Conference: Ortega, Ruben et al vs Puig-Palomar, Miguel, MD et al

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                                DOMINIQUE A. POLLARA, SBN 141036
               POLLARA LAW GROUP
               100 Howe Avenue, Suite 165N
               Sacramento, California 95825                                        8/31/2020
               916 550-5880 - telephone
               916 550-5066 - fax
                mail:d        ollara-law.com
               Attorneys for Defendant MIGUEL PUIG-
               PALOMAR, M.D.



                                 SUPERIOR COURT OF THE STATE OF CALIFORNIA
                                                 COUNTY OF BUTTE
          10

               RUBEN ORTEGA; SAULO ORTEGA;                       CASE NO. 20CV01510
               CHRISTIAN ORTEGA; FERMIN
          12   ORTEGA; CRYSTAL ORTEGA; RUBEN                     DEFENDANT MIGUEL PUI -
               ORTEGA, JR.,                                      GP ALOM, M.D.'S ANSWER TO
                                                                 COMPLAINT
                              Plaintiffs,
          14
               vs.
          15                                                 )   Action Filed: August 3, 2020
               ENLOE MEDICAL CENTER; MIGUEL
          16   PUIG-PALOMAR, M.D.; GANSEVOORT
               H. DUNNINGTON, M.D.; MICHAEL L.
          17   HIEB, M.D. and DOES 1 TO 50,
          18                  Defendants.
          19

          20           Comes now Defendant MIGUEL PUIG-PALOMAR, M.D., and answering the
          21   Complaint of Plaintiffs on file herein, admits, denies and alleges as follows:
          22
          23                                      GENERAL DENIAL
          24           This answering defendant generally and specifically denies each and every
               allegation and cause of action of the unverified Complaint for Damages pursuant to the
               provisions of Code of Civil Procedure section 431.30, subdivision (d), and further
               specifically denies that plaintiffs have been damaged in the manner or amount alleged or
               in any other manner or amount due to any wrongful act by or attributable to this

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               defendant.
                                                             2.

                                   COMPARATIVE NEGLIGENCE OF PLAINTIFF
                      Plaintiffs or the decedent were negligent in some percentage compared to that of
               other parties, and this negligence contributed legally to any injuries or damages.


                                     COMPARATIVE NEGLIGENCE OF OTHERS
                      Other persons or entities who are parties to this action and other persons or entities
               who are not parties to this action are liable for negligence or other legal fault and are the
          10   legal cause of any injuries or damages, so if plaintiffs obtain a judgment for damages, it
               would be the result of this conduct.
          12                                                 4.

                                        EXPRESS ASSUMPTION OF THE RISK
          14          Plaintiffs or the decedent expressly assumed the risk of injury with full knowledge
          15   and appreciation of such conduct and this conduct was the legal cause of any injuries and
          16   damages.
          17                                                 5.

          18                                 MITIGATION OF DAMAGES
          19           Plaintiffs or the decedent failed to exercise reasonable diligence to mitigate any
          20   alleged damages and this conduct was the legal cause of any injuries and damages.
          21                                                 6.

          22                                 STATUTE OF LIMITATIONS
                       This action is barred pursuant to Code of Civil Procedure section 340.4 or 340.5, and
          24   defendant demands a separate trial of this defense pursuant to Code of Civil Procedure
          25   section 597.5.
          26
          27
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                                                              7.

                                               INFORMED CONSENT
                      A.      Plaintiffs or the decedent would have consented to the procedure or the
               treatment even if a reasonable person in their position might not if they had been given
               enough information about the risks.
                      B.      Defendant was not required to inform plaintiffs or the decedent about any
               risks of the procedure or the treatment because they asked not to be told of the risks.
                      C.      Defendant was not required to inform plaintiffs or the decedent about any
               risks of the procedure or the treatment because the procedure or the treatment was simple
          10   and it was commonly understood any dangers were not likely to occur.
                      D.      Defendant was not required to inform plaintiffs or the decedent about any
          12   risks of the procedure or the treatment because decedent would have been so seriously
               upset that she would not have been able to reasonably consider those risks.
          14          E.      Defendant was not required to obtain informed consent because an
          15   emergency existed and decedent were unconscious or there was not enough time to inform
          16   her or an authorized person about the risks of the procedure or the treatment.
          17                                                  8.

          18   ADMISSIBILITY OF BENEFITS/LIMITATION ON NON-ECONOMIC DAMAGES
          19          Defendant reserves the right to introduce evidence of any amounts paid or to be
          20   paid as a benefit to plaintiffs pursuant to Civil Code section 3333.1 and defendant claims
          21   the protection of Civil Code section 3333.2.
          22                                                  9.

          23                       NATURAL COURSE OF DISEASE/CONDITION
          24          This action is barred pursuant to Civil Code section 1714.8 because plaintiffs'lleged
          25   personal or wrongful death injuries and damages were solely the result of the natural
          26   course of a disease or condition or the expected result of reasonable treatment provided for
          27   the disease or condition by defendant.



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                                                            10.

                                          PAYMENT OF FUTURE BENEFITS
                      Defendant reserves the right to have future damages, if any, paid in whole or in part,
               pursuant to Code of Civil Procedure sections 667 and 667.7.


                                       SUPERSEDING ACTIONS OF OTHERS
                      This answering defendant provisionally and conditionally alleges, without
               admitting any of the allegations of plaintiffs'omplaint, that if plaintiffs, or any of them,
               suffered any damages, then the allegations against this answering defendant are barred by
          10   the superseding intervening actions of other person(s).
                                                            12.

          12                                  THIRD-PARTY LIABILITY
                      This answering defendant is informed and believes and thereon alleges that if
          14   plaintiffs, or any of them, sustained any injuries or damages, which this answering
          15   defendant denies, they were caused wholly or in part by the conduct, negligent acts or
          16   omissions and/or defective products of third parties or entities not parties to this action,
          17   which conduct, acts and omissions are the sole legal cause or an intervening or superseding
          18   cause of any injury or damages. Plaintiffs'auses of action and damages sought with
          19   respect thereto, if any, against this answering defendant are barred completely or must be
          20   reduced in proportion to the fault attributable of such other third parties or entitles as are
          21   found culpable.
          22                                                13.

          23                                            CONSENT
          24          This answering defendant alleges that even if their disclosure of information to
               decedent concerning the subject procedures/treatment was inadequate, which inadequacy
          26   is denied and stated only for the purpose of this affirmative defense, then plaintiffs'laims
          27   must fail because the decedent would have consented to the procedure/treatment if
          28   properly informed of the perils thereof, even if given an adequate disclosure concerning

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               the treatment/procedure and said consent is imputed to plaintiffs herein.
                                                           14.

                                                CONSENT (CACI 550)
                       As a separate and distinct affirmative defense, defendant contends that even if a
               reasonable person in plaintiffs'osition might not have consented to the procedure(s) or
               treatment performed on decedent by defendant if she had been given enough information
               about its risks, decedent still would have consented to the procedure or treatment. (CACI
               550).
                                                           15.
          10                                    CONSENT (CACI 551)
                       As a separate and distinct affirmative defense, defendant contends that he had no
          12   duty to disclose to decedent the likelihood of success or risks associated with procedure(s)
          13   or treatment he performed on decedent because decedent asked not to be informed of the
          14   likelihood of success or risks of the procedure or treatment. (CACI 551.)
          15                                               16.

          16                                    CONSENT (CACI 552)
          17           As a separate and distinct affirmative defense, defendant contends that he was not
          18   required to inform decedent of the likelihood of success or risks of the procedure(s) or
          19   treatment he performed on decedent as the treatment or procedure was a simple procedure
          20   and it is understood that the risks are minor and not likely to occur. (CACI 552.)
          21                                               17.

          22                                     CONSENT (CACI 553)
          23           As a separate and distinct affirmative defense, defendant contends that he was not
          24   required to inform decedent of the likelihood of success or risks of the procedure(s) or
          25   treatment he performed on decedent as the information would have so seriously upset
          26   decedent that decedent would not have been able to reasonably consider the risks of
          27   refusing to have the medical procedure. (CACI 553.)
          28


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                                                             18.

                                                CONSENT (CACI 554)
                       As a separate and distinct affirmative defense, defendant contends that he was not
               required to inform decedent of the likelihood of success or risks of the procedure(s) or
               treatment he performed on decedent because an emergency existed. (CACI 554.)
                                                             19.

                                     ADDITIONAL AFFIRMATIVE DEFENSES
                       This answering defendant presently has insufficient knowledge or information on
               which to Eorm a belief as to whether he may have additional, as yet unstated, defenses
          10   available. This answering defendant reserves the right to assert additional defenses in the
               event discovery indicates they would be appropriate.
          12           WHEREFORE, Defendant prays that Plaintiffs take nothing by reason of the
          13   Complaint on file herein, for costs of suit incurred herein; and, Eor such other and further
          14   relief as the court deems just and proper.
          15   Dated: August 28, 2020
          16                                                POLLARA LAW GROUP
          17

          18                                                By
                                                                   DOMINI    E A. POLLARA
          19                                                       Attorne f Defendant MIGUEL PUIG-
                                                                   PALO AR, .D.
          20
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Pollara         ANSWER TO COMPLAINT


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                                   Proof of Service by Electronic Transmission - Civil
                                      [Code of Civ. Proc.   g 1011, 1013, 1013a, 2015.5]
                        I, BETH FULSTER,    declare:
                        At the time of service, I was over 18 years of age and not a party to this action. My
               business address is: 100 Howe Avenue, Suite 165N, Sacramento, California 95825.
                        On August 28, 2020, I served the following documents:
                        DEFENDANT MIGUEL PUIG-PALOMAR, M.D.'S ANSWER TO COMPLAINT
                        By e-mail or electronic transmission: Based on a court order or an agreement of the
               parties to accept service by e-mail or electronic transmission, I caused the documents to be
          10   sent to the persons at the e-mail addresses listed below.        I   did not receive, within a
               reasonable time after the transmission, any electronic message or other indication that the
          12   transmission was unsuccessful.
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                Attorney                                 Representing           Phone/Fax/E-Mail
                David Edward May, Esq.                   Plaintiffs             (415) 399-3900 - phone
                Law Offices of Bruce S. Osterman                                (415) 399-3920 - fax
          15    2300 Contra Costa Blvd., Ste. 320                               Email:
                Pleasant Hill, CA 94523-3952                                    demibruceosterman,corn
          16

          17       I   declare under penalty of perjury, under the laws of the State of California, that the

          18   foregoing is true and correct, and that this declaration was executed on August 28, 2020,

          19   at Sacramento, California.

          20

          21
                                                                BETH FULSTER
                                                                101.0152
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