EUGENE G. IREDALE: SBN 75292 JULIA YOO: SBN 231163 GRACE JUN: SBN 287973 IREDALE YOO, APC 105 West Street, Fourth Floor San Diego, CA 92101-6036 TEL: (619) 233?1525 FAX: (619) 233-3221 LLP TIMOTHY G. BLOOD (149343) ALEKSANDR J. YARMOLINETS (276707) 501 West Broadway, Suite 1490 San Diego, CA 92101 Tel: 619/338-1100 (fax) tblood@bholaw.com ayarmolinets bholaw.com Attorneys for Plaintiff UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIF ORNIAA ROBERT LOPEZ, decedent, by and throu his successor-in-interest CYN HIA and LOPEZ, individually, and on behalf of general publlc, Plaintiffs, v. BRADLEY GLENN HAY, in his 1nd1v1dual MAYSENT, 1n her 1nd1v1dual - capaeit GERARD MAN ECKE, ., 1n 3 1nd1v1dual ca 3611?; THE REGENTS OF THE UNIV RSITY OF and DOES 1 through 100, Defendants. Case No. '20 CV0171 GPC MSB COMPLAINT JURY TRIAL DEMANDED Case Decumentl Filed 01/24/20 PagelD.2 PageZonl - Table of Contents I. JURISDICTION AND PARTIES .. 3 I .f 4. A. After Undergoing Surgery at UCSD Hospital No Doctor or Hospital Administrator Tells Robert Lopez that Anesthesiologist Brad Hay Stole Anesthetics Intended for Decedent?s Use During Surgery 4 B. Defendant Hay Loses His License After Admitting He Falsi?ed Medical Records Made False Representations,- and Practiced Medicine While Under the In?uence of Narcotics. 5 C. UCSD Hospital?s Lax Enforcement and Monitoring Allows Hay to Steal Fentanyl from the Hospital for Months Without Detection. 11 D. Defendants Had a Duty. to Disclose Hay?s Criminal Acts to All Anesthesia Patlents 11 FIRST CAUSE OF . 14 DENIAL OF ACCESS TO COURTS (42 U.S.C. 1983) IV. SECOND CAUSE OF ACTION . 17 CONSPIRACY TO COMMIT CIVIL RIGHTS VIOLATION. (42 U. ..C ;17 v. JURY 1 9 Case Documentl Filed 01/24/20 PagelD.3 Page3of 21 Plaintiffs Robert Lopez, decedent, by and through his suCcessor-in-interest 7 Lopez, individually and on behalf of the general public, by and through their counsel of record, upon personal knowledge as to facts pertaining to themselves and on information and belief as to all other matters, bring this action against defendants Bradley Glenn Hay, Patty Maysent, Gerard Manecke, Jr., and the Regents of the University of California, and respectfully allege and complain as follows: I NATURE OF THE CASE 1. This, consumer protection action arises out of systemic and intentional failure by principals and employees of UC San Diego Medical Center, a major - hospital system, to inform its patients of a years-long game of Russian roulette defendants played ?with each. patient treated by a drug-addict who stole their pain mediCation, administered life?threatening anesthesia to them while high on their pain medication, and the resultant overbilling of patients, private insurance companies ?and the Centers for Medicare and Medicaid Services for their medical treatment, without reimbursing patients or the third?party payers, in violation of state and federal law. 2. For years, defendant Hay, an anesthesiologist, checked out sedatives and pain medication in amounts in excess of those necessary to treat his patients, falsi?ed patientS? treatment records and manipulated his colleagues to conceal these excessive amounts, and often injected himself with these medications before putting the patients from whom he has stolen under anaesthesia 'for their surgeries. Defendant Maysent, and defendant Hay?s superVisors, knew of his drug addition, turned a blind eye, and knew or should have known that defendant Hay was stealing his patients? medications and administering anesthesia while under the in?uence of drugs. 7 3. During a depositionin November 2019, Hay testified under oath that between April 2016 and anuary 24, 2017, he habitually stole controlled substances Case Document 1 Filed 01/24/20 ?PagelD.4 'Page 4 of 21 form his patients at UCSD Medical Center; falsi?edtheir medical records; and practiced medicine while under the in?uence of controlled substances. He testified that he injected himself with controlled substances approximately 37? '5 times each day during this time period. Defendant Hay?s drug abuse culminated in a fentanyl overdose on the day he treated plaintiff. Despite his overdose, and the years of knowing of his drug' abuse, defendants failed to inform the patients defendant Hays treated of the fact that the doctor administering their anesthesia, where even a minor miscalculation in the dose could kill, was high on the same drug's he 'was administering to them. 5. Because defendants billed plaintiff Robert Lopez and Hay?s other patients for anesthetics and pain medications that were administered to them, as well as the amounts stolen by defendant Hay, patients and their insurers wound up paying for the patients anesthesia and pain medications, and to feed defendant Hay?s drug addiction. Nevertheless, despite years of overbilling and several years after defendant Hay?s overdose, defendants have not informed Hay?s patients of the overbilling or of Hay?s conduct and the potential impact on them. 6. Defendants violated state and federal laws and regulations governing reimbursement claims by fraudulent, unlawful and unfair conduct caused plaintiff Robert Lopez and otherpatients to overpay for their treatments and allowed defendants to receive a windfall from the patients? I private insurers, Dept. of Veterans Affairs and the CMS. Defendants also kept Hay?s patients in the dark and ignorant of their rights to seek relief against defendants in court. Accordingly, plaintiffs seek restitution, damages, including compensatory and punitive damages, in an amount .to be proven at trial, an accounting and injunction directing defendants to inform Hay?s patients of his conduct and drug addiction, and to provide to them an accurate accounting of the cost of their medical treatments and the amounts billed to their insurers. Case Document 1 Filed 01/24/20 PagelD.5- Page 5 of 21 VENUE AND JURISDICTION 7. Jurisdiction is proper pursuant to 28 U.S.C. 1332 because defendants? conduct violated federal laws and regulations, including CMS rules governing reimbursement claims and plaintiffs asSert violations? of federal civil rights 1aWs. 8. Venue is proper in the Southern District of California because the acts or omissions which form the basis of the plaintiff?s claims occurred?pin the Southern District. of California. Venue is also proper in this District because at all times relevant hereto, defendants Bradley Glenn Hay, Patty Maysent, and Gerard Manecke, Jr. were individuals residing-in this District, and defendant Regents of the University of California was a government entity under Article 9, section 9, of the California Constitution. I PARTIES . 9. Defendant Patty Maysent is the CEO of UC San Diego Medical Center, which owns and operates UCSD Hospital in Hillcrest 10. Defendant the Regents of the University of California (?Regents?) manages and operates UC San Diego Medical Center. Defendant Bradle?y Glenn Hay, M.D., was employed by the Regents and held himself out as a specialist in anesthesiology. He worked as an anesthesiologist at the UCSD Hospital. Defendant Hay is a drug addict and a convicted felon. During his employment by the Regents, and under supervision of defendant Maysent, defendant Hay stole sedatives and pain medication from his patients, used c0ntrolled substances While on duty, and administered anesthesia while under the in?uence of narcotics. . 12'. Defendant Gerard Manecke, Jr., at all times relevant to this complaint, was the Chair of the Department of Anesthesiology at University of California, San Diego School 'of Medicine and UCSD Medical Center. He was responsible for supervising allanesthesiologists and nurse anesthetists. Case Documentl Filed 01/24/20 PagelD.6 Page60121' 13. Plaintiff Robert Lopez underwent surgery at the UCSD Hospital. Defendant Hay administered Mr. Lopez?s anesthesia. Plaintiff Robert Lopez died several months after January 2017. 14. Plaintiff Lopez was the daughter of plaintiff Robert Lopez and is his successor-in-interest. At all times relevant to this complaint, she wasta resident of San Diego County. . . 15. Plaintiffs discovered the facts giving rise to the claims herein in May 2018. Before May 2018, defendants had actively concealed their wrongful acts from plaintiffs. 16. At all times relevant to this complaint, individual defendants Maysent, Hay, and Manecke acted under Color of state law and within the scope of their employment as agents and employees of the Regents, a public entity. 17. Although not applicable to all claims asserted, Plaintiffs provided . notices of intent to site under California? 3 Code of Civil Procedure section 364, subdivision part of Medical Injury Compensation Reform Act to Maysent and Hay on March 29, 2019. 18. . Plaintiffs are ignorant of the true names and capacities of DOES 1 . through 100, inclusive, and/or the facts giving rise to their liability and will amend this complaint once their identities have been ascertained as well as the facts giving rise to their liability. These defendants were the agents, servants and employees 'of each of the other named defendants and were acting at' all times within the full - course and scope of their agency and employment, with the full knowledge and consent, either expressed or implied, of their principal and/or employer and each of the other named defendants and each of the defendants had approved or rati?ed-the actions of the-other defendants or were independent tortfeaSOrs. FACTUAL ALLEGATIONS After Robert Lopez Underwent Surgery at UCSD Hospital, No Doctor or Hospital Administrator Told Robert Lopez or any other affected patients that Case Documentl Filed 01/24/20 PageID.7 Page70f 21 - - .Anesthesiologist Brad Hay Stole, Anesthetics Intended for Decedent?s Use During Surgery. 19. On the morning of January 27, 2017, Hay, then an anesthesiologist at UCSD Hiospital, was scheduled to perform anesthesia on .two surgical- patients, including decedent Robert Lopez. Hay stole anesthetics, which are centrolled substances, from Robert Lopez for his own use. I 20. The drugs used ?as anesthesia during the patients? surgeries on January 27, 2017, included Sufentanil and Fentanyl, both Schedule II controlled substance under state law [Health and Safety Code ?11055(c)(25)] and federal law ?[21 CPR. i I 21. Robert Lopez underwent a left arm dialysis access graft. After the surgery, the staff at Hospital told Robert Lopez?sfamily that his surgery went well. No doctor or medical staff member ever noti?ed Robert Lopez or his. family that there were any issues during or after the surgery. 22. In May 2018, through, an investigator for the California Medical Board, Lopez discovered that Brad Hay had been the anesthesiologist for her father?s January 27, 2017 surgery; that Hay had stolen Sufentanil androverdosed Jon the drug after Robert Lopez?s surgery; and that Hay had a long history Of substance abuse. Defendant Hay Loses His License After Admitting He Falsi?ed Medical Records, Made False Representations, and Practiced Medicine While Under the In?uence of Narcotics. 23. On October .17, 2017, the Medical Board of California filed an Accusation against defendant Hay. A true and accurate copy of the Accusation and Stipulated Surrender of License and Disciplinary Order regarding defendant Hay is attached-hereto as Exhibit 1 and incorporated by reference, as if it fully set forth herein. The Medical Board of California?s Accusation against Hay set forth the following facts, all of which had been concealed from plaintiffs by UCSD Hospital, \o'ooxi-oanAoomr-t Case Documentl Filed 01/24/20 PageID.8 PageSonl and the hospital?s .agents and employees, including defendant MaySent and the Regents: a. Defendant Hay has a long-documented history of alcohol and drug dependence. Hay ?rst used alcohol at age 14 and drank alcohol most weekends throughout high school. During college and medical school, Hay drank a l2?pack or more of alcohol approximately three (3) to ?ve (5) days per week.? This frequency of drinking continued through his residency, during 7. which Hay came to work intoxicated or' hungover on multiple occasions. Hay?s addiction to alcohol had legal consequenCes and had resulted in two alcohol?related driving citations in the past. b. . Betwee??July 1, 2002, and June 30, 2006, during his residency, Hay began to steal Fentanyl (a pain killer at least ten times more potent than heroin) from work. He initially brought the Fentanyl home for his own uSe, but then eventually began injecting himself with Fentanyl in the bathrooms - at wOrk; c. In or around 2006, Hay was offered .a job as an attending anesthesiologist at the Regents UCSD Hospital. Due to his stress and substance abuse issues, Hay chose to take some time off before beginning his job; at the UCSD Hospital. During that time, Hay lived at *home with his. parents, and for several months, he drank approximately one (1) liter of vodka each day. i d. Hay began working as an' anesthesiologist at the UCSD Hospital in or around 2007. I I In or around July 2008, Hay was confronted by colleagues at the UCSD Hospital who observed him impaired while on duty. He was ordered to report to the UCSD Hospital?s Well Being Committee, which referred him for treatment at the Hazelton' Betty Ford Foundation Drug Addiction Treatment Center (?Betty Ford?). - i .- Case Documentl Filed 01/24/20 PageID.9 Pagegof 21 f. Between on or about July 3, 2008, through on or about October 30, 2008, Hay received treatment for addiction at Betty Ford. During that time, he was diagnosed with Bipolar II Disorder, and was prescribed Lexapro and Lamictaili. g. In or around November 2008, Hay returned to work at the UCSD Hospital, and maintained sobriety through regular monitoring by the Well Being Committee from in or around 2009 through in or around 2014. h. In or around October 2015', Hay stopped seeing his and began medications. i. In or around January 2016, Hay began ordering Moda?nil from India for/his own use. 7 j. In or around April 2016, Hay began to steal Fentanyl from the UCSD Hospital for his own use. 1 k. Between in? or around April 2016, through in or around October 2016, Hay?s use of Fentanyl gradually increased to the point that he was injecting himself with Fentanyl approximately ?ve (5) to eight (8) times per day. 1. In or around October 2016, Hay enrolled himself in an intensive - outpatient treatment program at Casa Palmera Treatment Center (?Casa . Palmera?). m. From on or about October 4, 2016, through on or about October 26, 2016, Hay received treatment for addiction at Casa Palmera. n. lSometime after completing his treatment at' Casa Palmera, Hay relapsed and began using Fentanyl again. I o. On or about January 27, 2017, Hay was scheduled to perform anesthesia on surgical patients Robert Lopez and Randy Dalo at the UCSD - Hospital. At some point that morning, defendant Hay accidentally cut his finger while cutting a bagel, causing tendon damage. Despite the injury, Hay . Ease Document 1 Filed 01/24/20 PagelD.10 Page 10 0f 2 .i returned to hisassigned surgical cases in order to steal medication for his own use. . p. In preparation for Dalo?s surgery, Hay removed four 5 ml ampules (50 meg/ml; 1000 micrograms total) of Sufentanil from the Anesthesia Medication Supply in the operating room at the UCSD Hospital. Nodler, a- nurse anesthetist assisting Hay, also extracted Fentanyl from the Anesthesia Medication Supply in the operating room at the UCSD Hospital for use in patient Dalo?s surgery. At some point during patient Dal-0?s surgery, nurse Nodler made a charting error regarding the amount of Sufentanil administered. to Dalo. When Hay noted the error, he told Nodler, ?we?ll never get the dose right now, so let?s make the record saying we gave the whole amount.? The anesthesia record for this surgery indicates that 1.02 mg of Sufentanil was administered to the patient. The anesthesia post?procedure evaluation completed by Hay indicates that ?all substances during the case accounted for and disposed of perhospital policy.? . r. After completing Dalo?s surgery, defendant Hay went into. a patient/staff bathrobm and injected himself with Sufentanil. s. At approximately 1:30 pm, Hay was found by a nurse, unconscious, face-down on the patient/staff bathroom ?oor, covered in vomit, with his pants down around his ankles. Three (3) syringes were located near his body, two of which still contained Sufentanil. t. Multiple physicians were called to the bathroom to assist, and although Hay was dif?cult to arouse, he eventually regained consciousness. Once I aWakened, Hay was ordered to report to the UCSD Hospital emergency room for a fitness for duty evaluation. Hay then left the UCSD HOSpital and never reported to the emergency room. Sase Document 1 Filed 01/24/20 PageID.11 Pagerll 0f 2 u. Some time after leaving the UCSD Hospital, Hay informed the Regents and defendant Maysent that he would be taking a medical leave of absence, and enrolled himself in Professionals Treatment at Promises Treatment Center (?Promises?), where he received treatment for addictiOn from on or about 11 February 6, 20117, through on or about April 6, 2017. v. On or about July 31, 2017, Hay voluntarily submitted to a evaluation from Board: appointed A.A., M.D., .D., FCLM After an extensive review of records, a examination, and an interview of defendant Hay, Dr. A.A. concluded, among other things, that Hay suffers from Opioid Use Disorder, severe, _In Early Remission. The further opined that defendant Hay?s ability to practice medicine safely is impaired by his opioid use disorder and permitting Hay to engage in the unrestricted practice of medicine will endanger the public health, safety, and welfare. 24. The Accusation by the Medical Board of California charged Hay with the following eight counts as the basis for disciplinary action: (1) Prescribing or an Extent, or in a Manner, as to be Dangerous to Himself, to Others, or the Public (violation of Bus. Prof. Code 2239(a)); (3) Violation of State-Laws Regulating Dangerous Drugs and/or Controlled Substances (violation of Bus. Prof. Code 2238); (4) Dishonesty or Corruption (violation of Bus. Prof. Code 2234(e)); (5) False Representation (violation of Bus. Prof. Code 2261); (6) Creation of False Medical Records with Fraudulent Intent (violation of Bus. Prof. Code 2262); (7) Failure to Maintain Adequate and Accurate Records (violation-of Bus. Prof. Code 2266); and (8) Practice Under the In?uence of a Narcotic (violation of Bus. Prof. Code 2280). Administering a Controlled Substance to Himself; (2) Use of Dangerous Drugs to. \Dodxioxmgoom.? ease Documentl Filed 01/24/20 Page 12 of2 truth of each charge and allegation in the Accusation, agreed that cause existed for action and discipline, and surrendered his license to practice medicine. 26. Defendant Maysent, the Regents and Doe Defendants were aware of defendant Hay?s serious addiction and hissinability to perform competently. 27. Upon information and belief, defendant Maysent, the Regents and Doe Defendants knew, or should have known, that Hay had routinely stolen controlled substances from patients because of defendant Hay?s long hiStory of addiction, in the UCSD Hospital?s restroom, passed out in his 'own vomit with the Sufentanil stolen from patient Dalo. Importantly, defendants also knew, or should have known, of Hay?s actions because they have an obligation to audit their medicine locker records, ensure authorized and lawful use of controlled substances administered to patients, and enSure accurate billing for their patientS? medical treatments. ?1 28. Defendant Hay committed an'unlawful act by stealing and using a controlled substance under California PenalCode ?487; California Health and Safety Code 711350 and 11550; '18 U.S.C. 670; and/or 21 U.S.C. 841. Hay admitted to Violating the following statutes, as set forth in the Medical Board?s AccusatiOn: (1) Prescribing or Administering a Controlled substance to Himself; (2) Use of DangerOus Drugs to an Extent, or in a Manner, as to be Dangerous to (3) Violation of State Laws Regulating Dangerous Drugs and/or Controlled Substances (violation of Bus. Prof. Code 2238); (4)-Dishonesty or CorruptiOn (violation??of Bus. Prof. Code 2234(e)); (5) False Representation (Violation of . Bus..& Prof. Code 2261); (6) CreatiOn of False Medical Records with Fraudulent Intent (violation of Bus. Prof. Code 2262); (7) Failure to Maintain Adequate and Accurate Records (Violation of Bus. Pro?Code 2266); and (8) Practice Under the In?uence of a Narcotic (violation of Bus. Prof. Code 2280)., 25. In a Stipulation signed on March 28, 2018, defendant Hay admitted the internal reports of defendant Hay?s intoxication at work, and because he overdosed Himself, to Others, or the Public (Violation of BUS. Prof. Code ?2239(a)); Ease Documentl Filed 01/24/20 PagelD.13 PagelB of2 Defendants Failed to Notify Hay? Anesthesia Patients of Hay? Illegal Conduct During Their Surgeries. 29. According to the allegations in the Accusation, which Hay admitted were true, Hay began StealingiFentanyl from. the UCSD Hospital in April 2016. He injected himself with Fentanyl approximately 5 to 8 times per day. Hay stole Fentanyl from the UCSD Hospital from April 2016 to January 27, 2017, the date of . plaintiff?s surgery. 30. From April 2016 to January 27, 2017, Hay regularly stole Fentanyl from UCSD Hospital that wasintended for surgical patients by using each patient?s identity and surgery. Hay administered anesthesia to these patients while impaired - and under the in?uence of a controlled substance. To conceal his fraudulent procurement of the centrolled substances, Hay routinely falsi?ed these patients? medical records to indicate that he was administering the Fentanyl to these patirents. 31. Attached hereto as Exhibit 2 and incorpOrated herein by reference, as if it is fully set forth herein, is a list of the dates and times of every surgery in which defendant Hay performed anesthesia from April 5, 2016 to January 27, 2017. Defendants Had a Duty to Disclose Hay? Criminal Acts to All Anesthesia Patients . 32. Under California law, hospital and medical care patients have the right to ?[r]eceive information about the illness, the course of treatment and prospects for recovery in terms thatihe patient can understand? and to ?[p]articipate actively in decisions regarding medical care.? Calf Code Regs. tit. 22, 70707. All hospital personnel are required to ?observe these patients? rights.? Id. 33. ?The doctor-patient relationship is a fiduciary one and as a consequence of the physician?s ??ducial? obligations, the physician is prohibited from misrepresenting the nature of the patient?s medical condition.? Hahn v. irda, 147 Cal. App. 4th 740, 748 (1st Dist. 2007). Doctors have separate duties to disclose information that is necessary to make an informed decision about 11 Ease Documentl Filed 01/24/20 PageID.14 Page 14 0121 propoSed treatment, and (2) disclose information about the nature of a patient?s medical Id. at 749 n.3. 34. ?The doctor-patient relationship is a fiduciary one and it is incumbent on the doctor to reveal all pertinent information to his patient. The same is true of the hospital-patient relationship.? Wohlgemuth v. Meyer, 139 Cal. App. 2d 326, 331 (1St Dist. 195 6). Hospitals ?owe a duty of a ?duciary nature to its patients and the - public to deliver safe and competent medical services.? Weinberg v. Cedars-Sinai Med Ctr. 119 Cal. App. 4th 1098, 1109 (2d Dist. 2004). 35. Under Cal. Health Safety Code 1279 l, a health facility, including a general acute care hospital such as the UCSD Hospital, must report an ?adverse event? to the California State Department of Health Services within ?ve days after the ?adverse event has been detected.? At the time the report is made, the health facility must inform the patient of the adverse event. Health Safety Code An ?adverse event? under Health Safety Code 1279.1 includes the following: a. The ?wrong surgicalorother __inVasive procedure performed on a patient, which is a procedure performed on a patient that is inconsistent with the, documented informed consent for that patient.? (id. subd. b. patient death or serious disability associated with a medication error, including, but not limited to,_lan error involving the wrong drug, the wrong dose, the wrong patient, the wrong time, the wreng rate, the wrong preparation, or the wrong route of adminiStration, excluding reasonable differences in clinical judgment on drug selection and dose.? id. subd. c. Criminal events. id. subd. and d. ?An adverse event or series of adverse events that cause the death or serious disability of a patient, personnel, or visitor.? id. subd. 12 Ease Documentl Filed 01/24/20 PagelD.15 Page 15 ot2 A ?serious disability? islde?ned as ?a physical or mental impairment that substantially limits one or more of the major life activities of an individual, or the loss of bodily function, if the impairment or loss lasts more than seven I 36.. UC San Diego policy no. MCP 562.1, ?Disclosure of Unanticipated Events, ?Unanticipated Adverse Outcomes and Medical Errors? defines an ?Unanticipated Adverse Outcome? as a ?clinical outcome not foreseen by the patient and the responsible practitioner that results in a potential for an actual meaningful negative change to the patient, and that may include adverse events or incidents, unusual occurrences, or sentinel events.? The policy requires the attending physician to ?inform the patient of the anticipated event, unanticipated adverse outcome or medical errors in a timely manner. Risk management may be consulted as needed.? The policy instructs the attending physician to disclose the ?nature of the event, the severity, and cause, if known? in a ?factual, non- judgmental manner.- Information that will? enable the patient or surrogate to make informed decisions regarding furtherimedical attention shall be provided.? The policy states the ?[d]isclosure shall be given at the earliest opportunity after the event is identified and must occur before the Regulatory Affairs Department (no later than 5 days after event has been detected) reports the events to a Regulatory Agency under the relevant mandatory reporting requirements.? 37. The falsi?cation of medical records is a crime. Pen. Code 471.5. The use of prescribing or administering to himself any controlled substance or. dangerous drug to the extent that it impairs the ability of a licensed doctor to practice medicine safely constitutes unprofessional conduct. Bus. Prof. Code ?2239. False representations constitute unprofessional conduct. Id. 2261. Practice under the influence of a narcotic is unprofessional conduct and is aerime. Id. 2280. 3-8. Defendants Hay, Maysent, and Doe Defendants (Supervisory Of?cials at UCSD Hospital) had a duty to inform patients of the following: (1) that Hay had 13 l?l Documentl Filed 01/24/20 lPagelD.16 Page 16 01?2 performed anesthesia during patients? surgeries .in order to use the patients? identities to steal Fentanyl that was intended for the patients? use; (2) that Hay had falsi?ed patients? medical records to Conceal his misappropriation of controlled substances; and (3) that Hay had been? under the in?uenCe of drugs at the time he performed anesthesia during patients? surgeries. A 39. Hay had a ?duciary duty to his patients to practice medicine safety by refraining from abuse of Controlled substances and by avoiding the excessive use of drugs or alcohol to the point of 1mpa1rment. See, e. Bus. Prof. Code 2239(a) . and 2280. Hay had a fiduciary duty to refrain from making false representations (see Bus. Prof. Code 2261) and to refrain from altering or modifying patients? medical records with fraudulent intent or creating a false medical record for patients with fraLidulent intent. Id. 2262. Hay breached his duty to his patients When he practiced medicine under the in?uence of acontrolled substance; when he stole anesthesia intended for patients fOr his own use; and when he falsi?ed patients? medical recOrds to conceal hisrtheft of the anesthesia. . 40. UCSD Hospital had a ?duciary obligation to ensure the enforcement- of existing policies strictly regulating access to controlled substances at the hospital; to properly perform weekly audits of anesthesia units so any discrepancy related to i the absence of controlled. substances could be found; to alert the appropriate regulatory and police agencies of the suspected theft of any controlled substance; and, by complying with its own internal policies and procedures, become aware of Hay?s repeated theft and abuse of Fentanyl. UCSD Hospital had an obligation .to restrict Hay frorngaccessing and abusing Fentanyl. It?s failure. to follow its own internal policies permitted Hay to eXtensively abuse drugs and alloWed Hay to 0 practice medicine while under the in?uence of a narcotic. It also allowed it and the other defendants to overbill patients and their insurance providers. FIRST CAUSE OF ACTION Violations of California?s Unfair Competition Law Civil Code 17200, et seq. 14 Ease Document 1 Filed 01/24/20 PagelD.17 Page 17 of 2 (by plaintiffs against all defendants) 41. I, Plaintiffs hereby reallege all prior paragraphs of this Complaint and incorporate the same herein by reference, as if these paragraphs were fully set forth herein. a I I 42. The UCL prohibits any ?unlawful, unfair or fraudulent business act or practice.? Bus. Prof. Code 17200. I 43. In the course of conducting business,.defendants committed ?unlawful? business practices by, among other things, failing to disclose to plaintiffs and other patients treated by defendant Hay that they Were being put under anesthesia by a drug addict, with a known history offsubstance abuse, and depriving patients of an ability to be fully informed of the nature of their medical care and treatments. I Defendants also committed ?unlawful? business practices by breaching their duty to provide accurate accounting for reimbursement of claims arising out of plaintiff Robert Lopez?s and Other patients? medical treatments, and by failing to disclose to patients, their private insurers, CMS and the Dept. of Veterans Affairs that they were paying for defendant Hay?s drug addiction and failing to reimburse patients and their insurers for the overcharges. Thisconductviolates a variety of state and federal laws, as detailed above and as will be set forth in the course of this litigatibn, which form predicate violations of the unlawful prong of the UCL. This action is brought pursuant to the provisions of McGill v. Citibank, N.A., 2 Cal.5?h 945 (2017). Plaintiffs haveIlost money or property as a result of defendants? violations of the UCL. 44. In the course of conducting business, defendants committed ?unfair? plaintiff? and other patients? medical treatments, and failing to disclose to them that they were treated by a drug addict with a known history of substance abuse. Despite knowing that defendant Hay stole drugs from patients for years, defendants failed to issue corrective invoices to patients, private insurers, CMS and the Dept. of Veterans Affairs Instead, reaping the'?nancial benefits perpetuated by a drug addict and thief. -15 business practices, by among other things, misrepresenting the actual costs of . in deciding whether to obtain medical'treatment from defendants and paying the Case Document 1 FiledOl/24/20 P'agelD.18 Page 18 of 21 . 45. Defendants? acts and omissions also violate and offend the public policy as announced by the violations of state and federal laws and regulations alleged. These .acts and, omissions were immoral, unethical, oppressive, unscrupulous and Substantially injurious to consumers in violation of) the unfair prong of the There were reasonably available, alternatives to further defendants?ilegitimate business interests other than the conduct described herein, 46. The UCL also prohibits any ?fraudulent business act or praCtice.?aIn the course of conducting business, defendants committed ?fraudulent business act[s] or practices? by among other things, failing to disclose to plaintiff Robert Lopez and other patients treated by defendant Hay that they had been put under- anesthesia. by a drug addict with a known history of substance abuse, depriving patients of an ability to be?fully informed of the nature of their medical care and treatments, or that this had occurred to the LOpez and the other patients. Defendants also engaged in ?fraudulent? business practices by concealing the aetual and accurate costs of their treatments, and subsequently failing to provide an accurate accounting of -the overbilling. 47. ,Defendants? actions and omissions, as'more ?fully ?set forth above, were material in that a reasonable consumer would have considered them to be'important amounts overbilled. . 48. Pursuant to Business Professions Code sections 17203 and 17205, plaintiffs seek. an injunction prohibiting defendants from continuing such practices, corrective accounting, restitution and all other relief this Court deems appropriate. SECOND CAUSE OF ACTION Denial of Access to Courts (42 U.S.C. 1983) (by plaintiffs against all defendants) 49. Plaintiffs hereby reallege all prior paragraphs of this Complaint and incorporate the same herein by reference, as if these paragraphs were fullyset forth 16 Case Documentl Filed 01/24/20 PageID.19 Page 19 of2 herein. 50. Under the First and Fourteenth Amendments, each person has a right of access to the courts. ?[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.? Bill Johnson ?s Rests. v. NLRB, 461 US. 731, 741 (1983). The right of access to the courts is ??founded in the Due Process Clause and assures that no person will be denied the opportunity to present tothe judiciary allegations concerning violations of fundamental constitutional rights.? Wolff v. McDonnell, 418 US. 539, 579 (1974). ?The Due Process Clause entitles a person to an impartial and disinterested tribunal 'in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjusti?ed. or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision-making process.? Marshall v. Jerrico, Inc., 446 US. 238, 242 (1980). . 51. As a direct. and proximate result of defendants? actions, as alleged herein, plaintiffs were injured as set forth above and are entitled to damages, including compensatory and punitive damages, in an amount to be proven at trial. 52. In doing the foregoing wrongful aets, defendants acted in reckless and calldus disregard for plaintiff?s constitutional rights. The wrongful acts, and each of them, were Willful, oppressive, fraudulent and malicious, thus warranting the imposition of punitive damages against each individual defendant in an amount adequate to punish the Wrongdoers and deter future misconduct. THIRD CAUSE OF ACTION Conspiracy to Cemmit Civil Rights Violation (42 U.SZC. 1983) (by plaintiffs against all defendants) 53'. Plaintiffs hereby reallege all prior paragraphs of this Complaint and incorporate the same herein by reference, as if these paragraphs were fully set forth herein. l7 Case Document 1 Filed 01/24/20 PageID.20 Page 20 of 2? 754. ?conspiracy of silence? among of?cers is actionable as a 1983 conspiracy because the coordinated Iofficer conduct ?impede[s] an individual?s access to courts? and renders ?hollow? a victim?s right to redress in a court of law.? Jutrowski v. Twp. ofRiverdale, 904 F.3d 280, 294 (3d Cir. 2018) (internal citation omitted). .55. Defendants conspired to conceal Hay?s fraudulent misconduct from his patients by purposely failing to disclose to affected patients that Hay had used their identities to steal controlled?substances intended for their use during surgery. 56. As a direct and proximate'result of defendants? actions, as alleged herein, plaintiffs were injured as set forth above and are entitled to damages, including compensatory and punitive damages, in an amount to be proven at trial. 57. In doing the foregoing wrongful acts, defendants acted in' reckless and callous disregard for plaintiffs? constitutional rights. The wrongful acts, and each of them, were willful, oppressive, fraudulent and malicious, thus warranting the imposition of punitive damages against each individual defendant in an amount adequate to punish the wrongdoers and deter future misconduct. PRAYER FOR RELIEF Plaintiff respectfully requests that upon ?nal trial or hearing, judgment be awarded against defendants for: - I restitution and actual, incidental, c0'nsequential, and nominal damages to be determined by the trier of fact; (ii) punitive damages; pre? and post-judgment interest at the highest legal rates applicable; injunctive relief; . attorneys? fees and litigation expenses; (vi) costs of suit; and (vii) such other and further relief that the Court deems just and proper. l8 Dated: January 24, 2020 Ease Documentl Filed 01/24/20 PageID.21 Page 21 of2 DEMAND FOR JURY TRIAL - Plaintiff hereby demands a jury trial on all issues so triable. Respectfully submitted, IREDALE AND YOO, APC EUGENE IREDALE (75292) JULIA YOO (231163) GRACE JUN (287973) By: s/Julia Yoo JULIA YOO 105 West Street, 4th San Diego, CA 92101 Tel: 619/233- 1525 619/233-3221 (fax) eiredale@iredalelaw.com jyoo@iredalelaw.rcom gjun@iredalelaw.com BLOOD HURST LLP TIMOTHY G. BLOOD (149343) ALEKSANDR J. YARMOLINETS (276707) .By: 3/ Timothy G. Blood TIMOTHY G. BLOOD 501 West Broadway, Suite 1490 'San Diego, CA 92101 Tel: 619/338?1100 619/338-1101 (fax) tblood@bholaw.com Attorneys for Plainti?? 19