1 BRENDA GAINES HUNTER

429 12th Street, #425

2 Sacramento, CA 95814
916-304-2320 (NEW)
3
bgaineshunter@yahoo.com
4
Brenda Gaines Hunter, IN PRO PER
5

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO
9 UNLIMITED JURISDICTION

10

11 BRENDA GAINES HUNTER ) Case No.: CGC 15548808

)
12 Plaintiff(s), )
)
13 vs. ) FOURTH AMENDED COMPLAINT
14 )
THE REGENTS, DR RENUKA NAYAK, DR ) 1. Intentional Infliction of Emotional
15 CHRISTINA PHAM, DR MARY K ) Distress, Rest.2d Torts, § 46, com. d.
CONNOLLY, DR KENNETH SACK, NURSE ) 2. Medical Malpractice
16 DARLENE LEE ) Rest. 3rd Torts. S3
)
17 )
Defendant(s). )
18
) Demand for Jury Trial
19 )
)
20 )
21
1. Comes Now Plaintiff, Brenda Gaines Hunter, alleging the events and causes of action set
22
forth in this complaint against Defendants, Dr Nayak, Dr Pham, Dr Connolly, Dr Sack, Nurse Lee
23
and the Regents (hereafter collectively referred to as “Defendants”) as follows.
24

25 JURISDICTION AND VENUE

26
2. The Superior Court of California, San Francisco has jurisdiction over all causes of action
27
asserted herein pursuant to the California Constitution, Article VI, Section 10.
28

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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 3. The Superior Court has jurisdiction over all Defendants because all Defendants are

2 California residents.
4. The venue is proper because the causes of action stated herein arose in this judicial district.
3

4
PARTIES
5

6 5. Brenda Gaines Hunter (“Plaintiff”) resided in the County of San Francisco of the State of
7 California when she became a patient of Defendants at the University of California, San Francisco

8 Medical Center (hereinafter referred to as “UCSF”). She presently resides in Sacramento County.
6. Plaintiff is informed and alleges that Defendants were involved in her medical care and were
9
employed at UCSF Medical Center when the events giving rise to this Complaint occurred.
10
7. Defendants Dr Nayak and Dr Sack are medical doctors licensed by the Medical Board of the
11
State of California. Nurse Darlene Lee is a nurse practitioner licensed by the State of California’s
12 Board of Registered Nursing. Dr Nayak was a fellow. Dr Nayak, Dr Sack, and Nurse Lee were

13 employed in the Rheumatology Department.

14 8. Defendant Dr Pham, a medical doctor licensed by the Medical Board of the State of

15 California, was employed in the Women’s Health Center.

9. Defendant Dr Connolly, a medical doctor who is licensed by the Medical Board of the State
16
of California, was employed in the Dermatology Clinic.
17
10. The Regents, 1111 Franklin St., 12th floor, Oakland, CA 94607, is the managing entity of
18 the University of California, including its medical centers, and each Defendant was in the employ of
19 the Regents.

20

21 FACTUAL STATEMENTS

22
11. Plaintiff was hospitalized for dehydration at UCSF Medical Center March 20, 2015. Before
23
moving back to San Francisco March 17, 2015, Plaintiff had been diagnosed with Graves' disease,
24
hyperparathyroidism, and systemic lupus erythematosus (lupus) and was prescribed prednisone and
25 Plaquenil to treat the lupus. The Plaintiff had often been prescribed prednisone to take on an as

26 needed basis for a breathing problem that she has, and the Plaintiff increased her dose of prednisone
27 when she had breathing problems while enroute from Chicago to San Francisco.
12. The Plaintiff originally sought a diagnosis for her ailments after establishing a personal
28
training business along Lake Michigan in Chicago, falling ill with rashes (including a full body
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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 one); struggling with breathing difficulties, unexplained weight gain, edema, large quantities of

2 blood in the urine, weakness and dizziness. The Plaintiff was diagnosed in an ER in Chicago with
heart failure. It took nearly two years, one surgery, about seven trips the ER, and at least three
3
hospitalizations to diagnose and start treating the Plaintiff’s systemic lupus. During that time,
4
Plaintiff thought she was going to die.
5
13. To get a diagnosis of systemic lupus, a patient has to display four of eleven signs set forth by
6 the College of Rheumatology. Those four criterions do not have to present at the same time. As a

7 matter of fact, they can present many years apart.

8 14. Prior to moving to Chicago, the Plaintiff had been a patient at UCSF for about 15 years.
Until about a year before she moved back to Chicago, Plaintiff had also been treated at Westside
9
Community Services in San Francisco for bipolar disorder while also a at patient at UCSF. The
10
psychiatrists at Westside Community Services took the Plaintiff off of all psychiatric medications.
11
The Psychiatrists tried them all, but Plaintiff was either allergic to them or they did not work. The
12 psychiatrists also said that “Something else was at play.” However, they did not know what else.

13 The psychiatrists sent the Plaintiff to a sleep clinic, told Plaintiff that she had to wait for “them to

14 invent something new” and monitored Plaintiff’s behavior in group therapy sessions. Plaintiff

15 believes that Brad Harms, MFT, oversaw her treatment while Plaintiff was Westside Community
Services. The Plaintiff’s physicians at UCSF knew that she had been diagnosed with a mental
16
illness and had a history of taking psychiatric medication.
17
15. Prednisone of which the Plaintiff had been prescribed a high, but customary dose of 60 mgs
18 for treating systemic lupus, is also known to cause mental and emotional problems at much lower
19 doses, and many studies completed by the National Institutes of Health (NIH) and other institutions

20 have shown that Graves’ disease can mimic bipolar disorder, especially mania. Lupus often attacks

21 the central nervous system and causes depression. Both diseases can be precipitated by stress.
16. The ER doctor at UCSF who admitted Plaintiff March 20, 2015 said that he was bringing
22
Plaintiff in for a “tune-up” since Plaintiff had a pending appointment.
23
17. During her time in the hospital, the Plaintiff signed various consent forms to receive
24
treatment. The Plaintiff received a Patient Handbook which covers the policies regarding the rights
25 of patients at both UCSF hospital and medical clinics. In the Handbook, patients are told such

26 things as “they have a right to receive test results, to be treated respectfully, etc.”
27 18. The Residents were given the task of gathering medical information, and the Plaintiff spoke
with them often and gave them reports that covered the results of her recent lung, thyroid, antibody,
28
and gastrointestinal labs as well as other recent (within six months) test results, such as the results
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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 of pulmonary function testing and lung ct scans that were completed in October 2014. The Plaintiff

2 also gave the residents the business cards of her doctors who had treated her in Chicago.
19. Plaintiff was discharged from the hospital March 24, 2015.
3
20. April 9, 2015, Plaintiff first saw Dr Nayak at the Rheumatology Department at UCSF. Dr
4
Nayak stated to Plaintiff that she needed her medical records at which point Plaintiff replied that the
5
doctors (residents) at UCSF had already scanned the records into the computer system and that she
6 had been a patient at UCSF for many years, that UCSF already had more records than any place

7 else. Plaintiff also stated that she thought the Residents had spoken with one or more of her doctors

8 in Chicago. (The Plaintiff talked at length with Dr Silverman about her relationship and respect for
one of her doctors in Chicago, who had graduated from the Miller School of Medicine in Miami. Dr
9
Silverman was from Florida Plaintiff learned. Plaintiff got the impression that Dr Silverman had a
10
good discussion with the Chicago physician.) Dr Nayak looked at the computer monitor, and then
11
exclaimed, “There is a lot here.” Dr Nayak asked Plaintiff to undress and to put on a gown. Plaintiff
12 did so after Dr Nayak left the room. When Dr Nayak, a rheumatologist, returned, she began Plaintiff

13 by gawking Plaintiff’s legs, and grabbing at the Plaintiff’s right breast, and then rubbing in a

14 circular fashion below the Plaintiff’s right breast, while saying, “Yes, you are retaining water” and

15 that having a rash (on the upper back) was common. The Plaintiff was taken aback by Dr Nayak’s
actions and felt humiliated and confused about what Dr Nayak was doing. Dr Nayak took pictures
16
of Plaintiff’s back while mentioning how much more interested she has become in “physical
17
activity” now that she is near a gym and lives in a climate in which it doesn’t snow. Plaintiff
18 ignored Dr Nayak.
19 21. Plaintiff met Dr Nayak’s immediate supervisor, Dr Sack, toward the end of the appointment.
20 Dr Sack told Plaintiff to lose weight. Plaintiff agreed to and did, even though Plaintiff was still

21 taking prednisone, which is known to increase the appetite and change metabolism.
22. Dr Nayak listed systemic lupus erythematosus as a diagnosis on Plaintiff’s “After Visit
22
Summary Sheet”.
23
23. Sometime in May, Plaintiff messaged Dr Nayak to get the results of a kidney ultrasound
24
Plaintiff had undergone a few weeks earlier. The California Medical Association defines the
25 elements that a patient report must contain. Dr Nayak gave the Plaintiff a summary that was a few

26 words long that seemed to be stating that Plaintiff had a tumor in the left kidney. The report did not
27 meet the standards set forth by the California Medical Association and was unlike any other report
that Plaintiff had ever received. All of Plaintiff’s prior reports, even the ones in Chicago, had the
28
elements defined by the California Medical Association, probably because those elements are also
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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 defined by HIPAA statute. Not allowing Plaintiff access to her complete medical record also

2 violated the ordinary standards of care that all physicians licensed in California are subjected to as
defined by California HSC §123100 and §123110.
3
24. According to HIPPA §42 CFR Section 482.24, “all documentation and entries in the
4
Medical Record, both paper and electronic, must be identified with the patient’s full name and a
5
unique UC__ Medical Record number…” The report for the kidney ultrasound still is not in the
6
required format and does not contain the information that the law requires. So violating HIPPA §42
7 CFR Section 482.24 also violated the standard of care.

8 25. Surprised and a bit concerned, Plaintiff then asked Dr Nayak if it were the same tumor that
9 is sitting on Plaintiff’s left adrenal gland. (The adrenal gland tumor had shown up on a ct scan taken

10 a few months earlier in Chicago.) Plaintiff got a confusing explanation, but decided to stop asking
Dr Nayak for clarification, because Plaintiff figured if the tumor(s) was dangerous, Dr Nayak would
11
tell her so.
12
26. In June 2015, Dr Nayak using Dr Sack’s name wrote for Plaintiff a one-year prescription for
13 Plaquenil to continue treating Plaintiff’s systemic lupus.

14 27. Because Plaintiff had moved to Sacramento, sometime in late July or early August 2015, the
15 Plaintiff made an appointment at The Effort, a small medical center in Sacramento. The

16 appointment was to take place on or about October 7, 2015. The Effort canceled the appointment
the day of the appointment, citing the Clinic’s had limited resources for managing lupus. By
17
requiring most Medi-Cal recipients to sign up for managed care, Sacramento County has created a
18
shortage of primary care physicians. The Plaintiff’s primary insurer is Medicare. Plaintiff was told
19
that she could get a primary care physician through a medical center, other than UC Davis, if she
20 travels to Roseville or Rancho Cordova. The Plaintiff doesn’t drive. Since it is easier to get to San

21 Francisco on Greyhound and then take Muni to a medical center, the Plaintiff stayed with UCSF.

22 28. August 27, 2015, Plaintiff attended her second appointment with Dr Nayak. After Dr
Nayak got her from the waiting room, Dr Nayak disappeared for few minutes, and then
23
someone who works at the front desk in the Rheumatology Clinic came into the room and told
24
Plaintiff that she had an appointment scheduled at the Dermatology Clinic. When Dr Nayak
25
returned she said while walking into the room, “I see absolutely no signs of you having
26 lupus!” (Only a few months earlier, Dr Nayak had diagnosed systemic lupus and a one year
27 prescription to treat it.) Plaintiff told her that she had plenty of signs before being placed on

28 the medications to treat it, that the medications were working, even the rashes were better and

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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 the old one on her back seemed to be healing. Dr Nayak told Plaintiff that they could not go

2 on the basis of what a patient says and that she needed to come off of Prednisone because it
was doing more to her than she thought. Dr Nayak looked at Plaintiff and out-of-the-blue
3
quietly asked, “You usually have no sex drive?” The Plaintiff was shocked and dismayed by
4
the question, because she hadn’t complained about her sex drive to anyone anywhere and
5
didn’t think her sex drive was a problem. With all the medical problems Plaintiff had, sex just
6 wasn’t on her list of problems, so the Plaintiff ignored the question. Plaintiff reminded Dr

7 Nayak that the antibodies for lupus had been positive before she started on Prednisone and

8 Plaquenil. Dr Nayak smirked and winked, and then said, “Oh, were those antibodies
positive?” Plaintiff ignored Dr Nayak again, who then walked to the computer and looked at
9
the screen. While sitting on the edge of the seat and smirking, Plaintiff angrily told Dr Nayak
10
that she could not take much more of this (abuse). After all that Plaintiff had been through
11
over the last few years, Plaintiff was worn out.
12 29. Dr Nayak went and got Dr Krishna Chaganti. Dr Chaganti looked at Plaintiff’s back and
13 said, “This is classic.” Dr Nayak softly said to her, “Her legs are swollen .” Then Dr Krishna

14 Chaganti asked Plaintiff if she’d ever had a skin biopsy? Plaintiff told her no. Dr Chaganti then

15 looked at Dr Nayak and said, “Get on it,” then left the room.
30. The Plaintiff thought that would be the end of the problems with Dr Nayak. When Dr
16
Nayak told the Plaintiff to make an appointment to return in a few months, the Plaintiff
17
responded by saying. “With you!” Plaintiff thought that it was clear that Dr Nayak did not
18 want to be, or felt that she could not be, Plaintiff’s doctor when Dr Nayak went to get Dr
19 Chaganti. The Plaintiff truly thought she would be assigned to someone else.

20 31. Dr Nayak subsequently balked at giving Plaintiff a referral to the urologist, telling her

21 that her PCP (primary care physician) should do those things, even though kidney problems
tend to be a sign of lupus nephritis, and lupus is normally treated by a rheumatologist once
22
there is major organ involvement. The rheumatologist also often acts as the PCP.
23
32. Dr Nayak asked Plaintiff when she would see her PCP (Dr Pham). Plaintiff told her
24
that she would see Dr Pham in about two weeks. Plaintiff began talking about her lung
25 problems and told Dr Nayak how shocked she was that she did not have emphysema, and she

26 likely didn’t have asthma either, that her prior pulmonary function test showed that s he had no
27 obstruction. However, a ct scan of her lungs did show that Plaintiff has lung nodules that were
to be monitored every six months for two years. The Residents had input the results of that
28
pulmonary function test into UCSF’s computer. The results also showed that the Plaintiff had
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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 a restrictive breathing problem, which the Plaintiff was told was a common result of

2 autoimmune diseases. Both lupus and Graves’ disease are autoimmune diseases. The
Plaintiff’s pulmonologist in Chicago had prescribed loratadine (an antihistamine) for her, did
3
not tell her that she had asthma nor did she prescribe any type of asthma medication.
4
However, the Plaintiff’s pulmonologist told Plaintiff told Plaintiff to come back if she
5
continued to have a problem with breathing, but Plaintiff left town to be closer to her friends
6 of 30 years. (Plaintiff grew up in foster care and is closer to her friends than she is to most of

7 her relatives.)

8 33. Dr Nayak then asked Plaintiff what Dr Pham said during the last appointment, and
Plaintiff told her that Dr Pham said that she needed to see the results from the labs she ordered
9
before she would know what to do.
10
34. Dr Nayak told the Plaintiff to stop taking the prednisone. The Plaintiff did.
11
35. When Plaintiff went to her second appointment with Dr Pham on September 14, 2015, Dr
12 Pham’s assistant handed Plaintiff a peak flow meter, had her practice using it, and then told her that

13 she was to bring it every time she came in. Plaintiff asked the assistant, “Why she needed it?” She

14 was told to treat her asthma. Plaintiff was so flabbergasted by the diagnosis that she struggled to

15 blow air into the peak flow meter. Instead of focusing on the lung tumors, Dr Pham was focusing
on asthma when recent testing showed that it was highly unlikely that the Plaintiff had asthma. The
16
Plaintiff tried to remain calm, so that she could talk to Dr Pham about the diagnosis.
17
36. The Plaintiff did not directly address the asthma issue at first, because she was too angry and
18 frightened, because Plaintiff knew that Dr Nayak told Dr Pham to treat the Plaintiff for asthma and,
19 therefore, the Plaintiff knew that either Dr Pham was in cahoots with Dr Nayak or Dr Pham really

20 believed that the Plaintiff had asthma. Plaintiff tried to talk with Dr Pham about some of the other

21 medical issues that she was having as Dr Pham looked at the computer screen, but was cut off when
Dr Pham replied, “Don’t we all.” Plaintiff asked Dr Pham if Plaintiff has lupus, and Dr Pham told
22
her to ask Dr Nayak. When Plaintiff asked Dr Pham if she really had asthma? Dr Pham looked at
23
Plaintiff and replied that the only way to find out would be to send Plaintiff for a metacholine test.
24
At that point the Plaintiff knew that Dr Pham didn’t know if Plaintiff really had asthma when she
25 started treating Plaintiff for it, and the Plaintiff decided that there really was no harm in undergoing

26 pulmonary function testing again, so the Plaintiff readily agreed to the testing. Dr Pham then
27 referred Plaintiff to the Pulmonology Department to have the test.
37. The Plaintiff did ask Dr Pham if the Plaintiff had lupus. The Pham told the Plaintiff to ask
28
Dr Nayak. After realizing that Dr Nayak had the audacity to tell Dr Pham that the Plaintiff did not
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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 have lupus, but instead that the Plaintiff had asthma that needed treatment, Plaintiff confronted Dr

2 Nayak and asked her to stop interfering in her medical relationship with Dr Pham. Plaintiff also
warned Dr Nayak that she would sue her if the harassment did not stop.
3
38. As a former instructional designer 9designer of training programs) and property/casualty
4
claims representative for a large insurance company, Plaintiff knew that the proper way to handle
5
sexual harassment is to first confront the harasser to see if they will stop. Until the harasser is
6 confronted, s/he might not really realize that her/his behavior is harassing. At first, sometimes the

7 victims don’t understand they’re being sexually harassed, because sexual harassment can be subtle.

8 If the behavior stops, there is no need to then file a formal complaint. Plaintiff was trying not to file
a complaint.
9
39. Plaintiff then contacted the Rheumatology Department and asked about how to get a
10
different rheumatologist. She was told all she had to do was ask and that the request would be
11
forwarded to the Department director. The Plaintiff thought that seemed simple and asked if that
12 was really all she had to do? She was told yes.

13 40. A supervising nurse practitioner in the Rheumatology Department, Nurse Lee, contacted
14 Plaintiff about a week later and told her that if she wanted a new doctor, she had to go to Patient

15 Relations to determine what her options were. Plaintiff thought that was strange, so Plaintiff told
Nurse Lee she was scared to and that she would keep Dr Nayak since they likely now had an
16
understanding. By this time, Plaintiff actually was generally afraid and was feeling paralyzed as to
17
how to handle the situation with Dr Nayak and now the Rheumatology Department, because the
18 Plaintiff did not have options as to her medical care and was still undergoing diagnostic testing,
19 which the American Medical Association (AMA) cites as a critical time during medical care.

20 41. During the morning of October 14, 2015, Plaintiff saw urologists, Dr Washington and Dr

21 Stoller. Dr Washington told her that it was unlikely that the small kidney tumor was causing urinary
bleeding, but it had to be watched, because it can grow rapidly and hemorrhage. Plaintiff then asked
22
him if lupus nephritis could be the cause of the bleeding, and he said that was the most likely cause.
23
Plaintiff also realized that she did have a kidney tumor, so she asked him if the adrenal gland tumor
24
had also shown up on the ultrasound image, too. He answered that it had. Dr Washington also
25 looked at the Plaintiff’s legs and feet and noted that they were swollen. Dr Stoller told Plaintiff to

26 make an appointment to return for a full workup. The appointment was scheduled for November 15,
27 2015. The Plaintiff never went.

28

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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 42. Early in the afternoon of October 14, 2015, Plaintiff underwent full pulmonary function

2 testing, not just metacholine testing. Plaintiff was told that the pulmonologist would review the
results when he came in and that the results would be available in about three days.
3
43. October 15, 2015, Plaintiff had an appointment with Dr Connolly. After introducing herself
4
and Dr Song to Plaintiff, Dr Connolly told Plaintiff that she did not have lupus and that no lupus
5
rash is transient, when it is a well known fact that one of the tell-tale signs of lupus, the malar rash
6 that gives that “werewolf look”, is a transient rash. Plaintiff told Dr Connolly that she had not had a

7 rash since the summer. Dr Connolly kept saying “Good ol’ Dr Sack” to which Plaintiff kept

8 replying, “Dr Nayak,” to tell Dr Connolly that Dr Nayak made the appointment for Plaintiff while
using Dr Sack’s name. Just about every time Plaintiff tried to talk, Dr Connolly cut her off. Plaintiff
9
did manage to tell Dr Connolly that Plaintiff could not reach her back to place the corticosteroid
10
gels and creams on the areas that itched, so she used a backscratcher. Dr Connolly told the Plaintiff
11
that she bet Plaintiff could find someone to rub the gels on her back if she tried. The Plaintiff did
12 felt embarrassed and belittled by that comment.

13 44. Dr Connolly kept asking Plaintiff, “Why are you here?” Plaintiff kept replying, “For the
14 reasons Dr Nayak gave when she made the appointment.” Finally, Plaintiff said that she thought

15 there’d be a problem if she didn’t show up. After repeatedly trying to tell Dr Connolly that she had
been diagnosed with lupus while in Chicago, Plaintiff became quiet and withdrawn, because she
16
was feeling humiliated and hopeless. Plaintiff felt that she had walked right into a plot. Finally, Dr
17
Song tapped Plaintiff on the hand to get her attention. Dr Connolly told Plaintiff to return for a
18 biopsy when Plaintiff gets a rash. Plaintiff replied, “Back here!”
19 45. The feelings of humiliation and hopeless continued when Plaintiff noticed that her After
20 Visit Summary Sheet says that her primary problem that visit was neurotic excoriations, a mental

21 disorder. Dr Connolly wrote the same diagnosis in Plaintiff’s online medical record, but Plaintiff’s
paper medical record says looks to be in “the family of neurotic excoriations”. Dr Connolly
22
diagnosed neurotic excoriations even though she also told Plaintiff to keep taking the Plaquenil,
23
which is used to treat lupus and indirectly “lupus” rashes. Further, according to the National
24
Institutes of Health (NIH), neurotic excoriation is diagnosed by only a psychiatrist and is done so
25 only after excluding all other physical causes that can incite scratching. Graves’ disease is a

26 differential diagnosis to neurotic excoriations. California Business and Professional Codes §2266
27 cites that “… a physician has a professional responsibility to maintain accurate and consistent
patient records, including hospital, nursing home, and office records. A physician’s refusal to
28
maintain adequate and accurate hospital records may be subject to discipline under Business and
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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 Professions Code §2266 and considered unprofessional conduct. According to the Medical Practice

2 Act, unprofessional conduct includes "any departure from or failure to conform to the minimal
standards of acceptable and prevailing medical practice.” Failing to keep accurate records would
3
also be reportable to the Board under Business and Professions Code §805.” Therefore, a violation
4
of Business and Professional Codes §2266 is a breach of the standard of care that all physicians
5
must follow.
6 46. Plaintiff’s medical chart also shows that Plaintiff was sent to dermatology, at least partly
7 because she had blood in her urine. Dr Nayak did not cancel the appointment she had made for

8 Plaintiff to see Dr Connolly even after her supervising physician, Dr Chaganti on August 27, 2015,
told her to refer Plaintiff to urology for the bleeding. When Plaintiff made the appointment for the
9
workup in the Urology Department, Plaintiff was asked when and how Plaintiff was diagnosed with
10
lupus? Plaintiff was told that Dr Stoller wanted to know. Therefore, Dr Nayak did not tell Dr
11
Washington or Dr Stoller that the Plaintiff has lupus. Studies show that lupus often causes lupus
12 nephritis, especially in African Americans. Plaintiff is African American.

13 47. Dr Connolly stated in the paper record that Plaintiff was referred to her to confirm that
14 Plaintiff did not have a lupus rash. Lupus is well known for causing rashes of all types (according to

15 Johns Hopkins, the Lupus Foundation of America, the Mayo Clinic), although the tell-tale sign of it
is the butterfly rash that usually develops across the face, but it can show up in other places, such as
16
on the chest. According to the Lupus Foundation of America, only about half of lupus patients
17
develop malar rashes. Although all “lupus” rashes can be transient, and Dr Nayak scheduled
18 Plaintiff’s appointment to take place nearly two months after the Plaintiff reported that Plaintiff had
19 a rash.

20 48. On October 27, 2015, Plaintiff asked Dr Pham to place the results of the metacholine test in

21 her MyChart online medical record so that she could review them before her next appointment. Dr
Pham responded by stating, “No asthma. It’s emphysema.” As stated in the SAC, the Plaintiff kept
22
asking Dr Pham to place the pulmonologist narrative in the Plaintiff’s medical record to no avail.
23
The Fact that Plaintiff kept asking Dr Pham was inadvertently left out of the TAC, because Plaintiff
24
is overwhelmed by the amount and that nature of the incidents and claims. Dr Pham went on to tell
25 Plaintiff that “they” (she and Plaintiff) would have to determine a treatment plan for the emphysema

26 during Plaintiff’s next visit. Then Dr Pham placed only the numerical values from the pulmonary
27 function test in Plaintiff’s medical chart. Placing only the numerical values in the chart violated the
standards of care that all physicians must follow defined by HIPAA §45 CFR 164.524(c)(iii),
28

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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 HIPAA §45 CFR 164.524, California Health and Safety Code §123110 as well as HHS

2 §482.24(c)(1).
49. After reviewing the reports, physicians release results into MyChart. Reports rarely are
3
edited after being released, although reports that contain really sensitive information, such as HIV
4
test results are not released. According to Epic Systems, who licenses MyChart, results are released
5
via automatic process after the reports are reviewed. The results of Plaintiff’s pulmonary function
6 testing do not fall into the category of sensitive information that is not released to MyChart.

7 50. Over a period of days, Plaintiff questioned Dr Pham about the results, asking Dr Pham, for
8 instance, if the pulmonologist had diagnosed emphysema. Dr Pham told Plaintiff that the results of
her test were consistent with emphysema. Plaintiff asked Dr Pham if emphysema was an obstructive
9
disease. Dr Pham answered yes.
10
51. Dr Pham never told the Plaintiff that the Plaintiff’s pulmonary function report was
11
incomplete when she only gave the Plaintiff only the numerical values, and it didn’t make sense to
12 Plaintiff that Dr Pham would order a test and then refuse to tell Plaintiff the results. All that had

13 happened between the time Dr Pham ordered the test and the time Plaintiff took it is that Plaintiff

14 confronted Dr Nayak about the sexual harassment and Nurse Lee told Plaintiff to go to the Patient

15 Relations Department.
52. Confused and distressed by the diagnosis, and about a month later Plaintiff contacted her
16
pulmonologist in Chicago. Figuring that the diagnosis could be right since her PCP said it was,
17
Plaintiff became depressed and wondered how she could have developed emphysema that fast. The
18 Plaintiff’s pulmonologist in Chicago reassured her that the results of the test that Plaintiff had taken
19 in October 2014 showed absolutely no signs of an obstructive disease. The pulmonologist reiterated

20 that the test results showed a restrictive breathing problem, which tends to be consistent with

21 autoimmune diseases, such as lupus. A chest ct scan that was also done in Chicago within a week of
the pulmonary function test showed no emphysemas changes. Plaintiff’s pulmonologist in Chicago
22
also explained some medical terminology to her so that Plaintiff could better understand the
23
pulmonary reports. The values of the pulmonary function report given to Plaintiff by Dr Pham do
24
not support the diagnosis of an obstructive disease.
25 53. Plaintiff, after realizing that Dr Pham intentionally, and without regard to the negative
26 emotional affects that a fatal diagnosis would have on the Plaintiff, told the Plaintiff that Plaintiff
27 needed to be treated for emphysema when she had no reason to think that Plaintiff had emphysema.
Plaintiff knew that she likely could not continue at UCSF, because she could not trust her doctors.
28
As a patient, Plaintiff had no choice but to rely on Dr Pham’s diagnosis, because Plaintiff’s
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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 diagnosis helps to define her medical care, even the continuation of it with another doctor. Plaintiff

2 was also unable to refer herself to a pulmonologist, urologist, rheumatologist, or endocrinologist.

54. As the Plaintiff’s doctors, Dr Pham and Dr Nayak had a fiduciary and legal duty to disclose
3
to Plaintiff and to place in Plaintiff’s medical record the results of Plaintiff’s pulmonary function
4
testing and kidney ultrasound. In disregard of Plaintiff’s rights as well as her mental health, they
5
continued to conceal the results of Plaintiff’s medical testing despite multiple requests by Plaintiff
6 to be allowed access to the results. Plaintiff started sleeping most of the day and began suffering

7 from panic attacks, and feelings of guilt about her treatment, like Plaintiff did something wrong

8 when all she did was show up. Plaintiff had never experienced panic attacks before. The defining
trait of Plaintiff’s emotional instability has always been hypomania, not depression or panic attacks.
9
So Plaintiff started discussing her problems with one of the social workers who work at the
10
apartment building in which she lives. (Plaintiff lives in supportive housing.) They gave her
11
referrals for counseling. Fighting the Defendants in court seems to help Plaintiff to feel better also,
12 likely because it is distracting and empowering.

13 55. Further, Dr Nayak endangered Plaintiff by failing to disclose to the urologists Dr

14 Washington and Dr Stoller that she was treating the Plaintiff for systemic lupus, since lupus is

15 known to cause the types of urinary problems that Plaintiff is experiencing and can cause end stage
kidney failure when the kidney disease is not properly treated. Plaquenil does not treat lupus
16
nephritis. One of the Plaintiff’s aunts died of end stage renal disease, and one of the Plaintiff’s
17
sisters died in 2007 of pulmonary complications, which is one of the reasons why Plaintiff returned
18 to Chicago. Plaintiff’s sister had systemic lupus.
19 56. Without such disclosure, Plaintiff cannot get the informed medical care that Plaintiff is
20 entitled to under California HSC §123100 and HSC §123110, because Plaintiff’s medical record

21 cannot be used for the purpose intended. Not having access to the results of the pulmonary function
testing and kidney ct ultrasound furthers Plaintiff’s confusion about how to discontinue the
22
relationship with UCSF, because she is scared of her doctors at UCSF and the influence they
23
continue to have over her medical care. Dr Nayak and Dr Pham have put Plaintiff in the position of
24
having to rely on concealed diagnoses to inform her continued medical care.
25 57. According to the California Medical Association, “…Medical Records, Complete medical
26 records are necessary not only to document the quality of patient care, but also to contribute to
27 quality by facilitating the continuity of care….” As stated earlier, a failure to keep accurate and
complete medical records is a breach of the standards of care set forth in Business and Professions
28

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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 Code §2266 and Business and Professions Code §805. A physician is also supposed to participate in

2 the continuity of care according to the California Medical Association.

58. Although California statute HSC §123130(b) does allow physicians to summarize health
3
reports and records, the summaries still must include:
4
(a) Chief complaint or complaints including pertinent history.
5
(b) Findings from consultations and referrals to other health care providers.
6 (c) Diagnosis, where determined.
7 (d) Treatment plan and regimen including medications prescribed.
8 (e) Progress of the treatment.
(f) Prognosis including significant continuing problems or conditions.
9
(g) Pertinent reports of diagnostic procedures and tests and all discharge summaries.
10
(h) Objective findings from the most recent physical examination, such as blood
11
pressure, weight, and actual values from routine laboratory tests.
12 The summaries of Plaintiff’s kidney ultrasound and pulmonary function reports do not meet
13 the standards set forth in HSC §123130(b) and, therefore, the summaries are also examples of

14 how Dr Pham and Dr Nayak breached the standards of care set forth for all physicians.

15 59. The Plaintiff is afraid and ashamed to use the medical record. In the record, UCSF’s doctors’
comments are in 12 pt type while the test results, including lab results, are in about 6 pt type; some
16
of the reports are incomplete or are included in sections that they are not related to. The comments
17
say things, such as “The Plaintiff has not had sex since 2000.” That statement is recurring and is not
18 qualified by any type of context. According to the U.S. Dept of Health Education and Welfare
19 (HEW), “Personal data should be relevant to the purposes for which they are to be used and to the

20 extent necessary for those purposes, should be accurate, complete, and kept updated.” California

21 Confidentiality of Medical Information Act (MEIC) states that doctors should only place relevant
and objective information into medical records.
22
60. The numerical results of the pulmonary function test are smack in the middle of Dr
23
Connolly’s dermatology report, although Dr Connolly wasn’t the ordering doctor and Plaintiff did
24
not finish pulmonary function testing until about 2p the day before she saw Dr Connolly. Dr
25 Connolly claims to have reviewed the report the same day that Plaintiff completed pulmonary

26 testing. Reviewing the report also implies that it was a complete report. Dr Connolly did not make
27 any comments about the pulmonary function report.
61. Late in October 2015, Plaintiff spoke by phone with a representative in the Patient Relations
28
Department for about 20 minutes. According to UCSF’s patient handbook, talking to someone in
- 13 -
FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 the department initiates a complaint. The representative said that he would certainly look into my

2 allegations. Plaintiff had actually met the representative in April. After Plaintiff was released from
the hospital, Plaintiff ended up in the Patient Relations Department after she was unable to get a
3
prescription filled and the pharmacy could not contact the prescribing physician. The problem was
4
that instead of Dr Steiger’s name another doctor had been listed Plaintiff’s discharge summary as
5
Plaintiff’s attending physician. Plaintiff did not know that Dr Steiger had been her attending
6 physician. He did not introduce himself as such to the Plaintiff. The Patient Relations Department

7 solved that problem, and Plaintiff was able to fill a different prescription that was subsequently

8 written.
62. About a week after Plaintiff spoke with the representative in the Patient Relations
9
Department, a different person from the Patient Relations Department left Plaintiff a message
10
asking Plaintiff what Plaintiff wanted and telling Plaintiff to call back if Plaintiff wanted to.
11
Plaintiff decided she didn’t want to, partly because she realized she was not going to get any help.
12 The Plaintiff had already told the representative what she wanted during the 20 minute phone

13 conversation. The Plaintiff had asked for a different rheumatologist.

14 63. By late October confusion, embarrassment, humiliation and distress turned into panic

15 attacks, including sudden thoughts of just throwing herself off of her balcony. Plaintiff’s sleep is
punctuated by abruptly waking up was every hour in an anxious sweat. As stated in the SAC
16
(Second Amended Complaint), the panoply of intentional violations of both California State and
17
federal statutes displays extreme and outrageous conduct on the part of the Defendants frightened
18 and huliated her so that she is afraid to be in a room alone with a doctor, suffers feelings of shame,
19 embarrassment, guilt, and fear. Plaintiff feels powerless over issues related to her medical care and

20 panic attacks whenever she thinks about getting medical care, although she has a serious medical

21 condition. Plaintiff is pro per and inadvertently left out the harm for the medical malpractice cause
of action when she failed to cite the law section of HSC §123110, and because she found
22
California’s pleading standards to be abstract and confusing. Plaintiff needing to learn the laws and
23
the pleading standards so fast was also overwhelming and distracting.
24
64. Plaintiff filed suit November 4, 2015, and most of the Defendants were served November 9,
25 2015. The Regents were served on or about December 1, 2015.

26 65. When the Plaintiff looked at her MyChart record November 10, 2015, she realized that

27 messages were missing or altered, and that the diagnosis of emphysema had been deleted. Instead,
her diagnosis had been changed to “Decreased diffusion capacity of the lungs, likely emphysema
28

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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 2/2 30 pack year h/o smoking.” Changes are to be made to medical records by amendment or by

2 strikethrough only, according to the MEIC. The strikethroughs are to be initialed and dated.
66. The Plaintiff messaged the “IT” department about the deleted and altered records. According
3
to HSC 123149(b), the Regents are responsible for keeping documents in electronic systems that do
4
not allow them to be altered. It is unprofessional behavior under Business and Professions Code
5
§2262 and criminal behavior under California Penal Code §471.5 to alter a medical record with
6 fraudulent intent.

7 67. The altering of her medical record caused Plaintiff to question whether to return to UCSF for
8 her urology appointment. Lupus is difficult to diagnose, since antibodies can come and go, and
Plaintiff knew that it could take years for new doctors to re-diagnose lupus and, therefore, treat the
9
right ailment. Plaintiff also debated whether to return because Plaintiff’s medical record is
10
materially inaccurate as to her diagnoses and test results. The Plaintiff figured that only UCSF could
11
“fix” her medical record or that a judge could order UCSF to do so. The Plaintiff now knows that a
12 judge cannot order UCSF to “fix” her medical record.

13 68. It also is not clear that Plaintiff’s kidney tumor is not dangerous. According to the American
14 Cancer Society, there is really no way to tell exactly what type of tumor it is without taking a look

15 at it, and a dangerous tumors cause the same symptoms and sometimes dangerous tumors are
hidden by innocuous looking ones.
16
69. After asking an attorney friend for advice, the Plaintiff decided not to return to UCSF,
17
because of the Defendants’ willingness to “spoil” her medical record. The Plaintiff’s friend told her
18 that if “they” spoiled her medical record, then the Plaintiff should not go back.
19

20 CAUSES OF ACTION

21 FIRST CAUSE OF ACTION

22 Intentional Infliction of Emotional Distress (IIED)

23 (Dr Nayak, Dr Pham, the Regents)

24
70. The Plaintiff re-alleges and incorporates by reference herein all of the acts and omissions
25
contained in paragraphs 1-69 above. Dr Nayak and Dr Pham intentionally inflicted emotional
26
distress as stated in this paragraph and as specified in paragraphs 71- 76. As Plaintiff’s medical
27 doctors, Dr Nayak and Dr Pham had a fiduciary duty toward the Plaintiff, and they knew that the

28 Plaintiff has traits that make her vulnerable to emotional distress. Doctor/hospital-patient

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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 relationships are among the types that have led California courts the conclusion that a particular

2 behavior was outrageous.

71. The Plaintiff alleges that Dr Nayak sexually harassed the Plaintiff, and that both Dr Nayak
3
and Dr Pham used medical diagnoses to intentionally inflict severe emotional distress upon the
4
Plaintiff.
5
72. Dr Nayak’s and Dr Pham’s conduct also embarrassed, humiliated, demeaned, and confused
6 the Plaintiff and actually and proximately caused the Plaintiff severe emotional and mental distress

7 the exact nature of which is currently unknown, but will be determined before trial. California

8 Courts have determined that humiliation, fright, and shame, which is usually caused by feelings of
guilt, meet the definition of severe emotion distress. The Plaintiff is informed and believes and
9
alleges that some of the injuries, such as fear of being alone with a doctor, will be permanent in
10
nature. Damage amounts will be proven at trial.
11
73. WHEREFORE, Plaintiff requests judgment against Defendants as set forth in the Prayer for
12 Relief stated below.

13 Defendant Dr Nayak
14 74. Dr Nayak intentionally inflicted severe emotional distress upon the Plaintiff when she: (1)

15 made lewd comments to the Plaintiff about the Plaintiff’s sex drive and gave Plaintiff an
inappropriate physical, grabbing at Plaintiff’s right breast and rubbing her just below her right
16
breast; (2) created a hostile treatment environment by telling the Plaintiff’s primary care physician
17
to treat the Plaintiff for asthma and emphysema when she knew the Plaintiff likely did not have
18 asthma and didn’t have emphysema; (3) diagnosed the Plaintiff with lupus, and then told the
19 Plaintiff’s other physicians and the Plaintiff that the Plaintiff did not have lupus even as she

20 continued to treat the Plaintiff for the unpredictably fatal disease; and (4) when she referred the

21 Plaintiff to Dr Connolly, a dermatologist, partly to have Dr Connolly confirm that the Plaintiff did
not have a lupus rash when lupus rashes are of any type and are transient; and (5) when Dr Nayak
22
made the appointment for the Plaintiff to see Dr Connolly for nearly two months later when lupus
23
rashes are known to be transient.
24
75. Dr Nayak’s sexual comments as well as Dr Nayak’s conduct after the Plaintiff ignored the
25 comments, shocked the Plaintiff and were unwanted and unsolicited by the Plaintiff. Dr Nayak’s

26 conduct was in violation of California Business and Professional Codes 726 and 729. The
27 harassment was pervasive in that it was severe enough to alter the conditions of the Plaintiff’s
medical care and treatment environment. California courts have held that intentional infliction of
28
emotional distress and sexual harassment damages are duplicative. Dr Nayak’s behavior was
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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 reckless, because Dr Nayak had no way of knowing which course the Plaintiff’s lupus would again

2 take.
Defendant Dr Pham
3
76. Dr Pham intentionally inflicted severe emotional distress upon the Plaintiff when she
4
maliciously told the Plaintiff that the Plaintiff has emphysema, a fatal disease, and that they would
5
have to make a treatment plan for dealing with it. Dr Pham had no reason to believe that Plaintiff
6 had emphysema. UCSF’s pulmonologist did not tell Dr Pham that the Plaintiff has emphysema, and

7 the Plaintiff’s Chicago-based pulmonologist saw no signs of an obstruction just a few months

8 earlier. According to the American Lung Association a primary care physician is also not qualified
to diagnose emphysema.
9

10
SECOND CAUSE OF ACTION
11
Medical Malpractice
12 (All Defendants)
13

14 77. The Plaintiff re-alleges and incorporates by reference herein all of the acts and omissions

15 contained in paragraphs 1-69 above. The Complaint shows superior knowledge of the facts on the
part of the Defendants as they related to the medical malpractice cause of action. For instance, the
16
Plaintiff has had to sue to determine exactly what UCSF’s specialists have diagnosed. Plaintiff is at
17
her wits end about the shape her medical record is in and the treatment she has received. Plaintiff is
18 embarrassed by being in this situation. Plaintiff feels humiliated and panicky really. Plaintiff does
19 not yet know if Plaintiff’s urinary, thyroid, or lung problems are any worse than they would be if

20 she were receiving coordinated medical care, so the Plaintiff is not now alleging so. However,

21 Plaintiff is alleging that denying her access to her own medical record in violation of California’s
HSC §123110 is a legal injury.
22
78. Each of the Defendants committed medical malpractice as alleged in the paragraphs that
23
follow.
24
79. Negligence. As re-alleged above and as stated in this section (paragraphs 79-80), and as
25 specified in Sections A, B, C, and D below, Dr Nayak, Dr Pham, Dr Connolly, Dr Sack, Nurse Lee,

26 and the Regents had a fiduciary duty, but placed their own interests ahead of the safety and well-
27 being of Plaintiff. They each breached their duty owed to Plaintiff by failing to provide the ordinary
standard of care that other reasonably careful primary care physicians or specialists or nurse
28
practitioners or hospitals would use in similar circumstances. The standards of care are defined by
- 17 -
FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 the Defendants’ practice areas or specialties; by the Defendants’ job descriptions--the specific tasks

2 of which only the Defendants have knowledge of; and by the standards of care that are enshrined in
various HIPAA and California state statutes that are specified below. Violating a statute is a prima
3
facie breach of the standard of care as set forth by the federal government, the California State
4
Legislature, and/or by the California Medical Association. Therefore, the HIPAA statues and well
5
as most of the California statutes are cited as an element in the medical malpractice cause of action,
6 and not as a separate cause of action.

7 80. The California Medical Association defines what constitutes a complete medical record, and
8 the California Business and Professions Code §2266 states that physicians are to keep accurate
medical records. Not keeping or providing complete medical records, and not keeping accurate
9
medical records, is considered unprofessional conduct and, therefore, breaches the standards of
10
ordinary care as defined by statute.
11
81. Negligence per se. As specified in Section A below, some of the Defendants also violated
12 various laws and statutes as well. The violation of California Health and Safety Code establishes

13 negligence per se in California for the purposes of the medical malpractice cause of action against

14 Dr Nayak and Dr Pham. The purpose of HSC §123100 and §123110 is to empower patients to take

15 care of their own healthcare needs. By denying the Plaintiff her legal rights, according to the
California State Legislature, Dr Nayak and Dr Pham participated in unprofessional behavior. Being
16
denied access to a complete and accurate medical record deprives the Plaintiff of the legal right to
17
take responsibility for the Plaintiff’s own healthcare. Therefore, Dr Nayak and Dr Pham have
18 violated the Plaintiff’s legal rights under HSC §123110. The violation of those rights led to the
19 injuries cited in paragraph 78 above as well as those stated in the Factual Statement section of the

20 Complaint.

21 82. Denying Plaintiff the opportunity to participate in her own medical care is the type of harm
that HSC §123100 and §123110 were designed to prevent, and as a patient the Plaintiff is in the
22
class of persons for whom those laws and statutes were designed to protect.
23
83. Summarizing the results while leaving out pertinent information is a denial of access to the
24
record and interferes with patients receiving informed medical care as outlined by the California
25 Medical Association.

26 84. The Defendants acted in conscious disregard of the Plaintiff’s rights and safety and of the

27 probability of causing the aforesaid harm to the Plaintiff, and Dr Nayak’s and Dr Pham’s conduct
was the proximate cause of the harm that Plaintiff’s suffered. Defendants’ acts and omissions have
28
subjected Plaintiff to cruel and unjust mental anguish.
- 18 -
FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 Section A: Negligence per se – Medical Malpractice

2 (As to Defendants Dr Nayak and Dr Pham)

3
85. Dr Nayak negligently failed to exercise the proper degree of knowledge skill and
4 competence in examining, diagnosing, and treating the Plaintiff that other rheumatologists would

5 have used when:

6 86. in violation of Business and Professions Code §2266 and §2262, she concealed and altered
the Plaintiff medical diagnosis without any medical reason to do so. Dr Nayak did so after the
7
Plaintiff confronted Dr Nayak about her inappropriate sexual behavior toward the Plaintiff. Dr
8
Nayak concealed the lupus diagnosis even though she continued to treat Plaintiff for lupus.
9
87. she summarized the results of the Plaintiff’s ultrasound results and denied the Plaintiff
10 access to the complete results of her ultrasound test, including the radiologists’ diagnoses and

11 recommendations. The summary amounts to denying the Plaintiff access to the Plaintiff’s medical

12 records, which violated the standard of ordinary care set forth by Hospital, and the Health

13 Insurance Portability and Accountability Act of 1996 (HIPAA) §45 CFR 164.524(c)(iii), HIPAA
§45 CFR 164.524, California Health and Safety Code §123110 as well as HHS §482.24(c)(1) for
14
providers of Medicare funded services. Physicians are not to summarize the reports or records of
15
Medicare patients without their expressed consent. Dr Nayak did not have the Plaintiff’s consent.
16 88. Dr Nayak’s breach of the standards of care was a proximate cause of the harm that Plaintiff
17 suffered as stated in paragraph 77 above as well as those stated in the Factual Statement section of

18 the Complaint.
19 89. Dr Pham negligently failed to exercise the proper degree of knowledge skill and competence
that other primary care physicians in her community would have when in examining, diagnosing,
20
treating Plaintiff when (1) in violation of HIPAA §45 CFR 164.524(c)(iii), she altered the Plaintiff's
21
medical record by summarizing it without the Plaintiff’s consent. (2) She intentionally concealed
22
the Plaintiff’s diagnosis by denying the Plaintiff access to her medical records in violation of both
23 and California Health and Safety Code sections 123110 and HHS §482.24(c)(1); (3) when she did

24 not attempt to treat Plaintiff for Plaintiff’s presenting problems. (4) She acted outside of the scope

25 of practice of a primary care physician when she misdiagnosed the Plaintiff with emphysema.
According to the American Lung Association, primary care physicians are not qualified to diagnose
26
emphysema.
27

28

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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 90. As a result of Dr Pham’s conduct, the Plaintiff suffered loss of her legal right to participate

2 in her medical care, as well as fright and confusion to the point that she called her pulmonologist in
Chicago to better understand the diagnosis.
3
91. Dr Pham’s breach of the standard of care was a proximate cause of the harm that Plaintiff
4
suffered as stated in paragraph 77 above as well as those stated in the Factual Statement section of
5
the Complaint.
6 92. Plaintiff requests damages against the Regents as set forth in the Prayer for Relief below.
7

8 Section B: Negligence - Medical Malpractice

(As to Defendant Dr Connolly)
9

10
93. Dr Connolly negligently failed to exercise the proper degree of knowledge, skill and
11
competence in examining, diagnosing, and treating the Plaintiff that other competent dermatologists
12 would have used.

13 94. Specifically, Dr Connolly breached the duty she owed to Plaintiff when in violation of
14 Business and Professional Codes §2266, she failed to keep an accurate record of Plaintiff’s

15 dermatological problems. Dr Connolly breached the standard of care when she (1) diagnosed the
Plaintiff’s primary problem as “neurotic excoriations”, although according to the American
16
Psychological Association only a psychiatrist is qualified to do so; (2) diagnosed “neurotic
17
excoriations” even though it can only be diagnosed in the absence of other inciting causes; and (3)
18 failed to maintain an accurate medical record for the Plaintiff. Doctors are obligated to practice only
19 within their scope of licensure and practice specialty. Dr Connolly also diagnosed “neurotic

20 excoriations as the Plaintiff’s primary problems although she said the scratches appeared to be more

21 than a year old, and although she knew that the Plaintiff sometimes uses prescribed corticosteroid
gels and creams to treat rashes that develop on the Plaintiff’s upper back. Dr Howard Schwat, a
22
dermatologist in San Francisco first prescribed corticosteroids gels to treat Plaintiff’s rashes and
23
was Plaintiff’s dermatologist for about 20 years.
24
95. Dr Connolly’s breach of the standards of care was a direct and proximate cause of the harm
25 that Plaintiff suffered as stated in paragraph 77 above as well as those stated in the Factual

26 Statement section of the Complaint.

27 96. Plaintiff requests damages against the Regents as set forth in the Prayer for Relief below.

28

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FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 Section C: Gross Negligence - Medical Malpractice

2 (As to Defendants Dr Sack and Nurse Lee for failure to supervise)

3
97. Dr Sack negligently failed to exercise the proper degree of knowledge, skill and competence
4 in examining, diagnosing, and treating Plaintiff that other competent supervising rheumatologists

5 would have used when he failed to manage how Dr Nayak diagnosed and provided treatment to

6 Plaintiff. Dr Nayak, a rheumatology fellow, was required to be supervised by a licensed medical

doctor during the occasions that she was providing medical care, treatment, and advice to the
7
Plaintiff. At all times that Dr Nayak provided medical care, treatment, and advice to the Plaintiff,
8
she was under the direct supervision of Dr Sack. Dr Sack, who owed a fiduciary duty to the Plaintiff
9
to supervise the medical care that Dr Nayak provided Plaintiff. Dr Sack breached that standard of
10 care, which resulted in Dr Nayak telling the Plaintiff’s primary physician to treat the Plaintiff for

11 asthma when she knew that tests showed that the Plaintiff had a restrictive breathing problem, and

12 asthma is an obstructive breathing problem. Had Dr Nayak been properly supervised, she likely

13 would not have made an appointment two months out for the Plaintiff to be seen by a dermatologist
for a transient rash. It is unlikely that Dr Nayak would have failed to tell Plaintiff’s other doctors
14
that Plaintiff had lupus, even though Dr Nayak was treating the Plaintiff for it. It’s not likely that Dr
15
Nayak would have chosen to delve into the Plaintiff’s sex life without any reason or any invitation
16 to do so, and it is unlikely that Dr Nayak would have performed an inappropriate physical on the

17 Plaintiff, rubbing in a circular fashion, massaging Plaintiff below the right breast.

18 98. As a direct and proximate foreseeable result of the conduct of Dr Sack, Plaintiff has been

19 injured as stated in paragraphs 77-92.

99. Dr Sack failed to provide the Plaintiff with even a scant level of care.
20
100. Only the Defendants know exactly what Nurse Lee is responsible for, but the
21
Plaintiff does know that her job partly involves developing policies for and managing the
22
communications between the doctors and staff in the Rheumatology Department and patients who
23 are treated in the Department.

24 101. Nurse Lee, a supervising nurse practitioner in the rheumatology department breached

25 the standard of care in treating Plaintiff when she failed properly train Dr Nayak in how to
communicate with patients and when she failed to properly supervise the communication between
26
Dr Nayak and Plaintiff. Nurse Lee reacted to Plaintiff’s confronting Dr Nayak about the sexual
27
abuse by referring the Plaintiff to the Patient Relations Department instead of reassigning Plaintiff
28
to a different rheumatologist which was customary. The Plaintiff asked to be reassigned. Referring
- 21 -
FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 the Plaintiff to the Patient Relations Department was the same as requiring the Plaintiff to file a

2 formal complaint in order to receive medical care. Nurse Lee, therefore, reacted in a discriminatory
and retaliatory fashion toward Plaintiff.
3
102. Requiring Plaintiff to file a formal complaint about the sexual abuse was an extreme
4
departure from the standard of care that any medical professional is to offer.
5
103. As a direct and proximate and foreseeable result of the conduct of Dr Sack and Nurse
6 Lee, Plaintiff suffered the harm stated in paragraph 77 above as well as those stated in the Factual

7 Statement section of the Complaint.

8 104. Plaintiff requests damages against the Regents as set forth in the Prayer for Relief
below.
9

10
.Section D: Negligence - Medical Malpractice
11
(As to Defendant the Regents, Respondeate Superior and Negligent Retention and
12 Supervision of Employees; Res Ipsa Loquitur)
13

14 105. The Regents held itself out as a provider of medical services, which included, but

15 was not limited to examining, diagnosing and treating patients within a fiduciary relationship.
106. During the course of the aforementioned business and/or employment relationship
16
that existed between Dr Nayak, Dr Pham, Dr Connolly, Dr Sack and Nurse Lee and the Regents, the
17
Regents agreed to provide training, policies, procedures, and supervision of Plaintiff's medical care
18 by Defendants Dr Nayak, Dr Pham, Dr Connolly, Dr Sack and Nurse Lee and to do all things
19 necessary and proper in connection therewith.

20 107. The Regents owed Plaintiff a duty not to perform its responsibilities to Plaintiff

21 negligently and not to negligently hire, control, monitor, supervise, and review the actions of its
rheumatologists, nurse practitioners, dermatologists, and primary care physicians. When Dr Nayak,
22
Dr Pham, Dr Sack, Dr Connolly and Nurse Lee breached the standard of care owed to Plaintiff, the
23
Regents failed to adequately discharge their aforementioned duties, thus exposing Plaintiff to a
24
foreseeable risk of harm. Such negligent hiring, training and supervising included a failure to
25 adequately supervise Dr Nayak and properly instruct its staff as to the proper handling of allegations

26 of sexual abuse. Further, the Regents failed to properly instruct its employees as to the handling of
27 medical records and in communicating test results.
108. Plaintiff is informed and alleges that the Regents knew, or in the exercise of
28
reasonable diligence, should have known, that Dr Nayak was incompetent and unfit to perform the
- 22 -
FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 duties for which she was rendering to the Plaintiff when, for instance, Dr Chaganti had to tell Dr

2 Nayak to refer the Plaintiff to the Urology Department instead of to the Dermatology Department
for evaluation of the Plaintiff urinary bleeding.
3
109. Only the Defendants know what their exact job duties are. Only the Defendants
4
know who handled the Plaintiff’s medical records and when. Only the Defendants know what
5
happened to Plaintiff’s Pulmonology and kidney ultrasound reports that were issued by UCSF’s
6 pulmonologist and radiologist.

7 110. All that is clear is that Dr Nayak and Dr Pham could have asked the radiologist and
8 the pulmonologist for complete copies of their reports and were to provide Plaintiff with complete
copies of them. It is not clear how parts of the reports ended up missing, since reports are passed
9
from doctor to doctor electronically.
10
111. Complete medical reports would not be missing from the Plaintiff’s medical file if
11
someone were not negligent; and the Plaintiff’s voluntary actions did not cause or contribute to her
12 injury of not having access to her medical record or access to an accurate medical record. The

13 systems on which or in which the reports and records are kept are in the custody and control of the

14 Regents. Plaintiff does not have administrative access to the systems. Missing records are

15 indicative of violations of both California state and federal statute and are prima facie evidence of
negligence and of res ipsa loquitur.
16
112. As a direct and proximate result of Defendants' negligent, careless and reckless acts
17
and omissions, Plaintiff suffered the harm stated in paragraph 76 above as well as those stated in the
18 Factual Statement section of the Complaint.
19 113. Plaintiff requests damages against the Regents as set forth in the Prayer for Relief
20 below.

21
PRAYER FOR RELIEF
22
(All causes of Action)
23

24
WHEREFORE, the Plaintiff requests judgment against all of the Defendants as follows.
25 1. For damages for past and future medical, psychotherapy, and related expenses according
26 proof at the time of trial;
27 2. For general damages for mental pain and suffering and emotional distress in a sum to be
proven at the time of trial;
28
4. For prejudgment interest pursuant to statute;
- 23 -
FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 5. For costs of suit herein; and

2 6. For such other and further relief as the Court deems proper.

4
DATED: August 10, 2016
5

8 Brenda Gaines Hunter

9 In Pro Per

10

11

12

13

14

15

16

17

18
19

20

21

22

23

24

25

26
27

28

- 24 -
FOURTH AMENDED COMPLAINT, CASE # CGC15548808
 1 PROOF OF SERVICE

2
I am over the age of 18 and not a party to this action.
3
I am a resident of or am employed in the county where the mailing occurred. My business
4 address is: The Orrick Building, 405 Howard Street, San Francisco, CA 94105-2669.
I served to the Defendants via their attorney, whose name and address is listed below, the
5 foregoing document(s) described as:

6 New Summons; Fourth Amended Complaint – Intentional Infliction of Emotional Distress

and Medical Malpractice; ADR Packet
7

8
Lisa T Ungerer, ESQ
9 Bryce Gray, ESQ
Rankin, Sproat, Mires, Reynolds, Shuey & Mintz
10 1970 Broadway, Ste 1150

11 Oakland, CA 94612
(510) 465-3922 – Fax (510) 452-3006
12 Counsel for Defendant and Respondent

13 [ ] (By U.S. Mail) I deposited such envelope in the mail at San Francisco, California with
postage thereon fully prepaid. I am aware that on motion of the party served, service is presumed
14 invalid if postal cancellation date or postage meter date is more than one day after date of deposit
15 for mailing in affidavit.
[ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger service
16 to the address above;
[x] (By FedEx) I deposited such envelope in the mail at San Francisco, California with postage
17 thereon fully prepaid. I am aware that on motion of the party served, service is presumed invalid if
postal cancellation date or postage meter date is more than one day after date of deposit for mailing
18 in affidavit.
19 [ ] (By Facsimile) I served a true and correct copy by facsimile during regular business hours
to the number(s) listed above. Said transmission was reported complete and without error.
20
I declare under penalty of perjury under the laws of the State of California that the foregoing is
21 true and correct.

22

23 DATED: _________________________

24

25 _________________________________
Dena R Adelson
26
27

28

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FOURTH AMENDED COMPLAINT, CASE # CGC15548808