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1 David E. Smith (SBN 72703)
Elisa R. Zitano (SBN 91819)
2 SMITH ZITANO LAW FIRM, LLP
641 Fulton Avenue, Suite 200
Sacramento, CA 95825 3/24/2021
Telephone: (916) 333-5933
Facsimile: (916) 333-5338
Attorneys for Plaintiff
6 DAVID EICHOR
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF BUTTE
DAVID EICHOR CASE NO. 21CV00711
11
Plaintiff, COMPLAINT
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V.
13 1. Medical Malpractice
LIONEL FOSTER, JR., M.D., 2. Elam v. College Park Hospital
14 3, Violation of Evidence Code 1158
OROVILLE HOSPITAL UROLOGY,
15 OROVILLE HOSPITAL, OROHEALTH
16
CORPORATION, ROBERT J.WENTZ,
and DOES I through 50, inclusive,
17
Defendants.
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19
20 PLAINTIFF DAVID EICHOR complains of Defendants, and each of them, and as and for
a First Cause of Action allege as follows:
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23
FIRST CAUSE OF ACTION
(Medical Negligence against all Defendants)
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1. The true names and capacities, whether individual, corporate, associate or
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otherwise, of the Defendants, DOES I through 50, inclusive, are unknown to Plaintiff, who
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therefore sue such Defendants by such fictitious names, and Plaintiff will amend this complaint to
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show their true names and capacities when the same have been ascertained. Plaintiff is informed
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COMPLA jNT
and believe and thereon allege that each of the Defendants, DOES I through 50, inclusive, is
responsible under law in some manner, negligently, in warranty, strictly, or otherwise, for the
events and happenings herein referred to and proximately thereby caused injuries and damages to
Plaintiff as herein alleged.
2. Plaintiff is now, and at all times herein mentioned was, a citizen of and resident
within the State of California, and the Defendants, and each of them, are now, and at all times
herein mentioned were citizens of and residents within the State of California and the amount in
controversy exceeds the minimum jurisdictional limits of the Court.
3. Plaintiff is informed and believes and thereon alleges that, at all times herein
10 mentioned, each of the Defendants was the agent, employee, principal or employer of each of the
remaining Defendants and was at all times acting within the course and scope of said
relationships, and each Defendant has authorized, ratified and approved the acts of each of the
remaining Defendants.
4. That Defendants, OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL,
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OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES I through 50 are now, and at
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all times herein mentioned were, individuals or California business entities, corporations,
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associations, partnerships or other type of business entities, and Plaintiff will ask leave to insert
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the correct designation when same has been ascertained. Defendants, and each of them, are
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licensed health care providers, either hospitals, physicians, nurses or otherwise, or hospital
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administrators, or hospital owners, directors or hospital board of directors members and at all
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times mentioned herein, were and are, licensed to provide or supervise health care services
21 within the State of California.
22 5. Defendant, LIONEL FOSTER, JR., M.D., is a medical doctor licensed to practice
23 in the State of California and is a resident of Hillsborough, County of San Mateo. Further,
24 plaintiff allege that Defendant, LIONEL FOSTER, JR., M.D. has a business relationship with
25 Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH
26 CORPORATION, ROBERT J. WENTZ and DOES 1 through 25 inclusive. Plaintiff are
27 informed and believe and thereon allege that at all times mentioned herein Defendant LIONEL
28 FOSTER, JR., M.D. was either a principal, independent contractor, agent, and/or a physician
COMPLAtNT
employee of Defendant OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL,
OROHEALTH CORPORATION, ROBERT J. WENTZ and/or DOES 26 through 50.
6. That Defendants, LIONEL FOSTER, JR., M.D. and DOES I through 25, and each
of them, at all times mentioned herein, held themselves out as physicians and surgeons, nurses
medical groups, acute care hospitals and/or other health care providers, and that they further held
themselves out as possessing that degree of medical, nursing and other health care provider
education, skill, knowledge and experience as other health care providers practicing in the
community.
7. From on or about February 5, 2020 and continuing through on or about March 12,
10 2020, and continuing thereafter, Defendants, and each of them, negligently cared for, diagnosed,
and treated Plaintiff, DAVID EICHOR, and failed to exercise the standard of care and skill
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ordinarily and reasonably required of physicians, surgeons, hospitals, nurses, etc. by, without
limitation, negligently failing to timely diagnose and medically and surgically treat his medical
condition of prostate cancer, thereby proximately causing substantial personal injuries, including
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but not limited to progression of prostate cancer, incomplete prostatectomy, bladder and urinary
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tract injuries, and urinary tract infections as well as other damages as alleged herein.
16
8. The specific acts of negligence of the Defendants, and each of them, include but
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are not limited to the following:
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19 a) Prior to and on or about February 5, 2020, and continuing thereafter, Dr. LIONEL
FOSTER negligently failed to inform plaintiff DAVID EICHOR of the multiple
20 surgical and treatment options available to him for the treatment of his prostate
cancer other than the radical open prostatectomy that he recommended to DAVID
21
EICHOR;
22
b) Prior to and on or about February 5, 2020, and continuing thereafter, Dr. LIONEL
23 FOSTER negligently failed to inform plaintiff DAVID EICHOR that he
personally did not perform DaVinci robotic-assisted prostatectomies because of his
24 lack of experience performing such procedures and his high complication rate with
25 respect to the performance of such procedures in the past;
26 c) Prior to and on or about February 5, 2020, and continuing thereafter, Dr. LIONEL
FOSTER negligently failed to recommend to plaintiff DAVID EICHOR that he
27 seek and obtain a second medical opinion from other, more qualified and more
experienced, physicians and surgeons to recommend the best surgical and
28 treatment option available to him for his prostate cancer;
COMPLAINT
d) Prior to and on or about February 5, 2020, and continuing thereafter, Dr. LIONEL
FOSTER negligently failed to fully inform and advise plaintiff DAVID EICHOR
of his personal high complication rate with respect to the recommended open
radical prostatectomy and he failed to obtain plaintiff's informed consent to
perform such procedure upon him;
e) Beginning on or about February 5, 2020, and continuing thereafter, Dr. LIONEL
FOSTER negligently performed multiple medical examinations and negligently
performed multiple urologic surgical procedures upon DAVID EICHOR including
but not limited to an open radical prostatectomy on February 5, 2020, and other
procedures at Oroville Hospital;
f) Negligent performance of an open radical prostatectomy on February 5, 2020;
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g) Negligent suturing of the proximal prostatic urethra to the distal urethra, involving
the bladder neck, with incomplete posterior anastomosis, resulting in development
of a severe and chronic urethral stricture;
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h) Negligent failure to personally, examine and'treat DAVID EICHOR for his many
13 post operative complications, including but not limited to his many infections,
recurrent ureteral strictures, incontinence, distended bladder, renal failure and
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erectile dysfunction;
15
Negligent, continuing, and repeat failure, from on or about February 5, 2020 and
16 continuing thereafter, to refer plaintiff DAVID EICHOR to other, more qualified
and more experienced, urologic surgeons to examine and evaluate the plaintiff and
17 to undertake a permanent surgical repair or reconstruction of his urethra; and
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j) Negligent misrepresentation on multiple occasions to Plaintiff DAVID EICHOR
19 that there were no reasonable alternative reconstructive surgical procedures
available &om other urologic surgeons that would offer potentially permanent
20 resolution of his injuries.
21 9. As a proximate result of the medical negligence of the Defendants, and each of
22 them, Plaintiff DAVID EICHOR has suffered great physical injuries and pain and suffering, as
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well as that nature, type and degree of emotional injury and upset that is foreseeable &om these
specific physical injuries, all to his general damage in an amount in excess of the minimum
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jurisdictional limits of the Court, and he is entitled to prejudgment interest on the amount when
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determined from the date of Plaintiff s Code of Civil Procedure tj998 Offer to Compromise.
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10. That as a further proximate result of the said negligence of the Defendants, and
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each of them, Plaintiff was required to and did employ, physicians, surgeons, nurses and
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COMPLAINT
caretakers to examine, treat and care for him. The exact amount of such expense is unknown to
Plaintiff at this time, and Plaintiff will ask leave to amend his pleading to set forth the exact
amount thereof when the same is ascertained by him, and any and all prejudgment interest from
4 the date of said injuries.
11. That as a further proximate result of the said negligence of the Defendants, and
each of them, Plaintiff will in the future require medical, surgical, nursing and attendant care and
will require physicians, surgeons and attendants to examine, treat and care for him. The exact
amount of such expense is unknown to Plaintiff at this time, and Plaintiff will ask leave to amend
his pleading to set forth the exact amount thereof when the same is ascertained by him, and any
10 and all prejudgment interest from the date of said injuries.
12. Plaintiff served a written CCP tj364 Notice of this claim of which he is currently
knowledgeable, or has reason to suspect or believe, on or about January 28, 2021, a copy of
12
which is attached hereto.
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II.
14
SECOND CAUSE OF ACTION
15
Elam v. College Park Hospital, 132 Ca/.App. 3d 332
16 (As to Defendants OROVILLE HOSPITAL UROLOGY,
OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J. WENTZ aild
17 DOES 11-50, inclusive)
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13. Plaintiff re-alleges and reaffirms each and every paragraph and allegation above
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as if fully rewritten herein.
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14. Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL,
21
OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES 26-50, including hospital
22
administrators, hospital directors and members of the hospital board of directors inclusive, at all
23 times mentioned herein, owed a legal duty to its patients to exercise reasonable care in selecting,
24 hiring, training, reviewing, supervising, and periodically evaluating the competency of its
25 employee physicians, staff physicians and surgeons, and other health care providers it permits to
26 treat patients and to perform surgical procedures within its facilities, and to develop and enforce
27 hospital policies to monitor its physicians and health care providers and to track their
28 performance, mistakes, avoidable injuries, surgical complications and deaths.
COMPLAINT
15. Defendant LIONEL FOSTER, JR., M.D. and DOES 1-25, at all times mentioned
herein, were members of the medical staff of defendant hospital or employees of the medical
group and were negligently and continuously granted full staff privileges and full surgical
privileges by Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL,
OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES 26 - 50.
16. At all times mentioned herein, Defendants OROVILLE HOSPITAL UROLOGY,
OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES
26- 50, knew or should have known that by allowing Defendants FOSTER and DOES 1-25, to
treat patients and to perform surgical procedures within its facilities, including but not limited to
10 OROVILLE HOSPITAL, that it would place those patients at risk of injury.
17. At all times mentioned herein, Defendants OROVILLE HOSPITAL UROLOGY,
OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J.WENTZ slid DOES 26
12
-50, and their owners, President, CEO, CFO, officers, agents, administrators, members of the
13
hospital board of directors and employees were negligent in the following aspects and events:
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a. Negligent failure to perform the essential background investigation
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regarding Defendants FOSTER and DOES 1-25, necessary to ensure that they possess
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appropriate medical and surgical skills;
17
b. Negligent failure to carefully monitor medical and surgical activities and
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procedures of each of these Defendants;
19
c. Negligent failure to ensure the competency of its staff physicians,
20
surgeons, employees, nurses, operating room personnel and other medical providers and
21
staff through careful selection and diligent peer and administrative review;
22 d. Negligent failure to monitor the extraordinarily high rate of surgical
23 complications and hospital readmissions experienced by surgical patients of Defendants
24 FOSTER and DOES 1 — 25;
25 e. Negligent failure to promptly investigate multiple reports and oral and
26 written complaints by patients and family members of patients regarding unnecessary
27 and negligently performed surgeries and unnecessary hospital readmissions for treatment
28 of complications;
COMPLAINT
f. Negligent failure to monitor civil court filings for evidence of medical
negligence actions filed and litigated against Defendants FOSTER and DOES 1-25 so as
to keep informed of all active medical negligence litigation against such defendants and
so as to perform necessary investigations as to the factual circumstances of such suits;
g. Negligent failure to promptly and thoroughly investigate multiple reports
and complaints by other staff physicians, surgeons, anesthesiologists, nurses and other
health care providers regarding unnecessary and negligently performed surgeries,
negligent post-operative care and negligent and premature hospital discharge and
frequent readmissions to treat surgical complications by Defendants FOSTER and
10 DOES 1- 25;
h. Negligent failure to survey other staff physicians, surgeons,
anesthesiologists, nurses and other health care providers regarding unnecessary and
12
negligently performed surgeries, negligent post-operative care and negligent and
13
premature hospital discharge by Defendants FOSTER and DOES 1-25;
14
i. Negligent failure to suspend, revoke or otherwise limit the admitting and
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surgical privileges of Defendants FOSTER and DOES 1-25, at the time by which
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substantial evidence existed of the inadequate medical and surgical skills and repeated
17
acts of medical negligence of Defendants FOSTER and DOES 1-25.
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j. Negligent failure to protect the health, physical well-being and lives of
19
patients by negligently failing to exercise its statutory and contractual authority to
20
suspend, revoke or otherwise limit the medical staff privileges of Defendants FOSTER
21 and DOES 1-25;
22 k. Negligent failure to monitor medical negligence claims or case filings
23 against their staff physicians to ascertain the number and facts regarding medical
24 malpractice claims or suits filed against its staff physicians, and further failed to
25 ascertain the outcome of such suits and claims;
26 1. Negligent failure to require its staff physicians to report complaints,
27 claims, suits, actions and the outcome of such actions so that defendants could undertake
28 their own investigations as to the competence of its staff physicians on an ongoing basis;
COMPLAINT
m. Negligent failure to investigate events and medical errors and mishaps
involving Defendants FOSTER and DOES 1-25, about which they knew or should have
known through the exercise of due diligence in the monitoring of its staff physicians;
and
n. Negligently basing their decision to permit defendant FOSTER to remain
on the medical staff and to continue to admit patients and to perform surgical procedures
upon financial concerns and the financial benefits, returns and payments to OROVILLE
HOSPITAL from CMS, DHS, Medicare and Medi-Cal for patients admitted by
defendant FOSTER rather than any concern for the health, safety, lives and physical
10 well-being of its patients.
18. At all times mentioned herein, Defendants OROVILLE HOSPITAL UROLOGY,
OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES 26
12
- 50, negligently failed to review and screen the competency of their employee physicians, staff
physicians and surgeons and/or medical staff to ensure the adequacy of the medical care
14
rendered to their patients, which negligent failure to carefully select their employee physicians,
15
staff physicians and surgeons, and to review their medical and surgical competence, created an
16
unreasonable risk of harm to their patients, specifically, Plaintiff DAVID EICHOR.
17
19. Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL,
18
OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES 26- 50, breached their duty
19
of care to Plaintiff by negligently selecting, hiring, and reviewing the competency of their
20
employee physicians, staff physicians and surgeons, including Defendants FOSTER and DOES
21 1-25.
22 20. As a proximate result of the negligent conduct of Defendants OROVILLE
23 HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH CORPORATION,
24 ROBERT J.WENTZ and DOES 26-50, as detailed and described above, which failed to
25 conform to the standards and procedure of the owners, operators, CEOs, CFOs, hospital
26 administrators, members of the hospital board of directors and medical staff directors of acute
27 care hospitals in this community and the State of California, and each of them, Plaintiff DAVID
28 EICHOR suffered the injuries, damages and losses described above.
COMPLA JNT
21. The negligent and wrongful conduct of Defendants OROVILLE HOSPITAL
UROLOGY, OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J. WENTZ
and DOES 26 —
50, as detailed above, proximately caused the unnecessary injuries, losses and
damages suffered by Plaintiff, as well as their great mental, physical, and nervous pain and
suffering described above, all to their general and special damages in an amount in excess of the
minimum jurisdictional limits of the Court and that they are entitled to prejudgment interest on
the amount when determined, from the date of Plaintiff Code of Civil Procedure tj998 Offer to
Compromise.
10 THIRD CAUSE OF ACTION:
(Violation of Evidence Code Section 1158)
22. Before on or about February 5, 2021, and on multiple occasions thereafter,
12
Plaintiff, individually and by and through his attorneys demanded a complete set of DAVID
EICHOR'S medical and surgical records and procedure reports from Defendants, and each of
14
them. The necessary HIPAA authorization was also provided to Defendants. Such written
15
demand and the signed authorization form were attached to such written demands. As of this
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date, March 24, 2021, neither Plaintiff nor his attorneys have received Plaintiffs medical
17
records in violation of California Evidence Code Section 1158, including but not limited to, the
18
defendant's written operative report of February 2, 2020. There may still be additional facts
19
and additional causes of action about which Plaintiffs remain ignorant even as of this date, and
20
for which Plaintiffs reserve the right to amend this complaint in the future.
21
23. Defendants, and each of them have wrongfully failed and refused to provide
22 Plaintiff DAVID EICHOR with a complete copy of his medical records and charts in violation
23 of California Evidence section 1158, notwithstanding the multiple formal written requests.
24 WHEREFORE, Plaintiffs pray for judgment against the Defendants, and each of them,
25 for:
26 a. General damages for personal injuries in a sum in excess of the minimum
27 jurisdictional limits of the Court;
28 b. All special damages for past and future medical and nursing expenses;
COMPLAINT
c. All special damages for past and future income loss;
d. The costs and attorney's fees incurred in filing this action and in all
attempts to obtain a complete and accurate copy of Plaintiffs medical records and
electronic health records pursuant to Evidence Code tj1158;
e. All prejudgment interest on general and special damages from the date of
Plaintiffs'ode of Civil Procedure tj998 Offer to Compromise;
f. All costs of suit; and
g. Such other and further relief as this Court may deem just and proper.
9
Dated: March 24, 2021 SMITH ZITANO LAW FIRM, LLP
10
12
DAVID E. SMITH
13 ELISA R. ZITANO
14
Attorneys for Plaintiffs
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COMPLAINT
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1 David E. Smith (SBN 72703) Elisa R. Zitano (SBN 91819) 2 SMITH ZITANO LAW FIRM, LLP 641 Fulton Avenue, Suite 200 Sacramento, CA 95825 3/24/2021 Telephone: (916) 333-5933 Facsimile: (916) 333-5338 Attorneys for Plaintiff 6 DAVID EICHOR SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF BUTTE DAVID EICHOR CASE NO. 21CV00711 11 Plaintiff, COMPLAINT 12 V. 13 1. Medical Malpractice LIONEL FOSTER, JR., M.D., 2. Elam v. College Park Hospital 14 3, Violation of Evidence Code 1158 OROVILLE HOSPITAL UROLOGY, 15 OROVILLE HOSPITAL, OROHEALTH 16 CORPORATION, ROBERT J.WENTZ, and DOES I through 50, inclusive, 17 Defendants. 18 19 20 PLAINTIFF DAVID EICHOR complains of Defendants, and each of them, and as and for a First Cause of Action allege as follows: 22 23 FIRST CAUSE OF ACTION (Medical Negligence against all Defendants) 24 1. The true names and capacities, whether individual, corporate, associate or 25 otherwise, of the Defendants, DOES I through 50, inclusive, are unknown to Plaintiff, who 26 therefore sue such Defendants by such fictitious names, and Plaintiff will amend this complaint to 27 show their true names and capacities when the same have been ascertained. Plaintiff is informed 28 COMPLA jNT and believe and thereon allege that each of the Defendants, DOES I through 50, inclusive, is responsible under law in some manner, negligently, in warranty, strictly, or otherwise, for the events and happenings herein referred to and proximately thereby caused injuries and damages to Plaintiff as herein alleged. 2. Plaintiff is now, and at all times herein mentioned was, a citizen of and resident within the State of California, and the Defendants, and each of them, are now, and at all times herein mentioned were citizens of and residents within the State of California and the amount in controversy exceeds the minimum jurisdictional limits of the Court. 3. Plaintiff is informed and believes and thereon alleges that, at all times herein 10 mentioned, each of the Defendants was the agent, employee, principal or employer of each of the remaining Defendants and was at all times acting within the course and scope of said relationships, and each Defendant has authorized, ratified and approved the acts of each of the remaining Defendants. 4. That Defendants, OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, 14 OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES I through 50 are now, and at 15 all times herein mentioned were, individuals or California business entities, corporations, 16 associations, partnerships or other type of business entities, and Plaintiff will ask leave to insert 17 the correct designation when same has been ascertained. Defendants, and each of them, are 18 licensed health care providers, either hospitals, physicians, nurses or otherwise, or hospital 19 administrators, or hospital owners, directors or hospital board of directors members and at all 20 times mentioned herein, were and are, licensed to provide or supervise health care services 21 within the State of California. 22 5. Defendant, LIONEL FOSTER, JR., M.D., is a medical doctor licensed to practice 23 in the State of California and is a resident of Hillsborough, County of San Mateo. Further, 24 plaintiff allege that Defendant, LIONEL FOSTER, JR., M.D. has a business relationship with 25 Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH 26 CORPORATION, ROBERT J. WENTZ and DOES 1 through 25 inclusive. Plaintiff are 27 informed and believe and thereon allege that at all times mentioned herein Defendant LIONEL 28 FOSTER, JR., M.D. was either a principal, independent contractor, agent, and/or a physician COMPLAtNT employee of Defendant OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J. WENTZ and/or DOES 26 through 50. 6. That Defendants, LIONEL FOSTER, JR., M.D. and DOES I through 25, and each of them, at all times mentioned herein, held themselves out as physicians and surgeons, nurses medical groups, acute care hospitals and/or other health care providers, and that they further held themselves out as possessing that degree of medical, nursing and other health care provider education, skill, knowledge and experience as other health care providers practicing in the community. 7. From on or about February 5, 2020 and continuing through on or about March 12, 10 2020, and continuing thereafter, Defendants, and each of them, negligently cared for, diagnosed, and treated Plaintiff, DAVID EICHOR, and failed to exercise the standard of care and skill 12 ordinarily and reasonably required of physicians, surgeons, hospitals, nurses, etc. by, without limitation, negligently failing to timely diagnose and medically and surgically treat his medical condition of prostate cancer, thereby proximately causing substantial personal injuries, including 14 but not limited to progression of prostate cancer, incomplete prostatectomy, bladder and urinary 15 tract injuries, and urinary tract infections as well as other damages as alleged herein. 16 8. The specific acts of negligence of the Defendants, and each of them, include but 17 are not limited to the following: 18 19 a) Prior to and on or about February 5, 2020, and continuing thereafter, Dr. LIONEL FOSTER negligently failed to inform plaintiff DAVID EICHOR of the multiple 20 surgical and treatment options available to him for the treatment of his prostate cancer other than the radical open prostatectomy that he recommended to DAVID 21 EICHOR; 22 b) Prior to and on or about February 5, 2020, and continuing thereafter, Dr. LIONEL 23 FOSTER negligently failed to inform plaintiff DAVID EICHOR that he personally did not perform DaVinci robotic-assisted prostatectomies because of his 24 lack of experience performing such procedures and his high complication rate with 25 respect to the performance of such procedures in the past; 26 c) Prior to and on or about February 5, 2020, and continuing thereafter, Dr. LIONEL FOSTER negligently failed to recommend to plaintiff DAVID EICHOR that he 27 seek and obtain a second medical opinion from other, more qualified and more experienced, physicians and surgeons to recommend the best surgical and 28 treatment option available to him for his prostate cancer; COMPLAINT d) Prior to and on or about February 5, 2020, and continuing thereafter, Dr. LIONEL FOSTER negligently failed to fully inform and advise plaintiff DAVID EICHOR of his personal high complication rate with respect to the recommended open radical prostatectomy and he failed to obtain plaintiff's informed consent to perform such procedure upon him; e) Beginning on or about February 5, 2020, and continuing thereafter, Dr. LIONEL FOSTER negligently performed multiple medical examinations and negligently performed multiple urologic surgical procedures upon DAVID EICHOR including but not limited to an open radical prostatectomy on February 5, 2020, and other procedures at Oroville Hospital; f) Negligent performance of an open radical prostatectomy on February 5, 2020; 10 g) Negligent suturing of the proximal prostatic urethra to the distal urethra, involving the bladder neck, with incomplete posterior anastomosis, resulting in development of a severe and chronic urethral stricture; 12 h) Negligent failure to personally, examine and'treat DAVID EICHOR for his many 13 post operative complications, including but not limited to his many infections, recurrent ureteral strictures, incontinence, distended bladder, renal failure and 14 erectile dysfunction; 15 Negligent, continuing, and repeat failure, from on or about February 5, 2020 and 16 continuing thereafter, to refer plaintiff DAVID EICHOR to other, more qualified and more experienced, urologic surgeons to examine and evaluate the plaintiff and 17 to undertake a permanent surgical repair or reconstruction of his urethra; and 18 j) Negligent misrepresentation on multiple occasions to Plaintiff DAVID EICHOR 19 that there were no reasonable alternative reconstructive surgical procedures available &om other urologic surgeons that would offer potentially permanent 20 resolution of his injuries. 21 9. As a proximate result of the medical negligence of the Defendants, and each of 22 them, Plaintiff DAVID EICHOR has suffered great physical injuries and pain and suffering, as 23 well as that nature, type and degree of emotional injury and upset that is foreseeable &om these specific physical injuries, all to his general damage in an amount in excess of the minimum 24 jurisdictional limits of the Court, and he is entitled to prejudgment interest on the amount when 25 determined from the date of Plaintiff s Code of Civil Procedure tj998 Offer to Compromise. 26 10. That as a further proximate result of the said negligence of the Defendants, and 27 each of them, Plaintiff was required to and did employ, physicians, surgeons, nurses and 28 COMPLAINT caretakers to examine, treat and care for him. The exact amount of such expense is unknown to Plaintiff at this time, and Plaintiff will ask leave to amend his pleading to set forth the exact amount thereof when the same is ascertained by him, and any and all prejudgment interest from 4 the date of said injuries. 11. That as a further proximate result of the said negligence of the Defendants, and each of them, Plaintiff will in the future require medical, surgical, nursing and attendant care and will require physicians, surgeons and attendants to examine, treat and care for him. The exact amount of such expense is unknown to Plaintiff at this time, and Plaintiff will ask leave to amend his pleading to set forth the exact amount thereof when the same is ascertained by him, and any 10 and all prejudgment interest from the date of said injuries. 12. Plaintiff served a written CCP tj364 Notice of this claim of which he is currently knowledgeable, or has reason to suspect or believe, on or about January 28, 2021, a copy of 12 which is attached hereto. 13 II. 14 SECOND CAUSE OF ACTION 15 Elam v. College Park Hospital, 132 Ca/.App. 3d 332 16 (As to Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J. WENTZ aild 17 DOES 11-50, inclusive) 18 13. Plaintiff re-alleges and reaffirms each and every paragraph and allegation above 19 as if fully rewritten herein. 20 14. Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, 21 OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES 26-50, including hospital 22 administrators, hospital directors and members of the hospital board of directors inclusive, at all 23 times mentioned herein, owed a legal duty to its patients to exercise reasonable care in selecting, 24 hiring, training, reviewing, supervising, and periodically evaluating the competency of its 25 employee physicians, staff physicians and surgeons, and other health care providers it permits to 26 treat patients and to perform surgical procedures within its facilities, and to develop and enforce 27 hospital policies to monitor its physicians and health care providers and to track their 28 performance, mistakes, avoidable injuries, surgical complications and deaths. COMPLAINT 15. Defendant LIONEL FOSTER, JR., M.D. and DOES 1-25, at all times mentioned herein, were members of the medical staff of defendant hospital or employees of the medical group and were negligently and continuously granted full staff privileges and full surgical privileges by Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES 26 - 50. 16. At all times mentioned herein, Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES 26- 50, knew or should have known that by allowing Defendants FOSTER and DOES 1-25, to treat patients and to perform surgical procedures within its facilities, including but not limited to 10 OROVILLE HOSPITAL, that it would place those patients at risk of injury. 17. At all times mentioned herein, Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J.WENTZ slid DOES 26 12 -50, and their owners, President, CEO, CFO, officers, agents, administrators, members of the 13 hospital board of directors and employees were negligent in the following aspects and events: 14 a. Negligent failure to perform the essential background investigation 15 regarding Defendants FOSTER and DOES 1-25, necessary to ensure that they possess 16 appropriate medical and surgical skills; 17 b. Negligent failure to carefully monitor medical and surgical activities and 18 procedures of each of these Defendants; 19 c. Negligent failure to ensure the competency of its staff physicians, 20 surgeons, employees, nurses, operating room personnel and other medical providers and 21 staff through careful selection and diligent peer and administrative review; 22 d. Negligent failure to monitor the extraordinarily high rate of surgical 23 complications and hospital readmissions experienced by surgical patients of Defendants 24 FOSTER and DOES 1 — 25; 25 e. Negligent failure to promptly investigate multiple reports and oral and 26 written complaints by patients and family members of patients regarding unnecessary 27 and negligently performed surgeries and unnecessary hospital readmissions for treatment 28 of complications; COMPLAINT f. Negligent failure to monitor civil court filings for evidence of medical negligence actions filed and litigated against Defendants FOSTER and DOES 1-25 so as to keep informed of all active medical negligence litigation against such defendants and so as to perform necessary investigations as to the factual circumstances of such suits; g. Negligent failure to promptly and thoroughly investigate multiple reports and complaints by other staff physicians, surgeons, anesthesiologists, nurses and other health care providers regarding unnecessary and negligently performed surgeries, negligent post-operative care and negligent and premature hospital discharge and frequent readmissions to treat surgical complications by Defendants FOSTER and 10 DOES 1- 25; h. Negligent failure to survey other staff physicians, surgeons, anesthesiologists, nurses and other health care providers regarding unnecessary and 12 negligently performed surgeries, negligent post-operative care and negligent and 13 premature hospital discharge by Defendants FOSTER and DOES 1-25; 14 i. Negligent failure to suspend, revoke or otherwise limit the admitting and 15 surgical privileges of Defendants FOSTER and DOES 1-25, at the time by which 16 substantial evidence existed of the inadequate medical and surgical skills and repeated 17 acts of medical negligence of Defendants FOSTER and DOES 1-25. 18 j. Negligent failure to protect the health, physical well-being and lives of 19 patients by negligently failing to exercise its statutory and contractual authority to 20 suspend, revoke or otherwise limit the medical staff privileges of Defendants FOSTER 21 and DOES 1-25; 22 k. Negligent failure to monitor medical negligence claims or case filings 23 against their staff physicians to ascertain the number and facts regarding medical 24 malpractice claims or suits filed against its staff physicians, and further failed to 25 ascertain the outcome of such suits and claims; 26 1. Negligent failure to require its staff physicians to report complaints, 27 claims, suits, actions and the outcome of such actions so that defendants could undertake 28 their own investigations as to the competence of its staff physicians on an ongoing basis; COMPLAINT m. Negligent failure to investigate events and medical errors and mishaps involving Defendants FOSTER and DOES 1-25, about which they knew or should have known through the exercise of due diligence in the monitoring of its staff physicians; and n. Negligently basing their decision to permit defendant FOSTER to remain on the medical staff and to continue to admit patients and to perform surgical procedures upon financial concerns and the financial benefits, returns and payments to OROVILLE HOSPITAL from CMS, DHS, Medicare and Medi-Cal for patients admitted by defendant FOSTER rather than any concern for the health, safety, lives and physical 10 well-being of its patients. 18. At all times mentioned herein, Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES 26 12 - 50, negligently failed to review and screen the competency of their employee physicians, staff physicians and surgeons and/or medical staff to ensure the adequacy of the medical care 14 rendered to their patients, which negligent failure to carefully select their employee physicians, 15 staff physicians and surgeons, and to review their medical and surgical competence, created an 16 unreasonable risk of harm to their patients, specifically, Plaintiff DAVID EICHOR. 17 19. Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, 18 OROHEALTH CORPORATION, ROBERT J.WENTZ and DOES 26- 50, breached their duty 19 of care to Plaintiff by negligently selecting, hiring, and reviewing the competency of their 20 employee physicians, staff physicians and surgeons, including Defendants FOSTER and DOES 21 1-25. 22 20. As a proximate result of the negligent conduct of Defendants OROVILLE 23 HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH CORPORATION, 24 ROBERT J.WENTZ and DOES 26-50, as detailed and described above, which failed to 25 conform to the standards and procedure of the owners, operators, CEOs, CFOs, hospital 26 administrators, members of the hospital board of directors and medical staff directors of acute 27 care hospitals in this community and the State of California, and each of them, Plaintiff DAVID 28 EICHOR suffered the injuries, damages and losses described above. COMPLA JNT 21. The negligent and wrongful conduct of Defendants OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J. WENTZ and DOES 26 — 50, as detailed above, proximately caused the unnecessary injuries, losses and damages suffered by Plaintiff, as well as their great mental, physical, and nervous pain and suffering described above, all to their general and special damages in an amount in excess of the minimum jurisdictional limits of the Court and that they are entitled to prejudgment interest on the amount when determined, from the date of Plaintiff Code of Civil Procedure tj998 Offer to Compromise. 10 THIRD CAUSE OF ACTION: (Violation of Evidence Code Section 1158) 22. Before on or about February 5, 2021, and on multiple occasions thereafter, 12 Plaintiff, individually and by and through his attorneys demanded a complete set of DAVID EICHOR'S medical and surgical records and procedure reports from Defendants, and each of 14 them. The necessary HIPAA authorization was also provided to Defendants. Such written 15 demand and the signed authorization form were attached to such written demands. As of this 16 date, March 24, 2021, neither Plaintiff nor his attorneys have received Plaintiffs medical 17 records in violation of California Evidence Code Section 1158, including but not limited to, the 18 defendant's written operative report of February 2, 2020. There may still be additional facts 19 and additional causes of action about which Plaintiffs remain ignorant even as of this date, and 20 for which Plaintiffs reserve the right to amend this complaint in the future. 21 23. Defendants, and each of them have wrongfully failed and refused to provide 22 Plaintiff DAVID EICHOR with a complete copy of his medical records and charts in violation 23 of California Evidence section 1158, notwithstanding the multiple formal written requests. 24 WHEREFORE, Plaintiffs pray for judgment against the Defendants, and each of them, 25 for: 26 a. General damages for personal injuries in a sum in excess of the minimum 27 jurisdictional limits of the Court; 28 b. All special damages for past and future medical and nursing expenses; COMPLAINT c. All special damages for past and future income loss; d. The costs and attorney's fees incurred in filing this action and in all attempts to obtain a complete and accurate copy of Plaintiffs medical records and electronic health records pursuant to Evidence Code tj1158; e. All prejudgment interest on general and special damages from the date of Plaintiffs'ode of Civil Procedure tj998 Offer to Compromise; f. All costs of suit; and g. Such other and further relief as this Court may deem just and proper. 9 Dated: March 24, 2021 SMITH ZITANO LAW FIRM, LLP 10 12 DAVID E. SMITH 13 ELISA R. ZITANO 14 Attorneys for Plaintiffs 15 16 17 18 19 20 21 22 23 24 25 26 27 COMPLAINT 10