Filed 4/29/13

CERTIFIED FOR PUBLICATION 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BARRY S. JAMESON,

Plaintiff and Appellant,

v.

TADDESE DESTA,

Defendant and Respondent.

 D060029

 (Super. Ct. No. GIS9465)

APPEAL from a judgment of the Superior Court of San Diego County, Timothy 

B. Taylor, Judge. Reversed.

Barry S. Jameson, in pro. per., for Plaintiff and Appellant.

La Follette, Johnson, De Haas, Gesler & Ames, James J. Wallace II, Russell M. 

Mortyn and David J. Ozeran for Defendant and Respondent.

I.

INTRODUCTION

More than a decade ago, Barry S. Jameson filed a complaint against Dr. Taddesse 

Desta that asserted numerous claims stemming from Desta's allegedly negligent medical 

treatment of Jameson's hepatitis while Jameson was incarcerated at the Richard J. 

Donovan Correctional Facility (Donovan). In two separate prior appeals, this court 
2

reversed dismissals of Jameson's lawsuit, concluding that the trial court had erred in 

dismissing the action on procedural grounds. (Jameson v. Desta (July 2, 2007, D047284) 

[nonpub. opn.] opn. mod. July 26, 2007 (Jameson I); Jameson v. Desta (Nov. 23, 2009, 

D053089) [cert. for partial pub. opn.] 179 Cal.App.4th 672 (Jameson II).) 

On remand from Jameson II, Desta filed a motion for summary judgment or 

summary adjudication of the two remaining claims pending against him—breach of 

fiduciary duty and professional negligence.1 The trial court granted Desta's motion for 

summary adjudication of the breach of fiduciary duty claim on the ground that Jameson 

could not establish that Desta had breached any legal duty owed to Jameson. The court 

subsequently concluded that Desta was entitled to judgment as a matter of law on 

Jameson's professional negligence claim, as well. The court reasoned that Jameson could 

not establish that Desta's acts had caused him to suffer harm because Desta had cured 

Jameson of hepatitis. The court granted Desta's motion for summary judgment, and 

entered judgment in his favor.

On appeal, Jameson claims that the trial court erred in granting Desta's motion for 

summary judgment. With respect to his claim of breach of fiduciary duty, Jameson 

maintains that he alleged that Desta breached his duty to obtain Jameson's informed 

consent prior to prescribing a course of treatment for Jameson's hepatitis, and that Desta

 

1 In May 2005, Desta filed a demurrer to several of the eight causes of action in the 

complaint. The trial court sustained Desta's demurrer without leave to amend as to the 

third, fifth, sixth, seventh, and eighth causes of action. The fourth cause of action did not 

apply to Desta. The trial court overruled Desta's demurrer as to the first cause of action 

for breach of fiduciary duty, and as to the second cause of action for professional 

negligence, the only remaining causes of action at issue in this matter.
3

failed to address this theory of liability in his motion. With respect to his professional 

negligence claim, Jameson contends that the record contains evidence that establishes a 

triable issue of fact with respect to whether Desta's actions caused him to suffer harm.

We agree with Jameson that the trial court erred in granting judgment as a matter 

of law in favor of Desta on Jameson's claims. With respect to his breach of fiduciary

duty claim, Jameson alleged in his complaint that Desta breached his fiduciary duty by 

prescribing the drug interferon to Jameson without first having obtained Jameson's

informed consent. Desta failed to address this theory of liability in his moving papers, 

and thus failed to carry his burden of making a "prima facie showing of the nonexistence 

of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 

826, 850 (Aguilar).) The trial court therefore erred in granting summary judgment as to 

this cause of action. 

With respect to Jameson's professional negligence claim, we conclude that the trial 

court erred in determining that Desta was entitled to summary judgment on the ground 

that Jameson failed to present admissible evidence that would negate Desta's expert's

opinion that Desta had cured Jameson of hepatitis. Jameson's professional negligence 

claim is not premised on a failure to cure Jameson, but rather, on the allegation that Desta

performed below the standard of care in unnecessarily prescribing a medication that had 

significant and damaging side effects at a time when Jameson was not suffering from 

hepatitis. The trial court erred in granting judgment as a matter of law in favor of Desta 

on the ground that Jameson failed to present evidence demonstrating a triable issue of a 
4

fact as to whether Desta had cured Jameson, when that fact was not material to Jameson's 

claim. 

Further, Desta was not entitled to summary judgment on the ground that he 

established that Jameson will be unable to prove that Desta's alleged breach of the 

standard of care caused Jameson to suffer physical injury. Jameson offered the 

declaration of a medical doctor, Dr. Allen Cooper, who stated, "It is my professional 

opinion that [Desta's] care and treatment of Jameson was substandard and a direct cause 

of the suffering and injury to Jameson and contrary to the prevailing standard of care in 

the medical community in 2000-2001." Dr. Cooper also indicated in his declaration that 

Desta had acted below the standard of care in subjecting Jameson to interferon injections 

three times a week for a year, and that instead, Desta should have prescribed six months 

of an alternative treatment. Jameson thus presented expert testimony that Desta's breach 

of the standard of care caused Jameson to receive numerous unnecessary injections of 

interferon. A reasonable jury could find that these injections were painful and inherently 

injurious. 

In addition to the statements that Desta's breach of the standard of care caused 

Jameson to receive unnecessary injections of interferon, at his deposition, Dr. Cooper

stated that Jameson had suffered various side effects from the interferon injections. We 

conclude that Jameson established a triable issue of fact as to the causation element of his 
5

professional negligence claim through the deposition testimony and declaration of 

Dr. Cooper.2 

Finally, in light of our remand, we remind the trial court of its obligation to 

" 'ensure indigent prisoner litigants are afforded meaningful access to the courts. . . .' "

(Jameson II, supra, 179 Cal.App.4th at p. 675, quoting Apollo v. Gyaami (2008) 167 

Cal.App.4th 1468, 1483 (Apollo).) As discussed in greater detail in part III.D., post, the 

record indicates that the trial court failed to carry out this obligation in at least one critical 

aspect. Notwithstanding Jameson's timely request that the trial court direct defense

counsel to ensure that Jameson be permitted to participate telephonically in defense 

counsel's deposition of Jameson's expert, Dr. Cooper, the trial court failed to rule on 

Jameson's request prior to the time the deposition was taken. As a result, defense counsel 

was permitted to depose Jameson's key expert witness without Jameson being afforded 

the opportunity to participate in the deposition. By failing to ensure Jameson's ability to 

participate in the deposition, the trial court fell short of its obligation to protect an 

" 'indigent prisoner's right to . . . prosecute bona fide civil actions.' " (Apollo, supra, at

p. 1483.)

 

2 We reject Desta's argument that we may affirm the judgment on the alternative 

ground that he established that Dr. Cooper's expert opinion has "no value" because 

Dr. Cooper did not address the "different" standard of care purportedly applicable to the 

medical treatment of prisoners. (See pt. III.C.2., post.) 
6

We reverse the judgment and remand for further proceedings.3

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The operative allegations in Jameson's complaint

In April 2002, Jameson filed a complaint that alleged eight causes of action, 

including breach of fiduciary duty (lack of informed consent); professional negligence;

general negligence; failure to train; battery; violation of civil rights; intentional infliction 

of emotional distress; and violation of due process against a number of defendants, 

including Desta and officials of the California Department of Corrections and 

 

3 Jameson raises a number of other claims on appeal, the bulk of which we need not, 

and do not, address in light of our reversal of the summary judgment. For example, 

Jameson argues that various trial court rulings had the effect of denying him discovery 

"that would have defeated summary judgment." 

Jameson also argues on appeal that the trial court abused its discretion in denying 

his motion to exclude evidence of a prior felony conviction at trial. (See Robbins v. 

Wong (1994) 27 Cal.App.4th 261, 274 ["upon proper objection to the admission of a prior 

felony conviction for purposes of impeachment in a civil case, a trial court is bound to 

perform the weighing function prescribed by [Evidence Code] section 352"].) Because 

this issue may recur on remand, we address it. The trial court ruled that Jameson's 

conviction would be admissible to impeach his credibility if he were to testify at trial. 

Jameson has failed to demonstrate on appeal that the court abused its discretion in so 

ruling. (See, e.g., People v. Mullens (2004) 119 Cal.App.4th 648, 658 ["A trial court has 

broad discretion in determining whether to admit or exclude evidence objected to on the 

basis of [Evidence Code section] 352 [citation], and rulings under that section will not be 

overturned absent an abuse of that discretion [citation]"].) We therefore reject Jameson's 

contention. 

We also reject Jameson's contention that defense counsel committed fraud and 

misrepresentation in the trial court by arguing "facts he knew to be false and 

with[holding] evidence requested in discovery to obtain summary 

judgment/adjudication." We see nothing in the record to substantiate Jameson's 

contentions in this regard.
7

Rehabilitation (Department).4 Jameson's claims of breach of fiduciary duty and 

professional negligence against Desta are the sole claims at issue in this appeal.

In his complaint, Jameson alleged that Desta negligently prescribed interferon to 

Jameson while Jameson was incarcerated at Donovan and Desta was performing services 

as a physician for the Department. Jameson further alleged that the interferon caused him 

to suffer serious physical injuries, including irreversible damage to his eyesight. With 

respect to his breach of fiduciary duty claim, Jameson alleged in part:

"Desta breached his fiduciary duty as a doctor when he started 

[Jameson] on Alpha-2B Interferon, when [Jameson] had no 

detectable viral count. [The Department's] written policy . . . clearly 

states if a person has a viral count that does not exceed 3,499, a 

person is not to be given interferon treatment. Moreover, such 

treatment is to be reviewed every six (6) months to review whether 

such treatment should be continued. . . . Desta simply continued 

[Jameson] on treatment [Jameson] should never have been on with 

deliberate indifference and a reckless disregard for the rights[,] 

health and safety of [Jameson], causing irreparable injury. . . . This 

second six months aggravated the injuries to [Jameson] 

unnecessarily. 

"Desta held a position of trust with [Jameson], causing [Jameson] to 

rely on Desta's statements and recommendation that [Jameson] begin 

treatment and stay on it. It is only through [Jameson's] research of 

his own medical file and hepatitis literature that even as a layman he 

easily discovered the mistaken or malicious prescription by Desta 

that resulted in such damage." 

In his professional negligence cause of action, Jameson alleged that Desta had 

been "professionally negligent in his treatment of [Jameson], and there existed a 

physician-patient relationship." Jameson also alleged the following:

 

4 Desta is the only respondent in this appeal.
8

"Due to Desta's professional negligence and failure to exercise the 

proper degree of knowledge and skill in diagnosing, treating and 

monitoring any such treatment, [Jameson] suffered and suffers 

extreme migraine headaches, vision loss, weight loss, depression and 

severe emotional duress. [Jameson] suffered such due to Desta 

ordering that [Jameson] take interferon treatment that [Jameson] did 

not need and local regulations precluded or excluded [Jameson] from 

taking. [Jameson] and Desta shared a position of trust, and Desta 

acted in the capacity of a 'specialist' in the field of [h]epatology.

"[Jameson's] liver condition never showed what is called a 'viral 

count,' and at all times relevant to this matter, [Jameson's] viral 

count was undetectable. Therefore, [Jameson] should have never 

been subjected to what amounted to cancer treatment and all the 

suffering that is attached thereto."

B. Desta's motion for summary judgment or adjudication

In October 2010, on remand from Jameson II,5 Desta filed a motion for summary 

judgment or summary adjudication. Desta supported his motion with the declaration of 

Dr. Tarek Hassanein, who stated that Desta had complied with the standard of care in his 

treatment of Jameson, and that Desta's acts had not caused Jameson to suffer any 

damages. Desta argued that he was entitled to summary adjudication of Jameson's 

professional negligence claim, unless Jameson could present conflicting expert evidence 

on these issues. 

With respect to Jameson's claim for breach of fiduciary duty, Desta outlined the 

elements of the tort: the existence of a fiduciary duty, breach, and damage proximately 

caused by that breach. Desta then argued the following:

 

5 We have omitted the lengthy procedural history of this case prior to the remand 

from Jameson II, since it is not relevant to the issues in this appeal.
9

"Back in 2000, Dr. Desta was employed by Careview Medical 

Group, who was subcontracted by Alvarado Hospital to provide 

outpatient services to Donovan inmates. [Citations.] As seen in 

Special Interrogatory No. 10, [Jameson] asked what payment 

arrangements Dr. Desta had with Donovan. In response to this 

interrogatory, Dr. Desta responded that he was paid hourly as 

subcontracted by Alvarado Hospital through his employer, Careview 

Medical Group. Therefore there was no breach of fiduciary duty by

Dr. Desta and he fulfilled his obligations and he never abandoned 

the patient. In fact Dr. Hassanein opines that Dr. Desta 'cured'

[Jameson] of the [hepatitis] infection.

"Consequently, without any admissible evidence to support all three 

elements: the existence of a fiduciary duty between Dr. Desta [and]

[Jameson]; that Dr. Desta breached said duty; and the alleged 

damage was proximately caused by said breach, [Jameson's] cause 

[of] action fails and summary adjudication of this issue should be 

granted."

Desta supported his motion with a declaration from Dr. Hassanein, a licensed 

physician who is board certified in internal medicine, gastroenterology, and transplant 

hepatology. In his declaration, Dr. Hassanein states, "[I]t is my professional opinion that 

Dr. Desta's care and treatment of Mr. Jameson was at all times completely within the 

standard of care in the community." Dr. Hassanein further states:

"At the time Dr. Desta assumed care, this patient had been correctly 

diagnosed with Hepatitis C, genotype 3. This is a favorable category 

of viral hepatitis, which generally has about an 80% statistical 

likelihood of 'cure' with treatment. The medical literature generally 

defines a patient with a negative lab result after six months of 

treatment as being 'cured' in this context.

"The treatment in this case began in March 2000 and was alphaInterferon injections three times per week for one year. This was 

appropriate and within the standard of care. 

"This patient had negative lab results at the end of his treatment, and 

again consistently through 2008. Thus he meets the generally 

accepted definition of a patient who has been 'cured' of this disease.
10

"[¶] . . . . [¶]

"[I]t is my further opinion, to a reasonable degree of medical 

probability that no act or omission on Dr. Desta's part caused or 

contributed to any alleged damages on the part of Barry Jameson." 

Desta also supported his motion with medical records showing that Jameson's 

hepatitis C viral load in March 2000 was 574,660 and that by February 2001, his viral 

load was less than 600. 

C. Jameson's opposition

In his opposition to Desta's motion, Jameson began by clarifying the precise nature 

of his claim. Jameson explained that, after he filed the complaint in this case, he obtained 

documents that stated that he did in fact have a detectable hepatitis C viral count in 

March 2000, when he commenced treatment with Desta. However, Jameson stated that 

medical records demonstrated that he had no detectable viral count as of May 2000, 

approximately two months after he began the interferon treatment. Jameson explained 

that in light of this information, he was claiming that Desta's conduct in prescribing the 

"second six-month regimen [of interferon] was medically unjustified."

With respect to his claim of professional negligence, Jameson argued that to the 

extent that he was required to present expert testimony to counter the expert testimony 

that Desta presented in support of the summary judgment motion, Jameson was relying 

on Dr. Hassanein's statement in his declaration that a person with a negative lab result 

after six months of treatment for hepatitis C is considered cured. Jameson argued that 
11

since medical records showed that he had a negative lab result for hepatitis C as of May 

2000, there was no medically justifiable reason for Desta to have subjected Jameson to

additional interferon injections.

With respect to Desta's argument that Jameson would be unable to establish the 

causation element of his professional negligence claim, Jameson argued in part as 

follows, "[I]gnoring the permanent eye damage and constant headaches Jameson suffers 

as a result, no party can dispute that injecting themselves three times a week itself causes 

pain and suffering."6 Jameson also noted that the common side effects of interferon

include flu-like symptoms, depression, and other physical and mental disorders. 

With respect to his claim of breach of fiduciary duty, Jameson argued that Desta

had breached his duty to Jameson by subjecting Jameson to unnecessary treatment after 

Desta knew or should have known that Jameson was cured. Jameson also incorporated 

the remainder of his brief, which including the following:

"Jameson was told by Desta at the commencement of treatment he 

would be treated for six months and Desta would see how well the 

Alpha-2B Interferon injections worked for Jameson. Within a 

month after taking the injections, Jameson had no viral count, but he 

was never informed of such and the documents showing such, which 

Jameson repeatedly requested to see from Desta and his medical 

 

6 In his separate statement of facts, Desta stated, "No act or omission on the part of 

Dr. Desta caused or contributed to [Jameson's] damages." Jameson disputed this fact and 

stated, "[W]ithin a few weeks of commencing his [six]-month regimen in April of 2000 

of Alpha-2B Interferon, Jameson had no detectable viral count. Therefore, with no 

detectable viral count for Hepatitis C and Desta's own alleged expert, Dr. Tarek I. 

Hassanein stating in his [declaration] that Jameson should have been deemed 'cured' if he 

had no detectable viral count within the [six]-month regimen, the acts by Desta subjecting 

Jameson to a second regimen of Interferon . . . clearly contributed to Jameson's 

damages." 
12

team, were not being kept in Jameson's medical file. At the six 

month date, Desta simply stated Jameson was doing fine and he was 

going to start Jameson on a second [six]-month regimen of 

Interferon."

Jameson filed a declaration with his opposition to the motion in which he provided 

support for his claims that he had not been fully informed concerning his condition, 

stating:

"I was never informed of any of the [hepatitis C] viral assays before 

being placed on Alpha-2B Interferon and only discovered a few of 

them stating I did not have any [hepatitis C] viral assay in my 

twelfth month of injecting myself with Interferon when a nurse-aide 

showed me two that were in the file.

"I spent months, while being injected with Interferon, asking all 

medical staff and Desta for the [hepatitis C] viral assay documents 

and was never allowed to see any . . . ."

With respect to pain and suffering that he allegedly endured, Jameson stated:

"Although I suffered from 'regular' symptoms such as headaches 

during the initial [six]-month regimen, when I was started on another 

[six]-month regimen by [Desta], the pain and suffering increased 

dramatically and I started having severe eye pain. At times, I even 

had to walk outside with my hand over my eye left eye (which was 

now seeing double or triple) because sunlight was so painful, 

pressing on my eyeball to try and relieve the pain."

Jameson also lodged medical records that indicated that his hepatitis C viral load 

in May 2000 was less than 2000. 
13

D. The trial court's tentative ruling and Jameson's objections thereto

After Desta filed a reply,7 the trial court issued a tentative ruling granting the 

motion for summary judgment on the ground that Jameson could not "establish an 

element of either the professional negligence or the fiduciary duty claim: that defendant 

breached any legal duty to [Jameson]." The trial court further stated, "[Jameson] has 

failed to negate Dr. Hassanein's opinion with any admissible evidence." The court also 

stated, "The lab tests [Jameson] refers to in his . . . Opposition . . . raise an inference that 

[Desta] was successful in curing [Jameson] (not the reverse)."

Jameson filed an objection to the trial court's tentative ruling in which he argued 

that he was not required to designate an expert because Desta had failed to make a written 

demand for such a designation. In the alternative, Jameson stated that he had retained an 

expert and requested "the opportunity to present a declaration of his retained expert."

On January 20, 2011, the trial court held a hearing.8 At the hearing, the court 

declined to adopt its tentative ruling granting the motion for summary judgment. Instead, 

the court granted Jameson's motion to continue the summary judgment hearing to allow

Jameson to file an expert declaration from Dr. Cooper. 

 

7 In his two-page reply, Desta argued that the trial court was required to grant his 

motion for summary judgment because Jameson had failed to controvert Dr. Hassanein's 

expert opinion with admissible expert testimony. 

8 Jameson participated telephonically in the hearing. 
14

E. Dr. Cooper's declaration

On or about February 14,9 Jameson filed the declaration of Dr. Cooper, a licensed 

physician and Professor of Medicine in the Division of Gastroenterology and Hepatology, 

Department of Medicine, Stanford School of Medicine. In his declaration, Dr. Cooper 

states that in his opinion, "Desta's care and treatment of Jameson was substandard and a 

direct cause of the suffering and injury to Jameson and contrary to the prevailing standard 

of care in the medical community in 2000-2001." Dr. Cooper explained the basis for his 

conclusion that Desta had acted below the standard of care in treating Jameson, as 

follows:

"Jameson was given [alpha-2B interferon] commencing in 2000. 

[Alpha-2B interferon] . . . was known as monotherapy, as only 

[alpha-2B interferon] was used. The response rate with [alpha-2B 

interferon] was quite poor and in 1998, [a] two-drug therapy was 

introduced, which consisted of interferon and ribavirin. With this 

combination therapy available in 1998 it was found that six months 

of therapy was adequate for patients with genotype 2 or 3. 

Therefore, Jameson should not have been subjected to the 

monotherapy for one year, when combination therapy had been 

available for approximately two years [and] was well known in the 

medical community at the time of Jameson's treatment."

Dr. Cooper stated that he agreed with Dr. Hassanein that "a person can be 

considered 'cured' after six (6) months of treatment with Alpha-2B Interferon if they have 

no detectable viral count[] within this period," and that "[t]he documents of record in this 

matter demonstrate that [by] May of 2000 Jameson's viral count was less tha[n] . . . 2000, 

 

9 The declaration in the record does not bear a file stamp. The court's order granting 

summary judgment states that Jameson filed Dr. Cooper's declaration on "February 14 

and February 16."
15

which shows it was undetectable, and Jameson was considered cured." Dr. Cooper also 

stated that interferon was known to cause "severe mental and physical side effects,

and . . . is associated with retinal problems." 

In response to Dr. Cooper's declaration, Desta filed a brief in which he took issue 

with Dr. Cooper's use of the standard of care in the general medical community, and 

maintained that the proper standard of care was the standard applicable in the prison 

community. Desta argued that because he had presented evidence that he had met this 

latter standard, and that evidence was uncontradicted, he was entitled to summary 

judgment. 

F. The trial court's orders granting summary adjudication of Jameson's breach of 

fiduciary duty claim, permitting Desta to depose Dr. Cooper, and continuing the 

motion for summary judgment

After a hearing on February 25,10 the trial court entered an order in which the 

court described the procedural history of the case and then stated:

"The foregoing chronology has allowed the court to hone in on the 

central issue of the case: under treatment protocols in place during 

the relevant 2000-2001 timeframe, was it appropriate for Dr. Desta 

to continue therapy for [six] months after the plaintiff's testing 

results came back indicating he had been cured? Interrelated with 

this question is the question of what is the relevant 'medical 

community,' the general medical community or the more limited one 

serving [the Department's] inmates?"

 

10 Jameson participated telephonically in the February 25 hearing. 
16

The court granted Jameson's February 7 motion11 to continue the hearing on the 

motion for summary judgment. The court stated that continuing the motion would 

provide defense counsel the opportunity to depose Dr. Cooper and would allow Desta the 

opportunity to brief the issue that the court had identified in the prior paragraph. 

The court further ruled that "nothing [Jameson] has filed . . . raises a triable issue 

of fact with respect to the claim for breach of fiduciary duty." The court thus granted the 

motion for summary adjudication of Jameson's breach of fiduciary duty claim. 

G. The parties' supplemental briefing on the applicable standard of care

Jameson filed a supplemental brief in which he argued that it would be 

unconstitutional to apply a lower standard of care in evaluating a prisoner's professional 

negligence action against a health care provider.12

Desta filed a supplemental reply in which he argued that "the 'standard of care' is 

different in the prison setting," and that he had "provided the treatment that was available 

in the prison setting." Desta supported this supplemental reply with his own declaration 

in which he stated that interferon injections were the only available form of treatment for 

inmates suffering from hepatitis C genotype 3a under the Department's governing 

 

11 The motion is not in the record.

12 Jameson also argued that Desta had breached his fiduciary duty to Jameson by 

failing to inform him of the combination therapy to which Dr. Cooper had referred in his 

declaration. However, as noted above, the trial court had previously granted Desta's 

motion for summary adjudication of this claim. Jameson stated in his brief that he had 

yet to receive the February 25 order granting Desta summary adjudication of Jameson's 

breach of fiduciary duty claim. Jameson also stated that he understood the February 25 

order to be a tentative ruling granting summary adjudication of that claim. 
17

protocols during the relevant timeframe. Desta also lodged a 1998 memorandum from 

the Department entitled, "Chronic Viral Hepatitis Guidelines." The 1998 memorandum 

discussed how clinicians should treat inmates who suffered from hepatitis, and outlined 

the factors that clinicians should consider in determining whether and how to prescribe 

interferon. 

Jameson filed a response to Desta's supplemental reply in which he reiterated his 

argument that the standard of care in prison is not lower than the standard of care in the 

general population. 

H. Dr. Cooper's deposition and related pleadings 

On March 14, Jameson filed a motion in which he requested that the court 

preclude Desta from deposing Dr. Cooper for various procedural reasons, including that 

Desta was purportedly seeking improper discovery beyond the discovery cut-off date. In 

the alternative, Jameson requested that the court order Desta's counsel to arrange with 

prison officials to permit Jameson to appear telephonically at the deposition, that the 

court appoint counsel for the purpose of attending the deposition, or that the deposition 

be conducted through written questions. 

On March 30, the trial court entered an order that states in relevant part: "The 

court hereby orders [Jameson's] expert to sit forthwith for a deposition. [Jameson's] 

objection to deposition is meritless." The court did not address Jameson's requests to 

participate in the deposition. 

On April 11, defense counsel noticed Desta's deposition. 
18

On April 18, Jameson filed a motion in which he requested that the court require 

Desta to conduct the deposition through written questions pursuant to Code of Civil 

Procedures section 2028.01013 or that the court appoint counsel for Jameson for the 

purpose of attending the deposition. Jameson argued that such measures were required to 

ensure due process because he was "presently incarcerated and unable to attend the 

deposition of his own expert."

On April 29, prior to the trial court ruling on Jameson's April 18 motion, defense 

counsel deposed Dr. Cooper. Jameson did not participate telephonically in the 

deposition, and was not represented by counsel.

After deposing Dr. Cooper, Desta filed a supplemental reply in support of his 

motion for summary judgment. In this reply, Desta contended that Dr. Cooper's 

deposition established that Jameson would not be able to establish the causation element 

of his cause of action for professional negligence. In support of this contention, Desta

cited various excerpts of Dr. Cooper's deposition that Desta maintained demonstrated that 

Dr. Cooper would be unable to offer an expert opinion with respect to whether Desta's 

acts had caused Jameson to suffer any harm. One of the excerpts that Desta cited is the 

following:14

 

13 Unless otherwise specified, all subsequent statutory references are to the Code of 

Civil Procedure.

14 Desta lodged portions of Dr. Cooper's deposition in support of his supplemental 

reply. 
19

"Q: There are some cases that you address both standard of care and 

causation?

"A: That's correct.

"Q: In this case, it was just solely limited to standard of care, as to 

what Dr. Desta should have done, in your mind, to comply with the 

standard of care?

"A: Yeah."

Desta also quoted this portion of the Dr. Cooper's deposition:

"Q: You postulated in [your declaration] that . . . alpha interferon has 

been known to cause severe mental and physical side effects with 

patients, but in this case you can't say one way or the other whether 

or not Mr. Jameson suffered any of those?

"A: I can't say one way or other. He has complaints.

"Q: You know from other cases that you've been on, in order to 

make a determination of that, not only do you have to have those 

records to review, but you have to determine that it's more likely 

than not that that therapy caused whatever problem is that the patient 

is complaining of, not that's a possibility, but more likely than not?

"A: Correct. 

"Q: And you can't say that in this case?

"A: I can't comment either way in this case. I can't say it is or isn't 

more likely than not that his complaints are related to hepatitis [sic] 

because there is not enough information to conclude . . . either way."

Finally, Desta quoted the following:

"Q: You have no opinions on causation or damages in this case: 

true?

"A: I haven't seen enough to draw opinions."
20

Desta also quoted excerpts from the deposition in which Dr. Cooper stated that he 

had not seen evidence that Jameson had suffered retinal damage.

Jameson filed a response to Desta's supplemental reply in which he argued that the 

court had erred in failing to rule on his March 14 motion concerning Dr. Cooper's 

deposition. Jameson stated that he had informed Dr. Cooper that the deposition would 

not take place until after the trial court had ruled on his motion, and also stated that in 

light of the trial court's statements in its February 25 ruling, he had informed Dr. Cooper 

that Dr. Cooper "would be addressing the standard of care." Jameson argued that the 

procedural posture of the case had resulted in "a one-sided deposition where a doctor was 

led to discuss the standard of care, but was not able to understand the need to further 

explain causation." 

Jameson maintained that, notwithstanding these procedural objections,

Dr. Cooper's deposition testimony established a triable issue of fact as to causation. 

Jameson noted that Dr. Cooper had testified that interferon causes side effects such as 

"joint aches and pains, loss of appetite, weight loss, insomnia, depression," and that it 

causes flu-like symptoms. Jameson also argued that excerpts from his medical records 

established that he has suffered various side effects from the interferon that Desta had 

prescribed. Jameson argued that even though "on some issues [defense counsel] led 

Cooper to state he had not 'seen enough to draw opinions' on causation or damages[, this]

could easily have been cured by Jameson being able to participate [in the deposition]." 

As an example, Jameson reiterated his contention that since Dr. Cooper had stated that it 

was his opinion that Jameson had been subjected to the "wrong therapy," it was clear that 
21

Desta's conduct in having "Jameson inject himself with interferon for [six] extra

months . . . cause[d] Jameson to suffer the plethora of adverse side effects such injections 

are well documented to cause and that Jameson complained of." Jameson argued that 

Dr. Cooper's inability to state that interferon had caused Jameson to suffer "severe mental 

and physical side effects," was not a basis for concluding that Jameson would be unable

to establish that the Desta's acts had caused Jameson to suffer harm. 

Jameson lodged several of his medical records as exhibits in support of his reply. 

One entry, dated April 13, 2000 and signed by the Department's staff physician, states, 

"[Jameson] is allowed to lie down and not work during the [three] days following 

interferon injections due to side effect [sic] of medication." An entry dated January 31, 

2001 appears to order the drug Midrin and states "Headache X one year." This order 

appears to be signed by Desta. Another entry dated April 23, 2001 states that Jameson 

"still has monocular diplopia."15 Finally, a May 16, 2001 medical record that appears to 

be signed by Desta states, "Stopped . . . Interferon X one year—got double vision . . .

especially days of Interferon. . . ."

I. The trial court's rulings on Jameson's motions pertaining to Dr. Cooper's 

deposition and on Desta's motion for summary judgment

After a hearing,16 the trial court ruled on Jameson's motions pertaining to 

Dr. Cooper's deposition and on Desta's motion for summary judgment.

 

15 Diplopia is commonly known as "double vision."

16 Jameson participated in the hearing telephonically.
22

With respect to Jameson's March 14 and April 18 motions concerning 

Dr. Cooper's deposition, the trial court ruled, "The motions are denied as moot. The 

Cooper deposition has already taken place." The court also ruled that Jameson's motions 

lacked merit, insofar as Jameson was requesting that the trial court prevent the deposition 

from taking place. With respect to Jameson's contention that he had not been permitted 

to participate in Dr. Cooper's deposition, the court stated:

"Dr. Cooper, [Jameson's] standard of care expert, was deposed on 

April 29. [Jameson] urges that he was denied due process by not 

being allowed to participate in this deposition. His arguments lack 

persuasive power when one recalls that his tardy designation of 

Dr. Cooper is what led to this motion [for summary judgment] not 

being prepared and ruled upon in an orderly fashion. Moreover, it 

bears noting that [Jameson] had assistance of counsel in locating and 

obtaining a declaration from Dr. Cooper; there was nothing to stop 

[Jameson] from directing that counsel to appear at the deposition.

"[¶] . . . [¶]

"Jameson's non-participation in the Cooper deposition is the result of 

two things: first, his incarceration; and second his untimely 

designation of Cooper in the first place. The court arguably bent the 

rules by allowing this tardy designation, and after nine years of 

litigation is not required to assist [Jameson] further. Any complaint 

about not being at liberty to attend the deposition is something 

[Jameson] should have considered before committing whatever 

crime that gave rise to his incarceration. That [Jameson] did not 

properly prepare Cooper to give opinions on causation − after nine 

years of litigation − is not properly laid at the feet of the court, 

defense counsel, or anyone else." (Italics added.)

On the merits of Desta's motion for summary judgment, the trial court ruled that 

Desta was entitled to judgment as a matter of law on Jameson's cause of action for 

professional negligence. In its ruling, the trial court stated that Dr. Cooper's declaration 

"arguably did raise a triable issue of fact regarding breach of duty as to the professional 
23

negligence claim." However, the court ruled that Desta had established that Jameson 

would be unable to prove a required element of his claim, namely, that Desta's actions 

had caused Jameson harm. In reaching this conclusion, the trial court reasoned in part:

"[Dr Hassanein] opines, based on his review of the relevant 

documents, that far from causing harm to [Jameson], [Desta] 

properly treated [Jameson], that [Jameson] was cured as the result of 

this treatment, and that [Desta's] treatment of [Jameson] was within 

the standard of care prevalent in the medical community in 2000-

2001. . . . [¶] [Jameson] has failed to negate Dr. Hassanein's opinion 

as to cure with any admissible evidence. Plaintiff is not a physician, 

and his own opinions (even opinions allegedly informed by reading 

literature) are not admissible on causation of harm. . . . The law 

does not permit the court to discard the Hassanein declaration any 

more than it permits [Jameson] to rely on supposition and allegation 

to avoid summary judgment. . . . Indeed Dr. Cooper agrees with Dr. 

Hassanein that Dr. Desta cured plaintiff. [Citation.] There is no 

triable issue of material fact on causation, and it is clear [Jameson]

cannot establish an essential element of his claim[]."

Since the trial court had previously granted summary adjudication of Jameson's 

breach of fiduciary claim, the court granted Desta's motion for summary judgment.

In June 2011, the trial court entered judgment in favor of Desta. Jameson timely

appealed from the judgment. 

III.

DISCUSSION

The trial court erred in granting Desta's motion for summary judgment

Jameson claims that the trial court erred in granting Desta's motion for summary 

judgment.
24

A. Governing law and standard of review

1. The relevant statutory framework

A "motion for summary judgment shall be granted if all the papers submitted show 

that there is no triable issue as to any material fact and that the moving party is entitled to 

a judgment as a matter of law." (§ 437c, subd. (c).) "A cause of action has no merit

if . . . [¶] [o]ne or more of the elements of the cause of action cannot be separately 

established . . . ." (Id. at subd. (o)(1).) "A defendant . . . has met his or her burden of 

showing that a cause of action has no merit if that party has shown that one or more 

elements of the cause of action, even if not separately pleaded, cannot be established. . . . 

Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show 

that a triable issue of one or more material facts exists as to that cause of action. . . . The 

plaintiff . . . may not rely upon the mere allegations . . . of its pleadings to show that a 

triable issue of material fact exists but, instead, shall set forth the specific facts showing 

that a triable issue of material fact exists as to that cause of action . . . ." (Id. at subd. 

(p)(2).)

2. The trial court's determination of a defendant's summary judgment motion

A trial court must employ a "three-step process . . . in analyzing a summary

judgment motion." (Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose

(2009) 174 Cal.App.4th 339, 367.) The trial court must first " ' " 'identify the issues 

framed by the pleadings since it is these allegations to which the motion must 

respond.' " ' " (Hamburg v. Wal–Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503, 

citations omitted.)
25

Next, the trial court must consider whether the defendant has carried its "initial 

burden of production to make a prima facie showing of the nonexistence of any triable 

issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.) The defendant may carry

this burden by demonstrating that "the plaintiff cannot establish at least one element of 

the cause of action." (Id. at p. 853.) The defendant may make such a showing by 

demonstrating "that the plaintiff does not possess, and cannot reasonably obtain, needed 

evidence." (Id. at p. 854.) 

"If the defendant fails to meet this initial burden [of production], it is unnecessary 

to examine the plaintiff's opposing evidence; the motion must be denied." (Zoran Corp. 

v. Chen (2010) 185 Cal.App.4th 799, 805.) In contrast, if the defendant has carried its 

burden of production, the trial court considers whether the plaintiff's opposition 

demonstrates a triable issue of fact. (Aguilar, supra, 25 Cal.4th at p. 849.) " 'The 

plaintiff . . . may not rely upon the mere allegations . . .' of his 'pleadings to show that a 

triable issue of material fact exists but, instead,' must 'set forth the specific facts showing 

that a triable issue of material fact exists as to that cause of action.' [Citation.]'' (Ibid.) 

"There is a triable issue of material fact if, and only if, the evidence would allow a 

reasonable trier of fact to find the underlying fact in favor of the party opposing the 

motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted.)

"A motion for summary judgment shall be granted when 'all the papers submitted 

show that there is no triable issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law.' [Citation.] . . . A summary adjudication is 

properly granted only if a motion therefor completely disposes of a cause of action, an 
26

affirmative defense, a claim for damages, or an issue of duty. [Citation.] Motions for 

summary adjudication proceed in all procedural respects as a motion for summary 

judgment. [Citation.]" (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 

458, 464.)

3. The standard of review on appeal

The Court of Appeal "review[s] de novo a grant of summary adjudication. 

[Citation.] 'In independently reviewing a motion for summary adjudication of issues, we 

apply the same three–step analysis used by the superior court. "First, we identify the 

issues framed by the pleadings. . . . [¶] Secondly, we determine whether the moving 

party's showing has established facts which negate the opponent's claim and justify a 

judgment in movant's favor. . . . [¶] When a . . . motion prima facie justifies a judgment, 

the third and final step is to determine whether the opposition demonstrates the existence 

of a triable, material factual issue." ' [Citation.]" (Rosales v. Battle (2003) 113 

Cal.App.4th 1178, 1182 (Rosales).)

B. The trial court erred in summarily adjudicating Jameson's breach of fiduciary 

claim

Jameson contends that the trial court erred in granting Desta's motion for summary 

adjudication on his breach of fiduciary duty claim. Jameson argues that the court erred in 

granting judgment as a matter of law on this claim because Desta never addressed 
27

Jameson's lack of informed consent theory of liability in his motion for summary 

judgment or adjudication.17

1. A physician's fiduciary duty to obtain his patient's informed consent to a

medical procedure

"The elements of a cause of action for breach of fiduciary duty are: (1) the 

existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage 

proximately caused by the breach." (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 

1086.) "[A] physician has a fiduciary duty to disclose all information material to the 

patient's decision," when soliciting a patient's consent to a medical procedure. (Moore v. 

Regents of University of California (1990) 51 Cal.3d 120, 129 (Moore), citing, among 

other cases, Cobbs v. Grant (1972) 8 Cal.3d 229, 242.) A cause of action premised on a 

physician's breach of this fiduciary duty may alternatively be referred to as a claim for 

lack of informed consent. (See, e.g., Moore, supra, at p. 133 ["the allegations state a 

cause of action for breach of fiduciary duty or lack of informed consent"].)

2. Application

Employing the three-part analysis discussed above, we first identify the issues 

framed by Jameson's complaint. (See Rosales, supra, 113 Cal.App.4th at p. 1182.) As 

noted in part II.A., ante, in his breach of fiduciary duty claim, Jameson alleged that Desta

negligently prescribed interferon to him and that:

 

17 Specifically, Jameson states in his opening brief, "[t]he failure to inform, a cause 

of action in itself, was never even addressed . . . in Desta's moving papers."
28

"Desta held a position of trust with [Jameson], causing [Jameson] to 

rely on Desta's statements and recommendation that [Jameson] begin 

treatment and stay on it. It is only through [Jameson's] research of 

his own medical file and hepatitis literature that even as a layman he 

easily discovered the mistaken or malicious prescription by Desta 

that resulted in such damage."

In addition, in a section of his complaint entitled "Summary of Initial Facts and 

Supplemental Facts," Jameson alleged that he had attempted to obtain information 

concerning his "viral count" during his course of interferon treatment, and that he was 

never provided with such information. 

Although not a model of clarity, these allegations adequately pled a claim for 

breach of fiduciary duty based on Desta's failure to obtain Jameson's informed consent to 

the interferon treatment.18 

 

18 Desta does not contend otherwise on appeal. Further, the trial court previously 

overruled Desta's demurrer to Jameson's breach of fiduciary claim in which Desta 

maintained that the claim was uncertain and failed to state facts sufficient to constitute a 

cause of action. In overruling the demurrer, the court reasoned in part:

"The [first] cause of action for breach of fiduciary duty is not subject 

to demurrer for uncertainty. Demurrers for uncertainty are 

disfavored and will only be sustained where the defendant cannot 

reasonably determine what issues must be admitted or denied, and 

are appropriately overruled where the facts are ascertainable by 

invoking discovery procedures. [Citation.] The gist of the 

allegations against Dr. Desta is that he unnecessarily started 

[Jameson] on an Interferon regimen, which caused plaintiff to suffer 

eye problems. [Desta] has not cited any authority holding a medical 

provider cannot be liable for such conduct." 

Desta does not challenge this ruling on appeal. 
29

Next, we consider whether Desta established facts that negate Jameson's claim and 

justified judgment in Desta's favor. (See Rosales, supra, 113 Cal.App.4th at p. 1182.) 

Desta did not address, in any fashion, the complaint's allegations pertaining to Desta's 

alleged failure to obtain Jameson's informed consent to the interferon treatment regimen

in his motion for summary adjudication.19 Having failed to address Jameson's 

allegations pertaining to this theory of liability, Desta failed to carry his "initial burden of 

production to make a prima facie showing of the nonexistence of any triable issue of 

material fact." (Aguilar, supra, 25 Cal.4th at p. 850.) In light of Desta's failure to carry 

his initial burden in moving for summary adjudication of Jameson's claim of breach of 

fiduciary duty, the trial court erred in granting judgment as a matter of law in favor of 

Desta on that claim. (Zoran Corp. v. Chen, supra, 185 Cal.App.4th at p. 805 ["If the 

defendant fails to meet this initial burden [of production], it is unnecessary to examine 

the plaintiff's opposing evidence; the motion must be denied."].)20

 

19 Desta's motion for summary adjudication of this claim focused exclusively on the 

"payment arrangements [that] [he] had with Donovan." (See pt. II.B., ante.) 

20 In his respondent's brief, Desta does not address Jameson's breach of fiduciary 

duty claim other than to state the following:

"Even in a claim for lack of informed consent, a plaintiff has to 

establish that his or her injury resulted from a risk which the plaintiff 

claims the defendant failed to advise of. As stated in Cobbs v. 

Grant, [supra, 8 Cal.3d at p. 245], 'There must be a causal 

relationship between the physician's failure to inform and the injury 

to the plaintiff. As noted above, such causal connection can only be 

established by a medical expert."
30

C. The trial court erred in summarily adjudicating Jameson's professional negligence 

claim

Jameson contends that the trial court erred in granting judgment as a matter of law 

on his professional negligence claim. 

1. The trial court erred in concluding that Jameson would be unable to 

establish the causation element of his claim

Jameson claims that the trial court erred in concluding that Desta established that 

Jameson would be unable to prove a required element of his claim, namely, that Desta's 

actions caused Jameson harm.

a. Governing law

" 'The elements of a cause of action for professional negligence are failure to use 

the skill and care that a reasonably careful professional operating in the field would have 

used in similar circumstances, which failure proximately causes damage to plaintiff.' "

(Cyr v. McGovran (2012) 206 Cal.App.4th 645, 651, citations omitted.) With respect to 

the element of proximate cause, "In a medical malpractice action, the evidence must be 

sufficient to allow the jury to infer that in the absence of the defendant's negligence, there 

was a reasonable medical probability the plaintiff would have obtained a better result."

(Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216, citations omitted.) 

 

In so arguing, Desta appears to acknowledge that Jameson alleged a claim of lack 

of informed consent in his complaint. However, as noted, Desta failed to raise any 

argument with respect to this theory of liability in his motion for summary judgment or 

adjudication. 
31

Generally speaking, " 'The law is well settled that in a personal injury action 

causation must be proven within a reasonable medical probability based upon competent 

expert testimony. Mere possibility alone is insufficient to establish a prima facie case. 

[Citations.] That there is a distinction between a reasonable medical "probability" and a 

medical "possibility" needs little discussion. There can be many possible "causes,"

indeed, an infinite number of circumstances which can produce an injury or disease. A 

possible cause only becomes "probable" when, in the absence of other reasonable causal 

explanations, it becomes more likely than not that the injury was a result of its action. 

This is the outer limit of inference upon which an issue may be submitted to the jury.'

[Citation.]" (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498, citations omitted.) 

A plaintiff presents sufficient evidence on the element of causation to avoid 

summary judgment in a medical malpractice action by presenting expert testimony that a 

physician's breach of the standard of care caused the plaintiff to undergo an unnecessary 

medical procedure that was painful and inherently injurious. (Tortorella v. Castro (2006) 

140 Cal.App.4th 1 (Tortorella).) In Tortorella, a physician performed sinus surgery on a 

patient. (Id. at p. 4.) The patient brought a medical malpractice action in which she 

alleged that the physician had been negligent in examining, diagnosing and treating her. 

(Id. at pp. 4-5.) The physician brought a motion for summary judgment in which he 

contended that he had acted within the standard of care and that he had not caused the 

plaintiff to suffer harm. (Id. at p. 5.) The physician supported his motion with an expert 

declaration. (Ibid.) In opposing the motion, the plaintiff filed the declaration of a 

qualified expert who stated that the defendant physician had acted below the standard of 
32

care in performing an unnecessary surgery. (Id. at pp. 5-6.) The trial court granted the 

motion for summary judgment on the ground that the patient's expert's declaration had 

failed to raise a triable issue of fact as to causation. (Id. at p. 6.)

The Tortorella court concluded that the trial court had erred in granting the 

motion. (Tortorella, supra, 140 Cal.App.4th at p. 10.) The court reasoned, "Although 

the trial court read [plaintiff's expert] declaration as being silent with respect to the issue 

of causation, it seems self-evident that unnecessary surgery is injurious and causes harm 

to a patient. Even if a surgery is executed flawlessly, if the surgery were unnecessary, the 

surgery in and of itself constitutes harm." (Id. at p. 11.) The Tortorella court explained 

the application of its holding in the context of a motion for summary judgment:

"[A]ny unnecessary surgery is inherently injurious in that the patient 

needlessly has gone under the knife and has been subjected to pain 

and suffering.

"Therefore, at the summary judgment stage, if the opposing papers 

raise a triable issue as to whether a physician deviated from the 

standard of care by unnecessarily performing surgery, that is 

sufficient also to raise triable issues with respect to the two 

remaining elements of a cause of action for medical malpractice,

namely, ' " '(3) a proximate causal connection between the negligent 

conduct and the resulting injury; and (4) actual loss or damage 

resulting from the professional's negligence.' " ' [Citation.]

"Thus, [plaintiff's] expert declaration to the effect that the . . .

surgery was . . . unnecessary, was sufficient to raise a triable issue of 

material fact not only as to whether the performing of said surgery 

was a deviation from the standard of care, but also as to the presence 

of a causal connection between the negligent conduct and injury to 

the patient." (Id. at p. 13, fn. omitted.)
33

b. Application

We begin our analysis by identifying the issues framed by Jameson's complaint. 

(See Rosales, supra, 113 Cal.App.4th at p. 1182.) As noted in part II.A., ante, in his 

professional negligence claim, Jameson alleged that Desta negligently treated him for 

hepatitis by prescribing a course of interferon treatment "that [Jameson] did not need,"

and that caused him to suffer severe side effects including "migraine headaches, vision 

loss, weight loss, depression and severe emotional duress."

Desta carried his "initial burden of production to make a prima facie showing of 

the nonexistence of any triable issue of material fact" (Aguilar, supra, 25 Cal.4th at

p. 850) by supporting his motion with the declaration of a medical expert, Dr. Hassanein, 

who stated that Desta had acted within the standard of care by prescribing "alphaInterferon injections three times per week for one year" and that Desta had not caused 

Jameson to suffer any damages. 

In opposition, with the filing of Dr. Cooper's declaration, Jameson raised a triable 

issue of fact with respect to both the standard of care and causation. In his declaration, 

Dr. Cooper stated that Jameson should have been given a six-month regimen of 

combination therapy (interferon and ribavirin), rather than a year of interferon injections. 

Based on Dr. Cooper's declaration, a jury could reasonably find that Jameson was 

subjected to six months of unnecessary alpha-interferon injections. Even without expert 
34

testimony that the injections caused Jameson to suffer any harm,21 it cannot be disputed 

that injections are "inherently injurious in that the patient needlessly has . . . been 

subjected to pain and suffering." (Tortorella, supra, 140 Cal.App.4th at p. 13.)22 Thus, 

as in Tortorella, Jameson presented expert testimony that a physician's breach of the 

standard of care caused him to undergo an unnecessary medical procedure that was 

painful and unnecessary. (Ibid.) Under these circumstances, Jameson "raise[d] a triable 

issue of material fact not only as to whether [prescribing the unnecessary injections was]

a deviation from the standard of care, but also as to the presence of a causal connection 

between the negligent conduct and injury . . . ." (Ibid.)

The trial court's conclusion that Jameson failed to raise a triable issue of fact as to 

causation because he "failed to negate Dr. Hassanein's opinion as to cure with any 

admissible evidence" (italics added), is erroneous because Jameson's professional 

negligence claim is not premised on the allegation that Desta failed to cure him of 

hepatitis. Rather, it is clear from Jameson's complaint that his professional negligence 

claim is based on his contention that Desta subjected him to unnecessary treatment.

Jameson alleged in his complaint that Desta prescribed a course of treatment "that 

 

21 We consider below whether Desta established that Jameson will be unable to 

prove, with expert testimony, that the interferon injections caused Jameson to suffer 

injuries beyond those inherent in the injections themselves. 

22 In his opposition to the motion for summary judgment, Jameson argued that, "no 

party can dispute that injecting themselves three times a week itself causes pain and 

suffering." Desta presented no evidence that Jameson was subjected to injections that did 

not cause pain or suffering. Nor has Desta cited any case law that suggests that the pain 

of being repeatedly injected over a six-month period does not constitute a compensable 

tort damage. 
35

[Jameson] did not need," and repeatedly emphasized this point in opposing the motion for 

summary judgment. For example, in his objection to the court's tentative ruling granting 

Desta's motion, Jameson argued:

"The court found that Jameson was 'cured,' therefore any further 

abuse alleged by Jameson after he was cured is irrelevant. It 

appears, at least to Jameson, that no reasonable juror that was treated 

and cured of a serious disease would allow any doctor to spend 

another [six] months injecting the juror with poison and suffering 

unnecessarily. That is what has occurred."23

We also reject Desta's contention that we may affirm the judgment on the ground 

that various excerpts (see pt. II.H., ante) from Dr. Cooper's deposition that Desta lodged 

in support of his motion establish that Jameson will be unable to establish the causation 

element of his claim.24 To begin with, there is nothing in these excerpts that undermines 

our conclusion that Dr. Cooper's declaration creates a triable issue of fact with respect to 

whether Desta subjected Jameson to an unnecessary and painful regimen of injections 

that were themselves inherently injurious, and constituted a type of legally compensable 

damage. Thus, even assuming that Desta is correct in his assertion that Dr. Cooper had 

no opinion with respect to whether the interferon caused Jameson to suffer injures beyond

 

23 In his brief on appeal, Desta acknowledges that Jameson's claim is that "[Jameson] 

suffered side effects from the medication." 

24 After the trial court granted Desta's motion for summary judgment, Jameson filed 

a request to augment the record to include the entire transcript of Dr. Cooper's deposition. 

The record does not indicate whether the trial court ruled on Jameson's request. On 

appeal, Jameson filed an opposed motion to augment the record to include the transcript 

of the entire deposition. In light of our reversal of the summary judgment based on the 

record that was before the trial court at the time of its ruling, we deny Jameson's request 

to augment the record as moot. 
36

those inherent in the injections, Desta would not be entitled to summary adjudication of 

Jameson's claim. (See DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996)

47 Cal.App.4th 410, 422 ["[S]ection 437c, subdivision (f)(1), does not permit summary 

adjudication of a single item of compensatory damage which does not dispose of an 

entire cause of action."].)

Further, while we acknowledge that the statements that Desta cites from 

Dr. Cooper's deposition concerning causation are ambiguous, we disagree that these 

statements conclusively establish that Jameson will be unable to establish that the 

interferon injections caused him to suffer various injurious side effects. 

For example, while Dr. Cooper stated that he had not "seen enough to draw 

opinions," about "causation or damages," other excerpts from the deposition that Desta

offered in support of the motion for summary judgment are less than conclusive on this 

issue. Most notably, defense counsel directly asked Dr. Cooper whether Jameson 

"experience[d] any physical problems that you attribute to the alpha interferon itself?"

Dr. Cooper replied, "I think that there's notes that he had the usual side effects of 

interferon, which are joint aches and pains, loss of appetite, weight loss, insomnia, 

depression, et[] cetera. So I think that was ongoing." Dr. Cooper also stated, "Interferon 

gives you the flu. . . . [W]hen you get the flu, you release a lot of interferon . . . you feel 

like shit. It's true. And that's the interferon in your body. We just give you ten times as 

much interferon as your body would."
37

Given that Dr. Cooper unambiguously stated in his declaration, "It is my opinion 

that [Desta's] care and treatment of Jameson was substandard and a direct cause of the 

suffering and injury to Jameson and contrary to the prevailing standard of care in the

medical community in 2000-2001," we cannot say that the deposition excerpts on which 

Desta relies conclusively established that Dr. Cooper had no opinion with respect to 

whether the interferon caused Jameson to suffer physical injuries attributable to the 

medication.25

Accordingly, we conclude that the trial court erred in granting summary 

adjudication of Jameson's professional negligence claim on the ground that Jameson 

would be unable to establish the causation element of his claim.

2. This court cannot affirm the trial court's summary adjudication of 

Jameson's professional negligence claim on the ground that there is no 

triable issue of fact with respect to whether Desta breached the 

standard of care 

Desta contends this court may affirm the trial court's order granting judgment as a 

matter of law on Jameson's professional negligence claim on the ground that Jameson 

failed to raise a triable issue of fact with respect to whether Desta breached the standard 

 

25 In light of our conclusion, we need not consider Jameson's contention that this 

court should reverse the trial court's summary adjudication of this claim on the ground 

that he raised a triable issue of fact with respect to the causation element of his claim by 

virtue of the doctrine of res ipsa loquitur. (See generally Bardessono v. Michels (1970)

3 Cal.3d 780, 790 ["In cases in which the physician or surgeon has injected a substance 

into the body, the courts have followed the test that if the routine medical procedure is 

relatively commonplace and simple, rather than special, unusual and complex, the jury 

may properly rely upon its common knowledge in determining whether the accident is of 

a kind that would ordinarily not have occurred in the absence of someone's 

negligence."].)
38

of care. Specifically, Desta contends that "the 'standard of care' is different in the prison 

setting," and that Dr. Cooper's declaration did not raise a triable issue of fact with respect 

to whether Desta met this "different" standard of care. Desta reasons that "Dr. Cooper's 

opinion has no value," because "although combination therapy was available to the 

general public, it was not available to the prison population where the plaintiff was 

incarcerated."

a. Governing law

" 'The standard of care in a medical malpractice case requires that medical service 

providers exercise that . . . degree of skill, knowledge and care ordinarily possessed and 

exercised by members of their profession under similar circumstances. The standard of 

care against which the acts of a medical practitioner are to be measured is a matter 

peculiarly within the knowledge of experts; it presents the basic issue in a malpractice 

action . . . .' [Citation.]" (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108,

fn. 1; see also Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 

463, 470 (Avivi) ["the standard of care for physicians is the reasonable degree of skill, 

knowledge and care ordinarily possessed and exercised by members of the medical 

profession under similar circumstances"].)

b. Factual and procedural background

As described in detail in parts II.E.F.G., ante, Dr. Cooper stated in his declaration 

that Desta had deviated from the "prevailing standard of care in the medical community"

because "Jameson should not have been subjected to the monotherapy for one year, when 

combination therapy had been available for approximately two years [and] was well 
39

known in the medical community at the time of Jameson's treatment."26 Dr. Cooper 

explained that if Desta had adhered to the standard of care and used combination therapy, 

Jameson would have received a total of six months of treatment rather than a year of 

treatment.

In response, Desta argued that "the standard of care is different in the prison 

setting," and offered a declaration in which he stated that " 'monotherapy' treatment was 

the only medical therapy available that was through the protocol that was approved by the 

[Department] and in effect as of May 27, 1998." Desta lodged the 1998 protocol that he 

referred to in his declaration. The protocol outlines the manner by which clinicians 

should treat inmates with hepatitis, including a description of whether and how to 

prescribe interferon. 

c. Application

At the outset, we consider Desta's suggestion Dr. Cooper's declaration does not 

raise a triable issue of fact with respect to whether Desta breached the applicable standard 

of care because the 1998 protocol establishes that a lower standard of care applied in the 

prison setting. Although the 1998 protocol provides recommendations for health care 

professionals who provide medical care in California prisons, the protocol expressly 

states, "These guidelines are intended to assist the practitioner, but as always, guidelines 

 

26 Dr. Cooper stated in his declaration that he was "extremely familiar with the 

standard of care in the discipline of hepatology and the standard of care as it existed 

during the period of treatment of [Jameson] in this case from 2000-2001."
40

are not a substitute for exercising good clinical skill and judgment." Further, the 1998 

protocol states:

"Choosing treatment options for patients with chronic viral hepatitis 

requires medical judgment since information gained from the studies 

do not correlate well with histopathology. In addition, this field of 

medical practice is new and is rapidly changing as new techniques 

and therapies are developed. They will continue to be periodically 

updated, consistent with the principles of medical practice."

The language of the protocol suggests that rather than establishing a treatment regimen 

that is binding on health care professionals in the prison setting, the protocol actually 

provides nonbinding "guidelines" for practitioners. In any event, even assuming that the 

1998 protocol did purport to establish a "standard of care" for doctors who provide care 

for California prison inmates, we reject the argument that the existence of such a protocol 

would demonstrate that Dr. Cooper's declaration failed to raise a triable issue of fact with 

respect to whether Desta breached the applicable standard of care. 

Desta's argument that Dr. Cooper's "opinion has no value" and fails to raise a 

triable issue of material fact is premised on Desta's contention that federal courts have 

applied California law in concluding that the "standard of care is different in the prison 

setting."27 In support of this contention, Desta cites two cases, neither of which remotely 

support his argument that doctors who provide medical care in California's prisons are 

held to to a lower standard of care than those who provide medical treatment in the 

general medical community. Desta first cites a dissenting opinion in Wood v. 

 

27 Specifically, after discussing Avivi, Desta argues, "Based on this California law, 

the federal courts, which frequently deal with prisoner litigants, have recognized that the 

standard of care is different in the prison setting."
41

Housewright (9th Cir. 1990) 900 F.2d 1332, 1338 (Reinhardt, J. dissenting in part)

(Wood), in which Judge Reinhardt concluded that Nevada prison officials' confiscation of 

an inmate's arm sling constituted a cruel and unusual punishment and therefore violated

the Eighth Amendment to the United States Constitution because it constituted deliberate 

indifference to the inmate's medical needs. (Id. at p. 1336.) Judge Reinhardt reasoned in 

part, "While the crowded conditions and limited resources in most prisons unfortunately 

result in a standard of care somewhat lower than that which prevails in society at large, 

it usually requires neither sophisticated facilities nor additional resources to allow a 

prisoner to continue with a course of treatment he is already receiving." (Id. at p. 1338, 

italics added.) Desta contends that the italicized portion of the prior sentence supports his 

contention that the standard of care under California law is "different" in the prison 

setting. However, when read in context, it is clear that Judge Reinhardt was lamenting

the quality of the medical treatment that prisoners often receive, and was not stating that a 

lower standard applies as a matter of law. More fundamentally, Judge Reinhardt was not 

discussing either California law (see id. at pp. 1337-1338 [considering whether Nevada 

prison officials violated the federal constitution]) or the tort of professional negligence 

(see id. at p. 1337 ["Professional negligence has nothing to do with this claim."]).

Desta also cites Hallett v. Morgan (9th Cir. 2002) 296 F.3d 732, 745 (Hallet), in 

which the Ninth Circuit affirmed a district court's factual finding that a Washington 

prison's dental services did not constitute cruel and unusual punishment under the Eighth

Amendment. In the course of its analysis, the Ninth Circuit stated, "[T]he [district] court 

opined that dental services at the prison were acceptable even under the usual standard of 
42

care in nonprison settings." (Hallet, supra, at p. 745.) It is clear from the Hallet opinion 

that the district court was indicating that because the prison's provision of dental services 

did not constitute medical malpractice, they necessarily did not violate the Eighth 

Amendment. (Hallett, supra, at p. 744 ["Mere medical malpractice does not constitute 

cruel and unusual punishment."].) Neither the Hallet court, nor the district court in that 

case, suggested that there is a different standard of care applicable to medical malpractice

actions that arise out of the care of prisoners. Moreover, as with the dissent in Wood, the 

Hallet court was not discussing California law or the tort of professional negligence. 

(Hallet, supra, at p. 745.) To put it charitably, neither of Desta's cases supports the 

proposition that medical practitioners who treat California inmates are held to a lower 

standard of care than that applicable to medical practitioners outside the prison context, 

and our independent research has not uncovered any California case law that supports 

this proposition. 

In fact, the California authority that is most relevant to the question of the 

applicable standard of care in the prison setting is to the contrary. In Nelson v. State of 

California (1982) 139 Cal.App.3d 72, in the course of distinguishing the tort of medical 

malpractice from the tort of failing to summon medical care under Government Code 

section 845.6, the Court of Appeal stated, "Once a practitioner has been summoned to 

examine and treat a prisoner, he or she is under a duty to exercise that degree of 

diligence, care, and skill such as is ordinarily possessed by other members of the 

profession. Failure to do so is malpractice." (Nelson, supra, at p. 81, italics added; see 

also Castaneda v. Department of Corrections and Rehabilitation (2013) 212 Cal.App.4th 
43

1051, 1071; Watson v. State of California (1993) 21 Cal.App.4th 836, 845 [both quoting 

Nelson]; accord 2 Coates, et al., Cal. Government Tort Liability Practice (Cont.Ed.Bar 

4th ed. 2006, 2012 update) Liabilities and Immunities in Specific Functional Areas,

§ 11.16, p. 737. ["A public entity has a duty to summon medical care . . . but not to make 

sure that the medical care meets professional standards of reasonableness. The plaintiff's 

remedy for inadequate care is an action against the appropriate state employees for 

medical malpractice."].)28

Accordingly, we conclude that we cannot affirm the trial court's summary 

adjudication of Jameson's professional negligence claim on the ground that Dr. Cooper's 

declaration failed to raise a triable issue of fact with respect to whether Desta breached 

the applicable standard of care.29

 

28 Numerous courts in other jurisdictions have held that the standard of care 

applicable to physicians treating prisoners is the same as the standard that applies to the 

general medical community. (See, e.g., District of Columbia v. Mitchell (D.C. 1987) 533 

A.2d 629, 648 [collecting cases and holding "physicians owe the same standard of care to 

prisoners as physicians owe to private patients generally"]; Moss v. Miller (1993) 625 

N.E.2d 1044, 1051 ["those practicing the medical arts in the penitentiary are held to the 

same standard of care as those practicing in the communities of our State. To hold 

otherwise would be to abandon reason and common sense"].)

29 Jameson suggests that the record establishes a triable issue of fact with respect to 

whether Desta breached the standard of care, even if Dr. Cooper's declaration were 

disregarded in its entirety. Jameson notes that Dr. Hassanein stated in his declaration that 

"[t]he medical literature generally defines a patient with a negative lab result after six 

months of treatment as being 'cured' in this context" and contends that other evidence in 

the record demonstrates that Desta unnecessarily treated Jameson with interferon after he 

had been cured. We need not consider this contention in light of our conclusion that Dr. 

Cooper's declaration constitutes evidence demonstrating a triable issue of fact as to 

whether Desta breached the standard of care. 
44

D. The trial court erred in failing to ensure that Jameson would be afforded the 

opportunity to participate in Dr. Cooper's deposition

In its order granting summary judgment, the trial court expressly recognized its 

obligation to " 'ensure indigent prisoner litigants are afforded meaningful access to the 

courts. . . .' " (Jameson II, supra, 179 Cal.App.4th at p. 675, quoting Apollo v. Gyaami, 

supra, 167 Cal.App.4th at p. 1483.) The court also stated that it had paid "careful 

adherence" to this court's mandate with respect to this issue as stated in Jameson II.30

Notwithstanding these statements, the record indicates that the trial court failed to 

carry out this obligation in at least one respect. More than a month and a half in advance 

of defense counsel's taking Dr. Cooper's deposition, Jameson filed a motion in which he 

requested that "Desta's counsel . . . arrange with prison officials to allow Jameson to 

appear at the deposition telephonically." The trial court failed to rule on Jameson's 

request prior to the taking of the deposition. As a result, defense counsel was permitted 

to depose Jameson's key expert witness without Jameson being afforded the opportunity 

to participate in the taking of the deposition. The trial court thereafter based its 

(erroneous) grant of summary adjudication of Jameson's professional negligence claim 

entirely on statements that Dr. Cooper made at the deposition. Finally, in its order 

granting summary judgment, the trial court ruled that Jameson's request to appear 

telephonically at the deposition was "moot" because "the Cooper deposition has already 

taken place." 

 

30 On remand from Jameson II, Jameson filed a preemptory challenge to the prior 

trial judge pursuant to section 170.6, and the matter was reassigned to a new trial judge. 
45

Proceeding in this manner is not consistent with fundamental fairness. While "a 

trial court is to exercise its 'sound discretion,' in determining the appropriate method by 

which to ensure meaningful access to the court" (Jameson II, supra, 179 Cal.App.4th at 

p. 678), a trial court's failure to exercise any discretion to ensure such access constitutes 

error. (See, e.g., Rezek v. Superior Court (2012) 206 Cal.App.4th 633, 642 ["abuse of 

discretion present when 'court failed to exercise discretion vested in it by law' "].) The 

trial court erred in failing to rule on Jameson's requests that he be allowed to participate 

in the deposition in some fashion prior to the taking of the deposition. 

On the merits of Jameson's motion, the trial court abused its discretion in failing to 

direct defense counsel to ensure that Jameson be permitted to participate in some manner 

in the deposition. (See Jameson II, supra, 179 Cal.App.4th at p. 678 [trial court lacks 

discretion to refuse to ensure prisoner litigant's ability to meaningfully participate in court 

proceedings where access is impeded by incarceration].) We are aware that "in propria 

persona litigants, like appellant, are entitled to the same, but no greater, rights than 

represented litigants." (Id. at p. 684.) In seeking to be able to participate in the 

deposition by telephone, Jameson was not asking to be accorded any special rights. 

Section 2025.310 provides in relevant part, "[A]ny person other than the deponent may 

attend . . . a deposition by telephone or other remote electronic means." (See also Cal. 

Rules of Court, rule 3.1010.) The trial court abused its discretion in failing to ensure that 

Jameson's incarceration did not impede his ability to exercise such right. 
46

Further, while the trial court rejected Jameson's contention that the court had 

denied him due process by failing to ensure his participation in Dr. Cooper's deposition, 

none of the reasons that the court offered as the bases for its conclusion is persuasive. 

The court noted that Jameson had failed to timely designate Dr. Cooper as an expert. 

Yet, the trial court permitted Jameson to file Dr. Cooper's declaration. Having granted 

this permission, the court could not, consistent with fundamental fairness, proceed to 

penalize Jameson for the late filing by allowing Desta to take Dr. Cooper's deposition

without Jameson's participation. This is particularly true since the record is clear that the 

timing of Jameson's designation of Dr. Cooper as an expert did not impede the trial court 

from ruling on Jameson's request to be permitted to participate in Dr. Cooper's 

deposition.31

The trial court also stated that Jameson could have obtained his own counsel to 

attend the deposition and commented that "[a]ny complaint [that Jameson has] about not 

being at liberty to attend the deposition is something [Jameson] should have considered

before committing whatever crime that gave rise to his incarceration." The case law is 

clear that an indigent incarcerated litigant has a right to prosecute a bona fide civil action 

on his own behalf and to be afforded meaningful access to the courts in doing so, and that 

the trial courts are to ensure that this right is protected. The trial court's statement that 

 

31 As described in greater detail in part II., ante, in January 2011, the trial court 

continued the motion for summary judgment to permit Jameson to file Dr. Cooper's 

declaration. Jameson filed Dr. Cooper's declaration in February 2011. Jameson filed his 

request to participate telephonically in Dr. Cooper's deposition in mid-March 2011, 

approximately a month and a half before Desta deposed Dr. Cooper in late April 2011. 
47

Jameson could have obtained counsel to attend the deposition, and the court's remark 

about Jameson's incarcerated status are entirely inconsistent with this mandate. On 

remand, the trial court is again directed to ensure that Jameson's right to prosecute this

action is protected.

IV.

DISPOSITION

The trial court's February 25 order granting summary adjudication of Jameson's 

breach of fiduciary duty claim and the trial court's May 31 order granting summary 

judgment on Jameson's professional negligence claim are reversed. The trial court's

June 17 judgment is reversed. The trial court's May 31 order denying Jameson's motion 

to exclude evidence of his prior felony conviction is affirmed. In the interests of justice, 

Jameson is entitled to recover costs on appeal.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.