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Kevin G. Liebeck, SBN 224317 HODES MILMAN, LLP 9210 Irvine Center Drive Irvine, CA 92618-4661 Tel: (949) 640-8222 Fax: (949) 640-8294 Attorneys for Plaintiffs, DEBORAH SHELLER; KENNETH SHELLER

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CENTRAL JUSTICE CENTER ) ) ) ) Plaintiffs, ) ) ) vs. ) ) ACIC PHYSICAL THERAPY, a business ) entity, form unknown; ANDREW STEELE, ) DPT, an individual; and DOES 1 through 30, ) ) inclusive, ) ) Defendants. ) ) ) ) ) DEBORAH SHELLER; KENNETH SHELLER, CASE NO.: 30-2008-00113708 Assigned for all purposes to: Judge: Hon. Franz E. Miller Dept: C14 NOTICE OF MOTION AND MOTION TO AMEND COMPLAINT TO ADD PUNITIVE DAMAGES [C.C.P. § 425.13] [Filed concurrently with: Declaration of Kevin G. Liebeck and Supporting Exhibits; Declaration of Deborah Sheller; Declaration of Joyce Campbell, Ph.D., P.T.; Proposed Order; Proposed First Amended Complaint] DATE: August 4, 2009 TIME: 1:30 P.M. DEPT: C14 Action Filed: October 23, 2008 Trial Date: March 15, 2010

TO THE COURT AND TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 4, 2009 at 1:30 P.M. in Department C14 of the above-entitled court located at 700 Civic Center Drive West, Santa Ana, California, ///

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plaintiffs, DEBORAH SHELLER and KENNETH SHELLER, will and hereby do move for an Order granting plaintiffs leave to amend their Complaint to include a prayer for punitive damages against defendants ACIC PHYSICAL THERAPY and ANDREW STEELE, DPT pursuant to C.C.P. § 425.13. This motion will be based on this Notice, the attached Memorandum of Points and Authorities, the Declaration of Deborah Sheller, the Court’s file herein, and on any oral argument or discussion which may occur at time of hearing.

DATED: June 14, 2009

HODES MILMAN, LLP By____________________________________ KEVIN G. LIEBECK, ESQ. Attorneys for Plaintiffs, DEBORAH SHELLER; KENNETH SHELLER

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This is a medical malpractice action wherein plaintiff DEBORAH SHELLER suffered severe and permanent injury from the misuse of a powerful ultrasound therapy device. In summary, plaintiff was attending physical therapy with defendants following a surgery on her low back. [Sheller Dec. ¶ 2, 3] During that therapy, defendants, without plaintiff’s knowledge or consent, directed an untrained and unlicensed high-school student to operate, without supervision of any kind, complicated medical equipment which, in the hands of an untrained user, is extremely dangerous. [Sheller Dec. ¶ 8, 9, 11, 13, 14; Campbell Dec. ¶ 5] This untrained and unlicensed high-school student then misapplied ultrasound to Ms. Sheller’s surgical site, causing heating of the metal hardware on her spine, and literally burning the nerve roots exiting her lumbar spine and, possibly, the spinal cord itself. [Liebeck Dec., Ex 1, 2, 3] As a result of the burning of her nerves, Ms. Sheller is severely injured. She has severe neuropathic pain that cannot be addressed surgically or medically, and her condition continues to degrade. [Liebeck Dec., Ex 1, 2, 3] As a result of instability due to her nerve damage, Ms. Sheller recently fell, fracturing her wrist and causing further damage to her spine, for which Ms. Sheller will require spinal surgery. [Liebeck Dec., Ex 1, 2, 3] She is further beginning to lose control of her bowels and bladder. [Sheller Dec. ¶ 12] All of this arises from the injury suffered at ACIC, and is the direct result of defendant’s decision to substitute, without the knowledge or consent of Ms. Sheller, a high-school student for a trained medical professional. At the outset of her treatment, defendants were warned that Ms. Sheller had just undergone a multi-level laminectomy and fusion of her lumbar spine, and that her condition was such that extreme care and caution needed to be used in performing therapy on her. Defendants clearly recognized this: defendant Steele informed Ms. Sheller at her first appointment that he would perform no therapy on her until he had the opportunity to speak to her surgeon regarding her condition and postponed Ms. Sheller’s first therapy session. Mr. Steele further informed Ms. Sheller that she would only be seen by him due to the seriousness of her condition. Ms.

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Sheller accepted defendant Steele’s representation, and was very comfortable with ACIC’S facility, which appeared to her to be state-of-the-art and staffed by trained professionals. [Sheller Dec. ¶ 4, 5, 6] For the first few sessions of therapy, Mr. Steele exclusively performed Ms. Sheller’s treatments, including ultrasound therapy. On or about November 29, 2007, however, Mr. Steele introduced her to a physical therapist assistant by the name of “Chris” and informed her that Chris would be performing her exercises that day. Mr. Steele then went through an extensive demonstration with Chris as to precisely how he wanted Ms. Sheller’s exercises performed. Chris struck Ms. Sheller as conscientious and professional, and performed Ms. Sheller’s exercises without any apparent incident. [Sheller Dec. ¶ 6] At the terminus of Ms. Sheller’s exercises, a female ACIC staffer was instructed to take Ms. Sheller to a treatment room for ultrasound therapy. She wore no nametag or other identification, but Ms. Sheller believed her to be a physical therapist. This woman took Ms. Sheller back to the ultrasound room, prepared her for the treatment, and began performing the ultrasound. Shortly after the therapy commenced, Ms. Sheller began to feel an odd sensation, which quickly progressed into a sensation of burning deep beneath her skin. She yelled out that she was burning, and jumped off of the table. [Sheller Dec. ¶ 7, 8, 9] The woman performing the ultrasound attempted to resume the treatment, but Ms. Sheller refused. Ms. Sheller asked her if she had performed ultrasound before and the woman informed her either that she had performed it once before or that Ms Sheller was the first time. Shocked, Ms. Sheller asked her if she was a physical therapist, and was informed that she was not. The woman informed her she was a high-school student, and was working there in order to obtain five credits toward her graduation. Indeed, the woman informed her that she was not even in training to be a physical therapist. [Sheller Dec. ¶ 10] Ms. Sheller consented to be treated by trained physical therapy professionals, not highschool students in an elective course. Had Ms. Sheller been aware of the fact that this individual was a high-school student, unlicensed, untrained and unskilled in physical therapy, she would not have consented to the treatment. [Sheller Dec. ¶ 13, 14]

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II. THERE IS A SUBSTANTIAL PROBABILITY THAT PLAINTIFF WILL PREVAIL ON HER CLAIMS OF FRAUD AND BATTERY Pursuant to C.C.P. § 425.13, where a medical-malpractice plaintiff demonstrates a substantial probability that she will prevail on a claim for punitive damages under Civil Code § 3294, the court may allow plaintiff to file an amended complaint seeking punitive damages. In evaluating a C.C.P. § 425.13 motion, the weight of the proffered evidence, and defendants ability to supply contrary allegations, is not in issue before the court. In Looney v. Superior Court (1993) 16 Cal.App.4th 521 the court made very clear that the only required showing was a set of facts that, if credited by the trier of fact, would sustain a favorable verdict: “We therefore conclude that, in the words of the Hung court, it is only necessary that plaintiff provide “a sufficient prima facie showing of facts to sustain a favorable decision if the evidence submitted by the [plaintiff] is credited.” [citation omitted] The trial court is not required to make any factual determination or to become involved in any weighing process beyond that necessarily involved in deciding whether a prima facie case for punitive damages exists. Once the court concludes that such a case can be presented at trial it must permit the proposed amended pleading to be filed.” [Looney v. Superior Court, supra,16 Cal.App.4th 521 at 539]. Here, plaintiff can demonstrate that she is entitled to punitive damages at this stage because defendant’s conduct, if accepted by the trier-of-fact, establishes a prima facie showing of “malice, oppression or fraud,” as required under Civil Code § 3294. A. Fraud: Defendant’s conduct constitutes fraud as defined by Civil Code § 3294. Stevens v. Superior Court, 180 Cal.App. 3d 605 is almost precisely analogous to the situation here in issue. In Stevens, a hospital permitted foreign physicians to perform procedures on patients without supervision, and without informing patients of the fact that said physicians were not licensed to practice medicine in the State of California. The court found that “The concealed lack of required supervision and medical qualification is a fact material to the patient-health care provider transaction and defendant hospital had a duty to disclose.” (Stevens, supra at 610)

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The Stevens court went on to hold that an action for fraud and deceit based on concealment exists where (1) the defendant concealed or suppressed a material fact; (2) the defendant had a duty to disclose the fact to the plaintiff; (3) the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (Stevens, supra at 609, FN3) Here, plaintiffs meet the aforementioned elements of fraud as follows: (1) defendants concealed from plaintiff the material fact that the person who would be performing ultrasound on her was an unlicensed, untrained high-school student [Sheller Dec. ¶ 13, 14; Campbell Dec. ¶ 6, 7]; (2) that is a fact which, pursuant to Stevens, and the accepted standard of care for physical therapists, defendants had a duty to disclose [Campbell Dec. ¶ 6, 7]; (3) such concealment was intentional—the high-school student who performed ultrasound on Ms. Sheller was not wearing the identification required of aides in a physical therapy center, and Mr. Steele was well aware of the fact that Ms. Sheller was someone who was very sensitive about her condition and extremely unlikely to permit anyone who was not experienced in physical therapy to perform any procedure on her. As such, Mr. Steele knew full-well that Ms. Sheller would not permit an unlicensed, untrained high-school student to perform ultrasound on her, and with intent to defraud Ms. Sheller into believing she was in the care of a trained and licensed professional, actively concealed from her that pivotal fact.1 [Sheller Dec. ¶ 4, 5, 13, 14; Campbell Dec. ¶ 6, 7] (4) Ms. Sheller was unaware of the fact that the person performing the ultrasound procedure on her was an unlicensed, untrained high-school student until after she had been injured [Sheller Dec. ¶ 13, 14] and (5) the ultrasound applied by this unlicensed, untrained high-school student caused severe injury to the nerves in her back. [Sheller Dec. ¶ 12; Liebeck Dec. Ex. 1, 2, 3]

Further, placing Ms. Sheller’s specific health issues aside, plaintiffs would note that it is absurd to imagine that anyone would knowingly permit an unlicensed, untrained, and unsupervised high-school student to perform a medical procedure on them using a complex and powerful piece of equipment which, if used improperly, could and would cause severe and permanent injury.

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Should the allegations of fact in the foregoing paragraph be credited by the jury in this matter, a finding of fraud would be had and plaintiff would be entitled to punitive damages under Civil Code § 3294. As such, plaintiff has met her burden under C.C.P. § 425.13, and this court should permit plaintiff to amend her complaint to add a prayer for punitive damages. B. Battery: Battery is defined as “…an offensive and intentional touching without the victim’s consent.” Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645. In medical malpractice situations, “[w]here a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.” Cobbs v. Grant (1972) 8 Cal.3d 229, 239. Further, “Even where the particular treatment is by consent, mishandling of the patient or use of unnecessary force is tortuous.” (Witkin Summary of California Law (10th Ed.), Vol. 5, Torts, Assault and Battery, § 394 Exceeding Scope of Consent). In the instant situation, the holding of Stevens v. Superior Court, 180 Cal.App. 3d 605, 610 that “The concealed lack of required supervision and medical qualification is a fact material to the patient-health care provider transaction and defendant hospital had a duty to disclose” is further instructive, in that it demonstrates that, from a legal perspective, the skill and certification of the person performing an otherwise consented-to procedure is material to the question of consent. Here, although Ms. Sheller consented to the ultrasound treatment, she did so while under the erroneous belief that the person performing the procedure was a licensed, trained, qualified professional. [Sheller Dec. ¶ 13, 14] That belief was certainly reasonable—few patients would imagine that an ostensibly professional physical therapy center would permit a high-school student, with no training or experience, to perform a potentially dangerous medical procedure on them—but that is just what defendants herein did. Defendants had, under the Stevens holding, a duty to inform her of the fact that the person performing the procedure was not licensed or qualified to do so. They had a duty under the standard of care for physical therapists to inform Ms. Sheller that this individual was not a physical therapist. [Campbell Dec. ¶ 6, 7], they had a

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duty to ensure that this individual wore identification clearly identifying her as an aide or intern so that patients, such as Ms. Sheller, would not mistakenly believe her to be a physical therapist [Campbell Dec. ¶ 6, 7] Finally, defendants had a duty, pursuant to Business & Professions Code § 2630 and Title 16, California Code of Regulations § 1399 to directly supervise aides and interns in the performance of patient-related tasks. [Campbell Dec. ¶ 8, 9, 10] Defendants failed to do any of these things, and in fact the employment of an unlicensed, untrained high-school student in such a setting represents the illegal use of assistive personnel. [Campbell Dec. ¶ 8, 9, 10, 11, 12] As noted in Ms. Sheller’s declaration, her consent to be touched by ACIC staff was limited to persons who were trained, qualified, and acting within the law. At no time did she consent to have physical therapy modalities performed on her by untrained, unlicensed aides or interns, and had she been informed that the person who would be performing her therapy was so situated, she would have refused to be treated by them. [Sheller Dec. ¶ 13, 14] Should the allegations of fact in the foregoing section be credited by the jury in this matter, a finding of battery would be had and plaintiff would be entitled to punitive damages under Civil Code § 3294, as the act of substituting a high-school student for a licensed physical therapist clearly constitutes oppression, fraud, or malice. As such, plaintiff has met her burden under C.C.P. § 425.13, and this court should permit plaintiff to amend her complaint to add a prayer for punitive damages. /// /// /// /// /// /// /// /// ///

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III. CONCLUSION. In the interests of justice, plaintiff Deborah Sheller respectfully requests that this court grant leave to amend his complaint to request a prayer for punitive damages. Good cause exists in that plaintiff possesses facts supporting plaintiff’s claims for fraud and battery against defendants, and this evidence establishes a substantial probability of plaintiff’s success on those claims that entitle her to punitive damages.

HODES MILMAN, LLP By____________________________________ KEVIN G. LIEBECK, ESQ. Attorneys for Plaintiffs, DEBORAH SHELLER; KENNETH SHELLER

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