Jameson v. Desta

Filed 4/29/13

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BARRY S. JAMESON, D060029

Plaintiff and Appellant,

v. (Super. Ct. No. GIS9465)

TADDESE DESTA,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Timothy

B. Taylor, Judge. Reversed.

Barry S. Jameson, in pro. per., for Plaintiff and Appellant.

La Follette, Johnson, De Haas, Gesler & Ames, James J. Wallace II, Russell M.

Mortyn and David J. Ozeran for Defendant and Respondent.

I.

INTRODUCTION

More than a decade ago, Barry S. Jameson filed a complaint against Dr. Taddesse

Desta that asserted numerous claims stemming from Desta's allegedly negligent medical

treatment of Jameson's hepatitis while Jameson was incarcerated at the Richard J.

Donovan Correctional Facility (Donovan). In two separate prior appeals, this court
reversed dismissals of Jameson's lawsuit, concluding that the trial court had erred in

dismissing the action on procedural grounds. (Jameson v. Desta (July 2, 2007, D047284)

[nonpub. opn.] opn. mod. July 26, 2007 (Jameson I); Jameson v. Desta (Nov. 23, 2009,

D053089) [cert. for partial pub. opn.] 179 Cal.App.4th 672 (Jameson II).)

On remand from Jameson II, Desta filed a motion for summary judgment or

summary adjudication of the two remaining claims pending against him—breach of

fiduciary duty and professional negligence.1 The trial court granted Desta's motion for

summary adjudication of the breach of fiduciary duty claim on the ground that Jameson

could not establish that Desta had breached any legal duty owed to Jameson. The court

subsequently concluded that Desta was entitled to judgment as a matter of law on

Jameson's professional negligence claim, as well. The court reasoned that Jameson could

not establish that Desta's acts had caused him to suffer harm because Desta had cured

Jameson of hepatitis. The court granted Desta's motion for summary judgment, and

entered judgment in his favor.

On appeal, Jameson claims that the trial court erred in granting Desta's motion for

summary judgment. With respect to his claim of breach of fiduciary duty, Jameson

maintains that he alleged that Desta breached his duty to obtain Jameson's informed

consent prior to prescribing a course of treatment for Jameson's hepatitis, and that Desta

1 In May 2005, Desta filed a demurrer to several of the eight causes of action in the
complaint. The trial court sustained Desta's demurrer without leave to amend as to the
third, fifth, sixth, seventh, and eighth causes of action. The fourth cause of action did not
apply to Desta. The trial court overruled Desta's demurrer as to the first cause of action
for breach of fiduciary duty, and as to the second cause of action for professional
negligence, the only remaining causes of action at issue in this matter.
2
failed to address this theory of liability in his motion. With respect to his professional

negligence claim, Jameson contends that the record contains evidence that establishes a

triable issue of fact with respect to whether Desta's actions caused him to suffer harm.

We agree with Jameson that the trial court erred in granting judgment as a matter

of law in favor of Desta on Jameson's claims. With respect to his breach of fiduciary

duty claim, Jameson alleged in his complaint that Desta breached his fiduciary duty by

prescribing the drug interferon to Jameson without first having obtained Jameson's

informed consent. Desta failed to address this theory of liability in his moving papers,

and thus failed to carry his burden of making a "prima facie showing of the nonexistence

of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th

826, 850 (Aguilar).) The trial court therefore erred in granting summary judgment as to

this cause of action.

With respect to Jameson's professional negligence claim, we conclude that the trial

court erred in determining that Desta was entitled to summary judgment on the ground

that Jameson failed to present admissible evidence that would negate Desta's expert's

opinion that Desta had cured Jameson of hepatitis. Jameson's professional negligence

claim is not premised on a failure to cure Jameson, but rather, on the allegation that Desta

performed below the standard of care in unnecessarily prescribing a medication that had

significant and damaging side effects at a time when Jameson was not suffering from

hepatitis. The trial court erred in granting judgment as a matter of law in favor of Desta

on the ground that Jameson failed to present evidence demonstrating a triable issue of a

3
fact as to whether Desta had cured Jameson, when that fact was not material to Jameson's

claim.

Further, Desta was not entitled to summary judgment on the ground that he

established that Jameson will be unable to prove that Desta's alleged breach of the

standard of care caused Jameson to suffer physical injury. Jameson offered the

declaration of a medical doctor, Dr. Allen Cooper, who stated, "It is my professional

opinion that [Desta's] care and treatment of Jameson was substandard and a direct cause

of the suffering and injury to Jameson and contrary to the prevailing standard of care in

the medical community in 2000-2001." Dr. Cooper also indicated in his declaration that

Desta had acted below the standard of care in subjecting Jameson to interferon injections

three times a week for a year, and that instead, Desta should have prescribed six months

of an alternative treatment. Jameson thus presented expert testimony that Desta's breach

of the standard of care caused Jameson to receive numerous unnecessary injections of

interferon. A reasonable jury could find that these injections were painful and inherently

injurious.

In addition to the statements that Desta's breach of the standard of care caused

Jameson to receive unnecessary injections of interferon, at his deposition, Dr. Cooper

stated that Jameson had suffered various side effects from the interferon injections. We

conclude that Jameson established a triable issue of fact as to the causation element of his

4
professional negligence claim through the deposition testimony and declaration of

Dr. Cooper.2

Finally, in light of our remand, we remind the trial court of its obligation to

" 'ensure indigent prisoner litigants are afforded meaningful access to the courts. . . .' "

(Jameson II, supra, 179 Cal.App.4th at p. 675, quoting Apollo v. Gyaami (2008) 167

Cal.App.4th 1468, 1483 (Apollo).) As discussed in greater detail in part III.D., post, the

record indicates that the trial court failed to carry out this obligation in at least one critical

aspect. Notwithstanding Jameson's timely request that the trial court direct defense

counsel to ensure that Jameson be permitted to participate telephonically in defense

counsel's deposition of Jameson's expert, Dr. Cooper, the trial court failed to rule on

Jameson's request prior to the time the deposition was taken. As a result, defense counsel

was permitted to depose Jameson's key expert witness without Jameson being afforded

the opportunity to participate in the deposition. By failing to ensure Jameson's ability to

participate in the deposition, the trial court fell short of its obligation to protect an

" 'indigent prisoner's right to . . . prosecute bona fide civil actions.' " (Apollo, supra, at

p. 1483.)

2 We reject Desta's argument that we may affirm the judgment on the alternative
ground that he established that Dr. Cooper's expert opinion has "no value" because
Dr. Cooper did not address the "different" standard of care purportedly applicable to the
medical treatment of prisoners. (See pt. III.C.2., post.)

5
 We reverse the judgment and remand for further proceedings.3

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The operative allegations in Jameson's complaint

In April 2002, Jameson filed a complaint that alleged eight causes of action,

including breach of fiduciary duty (lack of informed consent); professional negligence;

general negligence; failure to train; battery; violation of civil rights; intentional infliction

of emotional distress; and violation of due process against a number of defendants,

including Desta and officials of the California Department of Corrections and

3 Jameson raises a number of other claims on appeal, the bulk of which we need not,
and do not, address in light of our reversal of the summary judgment. For example,
Jameson argues that various trial court rulings had the effect of denying him discovery
"that would have defeated summary judgment."
Jameson also argues on appeal that the trial court abused its discretion in denying
his motion to exclude evidence of a prior felony conviction at trial. (See Robbins v.
Wong (1994) 27 Cal.App.4th 261, 274 ["upon proper objection to the admission of a prior
felony conviction for purposes of impeachment in a civil case, a trial court is bound to
perform the weighing function prescribed by [Evidence Code] section 352"].) Because
this issue may recur on remand, we address it. The trial court ruled that Jameson's
conviction would be admissible to impeach his credibility if he were to testify at trial.
Jameson has failed to demonstrate on appeal that the court abused its discretion in so
ruling. (See, e.g., People v. Mullens (2004) 119 Cal.App.4th 648, 658 ["A trial court has
broad discretion in determining whether to admit or exclude evidence objected to on the
basis of [Evidence Code section] 352 [citation], and rulings under that section will not be
overturned absent an abuse of that discretion [citation]"].) We therefore reject Jameson's
contention.
We also reject Jameson's contention that defense counsel committed fraud and
misrepresentation in the trial court by arguing "facts he knew to be false and
with[holding] evidence requested in discovery to obtain summary
judgment/adjudication." We see nothing in the record to substantiate Jameson's
contentions in this regard.
6
Rehabilitation (Department).4 Jameson's claims of breach of fiduciary duty and

professional negligence against Desta are the sole claims at issue in this appeal.

In his complaint, Jameson alleged that Desta negligently prescribed interferon to

Jameson while Jameson was incarcerated at Donovan and Desta was performing services

as a physician for the Department. Jameson further alleged that the interferon caused him

to suffer serious physical injuries, including irreversible damage to his eyesight. With

respect to his breach of fiduciary duty claim, Jameson alleged in part:

"Desta breached his fiduciary duty as a doctor when he started
[Jameson] on Alpha-2B Interferon, when [Jameson] had no
detectable viral count. [The Department's] written policy . . . clearly
states if a person has a viral count that does not exceed 3,499, a
person is not to be given interferon treatment. Moreover, such
treatment is to be reviewed every six (6) months to review whether
such treatment should be continued. . . . Desta simply continued
[Jameson] on treatment [Jameson] should never have been on with
deliberate indifference and a reckless disregard for the rights[,]
health and safety of [Jameson], causing irreparable injury. . . . This
second six months aggravated the injuries to [Jameson]
unnecessarily.

"Desta held a position of trust with [Jameson], causing [Jameson] to
rely on Desta's statements and recommendation that [Jameson] begin
treatment and stay on it. It is only through [Jameson's] research of
his own medical file and hepatitis literature that even as a layman he
easily discovered the mistaken or malicious prescription by Desta
that resulted in such damage."

In his professional negligence cause of action, Jameson alleged that Desta had

been "professionally negligent in his treatment of [Jameson], and there existed a

physician-patient relationship." Jameson also alleged the following:

4 Desta is the only respondent in this appeal.
7
 "Due to Desta's professional negligence and failure to exercise the
proper degree of knowledge and skill in diagnosing, treating and
monitoring any such treatment, [Jameson] suffered and suffers
extreme migraine headaches, vision loss, weight loss, depression and
severe emotional duress. [Jameson] suffered such due to Desta
ordering that [Jameson] take interferon treatment that [Jameson] did
not need and local regulations precluded or excluded [Jameson] from
taking. [Jameson] and Desta shared a position of trust, and Desta
acted in the capacity of a 'specialist' in the field of [h]epatology.

"[Jameson's] liver condition never showed what is called a 'viral
count,' and at all times relevant to this matter, [Jameson's] viral
count was undetectable. Therefore, [Jameson] should have never
been subjected to what amounted to cancer treatment and all the
suffering that is attached thereto."

B. Desta's motion for summary judgment or adjudication

In October 2010, on remand from Jameson II,5 Desta filed a motion for summary

judgment or summary adjudication. Desta supported his motion with the declaration of

Dr. Tarek Hassanein, who stated that Desta had complied with the standard of care in his

treatment of Jameson, and that Desta's acts had not caused Jameson to suffer any

damages. Desta argued that he was entitled to summary adjudication of Jameson's

professional negligence claim, unless Jameson could present conflicting expert evidence

on these issues.

With respect to Jameson's claim for breach of fiduciary duty, Desta outlined the

elements of the tort: the existence of a fiduciary duty, breach, and damage proximately

caused by that breach. Desta then argued the following:

5 We have omitted the lengthy procedural history of this case prior to the remand
from Jameson II, since it is not relevant to the issues in this appeal.
8
 "Back in 2000, Dr. Desta was employed by Careview Medical
Group, who was subcontracted by Alvarado Hospital to provide
outpatient services to Donovan inmates. [Citations.] As seen in
Special Interrogatory No. 10, [Jameson] asked what payment
arrangements Dr. Desta had with Donovan. In response to this
interrogatory, Dr. Desta responded that he was paid hourly as
subcontracted by Alvarado Hospital through his employer, Careview
Medical Group. Therefore there was no breach of fiduciary duty by
Dr. Desta and he fulfilled his obligations and he never abandoned
the patient. In fact Dr. Hassanein opines that Dr. Desta 'cured'
[Jameson] of the [hepatitis] infection.

"Consequently, without any admissible evidence to support all three
elements: the existence of a fiduciary duty between Dr. Desta [and]
[Jameson]; that Dr. Desta breached said duty; and the alleged
damage was proximately caused by said breach, [Jameson's] cause
[of] action fails and summary adjudication of this issue should be
granted."

Desta supported his motion with a declaration from Dr. Hassanein, a licensed

physician who is board certified in internal medicine, gastroenterology, and transplant

hepatology. In his declaration, Dr. Hassanein states, "[I]t is my professional opinion that

Dr. Desta's care and treatment of Mr. Jameson was at all times completely within the

standard of care in the community." Dr. Hassanein further states:

"At the time Dr. Desta assumed care, this patient had been correctly
diagnosed with Hepatitis C, genotype 3. This is a favorable category
of viral hepatitis, which generally has about an 80% statistical
likelihood of 'cure' with treatment. The medical literature generally
defines a patient with a negative lab result after six months of
treatment as being 'cured' in this context.

"The treatment in this case began in March 2000 and was alpha-
Interferon injections three times per week for one year. This was
appropriate and within the standard of care.

"This patient had negative lab results at the end of his treatment, and
again consistently through 2008. Thus he meets the generally
accepted definition of a patient who has been 'cured' of this disease.

9
 "[¶] . . . . [¶]

"[I]t is my further opinion, to a reasonable degree of medical
probability that no act or omission on Dr. Desta's part caused or
contributed to any alleged damages on the part of Barry Jameson."

Desta also supported his motion with medical records showing that Jameson's

hepatitis C viral load in March 2000 was 574,660 and that by February 2001, his viral

load was less than 600.

C. Jameson's opposition

In his opposition to Desta's motion, Jameson began by clarifying the precise nature

of his claim. Jameson explained that, after he filed the complaint in this case, he obtained

documents that stated that he did in fact have a detectable hepatitis C viral count in

March 2000, when he commenced treatment with Desta. However, Jameson stated that

medical records demonstrated that he had no detectable viral count as of May 2000,

approximately two months after he began the interferon treatment. Jameson explained

that in light of this information, he was claiming that Desta's conduct in prescribing the

"second six-month regimen [of interferon] was medically unjustified."

With respect to his claim of professional negligence, Jameson argued that to the

extent that he was required to present expert testimony to counter the expert testimony

that Desta presented in support of the summary judgment motion, Jameson was relying

on Dr. Hassanein's statement in his declaration that a person with a negative lab result

after six months of treatment for hepatitis C is considered cured. Jameson argued that

10
since medical records showed that he had a negative lab result for hepatitis C as of May

2000, there was no medically justifiable reason for Desta to have subjected Jameson to

additional interferon injections.

With respect to Desta's argument that Jameson would be unable to establish the

causation element of his professional negligence claim, Jameson argued in part as

follows, "[I]gnoring the permanent eye damage and constant headaches Jameson suffers

as a result, no party can dispute that injecting themselves three times a week itself causes

pain and suffering."6 Jameson also noted that the common side effects of interferon

include flu-like symptoms, depression, and other physical and mental disorders.

With respect to his claim of breach of fiduciary duty, Jameson argued that Desta

had breached his duty to Jameson by subjecting Jameson to unnecessary treatment after

Desta knew or should have known that Jameson was cured. Jameson also incorporated

the remainder of his brief, which including the following:

"Jameson was told by Desta at the commencement of treatment he
would be treated for six months and Desta would see how well the
Alpha-2B Interferon injections worked for Jameson. Within a
month after taking the injections, Jameson had no viral count, but he
was never informed of such and the documents showing such, which
Jameson repeatedly requested to see from Desta and his medical

6 In his separate statement of facts, Desta stated, "No act or omission on the part of
Dr. Desta caused or contributed to [Jameson's] damages." Jameson disputed this fact and
stated, "[W]ithin a few weeks of commencing his [six]-month regimen in April of 2000
of Alpha-2B Interferon, Jameson had no detectable viral count. Therefore, with no
detectable viral count for Hepatitis C and Desta's own alleged expert, Dr. Tarek I.
Hassanein stating in his [declaration] that Jameson should have been deemed 'cured' if he
had no detectable viral count within the [six]-month regimen, the acts by Desta subjecting
Jameson to a second regimen of Interferon . . . clearly contributed to Jameson's
damages."
11
 team, were not being kept in Jameson's medical file. At the six
month date, Desta simply stated Jameson was doing fine and he was
going to start Jameson on a second [six]-month regimen of
Interferon."

Jameson filed a declaration with his opposition to the motion in which he provided

support for his claims that he had not been fully informed concerning his condition,

stating:

"I was never informed of any of the [hepatitis C] viral assays before
being placed on Alpha-2B Interferon and only discovered a few of
them stating I did not have any [hepatitis C] viral assay in my
twelfth month of injecting myself with Interferon when a nurse-aide
showed me two that were in the file.

"I spent months, while being injected with Interferon, asking all
medical staff and Desta for the [hepatitis C] viral assay documents
and was never allowed to see any . . . ."

With respect to pain and suffering that he allegedly endured, Jameson stated:

"Although I suffered from 'regular' symptoms such as headaches
during the initial [six]-month regimen, when I was started on another
[six]-month regimen by [Desta], the pain and suffering increased
dramatically and I started having severe eye pain. At times, I even
had to walk outside with my hand over my eye left eye (which was
now seeing double or triple) because sunlight was so painful,
pressing on my eyeball to try and relieve the pain."

Jameson also lodged medical records that indicated that his hepatitis C viral load

in May 2000 was less than 2000.

12
D. The trial court's tentative ruling and Jameson's objections thereto

After Desta filed a reply,7 the trial court issued a tentative ruling granting the

motion for summary judgment on the ground that Jameson could not "establish an

element of either the professional negligence or the fiduciary duty claim: that defendant

breached any legal duty to [Jameson]." The trial court further stated, "[Jameson] has

failed to negate Dr. Hassanein's opinion with any admissible evidence." The court also

stated, "The lab tests [Jameson] refers to in his . . . Opposition . . . raise an inference that

[Desta] was successful in curing [Jameson] (not the reverse)."

Jameson filed an objection to the trial court's tentative ruling in which he argued

that he was not required to designate an expert because Desta had failed to make a written

demand for such a designation. In the alternative, Jameson stated that he had retained an

expert and requested "the opportunity to present a declaration of his retained expert."

On January 20, 2011, the trial court held a hearing.8 At the hearing, the court

declined to adopt its tentative ruling granting the motion for summary judgment. Instead,

the court granted Jameson's motion to continue the summary judgment hearing to allow

Jameson to file an expert declaration from Dr. Cooper.

7 In his two-page reply, Desta argued that the trial court was required to grant his
motion for summary judgment because Jameson had failed to controvert Dr. Hassanein's
expert opinion with admissible expert testimony.

8 Jameson participated telephonically in the hearing.

13
E. Dr. Cooper's declaration

On or about February 14,9 Jameson filed the declaration of Dr. Cooper, a licensed

physician and Professor of Medicine in the Division of Gastroenterology and Hepatology,

Department of Medicine, Stanford School of Medicine. In his declaration, Dr. Cooper

states that in his opinion, "Desta's care and treatment of Jameson was substandard and a

direct cause of the suffering and injury to Jameson and contrary to the prevailing standard

of care in the medical community in 2000-2001." Dr. Cooper explained the basis for his

conclusion that Desta had acted below the standard of care in treating Jameson, as

follows:

"Jameson was given [alpha-2B interferon] commencing in 2000.
[Alpha-2B interferon] . . . was known as monotherapy, as only
[alpha-2B interferon] was used. The response rate with [alpha-2B
interferon] was quite poor and in 1998, [a] two-drug therapy was
introduced, which consisted of interferon and ribavirin. With this
combination therapy available in 1998 it was found that six months
of therapy was adequate for patients with genotype 2 or 3.
Therefore, Jameson should not have been subjected to the
monotherapy for one year, when combination therapy had been
available for approximately two years [and] was well known in the
medical community at the time of Jameson's treatment."

Dr. Cooper stated that he agreed with Dr. Hassanein that "a person can be

considered 'cured' after six (6) months of treatment with Alpha-2B Interferon if they have

no detectable viral count[] within this period," and that "[t]he documents of record in this

matter demonstrate that [by] May of 2000 Jameson's viral count was less tha[n] . . . 2000,

9 The declaration in the record does not bear a file stamp. The court's order granting
summary judgment states that Jameson filed Dr. Cooper's declaration on "February 14
and February 16."
14
which shows it was undetectable, and Jameson was considered cured." Dr. Cooper also

stated that interferon was known to cause "severe mental and physical side effects,

and . . . is associated with retinal problems."

In response to Dr. Cooper's declaration, Desta filed a brief in which he took issue

with Dr. Cooper's use of the standard of care in the general medical community, and

maintained that the proper standard of care was the standard applicable in the prison

community. Desta argued that because he had presented evidence that he had met this

latter standard, and that evidence was uncontradicted, he was entitled to summary

judgment.

F. The trial court's orders granting summary adjudication of Jameson's breach of
fiduciary duty claim, permitting Desta to depose Dr. Cooper, and continuing the
motion for summary judgment

After a hearing on February 25,10 the trial court entered an order in which the

court described the procedural history of the case and then stated:

"The foregoing chronology has allowed the court to hone in on the
central issue of the case: under treatment protocols in place during
the relevant 2000-2001 timeframe, was it appropriate for Dr. Desta
to continue therapy for [six] months after the plaintiff's testing
results came back indicating he had been cured? Interrelated with
this question is the question of what is the relevant 'medical
community,' the general medical community or the more limited one
serving [the Department's] inmates?"

10 Jameson participated telephonically in the February 25 hearing.

15
 The court granted Jameson's February 7 motion11 to continue the hearing on the

motion for summary judgment. The court stated that continuing the motion would

provide defense counsel the opportunity to depose Dr. Cooper and would allow Desta the

opportunity to brief the issue that the court had identified in the prior paragraph.

The court further ruled that "nothing [Jameson] has filed . . . raises a triable issue

of fact with respect to the claim for breach of fiduciary duty." The court thus granted the

motion for summary adjudication of Jameson's breach of fiduciary duty claim.

G. The parties' supplemental briefing on the applicable standard of care

Jameson filed a supplemental brief in which he argued that it would be

unconstitutional to apply a lower standard of care in evaluating a prisoner's professional

negligence action against a health care provider.12

Desta filed a supplemental reply in which he argued that "the 'standard of care' is

different in the prison setting," and that he had "provided the treatment that was available

in the prison setting." Desta supported this supplemental reply with his own declaration

in which he stated that interferon injections were the only available form of treatment for

inmates suffering from hepatitis C genotype 3a under the Department's governing

11 The motion is not in the record.

12 Jameson also argued that Desta had breached his fiduciary duty to Jameson by
failing to inform him of the combination therapy to which Dr. Cooper had referred in his
declaration. However, as noted above, the trial court had previously granted Desta's
motion for summary adjudication of this claim. Jameson stated in his brief that he had
yet to receive the February 25 order granting Desta summary adjudication of Jameson's
breach of fiduciary duty claim. Jameson also stated that he understood the February 25
order to be a tentative ruling granting summary adjudication of that claim.
16
protocols during the relevant timeframe. Desta also lodged a 1998 memorandum from

the Department entitled, "Chronic Viral Hepatitis Guidelines." The 1998 memorandum

discussed how clinicians should treat inmates who suffered from hepatitis, and outlined

the factors that clinicians should consider in determining whether and how to prescribe

interferon.

Jameson filed a response to Desta's supplemental reply in which he reiterated his

argument that the standard of care in prison is not lower than the standard of care in the

general population.

H. Dr. Cooper's deposition and related pleadings

On March 14, Jameson filed a motion in which he requested that the court

preclude Desta from deposing Dr. Cooper for various procedural reasons, including that

Desta was purportedly seeking improper discovery beyond the discovery cut-off date. In

the alternative, Jameson requested that the court order Desta's counsel to arrange with

prison officials to permit Jameson to appear telephonically at the deposition, that the

court appoint counsel for the purpose of attending the deposition, or that the deposition

be conducted through written questions.

On March 30, the trial court entered an order that states in relevant part: "The

court hereby orders [Jameson's] expert to sit forthwith for a deposition. [Jameson's]

objection to deposition is meritless." The court did not address Jameson's requests to

participate in the deposition.

On April 11, defense counsel noticed Desta's deposition.

17
 On April 18, Jameson filed a motion in which he requested that the court require

Desta to conduct the deposition through written questions pursuant to Code of Civil

Procedures section 2028.01013 or that the court appoint counsel for Jameson for the

purpose of attending the deposition. Jameson argued that such measures were required to

ensure due process because he was "presently incarcerated and unable to attend the

deposition of his own expert."

On April 29, prior to the trial court ruling on Jameson's April 18 motion, defense

counsel deposed Dr. Cooper. Jameson did not participate telephonically in the

deposition, and was not represented by counsel.

After deposing Dr. Cooper, Desta filed a supplemental reply in support of his

motion for summary judgment. In this reply, Desta contended that Dr. Cooper's

deposition established that Jameson would not be able to establish the causation element

of his cause of action for professional negligence. In support of this contention, Desta

cited various excerpts of Dr. Cooper's deposition that Desta maintained demonstrated that

Dr. Cooper would be unable to offer an expert opinion with respect to whether Desta's

acts had caused Jameson to suffer any harm. One of the excerpts that Desta cited is the

following:14

13 Unless otherwise specified, all subsequent statutory references are to the Code of
Civil Procedure.

14 Desta lodged portions of Dr. Cooper's deposition in support of his supplemental
reply.
18
 "Q: There are some cases that you address both standard of care and
causation?

"A: That's correct.

"Q: In this case, it was just solely limited to standard of care, as to
what Dr. Desta should have done, in your mind, to comply with the
standard of care?

"A: Yeah."

Desta also quoted this portion of the Dr. Cooper's deposition:

"Q: You postulated in [your declaration] that . . . alpha interferon has
been known to cause severe mental and physical side effects with
patients, but in this case you can't say one way or the other whether
or not Mr. Jameson suffered any of those?

"A: I can't say one way or other. He has complaints.

"Q: You know from other cases that you've been on, in order to
make a determination of that, not only do you have to have those
records to review, but you have to determine that it's more likely
than not that that therapy caused whatever problem is that the patient
is complaining of, not that's a possibility, but more likely than not?

"A: Correct.

"Q: And you can't say that in this case?

"A: I can't comment either way in this case. I can't say it is or isn't
more likely than not that his complaints are related to hepatitis [sic]
because there is not enough information to conclude . . . either way."

Finally, Desta quoted the following:

"Q: You have no opinions on causation or damages in this case:
true?

"A: I haven't seen enough to draw opinions."

19
 Desta also quoted excerpts from the deposition in which Dr. Cooper stated that he

had not seen evidence that Jameson had suffered retinal damage.

Jameson filed a response to Desta's supplemental reply in which he argued that the

court had erred in failing to rule on his March 14 motion concerning Dr. Cooper's

deposition. Jameson stated that he had informed Dr. Cooper that the deposition would

not take place until after the trial court had ruled on his motion, and also stated that in

light of the trial court's statements in its February 25 ruling, he had informed Dr. Cooper

that Dr. Cooper "would be addressing the standard of care." Jameson argued that the

procedural posture of the case had resulted in "a one-sided deposition where a doctor was

led to discuss the standard of care, but was not able to understand the need to further

explain causation."

Jameson maintained that, notwithstanding these procedural objections,

Dr. Cooper's deposition testimony established a triable issue of fact as to causation.

Jameson noted that Dr. Cooper had testified that interferon causes side effects such as

"joint aches and pains, loss of appetite, weight loss, insomnia, depression," and that it

causes flu-like symptoms. Jameson also argued that excerpts from his medical records

established that he has suffered various side effects from the interferon that Desta had

prescribed. Jameson argued that even though "on some issues [defense counsel] led

Cooper to state he had not 'seen enough to draw opinions' on causation or damages[, this]

could easily have been cured by Jameson being able to participate [in the deposition]."

As an example, Jameson reiterated his contention that since Dr. Cooper had stated that it

was his opinion that Jameson had been subjected to the "wrong therapy," it was clear that

20
Desta's conduct in having "Jameson inject himself with interferon for [six] extra

months . . . cause[d] Jameson to suffer the plethora of adverse side effects such injections

are well documented to cause and that Jameson complained of." Jameson argued that

Dr. Cooper's inability to state that interferon had caused Jameson to suffer "severe mental

and physical side effects," was not a basis for concluding that Jameson would be unable

to establish that the Desta's acts had caused Jameson to suffer harm.

Jameson lodged several of his medical records as exhibits in support of his reply.

One entry, dated April 13, 2000 and signed by the Department's staff physician, states,

"[Jameson] is allowed to lie down and not work during the [three] days following

interferon injections due to side effect [sic] of medication." An entry dated January 31,

2001 appears to order the drug Midrin and states "Headache X one year." This order

appears to be signed by Desta. Another entry dated April 23, 2001 states that Jameson

"still has monocular diplopia."15 Finally, a May 16, 2001 medical record that appears to

be signed by Desta states, "Stopped . . . Interferon X one year—got double vision . . .

especially days of Interferon. . . ."

I. The trial court's rulings on Jameson's motions pertaining to Dr. Cooper's
deposition and on Desta's motion for summary judgment

After a hearing,16 the trial court ruled on Jameson's motions pertaining to

Dr. Cooper's deposition and on Desta's motion for summary judgment.

15 Diplopia is commonly known as "double vision."

16 Jameson participated in the hearing telephonically.
21
 With respect to Jameson's March 14 and April 18 motions concerning

Dr. Cooper's deposition, the trial court ruled, "The motions are denied as moot. The

Cooper deposition has already taken place." The court also ruled that Jameson's motions

lacked merit, insofar as Jameson was requesting that the trial court prevent the deposition

from taking place. With respect to Jameson's contention that he had not been permitted

to participate in Dr. Cooper's deposition, the court stated:

"Dr. Cooper, [Jameson's] standard of care expert, was deposed on
April 29. [Jameson] urges that he was denied due process by not
being allowed to participate in this deposition. His arguments lack
persuasive power when one recalls that his tardy designation of
Dr. Cooper is what led to this motion [for summary judgment] not
being prepared and ruled upon in an orderly fashion. Moreover, it
bears noting that [Jameson] had assistance of counsel in locating and
obtaining a declaration from Dr. Cooper; there was nothing to stop
[Jameson] from directing that counsel to appear at the deposition.

"[¶] . . . [¶]

"Jameson's non-participation in the Cooper deposition is the result of
two things: first, his incarceration; and second his untimely
designation of Cooper in the first place. The court arguably bent the
rules by allowing this tardy designation, and after nine years of
litigation is not required to assist [Jameson] further. Any complaint
about not being at liberty to attend the deposition is something
[Jameson] should have considered before committing whatever
crime that gave rise to his incarceration. That [Jameson] did not
properly prepare Cooper to give opinions on causation − after nine
years of litigation − is not properly laid at the feet of the court,
defense counsel, or anyone else." (Italics added.)

On the merits of Desta's motion for summary judgment, the trial court ruled that

Desta was entitled to judgment as a matter of law on Jameson's cause of action for

professional negligence. In its ruling, the trial court stated that Dr. Cooper's declaration

"arguably did raise a triable issue of fact regarding breach of duty as to the professional

22
negligence claim." However, the court ruled that Desta had established that Jameson

would be unable to prove a required element of his claim, namely, that Desta's actions

had caused Jameson harm. In reaching this conclusion, the trial court reasoned in part:

"[Dr Hassanein] opines, based on his review of the relevant
documents, that far from causing harm to [Jameson], [Desta]
properly treated [Jameson], that [Jameson] was cured as the result of
this treatment, and that [Desta's] treatment of [Jameson] was within
the standard of care prevalent in the medical community in 2000-
2001. . . . [¶] [Jameson] has failed to negate Dr. Hassanein's opinion
as to cure with any admissible evidence. Plaintiff is not a physician,
and his own opinions (even opinions allegedly informed by reading
literature) are not admissible on causation of harm. . . . The law
does not permit the court to discard the Hassanein declaration any
more than it permits [Jameson] to rely on supposition and allegation
to avoid summary judgment. . . . Indeed Dr. Cooper agrees with Dr.
Hassanein that Dr. Desta cured plaintiff. [Citation.] There is no
triable issue of material fact on causation, and it is clear [Jameson]
cannot establish an essential element of his claim[]."

Since the trial court had previously granted summary adjudication of Jameson's

breach of fiduciary claim, the court granted Desta's motion for summary judgment.

In June 2011, the trial court entered judgment in favor of Desta. Jameson timely

appealed from the judgment.

III.

DISCUSSION

The trial court erred in granting Desta's motion for summary judgment

Jameson claims that the trial court erred in granting Desta's motion for summary

judgment.

23
A. Governing law and standard of review

1. The relevant statutory framework

A "motion for summary judgment shall be granted if all the papers submitted show

that there is no triable issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law." (§ 437c, subd. (c).) "A cause of action has no merit

if . . . [¶] [o]ne or more of the elements of the cause of action cannot be separately

established . . . ." (Id. at subd. (o)(1).) "A defendant . . . has met his or her burden of

showing that a cause of action has no merit if that party has shown that one or more

elements of the cause of action, even if not separately pleaded, cannot be established. . . .

Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show

that a triable issue of one or more material facts exists as to that cause of action. . . . The

plaintiff . . . may not rely upon the mere allegations . . . of its pleadings to show that a

triable issue of material fact exists but, instead, shall set forth the specific facts showing

that a triable issue of material fact exists as to that cause of action . . . ." (Id. at subd.

(p)(2).)

2. The trial court's determination of a defendant's summary judgment motion

A trial court must employ a "three-step process . . . in analyzing a summary

judgment motion." (Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose

(2009) 174 Cal.App.4th 339, 367.) The trial court must first " ' " 'identify the issues

framed by the pleadings since it is these allegations to which the motion must

respond.' " ' " (Hamburg v. Wal–Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503,

citations omitted.)

24
 Next, the trial court must consider whether the defendant has carried its "initial

burden of production to make a prima facie showing of the nonexistence of any triable

issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.) The defendant may carry

this burden by demonstrating that "the plaintiff cannot establish at least one element of

the cause of action." (Id. at p. 853.) The defendant may make such a showing by

demonstrating "that the plaintiff does not possess, and cannot reasonably obtain, needed

evidence." (Id. at p. 854.)

"If the defendant fails to meet this initial burden [of production], it is unnecessary

to examine the plaintiff's opposing evidence; the motion must be denied." (Zoran Corp.

v. Chen (2010) 185 Cal.App.4th 799, 805.) In contrast, if the defendant has carried its

burden of production, the trial court considers whether the plaintiff's opposition

demonstrates a triable issue of fact. (Aguilar, supra, 25 Cal.4th at p. 849.) " 'The

plaintiff . . . may not rely upon the mere allegations . . .' of his 'pleadings to show that a

triable issue of material fact exists but, instead,' must 'set forth the specific facts showing

that a triable issue of material fact exists as to that cause of action.' [Citation.]'' (Ibid.)

"There is a triable issue of material fact if, and only if, the evidence would allow a

reasonable trier of fact to find the underlying fact in favor of the party opposing the

motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted.)

"A motion for summary judgment shall be granted when 'all the papers submitted

show that there is no triable issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.' [Citation.] . . . A summary adjudication is

properly granted only if a motion therefor completely disposes of a cause of action, an

25
affirmative defense, a claim for damages, or an issue of duty. [Citation.] Motions for

summary adjudication proceed in all procedural respects as a motion for summary

judgment. [Citation.]" (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th

458, 464.)

3. The standard of review on appeal

The Court of Appeal "review[s] de novo a grant of summary adjudication.

[Citation.] 'In independently reviewing a motion for summary adjudication of issues, we

apply the same three–step analysis used by the superior court. "First, we identify the

issues framed by the pleadings. . . . [¶] Secondly, we determine whether the moving

party's showing has established facts which negate the opponent's claim and justify a

judgment in movant's favor. . . . [¶] When a . . . motion prima facie justifies a judgment,

the third and final step is to determine whether the opposition demonstrates the existence

of a triable, material factual issue." ' [Citation.]" (Rosales v. Battle (2003) 113

Cal.App.4th 1178, 1182 (Rosales).)

B. The trial court erred in summarily adjudicating Jameson's breach of fiduciary
claim

Jameson contends that the trial court erred in granting Desta's motion for summary

adjudication on his breach of fiduciary duty claim. Jameson argues that the court erred in

granting judgment as a matter of law on this claim because Desta never addressed

26
Jameson's lack of informed consent theory of liability in his motion for summary

judgment or adjudication.17

1. A physician's fiduciary duty to obtain his patient's informed consent to a
medical procedure

"The elements of a cause of action for breach of fiduciary duty are: (1) the

existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage

proximately caused by the breach." (Stanley v. Richmond (1995) 35 Cal.App.4th 1070,

1086.) "[A] physician has a fiduciary duty to disclose all information material to the

patient's decision," when soliciting a patient's consent to a medical procedure. (Moore v.

Regents of University of California (1990) 51 Cal.3d 120, 129 (Moore), citing, among

other cases, Cobbs v. Grant (1972) 8 Cal.3d 229, 242.) A cause of action premised on a

physician's breach of this fiduciary duty may alternatively be referred to as a claim for

lack of informed consent. (See, e.g., Moore, supra, at p. 133 ["the allegations state a

cause of action for breach of fiduciary duty or lack of informed consent"].)

2. Application

Employing the three-part analysis discussed above, we first identify the issues

framed by Jameson's complaint. (See Rosales, supra, 113 Cal.App.4th at p. 1182.) As

noted in part II.A., ante, in his breach of fiduciary duty claim, Jameson alleged that Desta

negligently prescribed interferon to him and that:

17 Specifically, Jameson states in his opening brief, "[t]he failure to inform, a cause
of action in itself, was never even addressed . . . in Desta's moving papers."
27
 "Desta held a position of trust with [Jameson], causing [Jameson] to
rely on Desta's statements and recommendation that [Jameson] begin
treatment and stay on it. It is only through [Jameson's] research of
his own medical file and hepatitis literature that even as a layman he
easily discovered the mistaken or malicious prescription by Desta
that resulted in such damage."

In addition, in a section of his complaint entitled "Summary of Initial Facts and

Supplemental Facts," Jameson alleged that he had attempted to obtain information

concerning his "viral count" during his course of interferon treatment, and that he was

never provided with such information.

Although not a model of clarity, these allegations adequately pled a claim for

breach of fiduciary duty based on Desta's failure to obtain Jameson's informed consent to

the interferon treatment.18

18 Desta does not contend otherwise on appeal. Further, the trial court previously
overruled Desta's demurrer to Jameson's breach of fiduciary claim in which Desta
maintained that the claim was uncertain and failed to state facts sufficient to constitute a
cause of action. In overruling the demurrer, the court reasoned in part:

"The [first] cause of action for breach of fiduciary duty is not subject
to demurrer for uncertainty. Demurrers for uncertainty are
disfavored and will only be sustained where the defendant cannot
reasonably determine what issues must be admitted or denied, and
are appropriately overruled where the facts are ascertainable by
invoking discovery procedures. [Citation.] The gist of the
allegations against Dr. Desta is that he unnecessarily started
[Jameson] on an Interferon regimen, which caused plaintiff to suffer
eye problems. [Desta] has not cited any authority holding a medical
provider cannot be liable for such conduct."

Desta does not challenge this ruling on appeal.

28
 Next, we consider whether Desta established facts that negate Jameson's claim and

justified judgment in Desta's favor. (See Rosales, supra, 113 Cal.App.4th at p. 1182.)

Desta did not address, in any fashion, the complaint's allegations pertaining to Desta's

alleged failure to obtain Jameson's informed consent to the interferon treatment regimen

in his motion for summary adjudication.19 Having failed to address Jameson's

allegations pertaining to this theory of liability, Desta failed to carry his "initial burden of

production to make a prima facie showing of the nonexistence of any triable issue of

material fact." (Aguilar, supra, 25 Cal.4th at p. 850.) In light of Desta's failure to carry

his initial burden in moving for summary adjudication of Jameson's claim of breach of

fiduciary duty, the trial court erred in granting judgment as a matter of law in favor of

Desta on that claim. (Zoran Corp. v. Chen, supra, 185 Cal.App.4th at p. 805 ["If the

defendant fails to meet this initial burden [of production], it is unnecessary to examine

the plaintiff's opposing evidence; the motion must be denied."].)20

19 Desta's motion for summary adjudication of this claim focused exclusively on the
"payment arrangements [that] [he] had with Donovan." (See pt. II.B., ante.)

20 In his respondent's brief, Desta does not address Jameson's breach of fiduciary
duty claim other than to state the following:

"Even in a claim for lack of informed consent, a plaintiff has to
establish that his or her injury resulted from a risk which the plaintiff
claims the defendant failed to advise of. As stated in Cobbs v.
Grant, [supra, 8 Cal.3d at p. 245], 'There must be a causal
relationship between the physician's failure to inform and the injury
to the plaintiff. As noted above, such causal connection can only be
established by a medical expert."

29
C. The trial court erred in summarily adjudicating Jameson's professional negligence
claim

Jameson contends that the trial court erred in granting judgment as a matter of law

on his professional negligence claim.

1. The trial court erred in concluding that Jameson would be unable to
establish the causation element of his claim

Jameson claims that the trial court erred in concluding that Desta established that

Jameson would be unable to prove a required element of his claim, namely, that Desta's

actions caused Jameson harm.

a. Governing law

" 'The elements of a cause of action for professional negligence are failure to use

the skill and care that a reasonably careful professional operating in the field would have

used in similar circumstances, which failure proximately causes damage to plaintiff.' "

(Cyr v. McGovran (2012) 206 Cal.App.4th 645, 651, citations omitted.) With respect to

the element of proximate cause, "In a medical malpractice action, the evidence must be

sufficient to allow the jury to infer that in the absence of the defendant's negligence, there

was a reasonable medical probability the plaintiff would have obtained a better result."

(Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216, citations omitted.)

In so arguing, Desta appears to acknowledge that Jameson alleged a claim of lack
of informed consent in his complaint. However, as noted, Desta failed to raise any
argument with respect to this theory of liability in his motion for summary judgment or
adjudication.
30
 Generally speaking, " 'The law is well settled that in a personal injury action

causation must be proven within a reasonable medical probability based upon competent

expert testimony. Mere possibility alone is insufficient to establish a prima facie case.

[Citations.] That there is a distinction between a reasonable medical "probability" and a

medical "possibility" needs little discussion. There can be many possible "causes,"

indeed, an infinite number of circumstances which can produce an injury or disease. A

possible cause only becomes "probable" when, in the absence of other reasonable causal

explanations, it becomes more likely than not that the injury was a result of its action.

This is the outer limit of inference upon which an issue may be submitted to the jury.'

[Citation.]" (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498, citations omitted.)

A plaintiff presents sufficient evidence on the element of causation to avoid

summary judgment in a medical malpractice action by presenting expert testimony that a

physician's breach of the standard of care caused the plaintiff to undergo an unnecessary

medical procedure that was painful and inherently injurious. (Tortorella v. Castro (2006)

140 Cal.App.4th 1 (Tortorella).) In Tortorella, a physician performed sinus surgery on a

patient. (Id. at p. 4.) The patient brought a medical malpractice action in which she

alleged that the physician had been negligent in examining, diagnosing and treating her.

(Id. at pp. 4-5.) The physician brought a motion for summary judgment in which he

contended that he had acted within the standard of care and that he had not caused the

plaintiff to suffer harm. (Id. at p. 5.) The physician supported his motion with an expert

declaration. (Ibid.) In opposing the motion, the plaintiff filed the declaration of a

qualified expert who stated that the defendant physician had acted below the standard of

31
care in performing an unnecessary surgery. (Id. at pp. 5-6.) The trial court granted the

motion for summary judgment on the ground that the patient's expert's declaration had

failed to raise a triable issue of fact as to causation. (Id. at p. 6.)

The Tortorella court concluded that the trial court had erred in granting the

motion. (Tortorella, supra, 140 Cal.App.4th at p. 10.) The court reasoned, "Although

the trial court read [plaintiff's expert] declaration as being silent with respect to the issue

of causation, it seems self-evident that unnecessary surgery is injurious and causes harm

to a patient. Even if a surgery is executed flawlessly, if the surgery were unnecessary, the

surgery in and of itself constitutes harm." (Id. at p. 11.) The Tortorella court explained

the application of its holding in the context of a motion for summary judgment:

"[A]ny unnecessary surgery is inherently injurious in that the patient
needlessly has gone under the knife and has been subjected to pain
and suffering.

"Therefore, at the summary judgment stage, if the opposing papers
raise a triable issue as to whether a physician deviated from the
standard of care by unnecessarily performing surgery, that is
sufficient also to raise triable issues with respect to the two
remaining elements of a cause of action for medical malpractice,
namely, ' " '(3) a proximate causal connection between the negligent
conduct and the resulting injury; and (4) actual loss or damage
resulting from the professional's negligence.' " ' [Citation.]

"Thus, [plaintiff's] expert declaration to the effect that the . . .
surgery was . . . unnecessary, was sufficient to raise a triable issue of
material fact not only as to whether the performing of said surgery
was a deviation from the standard of care, but also as to the presence
of a causal connection between the negligent conduct and injury to
the patient." (Id. at p. 13, fn. omitted.)

32
 b. Application

We begin our analysis by identifying the issues framed by Jameson's complaint.

(See Rosales, supra, 113 Cal.App.4th at p. 1182.) As noted in part II.A., ante, in his

professional negligence claim, Jameson alleged that Desta negligently treated him for

hepatitis by prescribing a course of interferon treatment "that [Jameson] did not need,"

and that caused him to suffer severe side effects including "migraine headaches, vision

loss, weight loss, depression and severe emotional duress."

Desta carried his "initial burden of production to make a prima facie showing of

the nonexistence of any triable issue of material fact" (Aguilar, supra, 25 Cal.4th at

p. 850) by supporting his motion with the declaration of a medical expert, Dr. Hassanein,

who stated that Desta had acted within the standard of care by prescribing "alpha-

Interferon injections three times per week for one year" and that Desta had not caused

Jameson to suffer any damages.

In opposition, with the filing of Dr. Cooper's declaration, Jameson raised a triable

issue of fact with respect to both the standard of care and causation. In his declaration,

Dr. Cooper stated that Jameson should have been given a six-month regimen of

combination therapy (interferon and ribavirin), rather than a year of interferon injections.

Based on Dr. Cooper's declaration, a jury could reasonably find that Jameson was

subjected to six months of unnecessary alpha-interferon injections. Even without expert

33
testimony that the injections caused Jameson to suffer any harm,21 it cannot be disputed

that injections are "inherently injurious in that the patient needlessly has . . . been

subjected to pain and suffering." (Tortorella, supra, 140 Cal.App.4th at p. 13.)22 Thus,

as in Tortorella, Jameson presented expert testimony that a physician's breach of the

standard of care caused him to undergo an unnecessary medical procedure that was

painful and unnecessary. (Ibid.) Under these circumstances, Jameson "raise[d] a triable

issue of material fact not only as to whether [prescribing the unnecessary injections was]

a deviation from the standard of care, but also as to the presence of a causal connection

between the negligent conduct and injury . . . ." (Ibid.)

The trial court's conclusion that Jameson failed to raise a triable issue of fact as to

causation because he "failed to negate Dr. Hassanein's opinion as to cure with any

admissible evidence" (italics added), is erroneous because Jameson's professional

negligence claim is not premised on the allegation that Desta failed to cure him of

hepatitis. Rather, it is clear from Jameson's complaint that his professional negligence

claim is based on his contention that Desta subjected him to unnecessary treatment.

Jameson alleged in his complaint that Desta prescribed a course of treatment "that

21 We consider below whether Desta established that Jameson will be unable to
prove, with expert testimony, that the interferon injections caused Jameson to suffer
injuries beyond those inherent in the injections themselves.

22 In his opposition to the motion for summary judgment, Jameson argued that, "no
party can dispute that injecting themselves three times a week itself causes pain and
suffering." Desta presented no evidence that Jameson was subjected to injections that did
not cause pain or suffering. Nor has Desta cited any case law that suggests that the pain
of being repeatedly injected over a six-month period does not constitute a compensable
tort damage.
34
[Jameson] did not need," and repeatedly emphasized this point in opposing the motion for

summary judgment. For example, in his objection to the court's tentative ruling granting

Desta's motion, Jameson argued:

"The court found that Jameson was 'cured,' therefore any further
abuse alleged by Jameson after he was cured is irrelevant. It
appears, at least to Jameson, that no reasonable juror that was treated
and cured of a serious disease would allow any doctor to spend
another [six] months injecting the juror with poison and suffering
unnecessarily. That is what has occurred."23

We also reject Desta's contention that we may affirm the judgment on the ground

that various excerpts (see pt. II.H., ante) from Dr. Cooper's deposition that Desta lodged

in support of his motion establish that Jameson will be unable to establish the causation

element of his claim.24 To begin with, there is nothing in these excerpts that undermines

our conclusion that Dr. Cooper's declaration creates a triable issue of fact with respect to

whether Desta subjected Jameson to an unnecessary and painful regimen of injections

that were themselves inherently injurious, and constituted a type of legally compensable

damage. Thus, even assuming that Desta is correct in his assertion that Dr. Cooper had

no opinion with respect to whether the interferon caused Jameson to suffer injures beyond

23 In his brief on appeal, Desta acknowledges that Jameson's claim is that "[Jameson]
suffered side effects from the medication."

24 After the trial court granted Desta's motion for summary judgment, Jameson filed
a request to augment the record to include the entire transcript of Dr. Cooper's deposition.
The record does not indicate whether the trial court ruled on Jameson's request. On
appeal, Jameson filed an opposed motion to augment the record to include the transcript
of the entire deposition. In light of our reversal of the summary judgment based on the
record that was before the trial court at the time of its ruling, we deny Jameson's request
to augment the record as moot.
35
those inherent in the injections, Desta would not be entitled to summary adjudication of

Jameson's claim. (See DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996)

47 Cal.App.4th 410, 422 ["[S]ection 437c, subdivision (f)(1), does not permit summary

adjudication of a single item of compensatory damage which does not dispose of an

entire cause of action."].)

Further, while we acknowledge that the statements that Desta cites from

Dr. Cooper's deposition concerning causation are ambiguous, we disagree that these

statements conclusively establish that Jameson will be unable to establish that the

interferon injections caused him to suffer various injurious side effects.

For example, while Dr. Cooper stated that he had not "seen enough to draw

opinions," about "causation or damages," other excerpts from the deposition that Desta

offered in support of the motion for summary judgment are less than conclusive on this

issue. Most notably, defense counsel directly asked Dr. Cooper whether Jameson

"experience[d] any physical problems that you attribute to the alpha interferon itself?"

Dr. Cooper replied, "I think that there's notes that he had the usual side effects of

interferon, which are joint aches and pains, loss of appetite, weight loss, insomnia,

depression, et[] cetera. So I think that was ongoing." Dr. Cooper also stated, "Interferon

gives you the flu. . . . [W]hen you get the flu, you release a lot of interferon . . . you feel

like shit. It's true. And that's the interferon in your body. We just give you ten times as

much interferon as your body would."

36
 Given that Dr. Cooper unambiguously stated in his declaration, "It is my opinion

that [Desta's] care and treatment of Jameson was substandard and a direct cause of the

suffering and injury to Jameson and contrary to the prevailing standard of care in the

medical community in 2000-2001," we cannot say that the deposition excerpts on which

Desta relies conclusively established that Dr. Cooper had no opinion with respect to

whether the interferon caused Jameson to suffer physical injuries attributable to the

medication.25

Accordingly, we conclude that the trial court erred in granting summary

adjudication of Jameson's professional negligence claim on the ground that Jameson

would be unable to establish the causation element of his claim.

2. This court cannot affirm the trial court's summary adjudication of
Jameson's professional negligence claim on the ground that there is no
triable issue of fact with respect to whether Desta breached the
standard of care

Desta contends this court may affirm the trial court's order granting judgment as a

matter of law on Jameson's professional negligence claim on the ground that Jameson

failed to raise a triable issue of fact with respect to whether Desta breached the standard

25 In light of our conclusion, we need not consider Jameson's contention that this
court should reverse the trial court's summary adjudication of this claim on the ground
that he raised a triable issue of fact with respect to the causation element of his claim by
virtue of the doctrine of res ipsa loquitur. (See generally Bardessono v. Michels (1970)
3 Cal.3d 780, 790 ["In cases in which the physician or surgeon has injected a substance
into the body, the courts have followed the test that if the routine medical procedure is
relatively commonplace and simple, rather than special, unusual and complex, the jury
may properly rely upon its common knowledge in determining whether the accident is of
a kind that would ordinarily not have occurred in the absence of someone's
negligence."].)
37
of care. Specifically, Desta contends that "the 'standard of care' is different in the prison

setting," and that Dr. Cooper's declaration did not raise a triable issue of fact with respect

to whether Desta met this "different" standard of care. Desta reasons that "Dr. Cooper's

opinion has no value," because "although combination therapy was available to the

general public, it was not available to the prison population where the plaintiff was

incarcerated."

a. Governing law

" 'The standard of care in a medical malpractice case requires that medical service

providers exercise that . . . degree of skill, knowledge and care ordinarily possessed and

exercised by members of their profession under similar circumstances. The standard of

care against which the acts of a medical practitioner are to be measured is a matter

peculiarly within the knowledge of experts; it presents the basic issue in a malpractice

action . . . .' [Citation.]" (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108,

fn. 1; see also Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th

463, 470 (Avivi) ["the standard of care for physicians is the reasonable degree of skill,

knowledge and care ordinarily possessed and exercised by members of the medical

profession under similar circumstances"].)

b. Factual and procedural background

As described in detail in parts II.E.F.G., ante, Dr. Cooper stated in his declaration

that Desta had deviated from the "prevailing standard of care in the medical community"

because "Jameson should not have been subjected to the monotherapy for one year, when

combination therapy had been available for approximately two years [and] was well

38
known in the medical community at the time of Jameson's treatment."26 Dr. Cooper

explained that if Desta had adhered to the standard of care and used combination therapy,

Jameson would have received a total of six months of treatment rather than a year of

treatment.

In response, Desta argued that "the standard of care is different in the prison

setting," and offered a declaration in which he stated that " 'monotherapy' treatment was

the only medical therapy available that was through the protocol that was approved by the

[Department] and in effect as of May 27, 1998." Desta lodged the 1998 protocol that he

referred to in his declaration. The protocol outlines the manner by which clinicians

should treat inmates with hepatitis, including a description of whether and how to

prescribe interferon.

c. Application

At the outset, we consider Desta's suggestion Dr. Cooper's declaration does not

raise a triable issue of fact with respect to whether Desta breached the applicable standard

of care because the 1998 protocol establishes that a lower standard of care applied in the

prison setting. Although the 1998 protocol provides recommendations for health care

professionals who provide medical care in California prisons, the protocol expressly

states, "These guidelines are intended to assist the practitioner, but as always, guidelines

26 Dr. Cooper stated in his declaration that he was "extremely familiar with the
standard of care in the discipline of hepatology and the standard of care as it existed
during the period of treatment of [Jameson] in this case from 2000-2001."
39
are not a substitute for exercising good clinical skill and judgment." Further, the 1998

protocol states:

"Choosing treatment options for patients with chronic viral hepatitis
requires medical judgment since information gained from the studies
do not correlate well with histopathology. In addition, this field of
medical practice is new and is rapidly changing as new techniques
and therapies are developed. They will continue to be periodically
updated, consistent with the principles of medical practice."

The language of the protocol suggests that rather than establishing a treatment regimen

that is binding on health care professionals in the prison setting, the protocol actually

provides nonbinding "guidelines" for practitioners. In any event, even assuming that the

1998 protocol did purport to establish a "standard of care" for doctors who provide care

for California prison inmates, we reject the argument that the existence of such a protocol

would demonstrate that Dr. Cooper's declaration failed to raise a triable issue of fact with

respect to whether Desta breached the applicable standard of care.

Desta's argument that Dr. Cooper's "opinion has no value" and fails to raise a

triable issue of material fact is premised on Desta's contention that federal courts have

applied California law in concluding that the "standard of care is different in the prison

setting."27 In support of this contention, Desta cites two cases, neither of which remotely

support his argument that doctors who provide medical care in California's prisons are

held to to a lower standard of care than those who provide medical treatment in the

general medical community. Desta first cites a dissenting opinion in Wood v.

27 Specifically, after discussing Avivi, Desta argues, "Based on this California law,
the federal courts, which frequently deal with prisoner litigants, have recognized that the
standard of care is different in the prison setting."
40
Housewright (9th Cir. 1990) 900 F.2d 1332, 1338 (Reinhardt, J. dissenting in part)

(Wood), in which Judge Reinhardt concluded that Nevada prison officials' confiscation of

an inmate's arm sling constituted a cruel and unusual punishment and therefore violated

the Eighth Amendment to the United States Constitution because it constituted deliberate

indifference to the inmate's medical needs. (Id. at p. 1336.) Judge Reinhardt reasoned in

part, "While the crowded conditions and limited resources in most prisons unfortunately

result in a standard of care somewhat lower than that which prevails in society at large,

it usually requires neither sophisticated facilities nor additional resources to allow a

prisoner to continue with a course of treatment he is already receiving." (Id. at p. 1338,

italics added.) Desta contends that the italicized portion of the prior sentence supports his

contention that the standard of care under California law is "different" in the prison

setting. However, when read in context, it is clear that Judge Reinhardt was lamenting

the quality of the medical treatment that prisoners often receive, and was not stating that a

lower standard applies as a matter of law. More fundamentally, Judge Reinhardt was not

discussing either California law (see id. at pp. 1337-1338 [considering whether Nevada

prison officials violated the federal constitution]) or the tort of professional negligence

(see id. at p. 1337 ["Professional negligence has nothing to do with this claim."]).

Desta also cites Hallett v. Morgan (9th Cir. 2002) 296 F.3d 732, 745 (Hallet), in

which the Ninth Circuit affirmed a district court's factual finding that a Washington

prison's dental services did not constitute cruel and unusual punishment under the Eighth

Amendment. In the course of its analysis, the Ninth Circuit stated, "[T]he [district] court

opined that dental services at the prison were acceptable even under the usual standard of

41
care in nonprison settings." (Hallet, supra, at p. 745.) It is clear from the Hallet opinion

that the district court was indicating that because the prison's provision of dental services

did not constitute medical malpractice, they necessarily did not violate the Eighth

Amendment. (Hallett, supra, at p. 744 ["Mere medical malpractice does not constitute

cruel and unusual punishment."].) Neither the Hallet court, nor the district court in that

case, suggested that there is a different standard of care applicable to medical malpractice

actions that arise out of the care of prisoners. Moreover, as with the dissent in Wood, the

Hallet court was not discussing California law or the tort of professional negligence.

(Hallet, supra, at p. 745.) To put it charitably, neither of Desta's cases supports the

proposition that medical practitioners who treat California inmates are held to a lower

standard of care than that applicable to medical practitioners outside the prison context,

and our independent research has not uncovered any California case law that supports

this proposition.

In fact, the California authority that is most relevant to the question of the

applicable standard of care in the prison setting is to the contrary. In Nelson v. State of

California (1982) 139 Cal.App.3d 72, in the course of distinguishing the tort of medical

malpractice from the tort of failing to summon medical care under Government Code

section 845.6, the Court of Appeal stated, "Once a practitioner has been summoned to

examine and treat a prisoner, he or she is under a duty to exercise that degree of

diligence, care, and skill such as is ordinarily possessed by other members of the

profession. Failure to do so is malpractice." (Nelson, supra, at p. 81, italics added; see

also Castaneda v. Department of Corrections and Rehabilitation (2013) 212 Cal.App.4th

42
1051, 1071; Watson v. State of California (1993) 21 Cal.App.4th 836, 845 [both quoting

Nelson]; accord 2 Coates, et al., Cal. Government Tort Liability Practice (Cont.Ed.Bar

4th ed. 2006, 2012 update) Liabilities and Immunities in Specific Functional Areas,

§ 11.16, p. 737. ["A public entity has a duty to summon medical care . . . but not to make

sure that the medical care meets professional standards of reasonableness. The plaintiff's

remedy for inadequate care is an action against the appropriate state employees for

medical malpractice."].)28

Accordingly, we conclude that we cannot affirm the trial court's summary

adjudication of Jameson's professional negligence claim on the ground that Dr. Cooper's

declaration failed to raise a triable issue of fact with respect to whether Desta breached

the applicable standard of care.29

28 Numerous courts in other jurisdictions have held that the standard of care
applicable to physicians treating prisoners is the same as the standard that applies to the
general medical community. (See, e.g., District of Columbia v. Mitchell (D.C. 1987) 533
A.2d 629, 648 [collecting cases and holding "physicians owe the same standard of care to
prisoners as physicians owe to private patients generally"]; Moss v. Miller (1993) 625
N.E.2d 1044, 1051 ["those practicing the medical arts in the penitentiary are held to the
same standard of care as those practicing in the communities of our State. To hold
otherwise would be to abandon reason and common sense"].)

29 Jameson suggests that the record establishes a triable issue of fact with respect to
whether Desta breached the standard of care, even if Dr. Cooper's declaration were
disregarded in its entirety. Jameson notes that Dr. Hassanein stated in his declaration that
"[t]he medical literature generally defines a patient with a negative lab result after six
months of treatment as being 'cured' in this context" and contends that other evidence in
the record demonstrates that Desta unnecessarily treated Jameson with interferon after he
had been cured. We need not consider this contention in light of our conclusion that Dr.
Cooper's declaration constitutes evidence demonstrating a triable issue of fact as to
whether Desta breached the standard of care.
43
D. The trial court erred in failing to ensure that Jameson would be afforded the
opportunity to participate in Dr. Cooper's deposition

In its order granting summary judgment, the trial court expressly recognized its

obligation to " 'ensure indigent prisoner litigants are afforded meaningful access to the

courts. . . .' " (Jameson II, supra, 179 Cal.App.4th at p. 675, quoting Apollo v. Gyaami,

supra, 167 Cal.App.4th at p. 1483.) The court also stated that it had paid "careful

adherence" to this court's mandate with respect to this issue as stated in Jameson II.30

Notwithstanding these statements, the record indicates that the trial court failed to

carry out this obligation in at least one respect. More than a month and a half in advance

of defense counsel's taking Dr. Cooper's deposition, Jameson filed a motion in which he

requested that "Desta's counsel . . . arrange with prison officials to allow Jameson to

appear at the deposition telephonically." The trial court failed to rule on Jameson's

request prior to the taking of the deposition. As a result, defense counsel was permitted

to depose Jameson's key expert witness without Jameson being afforded the opportunity

to participate in the taking of the deposition. The trial court thereafter based its

(erroneous) grant of summary adjudication of Jameson's professional negligence claim

entirely on statements that Dr. Cooper made at the deposition. Finally, in its order

granting summary judgment, the trial court ruled that Jameson's request to appear

telephonically at the deposition was "moot" because "the Cooper deposition has already

taken place."

30 On remand from Jameson II, Jameson filed a preemptory challenge to the prior
trial judge pursuant to section 170.6, and the matter was reassigned to a new trial judge.
44
 Proceeding in this manner is not consistent with fundamental fairness. While "a

trial court is to exercise its 'sound discretion,' in determining the appropriate method by

which to ensure meaningful access to the court" (Jameson II, supra, 179 Cal.App.4th at

p. 678), a trial court's failure to exercise any discretion to ensure such access constitutes

error. (See, e.g., Rezek v. Superior Court (2012) 206 Cal.App.4th 633, 642 ["abuse of

discretion present when 'court failed to exercise discretion vested in it by law' "].) The

trial court erred in failing to rule on Jameson's requests that he be allowed to participate

in the deposition in some fashion prior to the taking of the deposition.

On the merits of Jameson's motion, the trial court abused its discretion in failing to

direct defense counsel to ensure that Jameson be permitted to participate in some manner

in the deposition. (See Jameson II, supra, 179 Cal.App.4th at p. 678 [trial court lacks

discretion to refuse to ensure prisoner litigant's ability to meaningfully participate in court

proceedings where access is impeded by incarceration].) We are aware that "in propria

persona litigants, like appellant, are entitled to the same, but no greater, rights than

represented litigants." (Id. at p. 684.) In seeking to be able to participate in the

deposition by telephone, Jameson was not asking to be accorded any special rights.

Section 2025.310 provides in relevant part, "[A]ny person other than the deponent may

attend . . . a deposition by telephone or other remote electronic means." (See also Cal.

Rules of Court, rule 3.1010.) The trial court abused its discretion in failing to ensure that

Jameson's incarceration did not impede his ability to exercise such right.

45
 Further, while the trial court rejected Jameson's contention that the court had

denied him due process by failing to ensure his participation in Dr. Cooper's deposition,

none of the reasons that the court offered as the bases for its conclusion is persuasive.

The court noted that Jameson had failed to timely designate Dr. Cooper as an expert.

Yet, the trial court permitted Jameson to file Dr. Cooper's declaration. Having granted

this permission, the court could not, consistent with fundamental fairness, proceed to

penalize Jameson for the late filing by allowing Desta to take Dr. Cooper's deposition

without Jameson's participation. This is particularly true since the record is clear that the

timing of Jameson's designation of Dr. Cooper as an expert did not impede the trial court

from ruling on Jameson's request to be permitted to participate in Dr. Cooper's

deposition.31

The trial court also stated that Jameson could have obtained his own counsel to

attend the deposition and commented that "[a]ny complaint [that Jameson has] about not

being at liberty to attend the deposition is something [Jameson] should have considered

before committing whatever crime that gave rise to his incarceration." The case law is

clear that an indigent incarcerated litigant has a right to prosecute a bona fide civil action

on his own behalf and to be afforded meaningful access to the courts in doing so, and that

the trial courts are to ensure that this right is protected. The trial court's statement that

31 As described in greater detail in part II., ante, in January 2011, the trial court
continued the motion for summary judgment to permit Jameson to file Dr. Cooper's
declaration. Jameson filed Dr. Cooper's declaration in February 2011. Jameson filed his
request to participate telephonically in Dr. Cooper's deposition in mid-March 2011,
approximately a month and a half before Desta deposed Dr. Cooper in late April 2011.
46
Jameson could have obtained counsel to attend the deposition, and the court's remark

about Jameson's incarcerated status are entirely inconsistent with this mandate. On

remand, the trial court is again directed to ensure that Jameson's right to prosecute this

action is protected.

IV.

DISPOSITION

The trial court's February 25 order granting summary adjudication of Jameson's

breach of fiduciary duty claim and the trial court's May 31 order granting summary

judgment on Jameson's professional negligence claim are reversed. The trial court's

June 17 judgment is reversed. The trial court's May 31 order denying Jameson's motion

to exclude evidence of his prior felony conviction is affirmed. In the interests of justice,

Jameson is entitled to recover costs on appeal.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

47