1 Curtis M. King, SBN 187778 Jason D. Dumbeck, SBN 174950 2 DUMBECK & DUMBECK 3 4 5 (0 I 3355 Mission Ave., Suite 139 Oceanside, CA 92058 (760) 529-4958 (760) 637-2391 Fax 26" `1411 Ili pi/ . tsar popeoarp2:j • '4,, Attorneys for Plaintiff 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 SAN DEIGO COUNTY, NORTH COUNTY BRANCH 10 11 TRACY LYSTRA, 12 Plaintiff, 13 V . )Case No.: )37-2013-00051204-CU-MM-NC )Assign: Hon. Robert P. Dahlquist, )Dept. N-29 ) )IMAGED 14 15 16 17 18 19 ANTHONY S. BIANCHI, M.D.; ) BIANCHI OB/GYN ASSOCIATES, AMC, a) SECOND AMENDED COMPLAINT PER California corporation; ) COURT ORDER DOES 1 through 10, ) ) 1. Intentional Infliction of Defendants. ) Emotional Distress; ) 2. Violation of Civil Code S ) 51.9; ) ) 3. Negligence. ) [Jury Demanded] ) 20 Plaintiff, TRACY LYSTRA (also referred to as "patient"), 21 alleges as follows: 22 1. Plaintiff is informed and believes that ANTHONY S. 23 BIANCHI, M.D. ("defendant") is a California licensed physician 24 doing business in Fallbrook, California, as an OB/GYN. 25 1 Second Amended Complaint 2: Plaintiff is informed and believes that BIANCHI OB/GYN 1 2 ASSOCIATES, AMC, ("defendant") is a California corporation and at 3 all times mentioned herein negligently employed and supervised 4 ANTHONY S. BIANCHI, M.D., who served as the corporation's managing 5 agent, and which did and is doing business in Fallbrook, 6 California. 7 3. The true names and/or capacities of defendants DOES 1 8 through 10 ("defendant") are unknown to plaintiff, who therefore 9 sues said defendants by such fictitious names. Plaintiff is 10 informed and believes and thereon alleges that each of the 11 defendants fictitiously named herein as a DOE is tortuously 12 responsible for the events and happenings hereinafter referred to, 13 and thereby proximately caused the injuries and damages to 14 plaintiff as hereinafter alleged. Plaintiff will seek leave of 15 court to amend this Complaint to allege the true names and/or 16 capacities of said fictitiously named defendants when ascertained. 17 4. Plaintiff is informed and believes and thereon alleges 18 that at all times herein mentioned, defendants, and each of them, 19 were the agents, servants, employees and/or joint ventures of each 20 of their co-defendants, and each was, as such, acting within the 21 course/ scope and authority of said agency, employment and/or 22 venture, with the advance knowledge, acquiescence or subsequent 23 ratification of each co-defendant. 24 /// 25 /// 2 Second Amended Complaint INTRODUCTION 1 2 5. Plaintiff was experiencing pain in her abdomen and 3 excessive vaginal bleeding. These symptoms were making it 4 difficult for the plaintiff to work. An ultrasound scan indicated 5 a cyst on the patient's left ovary, and a possible fibroid mass in 6 her uterus. The plaintiff's family physician recommended that 7 plaintiff see an OB/GYN. Plaintiff met with defendant. 8 9 6. The defendant told his patient she had a "golf ball size tumor" on her uterus that could be treated with medication but - 10 there was a strong probability it would grow back. The defendant 11 told his patient that he would take the tumor out to make sure it 12 was benign and not cancerous. The defendant told his patient that 13 the cyst on her ovary could burst at any time. The defendant told 14 his patient that due to the excessive bleeding, tumor, cysts, and 15 pain, he recommended a full hysterectomy. The plaintiff was 16 worried about having a full hysterectomy. She asked for time to 17 think it over. 18 19 20 7. Later plaintiff called defendant's office to report that the pain in her abdomen had increased. 8. The defendant had a second office visit with the 21 plaintiff. The plaintiff said she would prefer to avoid a 22 hysterectomy if possible because she did not want to take hormones 23 for the rest of her life. The defendant said he would recommend a 24 hysteroscopy/laparoscopy and balloon ablation that would burn the 25 uterine lining. The defendant said that the procedure should be 3 Second Amended Complaint 1 performed only if the patient was done having children because she 2 would not be able to have children following the procedure. 3 9. On June 19, 2012, the defendant performed the 4 hysteroscopy/laparoscopy and balloon ablation procedure on the 5 plaintiff. 6 10. After the surgery a nurse told the patient she was 7 bleeding internally due to a rupturing of the cyst. The nurse 8 told the patient it was a good thing the procedure was done when 9 it was. 10 11. Six months later, the patient became pregnant. The 11 plaintiff was surprised because the defendant had told her she 12 could not have children after the balloon ablation and did not 13 instruct her to continue with other birth control methods. 14 12. The patient made arrangements to see another OB/GYN. The 15 new doctor indicated that it was standard for a patient to stay on 16 birth control following a balloon ablation because there was still 17 a chance of getting pregnant, and if one became pregnant, it was 18 unlikely the pregnancy would develop normally. 19 13. The new doctor warned that the patient's pregnancy was 20 likely to quickly fail on its own. The plaintiff was unwilling to 21 have an abortion. 22 14. The pregnancy did not fail quickly. The fetus developed 23 a heartbeat and continued to mature. Although the patient was 24 conflicted about the possibility of having a fourth child, and 25 4 Second Amended Complaint 1 concerned about potential developmental problems, she began hoping 2 for her baby to survive. 15. Ultimately, the fetus died. The plaintiff's new doctor 3 4 removed the body of the fetus from the plaintiff's uterus. 16. Before the events in this case took place, the 5 6 corporation BIANCHI OB/GYN ASSOCIATES was on notice that ANTHONY 7 S. BIANCHI, M.D. had a pattern and practice of making sexual 8 advances, solicitations, and sexual requests to his female 9 patients. (See Case No. 09-2009-200868 before the Medical Board 10 of California Department of Consumer Affairs State of California.) 11 BIANCHI OB/GYN ASSOCIATES, AMC, did not warn the plaintiff about 12 ANTHONY S. BIANCHI, M.D., did not take all reasonable steps to 13 protect her from this type of misconduct, and did not supervise 14 him. 15 17. During the course of defendant's treatment of the 16 plaintiff he made unwelcome sexual comments, advances, 17 solicitations, and requests to her including, but not limited to: 18 a. Telling the plaintiff: You've heard the term MILE' right? 19 Well trust me, you're a MILE'. (MILF is an acronym for 20 Mother I Would Like to Fuck). 21 22 23 24 b. Calling plaintiff hottie, gorgeous, and saying she could be a model. c. Rubbing the plaintiff's ring finger and saying oh that's so sad, you don't wear a ring. 25 5 Second Amended Complaint 1 d. Commenting on what good shape the plaintiff was in; saying 2 she has 0% body fat and that he couldn't believe she had 3 three children. 4 e. Telling the plaintiff: I just have to let you know I 5 haven't been able to stop thinking about you, I can't get 6 you out of my mind. 7 8 9 10 11 f. Telling the plaintiff: that he was fixed so she would not need to worry about him getting her pregnant. g. Telling the plaintiff: to wear baggy clothes and no make-up to the next visit. h. Calling plaintiff at home and asking her if she offered 12 private martial arts lessons but then saying it would be a 13 waste of time because he would not be able to concentrate 14 on anything other than the plaintiff. 15 16 17 18 19 20 21 i. As his patient lay waiting to undergo surgery he whispered to her that she looked like a sexy librarian. j. As the defendant was examining the plaintiff's body saying: whew, is it getting hot in here? k. Telling plaintiff: if you need anything ... a back rub, foot massage, you call me. 18. Defendant's misconduct violated B&P S 726. This 22 violation was a substantial factor in bringing about harm to 23 plaintiff. 24 25 19. After becoming aware of the defendant's sexual harassment, the patient called her insurance company and asked if 6 Second Amended Complaint 1 she could see a different OB/GYN. The insurance company 2 representative said the defendant was considered her "second 3 opinion" and explained that the patient could not easily or 4 quickly see another OB/GYN. 5 20. The plaintiff was concerned that she would not be 6 believed if she reported the defendant's misconduct and did not 7 want td get into a "he said she said situation" with the 8 defendant. 9 21. The patient was afraid that delaying treatment, or 10 allowing the tumor and cyst to go untreated, was worse than having 11 the defendant promptly perform the necessary treatment. 12 13 14 FIRST CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (Against all defendants) 15 22. Plaintiff incorporates by reference the allegations 16 stated in each preceding paragraph. 17 23% Defendant intended to cause his patient emotional 18 distress. Defendant's conduct toward his patient was outrageous. 19 Defendant abused a position of authority. Defendant abused the 20 relationship with his patient that gave him real or apparent power 21 to affect her interests. Defendant knew that his patient was 22 particularly vulnerable to emotional distress. Defendant knew 23 that his conduct would likely result in harm due to mental 24 distress. 25 7 Second Amended Complaint 1 24. Defendant acted with reckless disregard of the 2 probability that his patient would suffer emotional distress as a 3 result of his conduct directed at her. Defendant knew that 4 emotional distress would probably result from his conduct. 5 Defendant gave little or no thought to the probable effects of his 6 conduct. 7 8 9 25. Defendant's conduct was a substantial factor in causing plaintiff to suffer severe emotional distress. 26. Defendants engaged in the wrongful conduct described 10 herein with malice, oppression, or fraud. Defendant, and/or 11 defendant's officer, director or managing agent had advance 12 knowledge of the unfitness of the person who engaged in the 13 wrongful conduct and employed him with a conscious disregard of 14 the rights or safety of others, or authorized, or ratified the 15 wrongful conduct, or was personally guilty of oppression, fraud, 16 or malice. 17 18 19 SECOND CAUSE OF ACTION VIOLATION OF CIVIL CODE S 51.9 (Against all defendants) 20 27. Plaintiff incorporates by reference the allegations 21 22 23 stated in each preceding paragraph. 28. . At all relevant times mentioned herein defendant and plaintiff were in a professional physician-patient relationship. 24 25 8 Second Amended Complaint 1 29. During this professional physician-patient relationship 2 defendant made sexual advances, solicitations, and sexual requests 3 to his patient. 4 30. During this professional physician-patient relationship 5 defendant engaged in verbal conduct of a sexual nature that was 6 unwelcome and severe. 7 31: During this professional physician-patient relationship 8 defendant engaged in verbal conduct of a sexual nature that was 9 unwelcome and pervasive 10 11 12 13 14 32. Plaintiff was unable to easily terminate the professional relationship with defendant. 33. As a result of the above-described conduct plaintiff suffered actual damages as defined by Civil Code 5 52(h). 34. Defendants engaged in the wrongful conduct described 15 herein with malice, oppression, or fraud. Defendant, and/or 16 defendant's officer, director or managing agent had advance 17 knowledge of the unfitness of the person who engaged in the 18 wrongful conduct and employed him with a conscious disregard of 19 the rights or safety of others, or authorized, or ratified the 20 wrongful conduct, or was personally guilty of oppression, fraud, 21 or malice. 22 23 24 25 9 Second Amended Complaint 1 THIRD CAUSE OF ACTION NEGLIGENCE (Against all defendants) 2 • 35. Plaintiff incorporates by reference the allegations 3 4 stated in each preceding paragraph. 5 36. Defendant was negligent. 6 37. Plaintiff was harmed. 7 38. Defendant's negligence was a substantial factor in 8 causing plaintiff's harm. 39. Defendants engaged in the wrongful conduct described 9 10 herein with malice, oppression, or fraud. Defendant, and/or 11 defendant's officer, director or managing agent had advance 12 knowledge of the unfitness of the person who engaged in the 13 wrongful conduct and employed him with a conscious disregard of 14 the rights or safety of others, or authorized, or ratified the 15 wrongful conduct, or was personally guilty of oppression, fraud, 16 or malice. 17 18 19 20 WHEREFORE, Plaintiff prays for judgment against defendants, 21 and each of them, as follows: 22 1. Actual, economic and non-economic damages; 23 2. Attorney fees and costs as authorized by law; 24 3. Prejudgment interest; 25 4. Punitive damages; 10 Second Amended Complaint 1 2 5. For such other and further relief as the Court deems just and proper. 3 4 DUMBECK & DUMBECK c-,t 5 6 Dated. ./477c17. By: Curtis M. iig Attorneys for Plaintiff 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 Second Amended Complaint San Diego Superior Court Case No. 37-2013-00051204-CU-MM-NC Tracy Lystra v. Anthony S. Bianchi, et. al. PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO I am employed in the County of San Diego, State of California. I am over the age of 18 and am not a party to the within action; my business address is 3355 Mission Ave., Suite 139, Oceanside, CA 92058. On January 14, 2014, I served the foregoing document(s) described as: 1. SECOND AMENDED COMPLAINT PER COURT ORDER on all interested parties in this action by placing ( ) the original (x) a true copy thereof enclosed in a sealed envelope addressed as stated on the attached SERVICE LIST. (X) (By U.S. Mail C.C.P. §§ 1013 (a)(b) I am readily familiar with my employer's business practice for collection and processing of correspondence for mailing with the United States Postal Service. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter is more than one day after date of deposit for mailing in affidavit. I deposited such envelope(s) with postage thereon fully prepaid to be placed in the United States Mail at Oceanside, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 14, 2014, at Oceanside, California. "LIS ")- Araceli Archuleta-Cazarez SERVICE LIST Michael T. Mertens, Esq. CARROLL, KELLY, TROTTER, FRANZEN, MCKENNA & PEABODY 225 Broadway, Suite 1575 San Diego, CA 92101 Attorneys for Defendants Tel: (619) 814.5900 Fax: (619) 814.5999