did Dr. Chen allow plaintiff to see the patient’s chart. Plaintiff testified that he left the hospital without any idea of what they were accusing him of doing. Dr. Wang telephoned plaintiff about one week later. Plaintiff asked for an opportunity to come in and discuss the matter. Dr. Wang said he would think about it and hung up the telephone. Plaintiff still did not know the basis of the charges. Dr. Wang called about a week later and said he was going to file a report with the board. Dr. Wang said, ‘“I’m calling to tell you that I’m going to have to turn you over to the Medical Board of California.”’
Plaintiff telephoned a nurse he knew who worked at “a Kaiser hospital up in” the desert. Plaintiff testified, “I called her, and I asked her... I didn’t tell her I was dumped, I said ‘I’m not working at Riverside anymore, is there any chance I could get a job at your hospital?’” The nurse responded, ‘“Dr. Pine told me you had already put a scope in a female’s vaginal area.’” Plaintiff was “shocked” by what he heard.
When he found out about the section 805 report in September 2004, plaintiff was quite depressed and suicidal. Plaintiff received no information about what defendants were doing in connection with filing the section 805 report. Plaintiff was not: shown the patient’s file; told about Dr. Deiter’s participation in the process; nor told Dr. Wu’s daughter was one of defendants’ partners.
By the time of the March 24, 2005 board interview, plaintiff was very depressed. Plaintiff still had no information and began to believe that if they were saying he had done something wrong he must have in fact have done so. No one ever let him explain what happened nor had he yet seen the patient’s chart. Plaintiff testified that he had repeatedly stated he had done nothing wrong: “Q Did you tell Dr. Deiter early on that you didn’t think you did anything wrong? [¶] A I told him that on multiple occasions. [¶] Q When you went to Iungerich & Spackman, did you tell them you didn’t do anything wrong? [¶] A I repeated the same thing to them. [¶] Q Did you tell Mr. Albino, when you hired Mr. Albino and his firm to take over, that you hadn’t done anything wrong? [¶] A I most certainly did. [¶] Q When you testified at the administrative hearing, did you tell them that you didn’t think you did anything wrong? A I said that, but as I have stated, if I had had the records and known what [Dr. Deiter] had done, I would have changed my whole manner of testimony.” (Italics added.)
When plaintiff was cross-examined, the following occurred in the context of the Dr. Deiter’s advice as to the board interview: “Q [Dr. Deiter] never told you to lie, did he sir? [¶] A No, sir. [¶] Q In fact, no one told you to lie when you went into the interview? [¶] A That’s right. [¶] Q Dr. Deiter never told you that if the investigator suggests that you were in the vagina, you should just agree, did he, sir? [¶] A He never said that, right. [¶] Q You said that he told you to be agreeable. By that, you understood him to mean just don’t fight with anybody? [¶] A That’s right. [¶]... Q When you went to the medical board interview, did you follow Dr. Deiter’s advice and tell the truth? [¶] A I certainly did.” Plaintiff admitted that he told the truth at the March 24, 2005 board interview. But, he qualified his testimony by saying he was in “a state of mind” and trying to “agree” with the interviewer. This, according to plaintiff was consistent with Dr. Deiter’s instructions.
Plaintiff lost his medical licenses from California and Illinois. He lost his memberships in professional organizations. He has been offered teaching positions that he cannot accept without a license. Plaintiff testified he no longer enjoyed life but was not as suicidal.
Dr. Rider, a gastroenterologist, testified at the trial. Dr. Rider had previously testified on plaintiff’s behalf in the administrative proceedings. Dr. Rider concluded that plaintiff had done nothing wrong. Dr. Rider thought the patient’s irritable bowel syndrome had caused the pain she experienced. This is because a patient who suffers from this condition is very sensitive to any kind of stretching. Sometimes before a flexible sigmoidoscopy can be performed the patient must be sedated.
Dr. Rider felt that the both sets of photographs of the patient had poor lighting. Neither Dr. Wang nor plaintiff took the photographs from the right distance. Dr. Wang was “nutty” for saying that he could tell from photographs where the sigmoidoscope was inserted when the pictures were taken. Dr. Rider explained that color could not establish location because there might be a question of whether the sigmoidoscope was properly calibrated. Dr. Rider denied that every patient had landmarks in the colon. Dr. Rider would not identify all of Dr. Wang’s photographs as being taken in the colon. Dr. Rider thought Dr. Wang’s photographs were of poor quality and was unsure why they had been taken. Dr. Rider had testified at the administrative hearing that plaintiff’s photographs were indeterminate. Dr. Rider testified he could offer no opinion as to the photographs. Dr. Rider likewise testified at trial that Dr. Wang’s photographs were indeterminate.
Dr. Rider did not have experience “scoping” vaginas but testified that plaintiff could not have inserted a sigmoidoscope 20 centimeters into the patient’s vagina. Dr. Rider did not know how many inches were equivalent to 20 centimeters. The trial court described Dr. Rider’s hand estimate at about 18 inches. Dr. Rider did not know 20 centimeters would convert to about 7.8 inches. Dr. Rider noted that Dr. Wang and Ms. Torres had described seeing a cervix but the patient did not have a cervix. Dr. Rider thought an area on plaintiff’s photographs might look like a cervix but was a polyp. Dr. Rider thought that Dr. Wang may have missed a polyp during the colonoscopy.
Dr. Rider thought there was a problem created about the stool because the patient had taken the enemas. Dr. Rider’s opinion discounted what the patient had said about not having active diarrhea. Dr. Rider concluded that plaintiff did not place a sigmoidoscope in the vagina.
Mr. Albino testified for plaintiff. Mr. Albino began representing plaintiff in January 2006. Mr. Albino was retained to defend plaintiff against the Attorney General’s accusation. Mr. Albino had been a board member for about 4 years in the past. This case was very difficult to defend because of plaintiff’s admissions in the board interview. Plaintiff denied that the allegations in the accusation were true. According to Mr. Albino, the remarks made plaintiff in the board interview were not admissions but were taken out of context because the tape recordings were inaudible in places and seemed to be missing words. For example, plaintiff stated: “I said, I said what I did wrong. I said what I did wrong.” The sentence seemed to be missing the word “do” so it should be “what did I do wrong?” The mistake that plaintiff referred to making was performing the examination when the patient was inadequately prepared. Plaintiff was not required to attend the March 24, 2005 board interview. In Mr. Albino’s view, the admissions from the board interview were “the death knell” to plaintiff. Mr. Albino did not initially know the patient’s name because defendants gave the board only a redacted version of her records. During the administrative proceedings, Mr. Albino learned the patient’s name. Mr. Albino subpoenaed the patient to testify at the administrative proceedings. The patient stated she had no cervix. The Attorney General subpoenaed Ms. Torres to testify at the proceedings. According to Mr. Albino, because the patient had no cervix, Ms. Torres’ testimony was based on a fallacious foundation but was being used to support the board’s charges. Mr. Albino considered the results of the March 24, 2005 board interview to be “the centerpiece of the decision” against plaintiff.
Mr. Albino would advise a client not to attend a board interview if he or she says the charges are essentially true because there is no advantage in doing so. However, according to Mr. Albino the board is not “going to go away” if the physician refuses to attend the interview. At the administrative hearing, Mr. Albino called about 10 witnesses to testify including Dr. Rider and a neuropsychologist. Plaintiff’s license was revoked by the board. Mr. Albino represented plaintiff in the Sacramento superior court mandamus proceedings in which the board’s decision to revoke the license was upheld.
John R. Dicaro testified Dr. Deiter had conflicting interests and was required to secure a written waiver of a conflict of interest before advising plaintiff. Because no written waiver of a conflict of interest was secured, Dr. Deiter’s conduct amounted to a violation of his fiduciary duties and a breach of the standard of care. In Mr. Dicaro’s opinion, after the preparation of the section 805 report, Dr. Deiter should not have talked to plaintiff. Dr. Deiter should not have solicited any information from plaintiff. Dr. Deiter should not have minimized the board interview’s impact. In Mr. Dicaro’s opinion, Dr. Deiter concealed material information from plaintiff including patient records and a conflict of interest. Nor in Mr. Dicaro’s opinion did Dr. Deiter adequately prepare plaintiff before the March 24, 2005 board interview. Plaintiff should not have been advised to admit that he had placed the sigmoidoscope into the patient’s vagina or done something wrong. Moreover, Dr. Deiter failed to adequately disclose the limited nature of his representation at the March 24, 2005 board interview.
Plaintiff presented testimony by Dr. Richard J. Perillo, a neuropsychologist. The section 805 report, the administrative hearing, and the loss of plaintiff’s medical license caused plaintiff to suffer from anxiety and depression. Plaintiff considered Dr. Deiter’s behavior a betrayal. Plaintiff also felt betrayed and humiliated by his former colleagues. This included Dr. Wang and Ms. Torres who provided unfavorable testimony at the administrative hearing.
A clinical psychologist, Dr. Anthony Reading, testified that plaintiff suffered psychiatric injury from the events at issue in the case. This included: depression; appetite loss; sleep difficulty; low self-esteem; social avoidance; and suicidal ideations. Dr. Reading concurred with Dr. Perillo that the statements made by plaintiff to Kaiser physicians in July 2004 and at the March 2005 board interview were not admissions but lies. Dr. Reading and Dr. Perillo believed that plaintiff had a need to appease others which led to the false admissions at the March 24, 2005 board interview. Dr. Strub testified that plaintiff suffered emotional distress from the license revocation and related loss of professional esteem. Plaintiff presented testimony about his economic losses.
The patient’s deposition testimony was read to the jury. The patient had worked as a medical assistant between 1975 and 1988. On June 22, 2004, she was suffering from diarrhea. She had irritable bowel syndrome. She had two or three enemas before she arrived for the procedure. She had an afternoon appointment but had to wait for about an hour. While she was waiting, she had to urinate. A nurse apologized for the wait. Before the examination, plaintiff told her to tell him if she felt pain. Plaintiff inserted the sigmoidoscope into the patient. She told him that it was hurting. Plaintiff told her it would be uncomfortable. Plaintiff started pushing some more and she said, “[I]t really hurts.” Plaintiff then stopped the procedure and told her to get dressed. Plaintiff told the nurse to order a carcinoembryonic antigen test. The patient knew it was a cancer test and to schedule a colonoscopy as soon as possible. The patient felt that her bowels were irritated because of the enemas. She felt a burning sensation like she had been scratched but she did not know exactly where. Plaintiff and the nurse seemed upset. The nurse seemed to be especially upset.
Kathleen Nicholls, the board’s Southern Area Supervisor supervised the 2004 investigation of plaintiff. Patient records are redacted after a subpoena is issued in section 805 report investigations. This is done in order to protect patient privacy. Ms. Nicholls made the decision to refer the matter to the Attorney General based on: the investigation report; the medical records; Dr. Huang’s report; and statements made by plaintiff at the March 24, 2005 board interview. She primarily relied on Dr. Huang’s report, which was predicated in part on plaintiff’s interview statements. Whether a complaint is made anonymously or through a section 805 report are not factors in the decision to refer a matter to the Attorney General’s Office. However, regardless of what plaintiff said in the interview, this matter would have been referred to Dr. Huang. It would have been done as part of normal practice. Ms. Nicholls testified that if plaintiff had not appeared at the March 24, 2005 board interview, he would have been subpoenaed.
Plaintiff amended his complaint according to proof to allege a fiduciary duty breach claim. The jury returned a verdict in favor of plaintiff on theories of professional negligence, fiduciary duty breach, and concealment. The jury also found that Dr. Deiter was acting within the course and scope of his employment while providing legal representation prior to and during the board interview. The jury awarded $3,949,580.25 in damages consisting of: $597,466.25 in past litigation expenses; past lost earnings of $196,706; future lost earnings of $155,408; past non-economic damages of $2 million; and future non-economic damages of $1 million.
Defendants filed new trial and judgment notwithstanding the verdict motions. Among other things defendants argued that judgment should be entered in their favor based on collateral estoppel and causation theories. The trial court reduced the past litigation expenses award to $300,000 but otherwise denied the motions. Judgment was entered against Dr. Deiter and Southern California Permanente Medical Group in the amount of $3,652,114. This timely appeal followed.
III. DISCUSSION
A. The Board’s Findings Are Binding
Defendants argue the board’s findings that plaintiff inserted the sigmoidoscope into the patient’s vagina, was grossly negligent in doing so, made a false entry on her medical records, caused her to undergo an unnecessary colonoscopy and cancer test, and lied while testifying before the board were binding based on collateral estoppel principles in the ensuing legal malpractice action. We agree. The board’s findings were judicially noticeable for collateral estoppel purposes. (Brescia v. Angelin (2009) 172 Cal.App.4th 133, 152; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-148.)
In Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 620, our Supreme Court explained: “‘The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.’ (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810.)” Here, defendants were not parties to the administrative proceedings before the board. Further, defendants were not in privity to the board. Thus, the general doctrine of res judicata principles which apply to subsequent litigation between the same parties or their privities are not applicable to this case. (Krier v. Krier (1946) 28 Cal.2d 841, 843; Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 51.)
But the res judicata doctrine has a second aspect—collateral estoppel, or as it is also known, issue preclusion. This second aspect of res judicata, collateral estoppel, is applicable here. The collateral estoppel aspect of the res judicata doctrine has the following elements: “‘Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]’ (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)” (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511.) Collateral estoppel extends to issue of facts which have been adjudicated in the prior proceeding. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1289-1290; Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1229.)
In conducting collateral estoppel analysis, we apply the following rules: “[A]n issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding. (People v. Sims (1982) 32 Cal.3d 468, 484.) In considering whether these criteria have been met, courts look carefully at the entire record from the prior proceeding, including the pleadings, the evidence, the jury instructions, and any special jury findings or verdicts. (Turner v. Arkansas (1972) 407 U.S. 366, 368-369; Clark v. Lesher (1956) 46 Cal.2d 874, 880-881; Murphy v. Murphy (2008) 164 Cal.App.4th 376, 400-401; U.S. v. Cala (2d Cir. 1975) 521 F.2d 605, 607-608; In re Henicheck (Bankr. E.D. Va. 1995) 186 B.R. 211, 215.) ‘The “identical issue” requirement addresses whether “identical factual allegations” are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. [Citation.]’ (Lucido, supra, 51 Cal.3d at p. 342.)” (Hernandez v. City of Pomona, supra, 46 Cal.4th at pp. 511-512; see People v. Carter (2005) 36 Cal.4th 1215, 1240.) The application of the collateral estoppel doctrine is a legal question subject to de novo review. (Noble v. Draper (2008)160 Cal.App.4th 1, 10; Roos v. Red (2005) 130 Cal.App.4th 870, 878; Groves v. Peterson (2002) 100 Cal.App.4th 659, 667). The party asserting the application of collateral estoppel has the burden of proving the requirements. (Lucido v. Superior Court, supra, 51 Cal.3d at p. 341; Vella v. Hudgins (1977) 20 Cal.3d 251, 257.)
In the legal malpractice context, collateral estoppel may be unavailable when the lawyer’s misconduct has prevented the client from fully and fairly litigating an issue in the prior proceeding. (Ruffalo v. Patterson (1991) 234 Cal.App.3d 341, 344 [lawyer’s negligent characterization of community property in initial dissolution action not entitled to collateral estoppel effect in subsequent legal malpractice action].) On the other hand, collateral estoppel principles have been applied in a legal malpractice action where negligent advice was given prior to the return of an indictment which ultimately resulted in a conviction. (Weiner v. Mitchell, Silberberg & Knupp (1980) 114 Cal.App.3d 39, 48.) An issue that is necessarily resolved may not be relitigated. For example, in Wall v. Donovan (1980) 113 Cal.App.3d 122, 126, a domicile issue was necessarily resolved in a dissolution of marriage case. That domicile issue was dispositive to other questions. Thus, the resolution of the domicile issue was entitled to collateral estoppel effect in a subsequent legal malpractice case. (Ibid.)
Our Supreme Court has held that administrative decisions may be entitled to collateral estoppel effect: “Collateral estoppel may be applied to decisions made by administrative agencies ‘[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate ....’ [Citation]” (People v. Sims, supra, 32 Cal.3d at p. 479; see McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 113 [an administrative decision may result in “any quasi-judicial administrative findings achieving binding, preclusive effect and may bar further relief on the same claims”]; Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944 [“We have recognized that ‘[c]ollateral estoppel may be applied to decisions made by administrative agencies’”]; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1090 [“We serve judicial economy by giving collateral estoppel effect to appropriate administrative findings”].) And, absent an express statutory exception, if an administrative agency’s determination is not set aside in a mandate proceeding, its findings are subject to preclusive effect: “[A]s a general matter[,] writ review of an adverse administrative decision is a necessary step before pursuing other remedies that might be available. [Citations.] It is also generally true that if a litigant fails to take this step, and if the administrative proceeding possessed the requisite judicial character [citation], the administrative decision is binding in a later civil action brought in superior court.” (State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 975-976; see Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1090.)
Thus, before giving administrative findings preclusive effect, a court must determine that the judicial character requirement was satisfied. Our Supreme Court has held: “For an administrative decision to have collateral estoppel effect, it and its prior proceedings must possess a judicial character. [Citation.] Indicia of proceedings undertaken in a judicial capacity include a hearing before an impartial decision maker; testimony given under oath or affirmation; a party’s ability to subpoena, call, examine, and cross-examine witnesses, to introduce documentary evidence, and to make oral and written argument; the taking of a record of the proceeding; and a written statement of reasons for the decision. [Citation.]” (Pacific Lumber Co. v. State Water Resources Control Bd., supra, 37 Cal.4th at p. 944; see also State Board of Chiropractic Examiners v. Superior Court, supra, 45 Cal.4th at pp. 975-976.)
Plaintiff argues though that the board’s decision was not entitled to collateral estoppel effect for three reasons. First, plaintiff argues the identical issue requirement was not satisfied. Second, plaintiff argues he did not receive a full and fair trial or hearing during the administrative proceedings. Third, plaintiff argues the purposes underlying the collateral estoppel rule are not present. First, plaintiff argues the administrative proceedings did not involve the identical issues litigated in the present malpractice and fraud action. Plaintiff argues: “This case concerned Dr. Deiter’s negligence in failing to investigate the charges, against [plaintiff], failing to prepare for the Medical Board interview and fraudulently concealing his conflict of interest. These facts were entirely different from those considered by the Medical Board, which addressed whether [plaintiff’s] medical license should be revoked.” Plaintiff’s analysis understates the preclusive scope of the collateral estoppel doctrine: “[R]es judicata does not merely bar relitigation of identical claims or causes of action. Instead, in its collateral estoppel aspect, the doctrine may also preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case. Moreover, because the estoppel need not be mutual, it is not necessary that the earlier and later proceedings involve the identical parties or their privies. Only the party against whom the doctrine is invoked must be bound by the prior proceeding. [Citations.] [¶] Accordingly, the collateral estoppel doctrine may allow one who was not a party to prior litigation to take advantage, in a later unrelated matter, of findings made against his current adversary in the earlier proceeding. This means that the loss of a particular dispute against a particular opponent in a particular forum may impose adverse and unforeseeable litigation consequences far beyond the parameters of the original case.” Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828-829; see Kelly v. Trans Globe Travel Bureau, Inc. (1976) 60 Cal.App.3d 195, 202.) The identity of issue requirement does not require that the ultimate issues or dispositions are the same in the two proceedings. (Lucido v. Superior Court, supra, 51 Cal.3d at p. 342; People v. Sims, supra, 32 Cal.3d at p. 486.)
For example, in Lucido v. Superior Court, supra, 51 Cal.3d at pages 340-342, the defendant was found, during a probation revocation hearing, not to have exposed himself. But he was later convicted of exposing himself at a jury trial. In the context of the defendant’s collateral estoppel claim, our Supreme Court explained that the “identical issue” element was satisfied: “As to the ‘identical issue’ requirement, we note that the two proceedings threaten [defendant] with fundamentally different sanctions. This fact, however, is not dispositive. The ‘identical issue’ requirement addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. ([People v. ]Sims, supra, 32 Cal.3d at p. 485.) The requirement is fulfilled in this case; in each proceeding, [defendant’s] alleged commission of indecent exposure was at issue.” (Lucido v. Superior Court, supra, 51 Cal.3d at p. 342.)
Here, both proceedings involved the same issues: did plaintiff insert a sigmoidoscope into the patient’s vagina; was he grossly negligent; did he make a false entry in the patient’s medical records; did he cause the patient to undergo an unnecessary colonoscopy and cancer test; and was he dishonest when he testified during the administrative hearing? And the board decided each of these issues adversely to plaintiff. At the administrative hearing, it was incumbent upon plaintiff to explain the inconsistency between the statements during the March 24, 2005 board interview and his entirely different testimony before the administrative law judge. Mr. Albino had a full and fair opportunity to present evidence: plaintiff was terminated because his supervisors wanted to fire him due to his age; Dr. Deiter provided conflicted representation; as a result of the conflict of interest, plaintiff was advised to make the statements he did during the March 24, 2005 board interview; and he also made the inculpatory statements because of the emotional distress and shame he experienced when he was terminated. Here, plaintiff is litigating in successive actions, the hearing before the board and the trial, the question of why he changed his versions of where he placed the sigmoidoscope during the June 22, 2004 procedure and the related issues concerning: gross negligence; false entries in the patient’s medical records; the unnecessary colonoscopy and cancer test; and dishonest testimony before the board. The resolution of these disputed factual issues is thus entitled to collateral estoppel effect. (People v. Garcia (2006) 39 Cal.4th 1070, 1091 [“[I]f the administrative decision actually decided that defendant had made no misstatements, collateral estoppel would bar prosecution of defendant for perjury”]; George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd., supra, 49 Cal.3d at pp. 1289-1290 [“Under the collateral estoppel or ‘issue preclusion’ effect of res judicata, a party is barred from raising an issue of fact or law if the issue was actually litigated and determined by a valid and final judgment in a previous proceeding, and the determination was essential to the judgment....”]; People v. Sims, supra, 32 Cal.3d at p. 479 [collateral estoppel may apply “‘when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate...’”]; see Lucido v. Superior Court, supra, 51 Cal.3d at p. 341 [issue of whether accused indecently exposed himself litigated in both proceedings].) As we have noted, plaintiff may not withhold such issues and litigate them in successive actions. (Kopp v. Fair Pol. Practices Com., supra, 11 Cal.4th at p. 620; Murphy v. Murphy, supra, 164 Cal.App.4th at p. 401.) And as our Supreme Court has explained, the loss of a particular dispute in one forum may have “adverse and unforeseeable litigation consequences” in a later legal action. (Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 828; Lucido v. Superior Court, supra, 51 Cal.3d at pp. 341-342.) That is what occurred here. Plaintiff may not re-litigate issues which were conclusively established against him in the administrative proceedings.
Second, plaintiff argues he did not receive a full and fair hearing before the board and thus he is not bound by their findings. Plaintiff had a hearing before an administrative law judge. Plaintiff was represented by counsel. Plaintiff introduced testimony from qualified medical professionals including Dr. Rider. Plaintiff subpoenaed witnesses. A lengthy written statement decision was made concerning the board’s revocation order. The board determined, among other things: plaintiff performed a sigmoidoscopy in the patient’s vagina; plaintiff was grossly negligent; plaintiff falsified medical records; plaintiff caused an unnecessary medical procedure and cancer test to be performed on the patient; and plaintiff was dishonest in his testimony to the board. The board found that the evidence required that plaintiff’s license be revoked. The board’s decision was upheld by the Sacramento superior court after an independent review of the administrative proceedings. The Sacramento superior court judgment is final. Plaintiff recognizes this reality and does not contend that the administrative proceedings were not judicial in nature. Medical disciplinary proceedings are subject to the protections of the Administrative Procedure Act. (§ 2230, subd. (a); Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 322 [“At all proceedings conducted pursuant to the accusation, the physician is entitled to a full range of due process rights, including the rights to receive notice by verified accusation, to have a hearing conducted before an administrative law judge, to conduct and compel discovery, to compel attendance or document production by subpoena, to be represented by counsel, to attend the hearing, to present any relevant evidence, to cross-examine witnesses, and to receive a statement of decision”].)
Section 2230, subdivision (a) states, “All proceedings against a licensee for unprofessional conduct, or against an applicant for licensure for unprofessional conduct or cause, shall be conducted in accordance with the Administrative Procedure Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code) except as provided in this chapter, and shall be prosecuted by the Senior Assistant Attorney General of the Health Quality Enforcement Section.”
Rather, plaintiff asserts that he did not receive a full and fair hearing because of Dr. Deiter’s negligent misadvice and conflict of interest. Plaintiff argues that collateral estoppel does not apply when the prior proceeding did not provide for a full and fair hearing to litigate disputed factual issues. (See Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 829 [collateral estoppel available where “where agency acted in ‘judicial capacity,’ findings were relevant to issues presented, parties had full and fair opportunity to litigate...”]; Nein v. HostPro, Inc. (2009) 174 Cal.App.4th 833, 846 [“‘“due process requires that the party to be estopped must have had a fair opportunity to pursue his claim the first time...”’”]; Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82 [“courts will not apply the doctrine if... the party to be estopped had no full and fair opportunity to litigate the issue in the prior proceeding”].) As noted, collateral estoppel may be unavailable when the lawyer’s malpractice prevents the client from fully and fairly litigating an issue in the prior proceeding. Plaintiff relies on Ruffalo v. Patterson, supra, 234 Cal.App.3d at pages 343-344 where, according to the complaint in that case: the defendant, an attorney, instructed the plaintiff to characterize a parcel of property as community property in her answers to interrogatories and deposition questions; in the course of the dissolution proceeding, she discharged the defendant and retained new counsel; the new attorney raised the issue of the plaintiff’s separate property interest in the property; however, the trial court nonetheless found the property to be community property. In Ruffalo, our colleagues in Division Three of this appellate district held: “The sense of this legal malpractice case is plaintiff’s claim that she was precluded by her attorney’s negligence from fully and fairly litigating the character of the... property in the previous dissolution action. Moreover, she does not seek a redetermination as to the character of the property; rather, she seeks to recover for her attorney’s alleged negligence in instructing and causing her to characterize the property as community property in the dissolution action. Her contention is that the court’s decision therein would have been different absent the negligence of her attorney, who is the defendant in this action. [¶] To hold otherwise would be to rule that where an attorney’s negligence has caused a court to make an erroneous adjudication of an issue, the fact that the court has made that adjudication absolves the attorney of all accountability and responsibility for his negligence. That cannot be and is not the rule. The doctrine of collateral estoppel does not apply.” (Id. at p. 344.)
Ruffalo is entirely distinguishable. In Ruffalo, the alleged malpractice, incorrect advice to characterize part of the marital estate, occurred in the very action which the defendant asserted was entitled to collateral estoppel effect and where an alleged full and fair hearing was provided—the underlying marital dissolution action. By contrast, here, Dr. Deiter’s alleged malpractice occurred prior to the March 24, 2005 interview with board staff. After the March 24, 2005 interview, Dr. Wu recommended that the matter be submitted for “expert review” and Dr. Huang prepared a report which was highly critical of plaintiff. On June 29, 2005, the board referred the matter to the Office of the Attorney General. An accusation was filed on July 25, 2005 and eventually, prior to the commencement of the hearing before the administrative law judge, Mr. Albino was hired. It is the administrative proceedings after the filing of the accusation defendants contend constitute the full and fair hearing which is an element of their collateral estoppel contention. There is no evidence that any conflicted representation after the March 24, 2005 interview with the board staff had any impact on the outcome of the administrative proceedings which serve as the basis of for defendants’ collateral estoppel contention.
Further, the present case is more akin to Weiner v. Mitchell, Silberberg & Knupp, supra, 114 Cal.App.3d at page 48 where collateral estoppel principles were applied in a legal malpractice action based upon negligent advice given prior to the return of an indictment which ultimately resulted in a conviction. Our colleagues in Division Three of this appellate district held that the implicit prior determination of guilt in the federal criminal prosecution was entitled to collateral estoppel effect in the subsequent legal malpractice action. Thus, the court held that no negligent conduct or conflict of interest was a legal cause of any of the plaintiff’s damages. (Ibid.) The present case more closely parallels the Weiner opinion. Thus, the pre-administrative hearing misconduct did not result in something other than a full and fair hearing for collateral estoppel purposes.
Third, plaintiff argues the purposes underlying the collateral estoppel rule are not at hand in this case. Appellate decisions have identified the following as the three principal purposes of the collateral estoppel doctrine: preserving the integrity of the judicial system; promoting judicial economy: and protecting litigants from harassment by vexatious litigation. (Vandenberg v. Superior Court, supra, 21 Cal.4th p. 833; Lucido v. Superior Court, supra, 51 Cal.3d at p. 343.) Application of collateral estoppel principles in this case furthers the first two purposes. In terms of the integrity of the judicial system, the effect of the Sacramento superior court denial of the plaintiff’s mandamus petition implicitly upheld the board’s findings concerning: the grossly negligent placement of the sigmoidoscope in the patient’s vagina; false entries in the patient’s medical records; the ensuing unnecessary colonoscopy and cancer test; and false testimony during the administrative proceedings. In the present malpractice litigation, plaintiff has asserted and successfully convinced the jury that all or some of the previously litigated findings were in fact untrue. Application of collateral estoppel prevents the return of two such diametrically inconsistent versions of what occurred. As to the second purpose, promoting judicial economy, application of collateral estoppel principles promotes judicial economy—these crucial issues of fact should have been litigated only on one occasion. As to the third purpose, avoidance of vexatious litigation, it is inapplicable to this case. Therefore, two of the three purposes of collateral estoppel clearly apply in this case. Thus, we reject plaintiff’s argument that the collateral estoppel doctrine does not apply because such would be inconsistent with its purposes.
Here, the board’s findings are entitled to preclusive effect. Plaintiff had a full-blown administrative hearing. Plaintiff had a hearing before an administrative law judge. Plaintiff was represented by Mr. Albino. Plaintiff introduced testimony from qualified medical professionals including Dr. Rich. Plaintiff subpoenaed witnesses. A lengthy and written statement of decision was made concerning the board’s reasons for the revocation order. More specifically, factual issues of whether plaintiff actually inserted the sigmoidoscope into the patient’s vagina, falsified medical records, and gave false testimony were necessarily decided against him by the board. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201; Vandenberg v. Superior Court, supra, 21 Cal.4th at pp. 828-829; Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 483-484; Roos v. Red, supra, 130 Cal,App.4th at pp. 879-880.) The board found, among other things: plaintiff inserted a sigmoidoscope into the patient’s vagina; plaintiff was grossly negligent; plaintiff falsified medical records; plaintiff caused an unnecessary medical procedure and cancer test to be performed on the patient; and plaintiff was dishonest in his testimony to the board. The board found that the evidence required that plaintiff’s license be revoked. The board’s decision was upheld by the Sacramento superior court after an independent review of the administrative proceedings.
B. The Judgment Notwithstanding The Verdict Motion
1. Causation
Defendants contend that trial court erred in refusing to grant their motion for judgment notwithstanding the verdict because, given the collateral estoppel effect of the board’s findings, there is no causation as a matter of law. We engage in de novo review of the trial court’s ruling viewing the evidence in a light most favorable to the judgment. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68; Henriouelle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 515; Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) The gist of plaintiff’s case is that the license revocation resulted from the following. Dr. Deiter failed to adequately prepare plaintiff for the March 24, 2005 board interview. Dr. Deiter failed to adequately investigate the charges against plaintiff which were false. Dr. Deiter failed to make appropriate objections to the board that the section 805 report did not comply with section 809.1. Dr. Deiter should have advised plaintiff not to attend the March 24, 2005 board interview. Dr. Deiter failed to make disclosures about the conflict of interest. The lynchpin of the entire case is that no injury would have occurred if Dr. Deiter had not failed in these aspects of his representation. Defendants counter that the adverse board findings prevented plaintiff from establishing the requisite elements between Dr. Deiter’s conflicted and negligent representation and the license revocation. We agree with defendants.
Our Supreme Court had identified the following as the elements of a professional negligence claim: “[T]he elements are: (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Coscia v. McKenna & Cuneo, supra, 25 Cal.4th at p. 1199, citing Budd v. Nixen (1971) 6 Cal.3d 195, 200.) The elements of a fiduciary breach of duty cause of action are: the existence of a fiduciary duty; breach of the fiduciary duty; and damage proximately caused by the breach of that duty. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086 citing Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101.) The elements of a fraud and deceit claim based on concealment are: concealment or suppression a material fact; the defendant’s duty to disclose the fact; the defendant’s intentional concealment or suppression of the fact with intent to defraud; the plaintiff’s unawareness of the fact and would not have acted in a way in he or she had known truth; and resulting damage to the plaintiff from the concealment or suppression of the fact. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 131-132, fn. 9; Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.)
Sufficient evidence exists that: the section 805 report was improperly filed; Dr. Deiter, acting as an attorney, gave plaintiff legal advice about the board interview; Dr. Deiter failed to disclose the existence of the conflict of interest; Dr. Deiter failed to secure a written waiver of the conflict of interest; plaintiff relied on Dr. Deiter’s advice at the March 25, 2004 interview; Dr. Deiter did not prepare for the interview and advised plaintiff to cooperate with the board staff; and plaintiff ultimately lost his license to practice medicine in California and Illinois. The same evidence was presented to establish the negligence, fiduciary duty breach, and fraudulent concealment claims. No doubt, there is substantial evidence that Dr. Deiter’s conduct was negligent, a breach of fiduciary duties, and a concealment of material information. However, plaintiff was required to establish causation as to each theory of recovery asserted against defendants. (Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1462; Sukoff v. Lemkin (1988) 202 Cal.App.3d 740, 744.) As shown below, given the board’s findings against plaintiff, there is no substantial evidence to support the conclusion that Dr. Deiter caused any damage.
2. Plaintiff cannot establish causation given the binding facts.
Our Supreme Court has stated, “Causation analysis in tort law generally proceeds in two stages: determining cause in fact and considering various policy factors that may preclude imposition of liability.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1235, fn. 1; Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1045.) Cause-in-fact determinations are made under the substantial factor test. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-969; Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1048-1054.) A substantial factor is something more than slight, trivial, negligible, or theoretical. (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 968; Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314.) Our Supreme Court has explained: “The purpose of [the but for] requirement, which has been in use for more than 120 years, is to safeguard against speculative and conjectural claims. [Citation.] It serves the essential purpose of ensuring that damages awarded for the attorney’s malpractice actually have been caused by the malpractice. [Citation.]” (Viner v. Sweet, supra, 30 Cal.4th. at p. 1241; see Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 832-834.) The typical method of presenting a litigation based malpractice claim is commonly called a “trial-within-a-trial”; “suit-within-a-suit”; or “case-within-a-case.” (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1531; see Blanks v. Shaw (2009) 171 Cal.App.4th 336, 357, fn. 14.) However, the so-called “trial-within-a trial” may become a legal issue for the court’s resolution where “reasonable minds could not differ as to the legal effect of the evidence....” (Blanks v. Shaw, supra, 171 Cal.App.4th at pp. 357-358; Ambiz v. Kelegian, supra, 146 Cal.App.4th at p. 1531; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 970-971; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.) We conclude this is such case where reasonable minds could not differ as to the legal effect of the evidence. No doubt, his case does not involve the classic “trial-within-a-trial” situation. The accusation, which commenced the underlying lawsuit, was filed after the March 24, 2005 interview and the events leading up to it. In any event, treating the March 24, 2005 interview and the events leading up to it as part of the underlying case, trial, or suit leads to the same analysis and conclusion.
Against the backdrop of the board’s findings, we consider what would have happened if Dr. Deiter had acted professionally prior to and at the March 24, 2005 board interview. On June 22, 2004, plaintiff inserted a sigmoidoscope into the patient’s vagina. Plaintiff photographed the area where he inserted the sigmoidoscope. The board found that the photographs taken by plaintiff were of a vagina. Plaintiff falsely reported that he had placed the sigmoidoscope in the patient’s colon in the patient’s medical records. Plaintiff falsely reported seeing polyps and a narrowing. The board found that this was a false report. On June 22, 2004, plaintiff ordered a cancer test and the colonoscopy on the date of the patient’s examination. The board found that plaintiff ordered the cancer test and colonoscopy as a result of the false notation in the patient’s medical records. The board’s investigation of the matter was made after a section 805 report was filed by a physician from the Riverside hospital following plaintiff’s termination. The report was prompted by Dr. Wang and Dr. Cheng who both concluded that plaintiff had inserted the sigmoidoscope in the patient’s vagina. This determination was based the photographs of the patient’s sigmoidoscopy and colonoscopy as well as her records which did not support plaintiff’s findings. The board ultimately found that the photographs showed that plaintiff had placed the sigmoidoscope in the vagina and falsely reported his findings. The examination, photographs and notations made in the patient’s records had nothing to do with Dr. Deiter, who had not even met plaintiff when these events occurred. Plaintiff and Dr. Deiter did not meet until March 2005. So, Dr. Deiter’s conduct did not cause any of these events to occur.
Furthermore, several events occurred after the two June 2004 medical procedures and the March 24, 2005 board interview on which plaintiff relies so heavily. Long after the March 24, 2005 board interview was concluded, plaintiff, while represented by Mr. Albino, was found to have lied to the board at the administrative hearing. The board found that plaintiff’s testimony during the administrative proceedings was inconsistent with the patient’s and Ms. Torres’ in a number ways. This included whether: the patient had active diarrhea; plaintiff ordered the cancer test and urgent colonoscopy; and plaintiff inserted, removed, and then reinserted the sigmoidoscope into the patient’s vagina rather than into her rectum. The board found plaintiff’s testimony was false. Dr. Deiter had nothing to do with plaintiff’s testimony at the administrative hearing. While testifying at the administrative hearing, plaintiff was represented by Mr. Albino who had no connection with defendants.
Thus, the evidence showed that plaintiff’s own conduct led to an investigation of his treatment of the patient, which was found to be grossly negligent. Plaintiff was also found to have fabricated a medical record which caused an unnecessary medical procedure. At the administrative hearing, a charge of providing false testimony was added to the accusation against plaintiff. Neither the actual circumstances surrounding the June 2004 treatment of the patient nor the false testimony accusation occurred during Dr. Deiter’s representation of plaintiff. The factual findings made by the board were the predicate for the revocation of plaintiff’s license. However, plaintiff did not successfully overturn any of these factual findings which established the propriety of his license being revoked.
Further, there is no merit to plaintiff’s argument there is substantial evidence the result would have been different had Dr. Deiter acted differently. Specifically, he speculates on what would have happened if: he had not appeared at the March 24, 2005 board interview; he had not made admissions at the March 24, 2005 board interview; and he had been better prepared at the March 24, 2005 interview. A conclusion that a more favorable result must be supported by substantial evidence; it cannot be based on speculation. (Viner v. Sweet, supra, 30 Cal.4th at p. 1241; Blanks v. Shaw, supra, 171 Cal.App.4th at p. 357; Mattco Forge, Inc. v. Arthur Young & Co., supra, 52 Cal.App.4th at p. 834.)
It is only speculative that, if plaintiff had not appeared for the board interview, the result would have been different. Indeed, the only evidence was that the board would have subpoenaed plaintiff had he not appeared. Likewise, it is only speculative that the board would have acted differently had plaintiff not made admissions at the March 24, 2005 interview. During the trial, plaintiff admitted conceding to Dr. Wang and Dr. Chen and at the March 24, 2005 board interview that the sigmoidoscope had been inserted into the patient’s vagina. At the trial plaintiff testified he did so only to appease his accusers. If that is true then, plaintiff is admitting that he provided false information about a patient to the board, either at the March 24, 2005 board interview or at the administrative hearing. Dr. Deiter never advised plaintiff to lie in order to appease the board. In any event, as previously noted, the board did not confine its findings to events or statements made at the board interview. Rather, findings were made based on the patient’s records, including photographs taken of the sigmoidoscopy and the colonoscopy.
Equally unpersuasive is plaintiff’s claim that had he been better prepared at the March 24, 2005 interview, the board’s determination that the license should be revoked would have differed. Plaintiff’s theory is his license would not been revoked because he would have told a different more credible story about what he believed had occurred with the patient in June 2004. While plaintiff may have changed his explanation, refused to attend, or said nothing at all, there is no substantial evidence that a different explanation for the incident would have prevented the board from revoking his license. To the contrary, the board conducted its own investigation of the incident. Dr. Wang began the process leading to the revocation of plaintiff’s license. Once the section 805 report was filed against plaintiff, the board began its own investigation. The investigation included securing the patient’s medical records and obtaining the opinion of a disinterested physician, Dr. Huang. Dr. Huang concluded that plaintiff performed a sigmoidoscopy in the patient’s vagina rather than in the colon.
In sum, it is speculative that the board would have reached a contrary result in the absence of Dr. Deiter’s conduct. This is because the evidence showed that, by the time of the March 24, 2005 board interview report, the main harm had already occurred (placing the sigmoidoscope in the patient’s vagina, making a false entry on her medical records, and causing her to undergo an unnecessary colonoscopy). The board also found the lack of honesty as an additional ground for revoking plaintiff’s license. The lack of honesty finding was based on incidents which occurred well after plaintiff was represented by Mr. Albino. The board found that plaintiff had provided false testimony about several key things: the presence of diarrhea; how many times he inserted the sigmoidoscope; and whether he ordered the test and colonoscopy as urgent. None of these things had anything to do with Dr. Deiter. Given the binding nature of the board findings, it is speculative to conclude that Dr. Deiter’s conduct had any material bearing on the board’s decision to revoke plaintiff’s license.
3. Public policy precludes a damages award in this case.
Moreover, compelling public policy considerations preclude plaintiff from obtaining relief from defendants because of the board’s conclusive determinations he falsified medical records and provided false testimony during the administrative process. Courts have refused to allow former clients to sue their attorneys in various contexts which would violate public policy. (See Viner v. Sweet, supra, 30 Cal.4th at p. 1235, fn. 1; Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 277-278; Blain v. Doctor’s Company (1990) 222 Cal.App.3d 1048, 1063-1066.) Public policy precludes clients from shifting financial responsibilities to their attorneys where: the client has an intact criminal conviction (Coscia v. McKenna & Cuneo, supra, 25 Cal.4th at pp. 1204-1205 [client must obtain post-conviction relief proving actual innocence]; Wiley v. County of San Diego (1998) 19 Cal.4th 532, 534 [criminal defendant must allege actual innocence to state a cause of action for legal malpractice against former defense counsel]; Lynch v. Warwick (2002) 95 Cal.App.4th 267, 272-275 [client could not recover out-of-pocket expenses from attorney sought on a tort theory for failure to present meritorious defense when client pled guilty and could not establish actual innocence]); admitted to willfully violating a statute (Chapman v. Superior Court, supra, 130 Cal.App.4th at pp. 275-278 [public policy barred district commissioner who pled guilty to statute prohibiting public agency officer from having financial interest in contract on advice of counsel from pursuing legal malpractice action against district’s in-house attorney]); or engaged in conduct which is subject to the unclean hands doctrine. (Blain v. Doctor’s Company, supra, 222 Cal.App.3d at pp. 1063-1066 [on advice of counsel physician-client committed perjury at deposition]).
The rationale of these limitations on liability for public policy reasons was explained by our Supreme Court: “To simply say, however, that the defendant’s conduct was a necessary antecedent of the injury does not resolve the question of whether the defendant should be liable.... [T]he law must impose limitations on liability other than simple causality. These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy. [Citation.]... [P]roximate [or legal] cause ‘is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor’s responsibility for the consequences of his conduct.’ [Citation.]” (PPG Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310, 315-316; see Ferguson v. Lieff, Cabrasen, Heimann & Bernstein, supra, 30 Cal.4th at p. 1048.)
Public policy considerations such as those articulated in Blain v. Doctors’ Company, supra, 222 Cal.App.3d at pages 1052-1054 and 1063-1064, preclude plaintiff from shifting any damages to defendants for the loss of his license. In Blain, a physician sought damages for injuries based on an insurance defense attorney’s advice to lie at a deposition. (Id. at pp. 1052-1054.) The perjury occurred in a case where the physician was a defendant. The Court of Appeal upheld the demurrer dismissal on the ground the claims against the attorney were not maintainable under the unclean hands doctrine. Citing the client’s misconduct in lying at the deposition, the Court of Appeal concluded, “[N]one of [the client’s] claims of injury causally linked to his misconduct is maintainable.” (Id. at p. 1057.) In addition, the Court of Appeal rejected the argument that there was a cause of action independent of the physician’s own misconduct. (Id. at pp. 1065-1066.) The Court of Appeal further held the unclean hands doctrine precluded the physician from seeking emotional distress damages from the attorney. (Id. at pp. 1063-1064.) This was because, to the extent there was emotional distress, it was attributable to the physician’s own knowing misconduct of lying under oath. (Ibid.) The same is true in this case. Similarly, in this case, plaintiff’s claims of loss of license and emotional distress injuries are linked to his own misconduct in inserting the sigmoidoscope in the patient’s vagina, making a false entry in her medical records, causing her to undergo an unnecessary colonoscopy and cancer test, and lying at the administrative hearing. The essence of plaintiff’s claims is Dr. Deiter did not disclose material information and make any preparations before the March 24, 2005 board interview. With respect to the loss of the license, there is no evidence that Dr. Deiter’s conduct or advice led to plaintiff’s treatment of the patient. There is no evidence that Dr. Deiter told plaintiff to falsify records. There is no evidence that Dr. Deiter told plaintiff to provide false statements at the March 24, 2005 board interview. Indeed, the board specifically found that plaintiff’s statements at the March 24, 2005 board interview (following Dr. Deiter’s advice) were more credible than the testimony presented at the administrative hearing months later. The fact that Mr. Albino utilized a new theory which the board did not accept does not mean that Dr. Deiter should be held liable for legal malpractice. Thus, plaintiff’s own misconduct, as established by the board’s findings, bars recovery against defendants for the loss of license as a result of legal malpractice.
4. Plaintiff may not recover attorney fees as damages.
The parties also dispute whether the trial court should have allowed plaintiff to recover attorney fees incurred in retaining Mr. Albino. There is substantial evidence Dr. Deiter’s conduct raised loyalty and conflict issues such that independent counsel was necessary to represent plaintiff’s interest. Moreover, Dr. Deiter, who had a conflict of interest, retained the law firm of Iungerich & Spackman to represent plaintiff. Eventually, plaintiff ultimately retained Mr. Albino for purposes of the administrative hearings. However, plaintiff has not cited any statutory or contractual obligation on defendants’ part to pay his attorney fees incurred in the underlying action separate from his tort claims. To the extent he claims the fees theory as an item of damages for his tort claims, the attorney fees claim suffers from the same causation infirmity discussed above in depth. The conflicted representation of plaintiff did not cause him to incur the attorney fees. Because plaintiff was not entitled to recover damages on any of his claims, the trial court should have granted judgment notwithstanding the verdict.
IV. DISPOSITION
The judgment is reversed. Upon remittitur issuance, judgment notwithstanding the verdict is to be entered in favor of defendants, Southern California Permanente Medical Group, Kaiser Foundation Health Plan, Inc. and Paul Deiter, M.D. Defendants are awarded their costs on appeal from plaintiff, Irvin Strub, M.D.
We concur: ARMSTRONG, J., MOSK, J.