1 2 3 4 5 6 EUGENE G. IREDALE: SBN 75292 JULIA YOO: SBN 231163 GRACE JUN: SBN 287973 IREDALE & YOO, APC 105 West F Street, Fourth Floor San Diego, CA 92101-6036 TEL: (619) 233-1525 FAX: (619) 233-3221 Attorneys for Plaintiffs Randy Dalo and Karen Dalo 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO 10 RANDY DALO, and KAREN DALO, 11 CASE NO. 37-2018-00017017-CU-MMCTL 12 SECOND AMENDED COMPLAINT FOR: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) Plaintiffs, ) v. ) ) BRADLEY GLENN HAY, M.D., ) TAMMY NODLER, TODD ) ALLEN, GERARD MANECKE, ) JR., THE REGENTS OF THE ) UNIVERSITY OF CALIFORNIA, ) and DOES 3- 100 ) Defendants. ) ) ) ) ) ) ) ) ) ) ) ) 1) 2) 3) 4) 5) Medical Negligence Battery Breach of Fiduciary Duty Fraud by Misrepresentation Fraud by Concealment JURY TRIAL DEMAND 1 2 Table of Contents I. VENUE AND PARTIES .....................................................................................1 3 II. FACTS .................................................................................................................2 4 5 6 7 8 After Undergoing Surgery at UCSD Hospital, No Doctor or Hospital Administrator Tells Randy Dalo that Anesthesiologist Brad Hay Falsified Randy’s Medical Records and Stole Sufentanil Intended for Randy’s Use During Surgery. ...................................................................................................................2 Defendant Hay Loses His License After Admitting He Falsified Medical 9 10 Records, Made False Representations, and Practiced Medicine While Under the 11 Influence of Narcotics. ............................................................................................5 Randy and Karen Dalo Suffer a Devastating Breach of Trust Upon 12 13 Discovering that Defendants Concealed and Misrepresented the True 14 Circumstances of Randy’s January 2017 Surgery. ...............................................10 15 UCSD’s Lax Enforcement and Monitoring Allows Hay to Steal Fentanyl 16 from Regents UCSD Hospital Beginning in April 2016, Eight Months Before 17 Randy Dalo’s January 2017 Surgery. ...................................................................13 18 19 20 21 22 III. FIRST CAUSE OF ACTION .........................................................................17 MEDICAL NEGLIGENCE .....................................................................................17 IV. SECOND CAUSE OF ACTION ....................................................................20 BATTERY ...............................................................................................................20 23 V. THIRD CAUSE OF ACTION ...........................................................................22 24 BREACH OF FIDUCIARY DUTY ........................................................................22 25 VI. 26 FRAUD BY MISREPRESENTATION ..................................................................26 27 VII. FIFTH CAUSE OF ACTION .........................................................................28 28 FRAUD BY CONCEALMENT ..............................................................................28 FOURTH CAUSE OF ACTION ....................................................................26 i 1 2 COME NOW Plaintiffs, by and through their counsel of record, and allege and complain as follows: 3 4 I.VENUE AND PARTIES 1. Venue of this lawsuit is proper in the Superior Court of the State of 5 California, in and for the County of San Diego, because at all times relevant hereto, 6 Defendants BRADLEY GLENN HAY, M.D, TAMMY NODLER, TODD 7 ALLEN, and GERARD MANECKE, JR., were individuals residing San Diego 8 County, California. 9 10 11 12 13 14 15 2. The acts giving rise to the personal injuries alleged occurred in San Diego County, California. 3. Defendant BRADLEY GLENN HAY, M.D., held himself out as a specialist in anesthesiology. 4. Defendant RICHARD ALLEN was the medical care provider for Plaintiff RANDY DALO. 5. Defendant GERARD MANECKE, JR., was the Chair of the 16 Department of Anesthesiology at University of California, San Diego School of 17 Medicine and Medical Center. 18 6. Defendant TAMMY NODLER was an anesthesiology nurse. 19 7. Defendants HAY, NODLER, ALLEN, MANECKE, JR., and Does 3- 20 100 were employees of THE REGENTS OF THE UNIVERSITY OF 21 CALIFORNIA, hereinafter referred to as “Regents UCSD Hospital.” They were at 22 all times acting within the scope of their employment. 23 24 25 8. At all times relevant to this complaint, Plaintiffs Randy and Karen Dalo were individuals residing in San Diego County, California. 9. Plaintiffs discovered the facts giving rise to their claims in November 26 of 2017. Before November 2017, Defendants had actively concealed their 27 wrongful acts from Randy and Karen Dalo. 28 1 1 10. Plaintiffs provided notices of intent to sue under California’s Code of 2 Civil Procedure section 364, subdivision (a), part of MICRA to Patty Maysent, the 3 Chief Executive Officer of Regents UCSD Hospital, TAMMY NODLER, and 4 BRADLEY HAY on January 8, 2018. 5 11. Plaintiffs provided notices of intent to sue under California’s Code of 6 Civil Procedure section 364, subdivision (a), part of MICRA to TODD ALLEN, 7 and GERARD MANECKE, JR. on April 3, 2018. 8 12. Plaintiffs are truly ignorant of the true names and capacities of DOES 9 3 through 100, inclusive, and/or the facts giving rise to their liability and will 10 amend this complaint once their identities have been ascertained as well as the 11 facts giving rise to their liability. These defendants were the agents, servants and 12 employees of each of the other named defendants and were acting at all times 13 within the full course and scope of their agency and employment, with the full 14 knowledge and consent, either expressed or implied, of their principal and/or 15 employer and each of the other named defendants and each of the defendants had 16 approved or ratified the actions of the other defendants or were independent 17 tortfeasors. 18 19 20 21 22 II. FACTS After Undergoing Surgery at UCSD Hospital, No Doctor or Hospital Administrator Tells Randy Dalo that Anesthesiologist Brad Hay Falsified Randy’s Medical Records and Stole Sufentanil Intended for Randy’s Use During Surgery. 23 13. Randy and Karen Dalo have been married since July 1991. 24 14. Randy Dalo had severe lower back problems stemming from his 25 26 27 career as a fisherman. Randy became disabled around 2014. 15. As of 2017, Karen Dalo had been an employee at Regents UCSD Hospital for 25 years. 28 2 16. 1 On January 27, 2017, Randy Dalo went into surgery at Regents UCSD 2 Hospital to stabilize his neck before he could address his back pain. Defendant Dr. 3 Richard Todd Allen performed the surgery on Randy’s neck and was the physician 4 in overall control and supervision of the procedure. As such, he was an agent of 5 defendant Regents UCSD Hospital. Defendant Bradley Hay and Nurse Tammy 6 Nodler performed anesthesia during Randy Dalo’s neck surgery. 17. 7 Prior to the surgery, physicians assisting Dr. Todd Allen represented 8 to Plaintiff Randy Dalo that he would be under complete anesthesia so that he 9 would not wake up during the surgery. The promise made to Randy Dalo was that 10 he would be completely under anesthesia and paralytics due to the possibility that 11 any movement during surgery could cause lasting or permanent paralysis to Randy 12 Dalo. 13 18. One of the drugs to be used during anesthesia was Sufentanil, a 14 Schedule II controlled substance under both state law (Health and Safety Code 15 §11055(c)(25)) and federal law (21 C.F.R. §1308(c)(27)). 16 19. After the surgery, the staff at Regents UCSD Hospital told Randy and 17 Karen that the surgery was successful. Defendant Allen never notified Randy or 18 Karen that there were any issues during or after the surgery. 19 20. The day after surgery, Randy told Karen that he thought that he saw 20 fuzzy people and a bright light during surgery. Randy told Karen that he could not 21 make out their faces. Randy recalled being paralyzed and trying to scream. 22 21. Karen reassured Randy that everything had gone fine during surgery. 23 22. Shortly after the surgery, Randy began having nightmares and 24 25 difficulty sleeping. 23. Approximately three weeks after the surgery, Defendant Nodler told 26 Karen Dalo that she wanted to talk to Karen about the “incident” before Karen 27 heard any “rumors.” 28 3 1 24. Nodler told Karen that Nodler had left the Operating Room during 2 the surgery and that when she returned, she noticed some of the narcotics missing 3 and that she quickly ordered more. 4 5 6 7 8 9 25. During this conversation, Defendant Nodler mentioned to Karen that Bradley Hay “kind of” had a breakdown. 26. Defendant Nodler reassured Karen that Randy “did fine” during surgery and there was nothing to worry about. 27. Defendant Gerard Manecke, the head of Anesthesia at Regents UCSD Hospital, called Randy and Karen in April 2017. 10 28. Manecke told the Dalos that “nothing bad happened” to Randy. 11 29. When Karen asked Manecke what narcotics had gone missing during 12 13 14 the operation, Manecke told Karen that he was not able to discuss it. 30. When Karen asked Manecke whether she and Randy needed to retain counsel, Manecke told Karen that was unnecessary. 15 31. Manecke repeatedly reassured them that the surgery went “fine.” 16 32. Randy and Karen attended approximately five post-operation, follow- 17 up visits with Dr. Allen after the surgery. Dr. Allen never told Randy and Karen 18 that anything had gone wrong during the surgery. During a post-operation visit, 19 Karen asked Dr. Allen if anything weird had happened with anesthesia during the 20 surgery. Dr. Allen denied knowing anything. 21 33. After the surgery, Randy began having panic attacks. Randy would 22 wake up suddenly from sleeping in full sweat and shaking due to recurrent 23 nightmares. Randy told Karen that he “didn’t feel right” but could not describe it. 24 34. For months, Randy became more and more disconnected from his 25 family and isolated. Randy stopped leaving the house. Randy had trouble 26 communicating and his family observed he would “grasp” for words during 27 conversations, i.e. he appeared to have difficulty in finding words, even common 28 words, to express his thoughts. 4 1 35. Randy told his doctor that he was depressed and had an uneasy feeling 2 when he was home alone. He requested counseling and therapy. Randy was 3 prescribed Zoloft for depression and Ativan for panic attacks. 4 5 6 36. Randy stopped sleeping in the bed with Karen because of the multiple instances in which he woke up in the middle of the night in a panic attack. 37. Randy started to sleep on the couch with the TV on because the sound 7 of the television helped him feel that he was not alone. Randy began having 8 anxiety in social situations with other people. 9 10 11 38. For several months, Randy’s sudden change in behavior placed extreme stress on his 27-year marriage. 39. In November of 2017, Randy and Karen discovered from news 12 coverage that Defendant Bradley Hay’s license had been suspended after he 13 overdosed in the hospital bathroom. The Dalos discovered that Hay had been 14 abusing Fentanyl for months leading up to a “January 27 incident.” 15 17 Defendant Hay Loses His License After Admitting He Falsified Medical Records, Made False Representations, and Practiced Medicine While Under the Influence of Narcotics. 18 40. 16 On October 17, 2017, the Medical Board of California filed an 19 Accusation against Defendant Hay. A true and accurate copy of the Accusation 20 and Stipulated Surrender of License and Disciplinary Order regarding Defendant 21 Hay is attached hereto as Exhibit 1 and incorporated by reference, as if it fully set 22 forth herein. The Medical Board of California’s Accusation against Defendant 23 Hay set forth the following facts, all of which had been concealed from Plaintiffs 24 by defendants Regents UCSD Hospital, and the hospital’s agents and employees, 25 including Defendants Allen and Manecke: 26 A. Defendant Hay has a long documented history of alcohol and 27 drug dependence. Hay first used alcohol at age 14, and drank alcohol 28 most weekends throughout high school. During college and medical 5 1 school, Hay drank a 12-pack or more of alcohol approximately three 2 (3) to five (5) days per week. This frequency of drinking continued 3 through his residency, during which Hay came to work intoxicated or 4 hungover on multiple occasions. Hay's addiction to alcohol had legal 5 consequences, and had resulted in two (2) alcohol-related driving 6 citations in the past. 7 B. 8 Hay began to steal Fentanyl (a pain killer at least ten times more 9 potent than heroin) from work. He initially brought the Fentanyl home Between July 1, 2002, and June 30, 2006, during his residency, 10 for his own use, but then eventually began injecting himself with 11 Fentanyl in the bathrooms at work. 12 C. 13 anesthesiologist at the Regents UCSD Hospital. Due to his stress and 14 substance abuse issues, Hay chose to take some time off before 15 beginning his job at Regents UCSD Hospital. During that time, Hay 16 lived at home with his parents, and for several months, he drank 17 approximately 1 liter of vodka each day. 18 D. 19 Hospital in or around 2007. 20 E. 21 Regents UCSD Hospital who observed him impaired while on duty. 22 He was ordered to report to Regents UCSD Hospital 's Well Being 23 Committee, which referred him for treatment at the Hazelton Betty 24 Ford Foundation Drug Addiction Treatment Center (Betty Ford). 25 F. 26 30, 2008, Hay received treatment for addiction at Betty Ford. During 27 that time, he was diagnosed with Bipolar II Disorder, and was 28 prescribed Lexapro and Lamictal. In or around 2006, Hay was offered a job as an attending Hay began working as an anesthesiologist at Regents UCSD In or around July 2008, Hay was confronted by colleagues at Between on or about July 3, 2008, through on or about October 6 1 G. In or around November 2008, Hay returned to work at Regents 2 UCSD Hospital, and maintained sobriety through regular monitoring 3 by the Wellbeing Committee from in or around 2009 through in or 4 around 2014. 5 H. 6 and began self-prescribing psychiatric medications. 7 I. 8 India for his own use. 9 J. In or around October 2015, Hay stopped seeing his psychiatrist In or around January 2016, Hay began ordering Modafinil from In or around April 2016, Hay began to steal Fentanyl from 10 Regents UCSD Hospital for his own use. 11 K. 12 2016, Hay's use of Fentanyl gradually increased to the point that he 13 was injecting himself with Fentanyl approximately five (5) to eight (8) 14 times per day. 15 L. 16 outpatient treatment program at Casa Palmera Treatment Center (Casa 17 Palmera) 18 M. 19 26, 2016, Hay received treatment for addiction at Casa Palmera. 20 N. 21 relapsed and began using Fentanyl again. 22 O. 23 anesthesia on surgical patients R.L., and Plaintiff Dalo at Regents 24 UCSD Hospital. At some point that morning, Dr. Hay accidentally cut 25 his finger while cutting a bagel, causing tendon damage. Despite the 26 injury, Hay returned to his assigned surgical cases in order to steal 27 medication for his own use. Between in or around April 2016, through in or around October In or around October 2016, Hay enrolled himself in an intensive From on or about October 4, 2016, through on or about October Sometime after completing his treatment at Casa Palmera, Hay On or about January 27, 2017, Hay was scheduled to perform 28 7 1 P. In preparation for the surgery of Plaintiff Randy Dalo, Hay 2 removed four 5 ml ampules (50 mcg/ml; 1000 micrograms total) of 3 Sufentanil1 from the Anesthesia Medication Supply in the operating 4 room at Regents UCSD Hospital. Nodler, a nurse anesthetist assisting 5 Hay, also extracted Fentanyl from the Anesthesia Medication Supply 6 in the operating room at Regents UCSD Hospital for use in patient 7 Randy Dalo's surgery. 8 Q. 9 charting error regarding the amount of Sufentanil administered to At some point during patient Randy’s surgery, Nodler made a 10 Randy. When Hay noted the error, he told Nodler, "we'll never get the 11 dose right now, so let's make the record saying we gave the whole 12 amount." The anesthesia record for this surgery indicates that 1.02 mg 13 of Sufentanil was administered to the patient. The anesthesia post- 14 procedure evaluation completed by Hay indicates that "all controlled 15 substances during the case accounted for and disposed of per hospital 16 policy." 17 R. 18 into a patient/staff bathroom and injected himself with Sufentanil. 19 S. 20 unconscious, face-down on the patient/staff bathroom floor, covered 21 in vomit, with his pants down around his ankles. Three (3) syringes 22 were located near his body, two of which still contained Sufentanil. 23 T. 24 although Hay was difficult to arouse, he eventually regained 25 consciousness. Once awakened, Hay was ordered to report to the 26 Regents UCSD Hospital emergency room for a fitness for duty After completing the surgical case on patient Randy, Hay went At approximately 1:30 p.m., Hay was found by a nurse, Multiple physicians were called to the bathroom to assist, and 27 28 1 Sufentanil is classified as a Schedule II controlled substance under Health & Safety Code § 11055(c) and a dangerous drug under Bus. & Prof. Code § 4022. 8 1 evaluation. Hay then left Regents UCSD Hospital and never reported 2 to the emergency room. 3 U. 4 Regents UCSD Hospital that he would be taking a medical leave of 5 absence, and enrolled himself in Professionals Treatment at Promises 6 Treatment Center (Promises), where he received treatment for 7 addiction from on or about 11 February 6, 2017, through on or about 8 April 6, 2017. 9 V. Sometime after leaving Regents UCSD Hospital, Hay informed On or about July 31, 2017, Hay voluntarily submitted to a 10 psychiatric evaluation from Board-appointed psychiatrist, A.A., M.D., 11 J.D., FCLM (Dr. A.A.) After an extensive review of records, a lengthy 12 examination, and an interview of Hay, the psychiatrist concluded, 13 among other things, that Hay suffers from Opioid Use Disorder, 14 Severe, In Early Remission. The psychiatrist further opined that Hay's 15 ability to practice medicine safely is impaired by his opioid use 16 disorder, and permitting Hay to engage in the unrestricted practice of 17 medicine will endanger the public health, safety, and welfare. 18 41. The Accusation by the Medical Board of California charged Hay with 19 the following eight counts as the basis for discipline: (1) Prescribing or 20 Administering a Controlled Substance to Himself; (2) Use of Dangerous Drugs to 21 an Extent, or in a Manner, as to be Dangerous to Himself, to Others, or the Public 22 (violation of Bus. & Prof. Code § 2239(a)); (3) Violation of State Laws Regulating 23 Dangerous Drugs and/or Controlled Substances (violation of Bus. & Prof. Code § 24 2238); (4) Dishonesty or Corruption (violation of Bus. & Prof. Code § 2234(e)); 25 (5) False Representation (violation of Bus. & Prof. Code § 2261); (6) Creation of 26 False Medical Records with Fraudulent Intent (violation of Bus. & Prof. Code § 27 2262); (7) Failure to Maintain Adequate and Accurate Records (violation of Bus. 28 9 1 & Prof. Code § 2266); and (8) Practice Under the Influence of a Narcotic (violation 2 of Bus. & Prof. Code § 2280). 3 42. In a Stipulation signed on March 28, 2018, Defendant Hay admitted 4 the truth of each and every charge and allegation in the Accusation, agreed that 5 cause existed for action and discipline, and surrendered his license to practice 6 medicine. 7 43. It was only after reading the media reports of Hay’s suspension that 8 Randy and Karen Dalo discovered Hay had stolen Sufentanil from Randy’s 9 operating room and that Hay and Nodler had falsified the records to indicate that 10 “all controlled substances during the case accounted for and disposed of per 11 hospital policy.” Defendants Hay and Nodler, and defendants Regents USCD 12 Hospital, through Manecke and Allen, fraudulently concealed and withheld the 13 information set forth in the Medical Board’s Accusation (see Exhibit 1) from 14 Plaintiffs. 15 44. 16 17 18 19 Instead of administering Sufentanil to Randy Dalo, Defendant Hay injected himself with the stolen drug. 45. Regents UCSD Hospital, Manecke, and Allen were well aware of Defendant Hay’s serious addiction and his inability to perform competently. 46. Upon information and belief, Defendants were aware that Hay had 20 stolen Sufentanil from Randy Dalo because he had been found in the UCSD men’s 21 room passed out in his own vomit with the stolen Sufentanil. They were also made 22 aware of Hay’s actions because the State of California conducted an investigation 23 and interviewed UCSD employees. 24 26 Randy and Karen Dalo Suffer a Devastating Breach of Trust Upon Discovering that Defendants Concealed and Misrepresented the True Circumstances of Randy’s January 2017 Surgery. 27 47. 25 28 Plaintiffs only learned of Brad Hay’s conduct during Randy’s surgery as a result of media reports in November of 2017. Plaintiffs agonized over 10 1 the betrayal of their trust. Defendants misrepresented and concealed what 2 happened to Randy Dalo during his surgery. Defendants conspired together to 3 cover up the theft of Sufentanil from Randy Dalo’s operating room and the 4 falsification of Randy’s medical records. Randy and Karen Dalo experienced 5 months of relationship difficulties and strain on their marriage. 6 48. Karen Dalo had worked for the UCSD Hospital for 25 years. For 7 most of that time, she worked as administrative support for the operating room and 8 she personally knew Gerard Manecke, Tammy Nodler, and Todd Allen. For her 9 husband’s surgery, she had personally requested and assembled a “dream team” of 10 surgeons, technicians, and medical support. She had asked Tammy Nodler to be 11 the nurse anesthetist during her husband’s surgery. She had sought out Todd Allen 12 to care for her husband’s back problems. Karen was confident that the very best 13 medical professionals were operating on her husband. She had faith that her 14 “family” of UCSD surgical professionals would take the best care of her husband. 15 49. Repeatedly, Gerard Manecke, Tammy Nodler, and Todd Allen 16 reassured Karen that nothing wrong had happened during Randy’s surgery, or that 17 they were not aware of anything having gone wrong. All repeatedly told her that 18 Randy was fine. Because she had complete faith in Defendants, she downplayed 19 Randy’s concerns regarding his nightmares after the surgery. She reassured Randy 20 that everything went fine based on the doctors’ representations. 21 50. Instead of approaching Karen to truthfully and responsibly explain the 22 events of Randy’s surgery, Defendants said nothing for months. Karen learned the 23 truth, not through her UCSD Hospital “family”, but through media reports and a 24 Medical Board Accusation. She was devastated. Karen became wracked with 25 guilt: she had handpicked her husband’s surgical team; she had subjected her 26 husband to treatment by such doctors; she had doubted him when he spoke of 27 nightmares immediately after the surgery; she had repeatedly told him that nothing 28 had gone wrong during the surgery. 11 51. 1 Randy became terrified at the thought of his death or paralysis. He 2 recalled that the surgeons had stressed the necessity of receiving enough anesthesia 3 to prevent him from moving to avoid paralysis. An image of himself in a 4 wheelchair, completely paralyzed and wholly dependent on Karen for support, 5 played over and over in his mind. 52. 6 Randy began to question everything regarding his medical care: If the 7 hospital was willing to cover up something of this magnitude, what else would 8 they hide or what else had they concealed from him? 53. 9 The strain on the marriage greatly intensified after they discovered the 10 circumstances of Randy’s surgery from a newspaper article. Karen was plagued 11 with guilt for putting Randy in this position. Randy isolated himself further into 12 his fears and thoughts that he could have died or been paralyzed during surgery. 54. 13 Randy and Karen felt isolation and despair because no one from 14 UCSD offered any information or told them the truth at any time. They felt 15 betrayed and abandoned by the very people whom they had trusted with Randy’s 16 life. 17 55. Randy requires further surgery to address his back problems, as the 18 neck surgery was to the be first in a series of surgeries. But he cannot overcome 19 his fear of undergoing anesthesia. He lives in constant, daily pain because he is 20 terrified of surgery. Randy has difficulty walking and his mobility is limited. He 21 cannot drive and relies on Karen for transportation. He cannot assist with many 22 household tasks. Their outings are limited by his reduced mobility and difficulty 23 walking. 24 25 26 27 28 12 1 2 3 4 5 6 7 8 9 10 11 UCSD’s Lax Enforcement and Monitoring Allows Hay to Steal Fentanyl from Regents UCSD Hospital Beginning in April 2016, Eight Months Before Randy Dalo’s January 2017 Surgery. 56. According to the Medical Board’s Accusation, which Hay admitted was true, Hay began stealing Fentanyl from Regents UCSD Hospital in April 2016. He injected himself with Fentanyl approximately 5 to 8 times per day. 57. Upon information and belief, Defendant Regents UCSD knew, or should have known, that Defendant Hay was stealing and abusing Fentanyl from the Hospital. Statutory regulations and internal policies strictly govern access to and use of Fentanyl, a Schedule II controlled substance under Health & Safety Code § 110055(c). These regulations, policies, and procedures include: a. Health & Safety Code § 1261.6 governs the use of “automated drug 12 delivery systems,” meaning mechanical systems used to store, 13 dispense, and distribute drugs. “An automated drug delivery system 14 15 shall collect, control, and maintain all transaction information to accurately track the movement of drugs into and out of the system for 16 security, accuracy, and accountability.” (Id. subdiv. (a)(1)). Licensed 17 health facilities “shall develop and implement written policies and 18 19 20 21 22 23 procedures to ensure safety, accuracy, accountability, security, patient confidentiality, and maintenance of the quality, potency, and purity of stored drugs. Policies and procedures shall define access to the automated drug delivery system and limits to access to equipment and drugs.” (Id. subdiv. (d)(1)). b. UC San Diego policy number MCP 321.1 “Controlled Substance: 24 Distribution and Control” describes two types of automated drug 25 delivery systems in use at Regents UCSD Hospital – the “Pyxis” and 26 “Pyxis A- Station.” The Pyxis is described as an automated 27 dispensing cabinet (“ADC”) which is a “secured, compartmentalized 28 unit to control and report all access and withdrawal of the medications 13 1 stored within the unit.” The Pyxis A-Station is a “medication storage 2 unit designed for anesthesia use. Provides storage, security and 3 documentation of medications removed.” 4 c. Policy MCP 321.1 states, “[t]he Pharmacy keeps a record of all 5 transactions of controlled drugs within the Medical Center. The 6 CDAR, CDDR, Pyxis, and C-II Safe are used to document these 7 transactions. All entries are recorded, 24 hours a day, from 0:700 one 8 day to 0:659 the following day.” All Pyxis users are assigned a 9 unique User ID and password; licensed providers are required to 10 change their Pyxis password every 3 months. “Pharmacy is 11 responsible for the oversight of access to all licensed staff to 12 medications.” 13 d. UCSD policy MCP 321.1, under the section entitled “Anesthesia 14 Providers Procedures for Controlled Substances,” states: “the 15 Anesthesia Provider will remove anesthesia kits(s) prepared by 16 pharmacy from the Pyxis ADC. Each kit contains an Anesthesia 17 Controlled Substance Record (CSR). After kit has been removed, 18 additional medications may also be removed. Kits will be kept with 19 the provider or stored in a locked area/drawer when not in use. 20 Providers will document all controlled substances and amounts 21 administered to patients during procedures, document wastage and 22 will return the medications remaining along with the CSR at the end 23 of their shift. Pharmacy staff will inventory and evaluate accurate 24 documentation of all medications used from each kit.” 25 e. According to the policy, if there is a discrepancy in the number of 26 doses of a controlled substance counted versus the number indicated 27 on the inventory control record, the discrepancy is supposed to be 28 investigated. If the discrepancy cannot be resolved, a report is made 14 1 including “a complete description of the incident, the date, the time, 2 and the names of the individuals discovering the discrepancy.” If 3 three or more unaccounted doses of a Schedules II, III, IV, and V drug 4 are suspected stolen, the DEA is to be notified. If “loss, theft or 5 diversion is highly suspected or confirmed,” the appropriate 6 regulatory agency or authority is to be notified, including the 7 appropriate licensing board (e.g. the Medical Board). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 f. UC San Diego policy MCP 321.1, section K, requires proactive monitoring of controlled substances and weekly audits: K. Monitoring of Controlled Substance Activities 1. Pyxis Activities a) Monitoring: Substance activity in Pyxis ADC is ongoing as specified in Pharmacy Procedure. This includes daily checks of anesthesia storage units by pharmacy staff in anesthesia and monthly unit inspections. 2. Monitoring of Anesthesia a) The Anesthesia controlled substance record is reconciled with the initial inventory and amount documented. If the pharmacy discovers any discrepancy in the record: 1) The controlled drug pharmacist is notified. 2) The Anesthesia provider is notified and required to resolve any discrepancies in the Anesthesia Controlled substances record. 3) If the discrepancy remains unresolved the Pharmacy Director, Department of Anesthesiology Clinical Director or designee is notified. b) Weekly audits [one day/week] comparing patient anesthesia records to Anesthesia Controlled Substance Records will be 15 done. If the pharmacy discovers any discrepancies between the records: 1) The controlled drug pharmacist is notified. 2) The anesthesia provider is notified to resolve any discrepancies in documentation between the two records. 3) If the discrepancy remains unresolved, the Pharmacy Director, Department of Anesthesiology Clinical Director or designee is notified and an iReport should be filed. 4) Follow-up actions will be documented in response to the monthly report, by the Anesthesia Clinical Director or designee. Communication between the Clinical Director of Anesthesia and the PIC or designee shall document the followup. c) Unit inspections will be conducted on a monthly basis by pharmacy. See MCP 321.9 for Unit Inspections specifics. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 58. Because of the strict regulations and internal rules regulating access to controlled substances, and UC San Diego’s policy of conducting weekly audits of anesthesia units and monthly inspections of Pyxis units, the Regents UCSD Hospital knew, or should have known, that Defendant Hay was stealing Fentanyl from the hospital for an approximately period of eight months before Randy Dalo’s surgery. Had Regents UCSD Hospital properly monitored, audited, and investigated, as required by law and its own policies, Hay’s theft of drug, lies, false medical entries, and criminal conduct would have been discovered long before Randy’s surgery. Compliance with the law and its own internal policies would have obviated the harm caused to Randy. 16 III. FIRST CAUSE OF ACTION MEDICAL NEGLIGENCE (by Plaintiffs against All Defendants) 1 2 3 59. Plaintiffs hereby reallege all prior paragraphs of this Complaint and 4 incorporate the same herein by reference as if these paragraphs were fully set forth 5 herein. 6 60. Defendants had a duty to use reasonable care, diligence and prudence 7 in the care they provided to Plaintiff Randy Dalo; Defendants breached that duty 8 which proximately caused the resulting injury and actual loss or damage resulting 9 from the professionals’ negligence. Defendants had a legal and ethical duty to 10 11 notify Randy Dalo of misconduct that occurred during his surgery and treatment. 61. Defendants Hay and Nodler failed to provide the adequate amount of 12 anesthesia to Randy Dalo, resulting in harm to him. Hay and Nodler falsified 13 medical records changing the amount of anesthesia given to Randy Dalo. 14 62. Defendant Nodler’s acts of aiding and abetting Hay in obtaining the 15 Sufentanil constituted unprofessional conduct for a licensed nurse. (Bus. & Prof. 16 Code § 2762(a)). Nodler’s acts of falsifying, or making grossly incorrect, grossly 17 inconsistent, or unintelligible entries in any hospital or patient record regarding 18 Sufentanil (a dangerous drug under Bus. & Prof. Code § 4022) constituted 19 unprofessional conduct for a licensed nurse. (Bus. & Prof. Code § 2762(e)). 20 Nodler’s conduct amounts to negligence per se. 21 63. UCSD Hospital was required to exercise reasonable care to protect 22 patients from harm. UCSD Hospital owed a duty to screen the competency of 23 its medical staff and to evaluate the quality of medical treatment rendered on its 24 premises. 25 64. Defendant Hay committed an unlawful act by stealing and using a 26 controlled substance under California Penal Code § 487; California Health and 27 Safety Code §§ 11350 and 11550; 18 U.S.C. § 670; and/or 21 U.S.C. § 841. Hay 28 admitted to violating the following statutes, as set forth in the Medical Board’s 17 1 Accusation: (1) Prescribing or Administering a Controlled Substance to Himself; 2 (2) Use of Dangerous Drugs to an Extent, or in a Manner, as to be Dangerous to 3 Himself, to Others, or the Public (violation of Bus. & Prof. Code § 2239(a)); (3) 4 Violation of State Laws Regulating Dangerous Drugs and/or Controlled 5 Substances (violation of Bus. & Prof. Code § 2238); (4) Dishonesty or Corruption 6 (violation of Bus. & Prof. Code § 2234(e)); (5) False Representation (violation of 7 Bus. & Prof. Code § 2261); (6) Creation of False Medical Records with Fraudulent 8 Intent (violation of Bus. & Prof. Code § 2262); (7) Failure to Maintain Adequate 9 and Accurate Records (violation of Bus. & Prof. Code § 2266); and (8) Practice 10 Under the Influence of a Narcotic (violation of Bus. & Prof. Code § 2280). 11 conduct amounts to negligence per se. 12 65. Hay’s Defendants Hay, and Nodler, and Manecke, Allen and Regents UCSD 13 Hospital were negligent in failing to properly inform Plaintiffs of the inadequate 14 anesthetic given to Randy Dalo during the surgical procedure. Defendants had a 15 duty to inform Plaintiffs of any unanticipated events during surgery. Their conduct 16 fell below the standard of care. 17 66. Regents UCSD Hospital had a duty to properly screen and hire 18 doctors who would provide competent care and doctors who would not violate the 19 law by stealing narcotics intended for patients. Regents UCSD Hospital was aware 20 of Defendant Hay’s addiction, but retained Hay despite its knowledge. 21 67. Defendant Hay was unfit to perform his duties as an anesthesiologist. 22 Regents UCSD Hospital knew that Hay’s addiction would create a particular risk 23 to Hay’s patients because either Hay would be under the influence of drugs while 24 performing surgery or because Hay would steal narcotics. 25 26 27 28 68. Regents UCSD Hospital and Manecke had a duty to properly supervise Defendant Hay, whom they knew had a severe addiction to narcotics. 69. Defendants were well aware of Hay’s continuing abuse of drugs. In 2008, colleagues at Regents UCSD Hospital observed him impaired while on duty. 18 1 Hay had an extensive history of substance abuse and reports of impairment while 2 on duty. Hay spent a lengthy amount of time at Betty Ford. Regents UCSD 3 Hospital’s Well-Being Committee had an obligation to continue to monitor Hay 4 and strictly supervise Hay’s access to controlled substances. Despite its 5 knowledge of Hay’s mental health issues and long history of substance abuse, the 6 Well-Being Committee ceased monitoring and supervising Hay and allowed him to 7 treat patients while impaired. Had the Regents’ Well-Being Committee properly 8 monitored Hay and supervised his administration of anesthetics and access to 9 controlled substances, Plaintiffs would not have suffered the harm they did here. 10 70. Regents UCSD Hospital and Manecke had an obligation to ensure that 11 Hay could not steal controlled substances from the Hospital for his own personal 12 use. Defendants failed to take any action despite the fact that vast quantities of 13 controlled substances were missing from their inventory, which should have been 14 revealed through weekly audits and monthly inspection of Pyxis automated 15 dispensing cabinets and anesthesia units. 16 17 18 71. Defendants failed to supervise Hay who was injecting himself with a powerful narcotic five to eight times per day while treating patients. 72. Regents UCSD Hospital is liable for injury to Randy Dalo caused by 19 its negligent failure to insure the competence of its medical staff through careful 20 selection and review, thereby creating an unreasonable risk of harm. 21 22 73. UCSD Hospital’s failure to ensure the competence of Hay and Nodler resulted in medical negligence. 23 74. Defendants failed to use reasonable care to prevent harm to Plaintiffs. 24 75. As a result of defendants’ negligence, Randy Dalo suffered extreme 25 26 27 emotional distress and trauma. 76. Plaintiff Karen Dalo seeks damages for loss of consortium, services and society. 28 19 1 77. Defendants’ negligence was a substantial factor in causing Plaintiffs’ 2 physical and emotional harm. As a direct, legal, proximate and foreseeable result 3 of Defendants’ negligence, Plaintiffs have been damaged in an amount according 4 to proof at the time of trial, including, but not limited to depression, anxiety, 5 emotional and mental distress, past, present and future pain and suffering, loss of 6 consortium, and economic loss relating to past and future medical expenses. 7 IV. SECOND CAUSE OF ACTION BATTERY (by Plaintiffs against Defendants Hay and Nodler) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 78. 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. 79. Plaintiff Randy Dalo consented to Defendants Hay’s and Nodler’s performance of anesthesiology during his surgery on the condition that he receive sufficient anesthesia to keep him unconscious and immobile. Randy did not give Hay or Nodler permission to steal anesthesia intended for his use during surgery; he did not consent to the administration of an insufficient quantity of anesthesia. Randy did not give permission to Hay and Nodler to cover up the theft of a controlled substance by falsifying Randy’s medical records. 80. Randy Dalo did not consent to the performance of anesthesia by Brad Hay who was impaired, who was under the influence of narcotics, and who had insisted on performing anesthesia for Randy Dalo, despite cutting his finger, simply so Hay could steal more drugs. Randy Dalo did not consent to treatment by an impaired physician, under the influence of narcotics, who did not have the capacity to adequately care for Randy during a serious and invasive surgery. 81. Randy Dalo submitted to surgery on the condition that he would receive sufficient anesthesia so he would not wake up during surgery and would remain immobile during surgery to minimize the risk of paralysis caused by 20 1 movement during the surgery. Defendants Hay and Nodler made a deliberate 2 decision to ignore Randy Dalo’s conditional consent by failing to administer such 3 amounts of anesthesia to ensure Randy Dalo remained unconscious during surgery. 4 Although they knew Randy Dalo had not received sufficient amounts of 5 anesthesia, they continued with the surgery. Randy Dalo underwent a surgery to 6 which he did not consent as he had not received adequate anesthesia to remain 7 unconscious. 8 9 10 11 12 13 82. Hay’s conduct was an intentional deviation thereby constituting a substantially different procedure than that to which Randy consented, when he stole Randy’s medication in order to inject himself in order to get high. 83. The conduct of Defendants goes beyond an inadequate explanation of treatment or an inadequate explanation of the potential ramifications of treatment. 84. Defendants’ conduct of stealing Sufentanil, a Schedule II controlled 14 substance, from a patient and falsifying medical records is not within the scope of 15 exercising their medical judgment. 16 85. On the contrary, these actions were done specifically to NOT provide 17 medical services. There is no medical judgment involved in theft of a controlled 18 substance or in falsifying medical records. 19 20 21 86. There was no therapeutic purpose to stealing Sufentanil and falsifying medical records. These were not done for purposes of therapeutic treatment. 87. As a direct, legal, proximate and foreseeable result of Defendants 22 Hay’s and Nodler’s performance of a procedure not consented to, Plaintiffs have 23 been damaged in an amount according to proof at the time of trial, including, but 24 not limited to depression, anxiety, emotional and mental distress, past, present and 25 future pain and suffering, loss of consortium, and economic loss relating to past 26 and future medical expenses. 27 28 88. Plaintiff Karen Dalo seeks damages for loss of consortium, services and society. 21 1 2 3 4 V. THIRD CAUSE OF ACTION BREACH OF FIDUCIARY DUTY (by Plaintiffs Against Defendants Hay, Allen, Manecke, and Regents UCSD Hospital) 89. Plaintiffs hereby reallege all prior paragraphs of this Complaint and 5 incorporate the same herein by reference as if these paragraphs were fully set forth 6 herein. 7 90. Under California law, hospital and medical care patients have the 8 right to “[r]eceive information about the illness, the course of treatment and 9 prospects for recovery in terms that the patient can understand” and to 10 “[p]articipate actively in decisions regarding medical care.” Cal. Code Regs. tit. 11 22, § 70707. All hospital personnel are required to “observe these patients’ 12 rights.” Id. 13 91. “The doctor-patient relationship is a fiduciary one and as a 14 consequence of the physician's ‘fiducial’ obligations, the physician is prohibited 15 from misrepresenting the nature of the patient's medical condition.” Hahn v. 16 Mirda, 147 Cal. App. 4th 740, 748 (1st Dist. 2007). Doctors have separate duties 17 to “(1) disclose information that is necessary to make an informed decision about 18 proposed treatment, and (2) disclose information about the nature of a patient's 19 medical condition[.]” Id. at 749 n.3. 20 92. “The doctor-patient relationship is a fiduciary one and it is incumbent 21 on the doctor to reveal all pertinent information to his patient. The same is true of 22 the hospital-patient relationship.” Wohlgemuth v. Meyer, 139 Cal. App. 2d 326, 23 331 (1st Dist. 1956). Hospitals “owe a duty of a fiduciary nature to its patients and 24 the public to deliver safe and competent medical services.” Weinberg v. Cedars- 25 Sinai Med. Ctr., 119 Cal. App. 4th 1098, 1109 (2d Dist. 2004). 26 93. Under Cal. Health & Safety Code § 1279.1, a health facility, including 27 a general acute care hospital such as Regents UCSD Hospital, must report an 28 “adverse event” to the California State Department of Health Services within five 22 1 days after the “adverse event has been detected.” At the time the report is made, 2 the health facility must inform the patient of the adverse event. (Health & Safety 3 Code § 1279.1(c)). An “adverse event” under Health & Safety Code § 1279.1 4 includes the following: a. The “wrong surgical or other invasive procedure performed on a 5 6 patient, which is a procedure performed on a patient that is 7 inconsistent with the documented informed consent for that patient.” 8 (id. subdiv. (b)(1)(C)); b. “A patient death or serious disability associated with a medication 9 10 error, including, but not limited to, an error involving the wrong drug, 11 the wrong dose, the wrong patient, the wrong time, the wrong rate, the 12 wrong preparation, or the wrong route of administration, excluding 13 reasonable differences in clinical judgment on drug selection and 14 dose.” (id. subdiv. (b)(4)(A)); 15 c. Criminal events (id. subdiv. (b)(6)); 16 d. “An adverse event or series of adverse events that cause the death or 17 serious disability of a patient, personnel, or visitor.” (id. subdiv. 18 (b)(7)) 19 A “serious disability” is defined as “a physical or mental impairment that 20 substantially limits one or more of the major life activities of an individual, or the 21 loss of bodily function, if the impairment or loss lasts more than seven days . . .” 22 (Id. § 1279.1(d)). 23 94. UC San Diego policy no. MCP 562.1, “Disclosure of Unanticipated 24 Events, Unanticipated Adverse Outcomes and Medical Errors” defines an 25 “Unanticipated Adverse Outcome” as a “clinical outcome not foreseen by the 26 patient and the responsible practitioner that results in a potential for an actual 27 meaningful negative change to the patient, and that may include adverse events or 28 incidents, unusual occurrences, or sentinel events.” The policy requires the 23 1 attending physician to “inform the patient of the anticipated event, unanticipated 2 adverse outcome or medical errors in a timely manner. Risk management may be 3 consulted as needed.” The policy instructs the attending physician to disclose the 4 “nature of the event, the severity, and cause, if known” in a “factual, non- 5 judgmental manner. Information that will enable the patient or surrogate to make 6 informed decisions regarding further medical attention shall be provided.” The 7 policy states the “[d]isclosure shall be given at the earliest opportunity after the 8 event is identified and must occur before the Regulatory Affairs Department (no 9 later than 5 days after event has been detected) reports the events to a Regulatory 10 11 Agency under the relevant mandatory reporting requirements.” 95. The falsification of medical records is a crime (Pen. Code § 471.5). 12 The use of prescribing or administering to himself any controlled substance or 13 dangerous drug to the extent that it impairs the ability of a licensed doctor to 14 practice medicine safely constitutes unprofessional conduct. (Bus. & Prof. Code § 15 2239). False representations constitute unprofessional conduct. (Id. § 2261). 16 Practice under the influence of a narcotic is unprofessional conduct and is a crime. 17 (Id. § 2280). 18 96. Defendants Hay, Allen, Manecke, and Regents UCSD Hospital had a 19 duty to inform Plaintiffs Randy and Karen Dalo of the following: (1) that Hay had 20 purposely administered insufficient amounts of Sufentanil to Randy Dalo during 21 surgery; (2) that Hay had misappropriated the Sufentanil intended for Randy Dalo; 22 (3) that Hay had falsified Randy Dalo’s medical records to conceal his 23 misappropriation; and (4) that Hay had been under the influence of drugs at the 24 time he performed anesthesia during Randy Dalo’s surgery. 25 97. Hay had a fiduciary duty to Randy Dalo to practice medicine safety by 26 refraining from abuse of controlled substances and by avoiding the excessive use 27 of drugs or alcohol to the point of impairment. See e.g. Bus. & Prof. Code §§ 28 2239(a) and 2280. Hay had a fiduciary duty to refrain from making false 24 1 representations (see Bus. & Prof. Code § 2261) and to refrain from altering or 2 modifying Randy Dalo’s medical records with fraudulent intent or creating a false 3 medical record for Randy Dalo with fraudulent intent. (Id. § 2262). Hay breached 4 his duty to Randy Dalo when he practiced medicine during the January 2017 5 surgery while under the influence of a controlled substance; when he stole 6 anesthesia intended for Randy Dalo for his own use; and when he falsified Randy 7 Dalo’s medical records to conceal his theft of the anesthesia and to conceal that he 8 had not administered sufficient quantities of anesthesia to Randy. 9 98. Defendant Regents UCSD Hospital had a fiduciary obligation to 10 ensure the enforcement of existing policies strictly regulating access to controlled 11 substances at the hospital; to properly perform weekly audits of anesthesia units so 12 any discrepancy related to the absence of controlled substances could be found; to 13 alert the appropriate regulatory and police agencies of the suspected theft of any 14 controlled substance; and, by complying with its own internal policies and 15 procedures, become aware of Hay’s repeated theft and abuse of Fentanyl. Regents 16 UCSD Hospital had an obligation to restrict Hay from accessing and abusing 17 Fentanyl. It’s failure to follow its own internal policies permitted Hay to 18 extensively abuse drugs and allowed Hay to practice medicine while under the 19 influence of a narcotic. 20 99. Defendants’ breach of their fiduciary obligations to Plaintiff Randy 21 Dalo was a substantial factor in causing his physical and emotional harm. Plaintiff 22 Karen Dalo seeks damages for loss of consortium, services and society. As a 23 direct, legal, proximate and foreseeable result of Defendants’ negligence, Plaintiffs 24 have been damaged in an amount according to proof at the time of trial, including, 25 but not limited to depression, anxiety, emotional and mental distress, past, present 26 and future pain and suffering, loss of consortium, and economic loss relating to 27 past and future medical expenses. 28 25 VI. FOURTH CAUSE OF ACTION FRAUD BY MISREPRESENTATION (by Plaintiffs against All Defendants) 1 2 3 100. Plaintiffs hereby reallege all prior paragraphs of this Complaint and 4 incorporate the same herein by reference as if these paragraphs were fully set forth 5 herein. 6 101. Defendants Hay and Nodler, and hospital employees and Defendant 7 agents Manecke and Allen, and other representatives of Regents UCSD Hospital 8 made false representations to Plaintiffs. 9 102. Defendants represented that Randy Dalo was given the proper amount 10 of anesthetics during Randy’s surgery. Defendants Hay and Nodler did so by 11 falsifying the medical records. The falsification of medical records is a crime (Pen. 12 Code § 471.5). Falsifying records related to a dangerous drug, such as Sufentanil, 13 amounts to unprofessional conduct for a licensed nurse. (Bus. & Prof. Code § 14 2762). 15 16 103. Defendants represented that nothing out of the ordinary occurred during Randy’s surgery. 17 104. Defendants represented that everything went well during the surgery. 18 105. Defendants never disclosed Brad Hay was under the influence of 19 narcotics and had insisted on performing anesthesia for Randy Dalo’s surgery for 20 the purpose of stealing more drugs. 21 106. When Plaintiffs asked Defendant Manecke whether they should be 22 concerned about anything regarding the surgical procedure, Manecke denied it. 23 107. Defendant Allen denied that anything out of the ordinary occurred 24 25 26 during surgery. 108. These representations were false. Defendants knew they were false when they made them. 27 109. Under the hospital’s own policies and corresponding California 28 statutes, Defendants Hay, Manecke, Allen and Regents UCSD Hospital were 26 1 required to notify Randy Dalo of any unanticipated event, unanticipated adverse 2 outcome and/or medical errors within five days of occurrence. 3 4 5 110. All defendants represented to Randy and Karen Dalo that nothing out of the ordinary occurred during surgery. 111. Defendants knew that these representations were false because Hay 6 was found unconscious in the men’s room at the UCSD hospital in his own vomit 7 with medication stolen from Randy Dalo. Defendants knew that these 8 representations were false because the State of California had initiated an 9 investigation of Hay’s misconduct and interviewed various employees of UCSD. 10 11 112. Defendants either knew that the representation was false or they made the representation recklessly and without regard for its truth. 12 113. Defendants intended that Plaintiffs rely on their representations. 13 Plaintiffs reasonably relied on Defendants’ representations. Relying on these 14 misrepresentations, Randy Dalo did not seek immediate counseling for his anxiety 15 and depression. Instead of understanding the source of his anxiety and receiving 16 treatment, Randy Dalo blamed himself and mentally deteriorated to a state where 17 he could not share a bedroom with his wife or be around other people. Randy had 18 difficulty conversing, but did not understand why and did not seek treatment. He 19 suffered needlessly for months causing extreme stress in his relationship with his 20 wife, Karen Dalo. 21 114. As a result of Defendants’ fraudulent conduct, Randy Dalo mistrusts 22 medical providers and fears undergoing additional surgery. Randy continues to 23 suffer from pain caused by back problems and his mobility is significantly limited, 24 which restrains his daily activities and diminishes the quality of his life. Randy 25 cannot drive and relies on Karen for transportation; he cannot assist with 26 household tasks or family events and relies on Karen. Although he requires 27 additional surgery on his back, he is afraid of undergoing anesthesia for surgery 28 and, as a result, lives in constant pain and discomfort. 27 1 115. As a direct, legal, proximate and foreseeable result of Defendants’ 2 fraud, Plaintiffs have been damaged in an amount according to proof at the time of 3 trial, including, but not limited to depression, anxiety, emotional and mental 4 distress, past, present and future pain and suffering, loss of consortium, and 5 economic loss relating to past and future medical expenses. 6 7 116. Plaintiff Karen Dalo seeks damages for loss of consortium, services and society. 8 VII. FIFTH CAUSE OF ACTION FRAUD BY CONCEALMENT (by Plaintiffs against All Defendants) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 117. 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. 118. “[T]he confidence growing out of the relationship of doctor and patient imposed upon the physician the duty of refraining from fraudulent concealment, that is, the duty of disclosure when he had knowledge of the facts. . . . Where there is a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud sufficient to entitle the party injured thereby to an action.” Stafford v. Shultz, 42 Cal. 2d 767, 777-79 (Cal. 1954), citing Hobart V. Hobart Estate Co., 26 Cal. 2d 412, 440 (Cal. 1945). A physician has a “duty to disclose to the plaintiff the full extent of his injuries and the probable future disability to be expected therefrom . . .” Id. 119. “More than a century ago, the United States Supreme Court declared, ‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. . . .” Thor v. Superior Court, 5 Cal. 4th 725, 731 (Cal. 1993), citing Union P. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). 28 1 120. Defendants Hay, Nodler, Regents UCSD Hospital and its agents 2 Defendants Manecke and Allen, and other representatives of Regents UCSD 3 Hospital had a fiduciary relationship to Plaintiffs as Randy Dalo’s medical care 4 provider. 121. Defendants intentionally failed to disclose the fact that Hay had stolen 5 6 Sufentanil from Randy Dalo and injected himself with it. 122. Defendants intentionally failed to disclose that Hay and Nodler 7 8 falsified Randy’s medical records to falsely reflect that he had been given a full 9 dose of anesthetics. 123. Defendants intentionally failed to disclose that Hay had been under 10 11 the influence of narcotics while practicing medicine and that he had insisted on 12 performing anesthesia for Randy Dalo’s surgery, despite an injury to his hand, for 13 the purpose of stealing more drugs. 124. 14 Defendants intentionally failed to disclose these facts known only to 15 them and that Plaintiffs could not have discovered. The investigation of Hay was 16 not a matter made public by either the hospital, its staff or the investigators for 17 months. Plaintiffs had no access to this information. 18 125. Defendants prevented Plaintiffs from discovering these facts. 19 126. Defendants denied that anything had gone wrong when Karen Dalo 20 21 22 23 asked. 127. Plaintiffs did not know of these facts until months later when they read about it in the media. 128. Plaintiffs could not have known of the facts because only Defendants 24 knew and could have known that Defendant Hay stole Sufentanil and injected 25 himself with it. 26 129. Defendant Regents UCSD Hospital had an obligation under its own 27 policy to communicate to Plaintiffs any unanticipated event. Regents UCSD 28 Hospital was required to report any occurrence that was not anticipated prior to the 29 1 intervention and was not necessarily associated with an adverse outcome, within 2 five days of the event. 3 4 5 130. Defendant Regents UCSD Hospital was required to record in the patient medical records a factual documentation of the event. 131. Regents UCSD Hospital concealed these facts by failing to follow its 6 own policies by failing to report the facts regarding Defendant Hay’s conduct to 7 Plaintiffs and by failing to document the event in Randy Dalo’s medical records. 8 132. Defendants intended to deceive Plaintiffs by concealing these facts. 9 133. Randy began having nightmares shortly after the surgery. Randy 10 began having panic attacks. Randy would wake up suddenly from sleeping in full 11 sweat and shaking. Randy told Karen that he “didn’t feel right” but could not 12 describe it. 13 14 15 134. Not knowing what was causing these nightmares caused anxiety, fear and depression. 135. For months, Randy became more and more disconnected from his 16 family and isolated. Randy stopped leaving the house. He stopped sleeping in the 17 bed with Karen because of the multiple instances in which he woke up in the 18 middle of the night in a panic attack. 19 136. Randy started to sleep on the couch with the TV on because the sound 20 of the television helped him feel that he was not alone. Randy began having 21 anxiety in social situations with other people. 22 23 24 137. For several months, Randy’s sudden change in behavior placed extreme stress on his 27-year marriage. 138. Had Plaintiffs known about what occurred during surgery, Randy and 25 Karen Dalo would have avoided months of needless suffering by isolating and 26 understanding the source of Randy’s depression and anxiety and receiving 27 treatment. 28 30 1 139. Instead, relying on Defendants’ concealment of facts, Karen Dalo 2 spent several months experiencing and expressing frustration at a sudden and 3 extreme change in Randy’s behavior which no one could understand. This placed 4 extreme stress on their marriage. 5 140. Defendants’ concealment of facts was a substantial factor in causing 6 Plaintiffs’ physical and emotional harm. Plaintiffs Karen and Randy Dalo continue 7 to suffer from Randy Dalo’s limited mobility and constant pain. Randy fears 8 further surgery and cannot trust any medical provider. He relies exclusively on 9 Karen for care. Plaintiffs’ quality of life has eroded. 10 141. As a direct, legal, proximate and foreseeable result of Defendants’ 11 concealment, Plaintiffs have been damaged in an amount according to proof at the 12 time of trial, including, but not limited to depression, anxiety, emotional and 13 mental distress, past, present and future pain and suffering, loss of consortium, and 14 economic loss relating to past and future medical expenses. 15 16 17 18 142. Plaintiff Karen Dalo seeks damages for loss of consortium, services and society. 143. Defendants engaged in conduct with malice, oppression or fraud, entitling Plaintiffs to punitive damages. PRAYER FOR RELIEF 19 20 Plaintiffs pray for judgment as follows: 21 1) Economic damages according to proof; 22 2) Noneconomic damages according to proof; 23 3) Attorneys’ fees; 24 4) Costs of suit, including but not limited to expenses for expert testimony. 25 26 NOTICE OF INTENT TO SEEK PUNITIVE DAMAGES AT TRIAL Plaintiffs intend to seek punitive damages for the conduct of Defendants as 27 to all of the causes of action in this complaint. Plaintiffs will file a motion 28 pursuant to Code Civ. Proc. § 425.13 to establish their legal entitlement to seek 31 1 such damages. The fraudulent, malicious, and oppressive conduct of Defendants, 2 as set forth herein, justifies the imposition of exemplary damages to punish and to 3 deter Defendants from the criminal and outrageous conduct in which they engaged. 4 JURY DEMAND 5 Plaintiffs respectfully request a trial by Jury. 6 7 8 9 10 11 12 13 DATED: November 23, 2018 Respectfully submitted, IREDALE AND YOO, APC s/ Grace Jun Eugene Iredale Julia Yoo Grace Jun Attorneys for Plaintiffs RANDY and KAREN DALO 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32 EXHIBIT 1 . - BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS . STATE OF CALIFORNIA In the Matter of the Accusation Against: BRADLEY GLENN HAY, M.D. Case No. 80'0-2017-030496 Physician's and Surgeon?s Certi?cate No. A 87615 - Respondent DECISION AND ORDER The attached Stipulated Surrender of License and Disciplinary Order is hereby adopted as the Decision and Order of the Medical Board of - California, Department of Consumer Affairs, State of California. This Decision shall become effective at 5:00 pm. on April 16, 2018. IT IS SO ORDERED April 9, 2018 MEDICAL BOA I OF CALIFORNIA U.) ?~XAVIER BECERRA 7 Attorney General of California ALEXANDRA M. ALVAREZ Supervising Deputy Attorney General KAROLYN M. WESTFALL Deputy Attorney General State Bar No. 234540 600 West Broadway, Suite 1800 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 73 8-9465 Facsimile: (619) 645-2061 Attorneys for Complainant BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS - ?200 W. Arbor Drive, Mail Code?8770 STATE OF CALIFORNIA In the Matter of the Accusation Against: Case No. 800?2017?03 0496 BRADLEY GLENN HAY, M.D. OAH No. 2018010510 San Diego, CA 92103 SURRENDER OF LICENSE AND DISCIPLINARY ORDER Physician?s and Surgeon?s Certificate N0. AS7615, Respondent. IT IS HEREBY STIPULATED AND AGREED by and between the parties to the above- entitled proceedings that the following matters are true: PARTIES 1. Kimberly Kirchmeyer (Complainant) is the Executive Director of the Medical Board of California (Board). She brought this action solely in her of?cial capacity and is represented in this matter by Xavier Becerra, Attorney General of the State of California, by Karolyn M. . Westfall, Deputy Attorney General. I i 2. Bradley-Glenn Hay, M.D. (Respondent) is represented in this proceeding by attorney Steven H. Zeigen, Esq., whose address is whose address is Rosenberg, Shpall Zeigen, APLC, 750 Street, Suite 3210, San Diego, California, 92101. 1 STIPULATED SURRENDER OF LICENSE AND DISCIPLINARY ORDER (800-2017-030496) about June 11, 2004, the Board issued Physician?s and Surgeon?s Certi?cate No. AS7615 to Bradley Glenn Hay, MD. (Respondent). The Physician?s and Surgeon?s Certi?cate was in full force and effect at all times relevant to the charges brought in Accusation No. 800?2017-03 0496 and expired on November 30, 2017. 4.. On or about September 8, 2017,.an Interim Order of Suspension was issued by the Of?ce of Administrative Hearings, immediately suspending Physician?s and Surgeon?s Certi?cate No. AS7615, and prohibiting?Respondent from practicing medicine in the State of California. The Interim Order of Suspension remains in full force and effect as of the effective date of this Stipulated Surrender and Disciplinary Order. JURISDICTION On October 17, 2017, Accusation No. 800-2017-030496 was ?led befOre the Board and is currently pending against Respondent. A true and correct copy of Accusation No. 800? 2017?03 0496 and all other statutorily required documents were properly served on Respondent on October 17, 2017. Respondent timely ?led his Notice of Defense contesting the AccusaCtion. A true and correct copy of Accusation No. 800-2017-03 0496 is attached hereto as Exhibit A and incorporated by reference as if fully set forth herein. ADVISEMENT AND WAIVERS 6. Respondent has carefully read, fully discussed with counsel, and understands the charges and allegations in Acousation No. 800?2017-030496. Respondent also has carefully read, fully discussed with counsel, and understands the effects of this Stipulated Surrender of License and Disciplinary Order. 7. Respondent is fully aware of his legal rights in this matter, including the right to a hearing on the charges and allegations in the Accusation; the right to confront and cross?examine the witnesses against him; the right to present evidence and to testify on his own behalf; the right to the issuance of subpoenas to compel the attendance of witnesses and the production of documents; the right to reconsideration and court review of an adverse decision; and all other rights accorded by the California Administrative Procedure Act and other applicable laws. 2 STIPULATED SURRENDER OF LICENSE AND DISCIPLINARY ORDER (800-2017-03'0496) Having the bene?t of counsel, Respondent voluntarily, knowingly, and intelligently waives and gives up each and every right set forth above. CULPABILITY 9. Respondent admits the truth of each and every charge and allegation in Accusation No. 800-2017?03 0496, agrees that cause exists for action and discipline, and hereby surrenders his Physician?s and Surgeon?s Certi?cate No. AS7615 for the Board?s formal acceptance. 10. Respondent understands that by signing this stipulation he enables the Board to issue an order accepting the surrender of his Physician?s and Surgeon?s Certi?cate without notice to, or opportunity to be heard by, Respondent. 11. With Respondent?s early acknowledgment that cause exists for the Board?s action, Complainant finds good cause under Business and Professions Code section 2307, subdivision and thereby agrees that Respondent may ?le a petition for reinstatement two years after the effective date of the Board?s Decision and Order. CONTINGENCY 12. Business and Professions Code section 2224, subdivision provides, in pertinent part, that the Medical Board-?shall delegate to its executive director the authority to adopt a stipulation for surrender of a license.? 13. Respondent understands that, by signing this stipulation, he enables the Executive Director of the Board to issue an order, on behalf of the Board, accepting the surrender of his Physician?s and Surgeon?s Certi?cate No. AS7615 without further notice to, or opportunity to be . heard by, Respondent. 14; This Stipulated Surrender of License and Disciplinary Order shall be Subject to the approval of the Executive Director on behalf of the Board. The parties agree that this Stipulated Surrender of License and Disciplinary Order shall be submitted to the Executive Director for ?her consideration in the above-entitled matter and, further, that the Executive Director shall have a reasonable period of time in which to consider and act on this Stipulated Surrender of License and Disciplinary Order after receiving it. By?signing this stipulation, Respondent understands 3 STIPULATED SURRENDER OF LICENSE AND DISCIPLINARY ORDER (800-2017-03 0496) 12and agrees that he may not withdraw his agreement or seek to rescind this stipulation prior to the time the Executive Director, on behalf of the Board, considers and acts upon it. 15. The parties agree that this Stipulated Surrender of License and Disciplinary Order shall be null and void and not binding upon the parties unless approved and adopted by the Executive Director on behalf of the Board, except for this paragraph, which shall remain in full force and effect. Respondent fully understands and agrees that in deciding whether or not to approve and adopt this Stipulated Surrender of License and DisCiplinary Order, the Executive Director? and/or the Board may receive oral and written communications from its staff and/or the Attorney General?s Of?ce. Communications pursuant to this paragraph shall not disqualify the Executive DirectOr, the Board, any member thereof, and/or any other person from future I participation in this or any other matter affecting or involving Respondent. In the event that the Executive Director on behalf of the Board does not, in her discretion, approve and adopt this Stipulated Surrender of License and Disciplinary Order, with the exception of this paragraph, it shall not become effective, shall be of no evidentiary value whatsoever, and shall not be relied upon or introduced in any disciplinary action by either party hereto. Respondent further agrees that should this Stipulated Surrender of License and Disciplinary Order be rejected for any reason by the Executive Director on behalf of the Board, Respondent will assert no claim that the Executive Director, the Board, or any member thereof, was prejudiced by its/his/her review, discussion and/or consideration of this Stipulated Surrender of License and Disciplinary Order 0r of any matter or matters related hereto. ADDITIONAL PROVISIONS 16. This Stipulated Surrender of License and Disciplinary Order is intended by the parties herein to be an integrated writing representing the complete, ?nal, and exclusive embodiment of the agreements of the parties in the above?entitled matter. 17'. The parties agree that copies of this Stipulated Surrender of License and Disciplinary Order, including copies of the signatures of the parties, may be used. in lieu of original docum6nts and signatures and, further, that such copies shall have the same force and effect as originals. 4 STIPULATED SURRENDER OF LICENSE AND DISCIPLINARY ORDER (800-2017-030496) consideration of the foregoing admissions and stipulations, the parties agree the Executive Director of the Board may, without further notice to or opportunity to be heard by. Respondent, issue and enter the following Disciplinary Order on behalf of the Board: ORDER IT IS HEREBY ORDERED and Surgeon?s Certi?cate No. AS7615, issued to Respondent Bradley Glenn Hay, M.D., is surrendered and accepted by the Medical Board of California. 1. The surrender of Respondent?s Physician?s and Surgeon?s Certi?cate and the acceptance of the surrendered license by the Board shall constitute the imposition of discipline against Respondent. This stipulation constitutes a record of the discipline and shall become a part of ReSpondent?s license history with the Medical Board of California. 2. Respondent shall lose all rights and privileges as a physician and surgeon in, California as of the effective date of the Board?s Decision and Order. 3. Respondent shall cause to be delivered to the Board his pocket license and, if one was issued, his wall certi?cate on or before the effectiVe date of the Decision and Order. 4. If Respondent ever ?les an application for licensure or a petition for reinstatement in the State of California, the Board shall treat it as a petition for reinstatement. Respondent must comply with all the laws, regulations and procedures for reinstatement of a revoked or surrendered license in effect at the time the petition is ?led, and all of the charges and allegations contained in Accusation No. 800-2017-030496 shall be deemed to be true, correct, and fully admitted by Respondent when the Board determines whether to grant or deny the petition. 5. If Respondent should ever apply or reapply for a new license or certi?cation, or petition for reinstatement of a license, by any other health care licensing agency in the State of California, all of the charges and allegations contained in Accusation, No. 800-2017-03 0496 shall be deemed to be true, correct, and fully admitted by Respondent for the purpose of any Statement of Issues or any other proceeding seeking to deny or restrict licensure. 5 STIPULATED SURRENDER OF LICENSE AND DISCIPLINARY ORDER (800-2017-030496) I haye eare??ly read the ab_o_v_e Stipulated Surrender of Llcense and Disciplinary aner and have fully discussed it with my attorney, Sieven H. Zeigen, Esq. I understand the sfipirlation and the. effect it will have on my Physician:-~ and Surgeon? 5 Certi?cate No. AS7615. I enter into this Stipulated Surrender of License and Disciplinary Order voluntarily, knowingly, and intelligently, and agree to be bound by the Decision and Order of the Medical Bo'ard of Califomia. DATED: 16?" half/X gd?h 3?5 D. Respondent I have read and fully discussed with Respondent Bradley Glenn Hay, M. D. the terms and conditions and other matters contained in this Stipulated Surrender of License and Disciplinary Order. I approve its form and content. . DATED: 22>? /g - .1 erwaqu. 2131an, Ea) Attomeyjbr Regionalism ENDORSEMENT The foregoing Stipulated Surrender of License and Disciplinary Order is hereby submitted for consideration by the Medical Board of California of the Department of Consumer Affairs. Dated: 3/33! I - Respectfully submitted, XAVIER BECERRA Attorney General of Califomia ALEXANDRA M. ALVAREZ Superv' ing _uty Attome General Attorney General Attorneys for Co'mplainant 802017801762 81992227.doc 6 SURRENDER OF LICENSE AND DISCIPLINARY ORDER (800-2017-030496) Exhibit A Accusation N0. 800?2017-030496 27' '28 FILED . XAVIER BECERRA . . STATE OF CALIFORNIA . Attorney General of Cahfornia MEDICAL IOAFRD OF CALIFORNIA ALEXANDRA ALVAREZ . SAC I Supervising Deputy Attorney General . Y-j? ANALYST KAROLYN M. WESTFALL . Deputy Attorney General State Bar No. 234540 600 West Broadway, Suite 1800 San Diego, CA 92101 P. O. Box 85266 . San Diego, CA 92186-5266 Telephone: (619) 738-9465 Facsimile: (619) 645-2061 Attorneys for Complainant . BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENTOF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: Case No. 800-2017-030496 BRADLEY GLENN HAYArbor?Drive, Mail Code 8770 San Diego, CA 92103 . Physician?s and Surgeon? Certificate No. AS7615, Respondent. Complainant alleges: PARTIES 1.. Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her of?cial I capacity as the Executive Director of the Medical Board of California, Department of Consumer- Affairs (Board). 2. Onor about June 11, 2004, the Medical Board issued Physician?s and Surgeon?s Certi?cate No. AS7615 to Bradley Glenn Hay, M.D. (Respondent). The Physician?s and Surgeon?s Certi?cate was in ?ill force and effect at all times relevant to the charges brought I.- herein and willexpire on?November 30, 2017,.unless renewed. . ACCUSATION (800-2017?030496) .21about September 8, 2017, an Interim Order of Suspension was issued by the Of?ce of Administrative Hearings, immediately suspending Physician?s and Surgeon?s Certi?cate No. AS7615, and prohibiting Respondent from practicing medicine in the State of California. As a result, Respondent remains suspended from the practice of medicine pending the issuance of a ?nal decision after an administrative hearing on the Accusation. JURISDICTION 4. This Accusation is brought before the Board, under the authority of the following laws. All section references areto the Business and Professions Code (Code) unless otherwise indicated. 5. Section 2227 of the Code states: A licensee whose matter has been heard by an administrative law judge of the Medical Quality Hearing Panel as designated in Section 11371 of the Government Code, or whose default has been entered, and who is found guilty, or who has entered into a, stipulation for disciplinary action with the board, may, in accordance with the provisions of this chapter?? Have his or her license revoked upon order of'the board. Have his or her right to practice suspended for a period not to exceed one year upon order of the board. Be placed on probation and be required to pay the costs of probation monitoring upon order of the board. . Be publicly reprimanded by the board. The public reprimand may include a recluirement that the licensee complete relevant educational courses approved by the board. Have any other action taken in relation to discipline as part of an order of probation, as the board or an administrative law judge-may deem proper. Any matter heard pursuant to subdivision except for warning letters, medical review or advisory conferences, professional competency examinations, continuing education activities, and cost reimbursement associated therewith that are agreed to with the board and successfully completed by the licensee, Or other matters made con?dential or 2 ACCUSATION (800-201 7?03 0496) (11-privileged by existing law, is deemed public, and shall be made available to the public by the board pursuant to Section 803.1.? 6. Section 2234 of the Code, states, in pertinent part: ?The board shall take action? against any licensee who is charged with unprofessional conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not limited to, the following: i Violating or attempting to violate, directly or indirectly, assisting in for abetting the violation of, or conspiring to violate any provision of this chapter. - 7 The commission of any act involving dishOn'esty or corruption which is substantially related to the quali?cations, functions, or duties of a physician and surgeon. 7. section 2238 ofthe Code states: violation of any federal statute or federal regulation or any of the statutes or regulations of this state regulating dangerous drugs or'controlled substanCes constitutes unprofessional conduct.? 8. Section 2239 of the Code states, in pertinent part: The use or prescribing for or administering to himself or herself, of any controlled substancethe dangerous drugs speCi?ed in Section 4022, or of alcoholic beverages, to the extent,or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the . ability of the licensee to practice medicine safely or more than one misdemeanor or any felony involving the use, consumption, or self?administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct; The record of the conviction is conclusive evidence of such unprofessional conduct. 6? 53 00-2017-03 0496) Section 2261 of the Code statesz' making or signing any certi?cate or Other document directly or indirectly related to the practice Iof medicine or podiatry which falsely represents the existence or nonexistence. of a state of facts, constitutes unprofessional conduct.? . 10. Section 2262 of the Code states: I - ?Altering or modifying the medical record of any person, with fraudulent intent, or creating any false medical record, with fraudulent intent, constitutes unprofessional conduct. I ?In addition to any other disciplinary action, the Division of Medical QualityI or the California Board of Podiatric Medicine may impose a civil penalty of ?ve hundred dollars ($500) for a violation of this section.? 11. Section 2266 of the Code states: ?The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to theirpatients constitutes unprofessional conduct.?- 12. Section 2280 of the Code states: ?No licensee shall practice medicine While underthe in?uence of any narcotic drug or alcohol to such eatent as to impair his or her ability to conduct the practice of medicine with safety to-the public and his or her patients. Violation of this section constitute-s ?x unprofessional Conduct and is a misdemeanor.? I 13. Section 11170 of the Health and Safety Code states, ?No. person shall prescribe, administer, or furnish aICOntrolled substance for himself.? .14. Section 11173 of the Health and Safety Code states, in pertinent part: No person shall obtain or attempt to obtain controlled substances, or procure or attempt to procure?the administration of or prescription for controlled substances, (1) by fraud, deceit, misrepresentation, or subterfuge; or (2) by the concealment of a material fact. 1 The term ?board? means the Medical Board of California, and the term ?Division of Medical Quality? and ?Division of Licensing? shall be deemed to refer to the board. (Bus. Prof. Code ?2002.) 4 ACCUSATION (soc-20174330496) mhmw?24. 25 26 2-7 28? No person shall make a false statement in any prescription, order, report, or record, required by this division. 53 I 15. Section 11350 of the Health and Safety Code states, in pertinent part: Except as otherwise provided in this division, every person who possesses (1) any controlled substance in subdivision or of Section 11.055. . .?or (2) any controlled substance classi?ed in Schedule IV, or . A. . 2. which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision of Section 1170 of the Penal Code.? 16. Section 11352 of the Health and Safety COde states, in pertinent part: i Except as otherwise provided in this division, ever person who transports, imports in this state, sells, furnishes, administers, or gives any controlled substance classi?ed in Schedule IV, or which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to-subdivision of Section ?1 1700f the Penal Code for three, four, or ?ve years.? 17. Section 822 of the Code states: I ?If a licensing agency determines that its licentiate?s ability to practice his or her profession safely is impaired because the licentiate is mentally ill, or physically ill affecting competency, the licensing agency may take action by any one of the following methods: I Revoking the licentiate?s certi?cate or license. Suspending the licentiate?s right to practice. Placing thelicentiate on probation. Taking such other action in relation to the licentiate as the licensing agency in its discretion deems proper. ACCUSATION (800-2017?030496) ?The licensing agency shall not reinstate a revoked or suspended certi?cate or license until it has received competent evidence of the absence or controlrof the condition which caused its action and until it is satis?ed that with due regard for the public health and safety the person?s right to practice his or her profession may be safely reinstated.? FIRST CAUSE FOR. DISCIPLINE (Prescribing or Administering a Controlled Substances to Himself) - 18. Respondent has subjected his Physician?s and Surgeon?s Certi?cate No. AS7615 to disciplinary action under sections 2227, and 2234, as de?ned by section 2239, subdivision of the Code, in that he has administered controlled substances to. hirimelf, as more particularly alleged hereinafterz: Respondent has?a long documented history of alcohol and drug dependence. . ReSpondent ?rst used alcohol atage 14, and drank alcohol most weekends "throughout high school. During college and medical school, Respondent drank a 12-pack? or more of alcohol approximately three (3) to ?ve (5) days per Week. This frequency-of drinking continued through his residency, during which Respondent came to work intoxicated or hungover on multiple 5 occasions. Respondent?s addiction to alcohol had legal consequences, and resulted in two (2) alcohol-related driving citations in the past. - 20.. Between in or around July 1, 2002, and June 30, 2006, during his residency, Respondent began to steal Fentanyl3 from work. He initially brought the Fentanyl home for his own use, but then eyentually began injecting himself with Fentanyl in the bathrooms at work. 21. In or around 2006, Respondent was offered a job as an attending anesthesiologist at - the University of California San Diego (UCSD). Due?to his stress and substance abuse issues, Respondent chose to take some time off before beginning his job at UCSDQ. During that time, . 2 Conduct occurring more than seven (7) years from the ?ling date of this A?ccusation is for informational purposes only and is not alleged as a basis for disciplinary action. 3 Fentanyl is a Schedule II controlled substance pursuant to Health and Safety Codesection 11055, subdivision and a dangerous drug pursuant to Business and Professions Code section 4022. Intraiienous Fentanyl is often used for anesthesia and analgesia. ACCUSATION (800-201 7-03 0496) Respondent lived at. home with his parents, and for several months, he drank 1 liter of vodka each day. 22. Respondent began working as an anesthesiologist at UCSD in or around 2007. 23. In or around July 2008, Respondent was confronted by colleagues at UCSD who observed him impaired while on duty. Respondent was ordered to report to Well Being committee, who referred him for treatment at the Hazelton Betty Ford Foundation Drug Addiction Treatment Center (Betty Ford). . 24. Between on or about July 3, 2008, through on or about October 30, 2008, Respondent received treatment for addictionxat Betty Ford. During that time, Respondent'was diagnosed with Bipolar II Disorder, and was prescribed Lexapro4 and Lamictal.5 25. In or around November 2008, Respondent returned to work at maintained 7 sobriety through regular monitoring by the Wellbeing Committee frOm in or around 2009 through in or around 2014. i i 26. In or around October 2015, Respondent stopped seeing his and began self-prescribing medications. 27. In or around January 2016,.Respondent began ordering Moda??nil6 from India for-his own use. I 28. In or around April 2016, Respondent began to steal Fentanyl from UCSD for his own use. i 29. Between in or around April 2016, through in or around October 2016, Respondent?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. 4 Lexapro (brand name for escitalopram) IS an antidepressant belonging to a group of drugs called selective serotonin reuptake inhibitors, and a dangerous drug pursuant to Business and Professions Code section 4022. 5 Lamictal (brand name for lamotrigine) IS an anticonvulsant medication used for the treatment of epilepsy and bipolar disorder, and a dangerOus drug pursuant to Business and Professions code section 4022. 6 Moda?nil is a Schedule IV controlled substance purSuant to Health and Safety Code section 11057, subdivision and a dangerous drug pursuant to Business and Professions Code section 4022. ACCUSATION (800-2017?03 0496) .PUJN around October 2016, Respondent enrolled himself in an intensive outpatient- 7 treatment program at Gasa Palmera Treatment Center (Casa Palmera). 31. From on or about October 4, 2016, through on or about October 26,- 2016, Respondent received treatment for addiction at Casa Palmera. Respondent did not inform UCSD of his relapse or the treatment he received at Casa Palmera. .32. Sometime after completing his treatment at Casa Palmera, Respondent relapsed and began using Fentanyl again. 33. On or about January 27, 2017, Respondent was scheduled to perform anesthesia on surgical patients R.L., and RD. at UCSD. At some point that morning, Respondent accidentally cut his ?nger While cutting a bagel, causing tendon damage. Despite the injury, Respondent . returned to his assigned surgical cases in order to steal medication for his own use. 34. In preparation for the surgery of patient R.D., Respondent removed four 5 ml ampules (50 meg/ml; 1000 micrograms total) of Sufentanil7 from the Anesthesia MedicationISup?ply in the operating room at UCSD. a nurse anesthetist assisting Respondent, also extracted Fentanyl from the Anesthesia Medication Supply in the operating room at UCSD for use in patient surgery. I I 35. At some point during patient surgery, T.N.?made a charting error regarding the amount of Sufentanil administered to the patient. When Respondent noted the error, he told .N., ?we 1?1 never get the dose right now, so let?s make the record say 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 Respondent indicates that ?all controlled substances during the case accounted for and disposed of per hospital policy.? 36. After completing the surgical case On patient R. D., Respondent went into a patient/ staff bathroom and m] ected himself with Sufentanil. - 7 Sufentanil is a Schedule II controlled substan'ce?pursuant to Health and Safety Code section 1105 5 subdivision (0), and a dangerous drug pursuant to Business and Professions Code section 4022. The main use of this medication rs in Operating suites and during critical care where pain relief rs required for a short period of time. ACCUSATION (800-2017-030496) . approximately 1:30 Respondent 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. 38. -Mu1tiple physicians were called to the bathroom to assist, and although Respondent Was dif?cult to arouse, he eventually regained consciousness. Once awakened, Respondent was I ordered to report to the UCSD emergency room for a ?tness of duty evaluation. Respondent then left UCSD and never reported to the emergency room. 39. Sometime after leaving UCSD, Respondent informed UCSD that he would be taking a medical leave of absence, and enrolled himself in Professionals Treatment at Promises ,7 Treatment Center (Promises), where he received treatment for addiction from on or about February 6, 2017, through on or about April 6, 2017. . 40. On or about July 31, 2017, Respondent voluntarily submitted to a evaluation from Board-appointed A. A., M. D., J. D. (Dr. A. A.) After an extensive review of records, a examination, and an interview of Respondent, Dr_. A. A. concluded, among other things, that Respondent suffers from Opioid Use Disorder, Severe, In Early Remission. Dr. A further opined that Respondent?s ability to practice medicine safely 1s impaired by his opioid use disorder, and permitting Respondent to engage in the unrestricted practice of medicine will endanger the public health, safety, and welfare. SECOND CAUSE FOR DISCIPLINE (Use of Dangerous Drugs to an Extent, or in a Manner, 'as to be Dangerous to Himself, to Others, or to the Public) 41. Respondent has further subjected his Physician?s and Surgeon?s Certi?cate No. A87615 to disciplinary actionundersections 2227, and 2234, as de?ned by section 2239, subdivision of the Code, in that he has used dangerous drugs to an extent, or in a manner, as to be dangerous or iniurious to himself, to another person, or to the public, as more particularly alleged in paragraphs 18 through 40 above, which are hereby incorporated by reference and realleged as if fully set forth herein. 7 I I ACCUSATION (800-2017?030496) THIRD CAUSE FOR DISCIPLINE (Violation of State Laws Regulating Dangerous Drugs and/or Controlled Substances) 42. Respondent has further subjected his Physician?s and Surgeon?s Certi?cate No. AS7615 to disciplinary action under sections 2227 and 2234, as de?ned by section 2238, of the Code, in that he has violated a state law or laws regulating dangerous drugs and/or. controlled substances, as more particularly alleged in paragraphs 1 8 through41 above,which are hereby incorporated by reference and realleged as if fully set forth herein. - I FOR DISCIPLINE (Dishonesty or Corruption) 1 43. ReSpondent has further subjected his Physician?s and Surge'on?s Certi?cate No. AS7615 to disciplinary action under sections 2227 and 2234, as de?ned by section 2234, subdivision of the Code, in that he has committed an act or acts of dishonesty or corruption, as more particularly alleged in paragraphs 18 through 42, above, which are hereby" incorporated by reference and realleged as if fully set forth herein. FIFTH CAUSE FOR DISCIPLINE (False Representations) 44. Respondent has ?thher subjected his Physician?s and Surgeon?s Certi?cate No. AS7615 to disciplinary action under sections 2227 and 2234, as de?ned by section 2261, ofthe Code, in that he has knowingly made or signed a certi?cate or document directly or indirectly related to the practice of medicine which falsely represented the existence or nonexistence of a . state of facts, as more-particularly alleged in paragraphs 18 through 40, above, which are hereby incorporated by reference and realleged as if fully set forth herein. I SIXTH CAUSE FOR DISCIPLINE (Creation 'of False Medical Records, with Fraudulent Intent) 45. - Respondent has further subjected his Physician?s and Surgeon?s Certi?cate No. AS7615 to disciplinary action under sections 2227 and 2234, as de?ned by section 2262, of the Code, in that he created false medical records with fraudulent intent, as more particularly alleged 10 ACCUSATION (800-2017?03 0496) 0N0 4k.b.) KC 00 \1 ON Ul \omqoxmam?w in paragraphs 18 through 40, above, which are hereby incorporated by reference and realleged as. if fully set forth herein. SEVENTH CAUSE FOR DISCIPLINE (Failure to Maintain Adequate and Accurate Records) 46. Respondent has further subjected his Physician?s and Surgeon?s Certi?cate No. AS7615 to disciplinary actidn under sections 2227 and 2234, as de?ned by section 2266,,of the Code, in that he failed to maintain adequate and accurate records regarding his care and treatment of patient R.D., as more particularly alleged in paragraphs 18 through 40,- above, which are hereby incorporated by reference and realleged as if fully set forth herein. In EIGHTH CAUSE FOR DISCIPLINE (Practice Under the-In?uence of Narcotic) 47. RespOndent has further subjected his Physician?s and Surgeon?s Certi?cate No. AS7615 to disciplinary action under sections 2227 and 2234, as de?ned by section 2280, of the Code, in that he practiced medicine while under the in?uence of a narcotic. drug to such an extent as to impair his ability to conduct the practice of medicine safely to the public and his patients, as more particularly alleged 1n paragraphs 18 through 46, above, which are hereby incorporated by reference and realleged as if fully set forth herein. . SECTION 822 CAUSE FOR ACTION (Mental Illness and/or Physical Illness Affecting Competency) A 48. Respondent is subject to action under section 822 of the Code in-that his ability to practice medicine safely is impaired due to a mentalillness and/or physical illness affecting competency, as mere particularly alleged in paragraphs l8-through 47, above, which are hereby incorporated by reference and realleged as if fully set forth herein. PRAYER WHEREFORE, Complainant requests that a hearing be held Ion'the matters herein alleged, and that following the hearing, the Medical Board of California issue a decision: 1. Revoking or suSpending Physician?s and Surgeon?s Certi?cate No. AS7615, issued to Respondent Bradley Glenn Hay, 11' ACCUSATION (800-2017-030496) Revoking, suspending or denying approval of Respondent Bradley Glenn Hay, authority to supervise physician assistants and advanced practice nurses; 3. Ordering Respondent Bradley Glenn Hay, M. D., if placed on probation, to pay the Board the costs of probation monitoring; 4. Taking action as authorized by section 822 of the Code as the Board, in its discretion, deems necessary and-proper; and 5. Taking such other and further action as deemed necessary and proper. October 17, 2017 KIMBERLY KIR Executive Directo Medical Board of California Department of Consumer Affairs State of California Complainant SD2017801762 12839559.doc l2 ACCUSATION (800-2017-030496)