A California plaintiff who sues a healthcare provider for professional negligence cannot request punitive damages in the complaint until the trial court determines, based on competent evidence, that the plaintiff has a “substantial probability” of obtaining punitive damages.  See Code of Civil Procedure section 425.13.  California’s appellate courts take this requirement very seriously, as this published opinion indicates (Pomona Valley Hospital Medical Center v. Superior Court).

The plaintiff sued Pomona Valley Hospital, claiming she was injured by a medical putty (Striker Biotech’s OP-1 Putty) used during her back surgery.  To support her claim for punitive damages, she relied on letters showing that the hospital was conducting a study on OP-1 putty.  She said the letters showed the hospital acted with malice by including her in the study without her consent.  The trial court agreed, and allowed the plaintiff to amend her complaint to request punitive damages.

The defendant petitioned the Court of Appeal (Second Appellate District, Division Five) for writ relief.  The Court of Appeal called for further briefing and scheduled an oral argument.  The oral argument apparently did not go well for the plaintiff, who sent a letter to the court withdrawing her punitive damages claim. Despite that letter, the Court of Appeal apparently concluded that the California legal community would benefit from further guidance on this issue, so it issued a published opinion reversing the trial court’s order.  The Court of Appeal held that the plaintiff failed to submit any evidence that she was included in the OP-1 study, or that anyone was included in the study without their informed consent.  Her evidence established nothing more than the existence of a study, which was not enough to carry her burden of demonstrating a probability of success on her claim for punitive damages.