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LAW OFFICE OF JEREMY J. ALBERTS Jeremy J. Alberts (SBN 273290) 125 West Amerige Avenue Fullerton, California 92832 Telephone: (714) 441-1144 Facsimile: (714) 441-1546 Attorney for Plaintiff, ROBERT M. BITER, M.D.

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SUPERIOR COURT OF THE STATE CALIFORNIA

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FOR THE COUNTY OF SAN DIEGO

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ROBERT M. BITER, M.D., Plaintiff,

Case No. 37-2013-00049670-CU-FR-CTL COMPLAINT FOR DAMAGES

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SCRIPPS HEALTH, a California Corporation; SCRIPPS MEMORIAL HOSPITAL, a California Corporation; JAMES LABELLE, an individual; RONALD MACCORMICK, an individual; SCOTT MASINSKI, an individual; RANDALL GOSKOWICZ, an individual; LAWRENCE EISENHAUER, an individual; MICHAEL LOBATZ, an individual; DOUGLAS FENTON, an individual; CHRIS VAN GORDER, an individual; CARY MILLER, an individual; and DOES 1 through 50, inclusive, Defendants.

1 Intentional Misrepresentation 2 Fraudulent Concealment 3 Negligent Misrepresentation 4 Defamation 5 Restraint of Trade 11 Unlimited Civil Case Amount Demanded Exceeds $25,000.00 JURY TRIAL REQUESTED

COMES NOW Plaintiff, Robert M. Biter, M.D., and, for cause of action against Defendants, alleges and states as follows:

COMPLAINT FOR DAMAGES- 1

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Parties 1. Plaintiff: Richard M. Biter, M.D. (hereinafter "Plaintiff") is, and at all times herein mentioned was, over the age of 18 and a resident of the County of San Diego, State of California. 2. Defendant: Scripps Health (hereinafter "Scripps") is, and at all times herein mentioned was, a California corporation conducting business in the County of San Diego, State of California. 3. Defendant: Scripps Memorial Hospital (hereinafter "Scripps Memorial") is, and at all times herein mentioned was, a California corporation conducting business in the County of San Diego, State of California. 4. Defendant: James Labelle (hereinafter "Labelle") is, and at all times herein mentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial. 5. Defendant: Ronald MacCormick (hereinafter "MacCormick") is, and at all times herein mentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial. 6. Defendant: Scott Masinski (hereinafter "Masinski") is, and at all times herein mentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial. 7. Defendant: Randall Goskowicz (hereinafter "Goskowicz") is, and at all times herein mentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial. 8. Defendant: Lawrence Eisenhauer (hereinafter ''Eisenhauer") is, and at all times herein mentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial. 9. Defendant: Michael Lobatz (hereinafter "Lobatz") is, and at all times herein mentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial. 10. Defendant: Douglas Fenton (hereinafter "Fenton") is, and at all times herein mentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial.

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11, Defendant: Chris Van Gorder (hereinafter "Van Gorder") is, and at all times herein mentioned was, a physician affiliated with Defendants Scripps and Scripps Memorial. 12. Defendant: Cary Miller (hereinafter "Miller") is, and at all times herein mentioned was, an individual residing in the County of San Diego, State of California and a licensed California attorney. 13. Plaintiff does not know the true names and capacities of Defendants designated DOES 1 50, inclusive, and therefore sues them by those fictitious names, as with "all persons unknown, claiming any legal or equitable right, title, estate, lien or interest in the property described in the Complaint adverse to Plaintiffs title, or any cloud on Plaintiffs title thereto." Plaintiff is informed, believes and thereon alleges that each of these Defendants was, in some manner, proximately responsible for Plaintiff's damages. Once these parties' true identities and capacities are ascertained, Plaintiff will amend this Complaint accordingly. 14. Plaintiff is informed, believes and thereon alleges that, at all times herein mentioned, Defendants were acting as the agents, servants, employees, alter egos, superiors, successors in interest, joint venturers, and/or co-conspirators of each of their co-defendants and, in committing the acts herein alleged, were acting were acting within the course and scope of their authority as such, and with the permission and consent of their co-defendants. Consequently, each Defendant sued herein is jointly and severally liable to Plaintiff for damages sustained as a result of the conduct alleged. 15. Plaintiff is informed, believes and thereon alleges that Defendants, and each of them, are in sole possession, custody or control of e-mails, notes of telephone conversations, log entries, recorded messages and other forms of communication or correspondence that identify the dates, times, and persons, including, but not limited to, Defendants' employees, representatives and/or agents who spoke with Plaintiff; the content of those conversations, including, but not limited to information, disinformation, false promises, etc. that form the basis of Plaintiff's allegations.

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16. Plaintiff is informed, believe and thereon alleges that reasonable discovery and investigation will reveal the dates, times, and persons, including, but not limited to Defendants' employees, representatives, and/or agents, who spoke with Plaintiff; the content of those conversations, including, but not limited to information, disinformation, false promises, etc. that form the basis of Plaintiffs causes of action. Plaintiff is informed, believes and thereon alleges that such discovery and investigation will allow Plaintiff to successfully amend this Complaint to satisfy the requisite specificity for allegations of misrepresentation, as well as for "knowing" or "willful" statutory violations.
Jurisdiction and Venue

17. Jurisdiction in this Court is proper in that the acts and/or omissions constituting the basis of this action occurred in the County of San Diego, State of California. 18. Venue in this Court is likewise proper in that at least one named Defendant is subject to this Court's exercise of personal jurisdiction; thus, all remaining Defendants may properly be subject to suit in this Court. 19. Any applicable statutes of limitations have been tolled as a result of Defendants' continuing, knowing, and active concealment and/or suppression of the facts alleged in this complaint. Despite the exercise of reasonable diligence, Plaintiff could not have discovered, did not discover, and was prevented from discovering, the wrongdoing herein alleged.' 20. In the alternative, Defendants should be estopped from relying on any applicable statutes of limitations. As set forth in greater detail below, Defendants' conduct was intended to, and did, induce Plaintiff to refrain from pursuing legal recourse until the filing of the instant suit. 2

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See Cal. Code Civ. Proc. 338(d).

See Battuello v. Battuello (1998) 64 Cal.App.4th 842 (equitable estoppel used to preclude defendant's assertion of a statute of limitations defense where defendant's conduct induced plaintiff to forbear from filing suit within the applicable limitations period).
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COMPLAINT FOR DAMAGES- 4

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Factual Background

21. Plaintiff is a licensed physician, specifically an obstetrician and gynecologist ("OB/Gyn"), who has worked at Scripps Memorial Hospital in Encinitas, California for many years. During that time, he developed a reputation, among patients and colleagues alike, as a skilled medical practitioner. However, beginning in 2006 and continuing to this day, Plaintiff has nevertheless been the target of a calculated and malicious effort, on the part of a small circle of Scripps physicians, to have him terminated, his medical license revoked, and to seriously jeopardize his future ability to practice medicine. This scheme was nearly accomplished by Defendants' imposition of unwarranted reporting and proctoring requirements and their biased peer review procedures, culminating in an internal hearing before the Scripps Medical Executive Committee ("MEC") in late 2009. In that hearing, Plaintiff's counsel successfully exposed the utter baselessness of each of the multitude of charges lodged against him. After prevailing in May of 2010, Plaintiff resigned and, having since exhausted his administrative remedies, brings the instant action against Defendants.
First Cause of Action Intentional Misrepresentation

(Against All Defendants) 22. Plaintiff re-alleges and incorporates herein by reference each and every allegation set forth in paragraphs 1 through 21 of this Complaint. 23. As stated above, Defendants routinely and systematically misrepresented the standard of care Plaintiff provided by coercing and/or influencing subordinate staff to alter medical documentation to reflect this. Even after Plaintiff's resignation, Defendants further made false and misleading statements to the governing bodies of other San Diego area hospitals, charging Plaintiff with egregious acts of medical malpractice. 24. At the time these representations were made, Defendants were fully aware of their falsity; moreover, the documentation premised upon these false statements was intended to be relied upon by the MEC, with the aim of influencing the latter to recommend Plaintiffs termination, and to ultimately ruin Plaintiff's career.

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25. The MEC took these falsified documents are true and accurate reports concerning Plaintiff's medical practice; given that no cause existed to question their truth, such reliance was both reasonable and justified. 26. As a direct and proximate result of Defendants' numerous misrepresentations, Plaintiff has suffered, and continues to suffer, damages in an amount to be determined according to proof at the trial of this action. Second Cause of Action Fraudulent Concealment (Against All Defendants) 27. Plaintiff re-alleges and incorporates herein by reference each and every allegation set forth in paragraphs 1 through 26 of this Complaint. 28. Plaintiff and Defendants, as licensed health care providers, were partners in a common enterprise which itself imposed upon all members an affirmative duty to truthfully report all material facts concerning the standard of care being provided. 29. By regularly falsifying documentation concerning Plaintiff's performance, Defendants intentionally concealed the truth, namely, that Plaintiff's provision of medical services met or exceeded the applicable standard of care at all times. Defendants further intended to deceive each and every party in receipt of such documentation. 30. Each and every party in receipt of these falsified reports were entirely unaware of the truth of the matter; moreover, as the reports were purportedly composed by percipient witnesses to Plaintiff's conduct, the parties in receipt thereof were in no position to discover Defendant's concealment. 31. As a direct and proximate consequence of Defendants' concealment, Plaintiff has suffered, and continues to suffer, damages in an amount to be determined according to proof at the trial of this action.

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Third Cause of Action Negligent Misrepresentation

(Against All Defendants) 32. Plaintiff re-alleges and incorporates herein by reference each and every allegation set forth in paragraphs 1 through 31 of this Complaint. 33. Defendants, as partners in a common enterprise, were under a continuing duty to exercise the level of care and skill expected of a competent health care provider; moreover, upon undertaking the task of proctoring and reporting Plaintiff, Defendants were under a duty to do so fairly and accurately. 34. In light of the allegations above, Defendants clearly breached this duty by issuing and/or allowing to be issued the false statements concerning Plaintiff's level of performance. 35. As a direct and proximate result of Defendants' negligent misrepresentations, Plaintiff has suffered, and continues to suffer, damages in an amount to be determined according to proof at the trial of this action.
Fourth Cause of Action Defamation

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(Against All Defendants) 36. Plaintiff re-alleges and incorporates herein by reference each and every allegation set forth in paragraphs 1 through 35 of this Complaint. 37. Defendants' malicious campaign against Plaintiff consisted of innumerable false statements, made to the MEC, as well as to the governing bodies of local area hospitals and the public at large, and was an attempt to cast serious doubt as to Plaintiff's ability to competently practice medicine. 38. Among countless other acts constituting medical malpractice, these statements charged Plaintiff with dereliction of duty, surgery resulting in death, unnecessary surgery, conducting surgery without an assistant, inappropriate counseling, violation of informed consent, deficient documentation and making misleading operating notes.

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39. Each and every one of these statements was false; moreover, Defendants made such statements knowing that they were untrue, and with reckless disregard as to their ultimate truth or falsity. 40. As a direct and proximate result of Defendants' conduct in this respect, Plaintiff has suffered harm to his profession; Defendants have effectively made it impossible to secure a position as a physician at another medical facility within the San Diego area. As such, Plaintiff has suffered, and continues to suffer, damages in an amount to be determined according to proof at the trial of this action.
First Cause of Action Restraint of Trade

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(Against All Defendants)

41. Plaintiff re-alleges and incorporates herein by reference each and every allegation set forth in paragraphs 1 through 40 of this Complaint. 42. Per hospital protocol, as well as per custom within the healthcare industry, Plaintiff was precluded from securing a professional position elsewhere while he was under investigation by the MEC and as such, subject to mandatory reporting and proctoring requirements. 43. Beginning in 2006, the MEC's sham investigation effectively amounted to a serious and unreasonable restraint on Plaintiffs ability to practice medicine anywhere other than at Scripps Memorial; Plaintiff was subject to this restraint for nearly four years, until his voluntary resignation in May of 2010, after the final MEG hearing. 44. As a direct and proximate result of such restraint, Plaintiff has suffered, and continues to suffer, damages in an amount to be determined according to proof at the trial of this action.

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Prayer for Relief

WHEREFORE, Plaintiff prays for judgment in his favor, and against Defendants,

as it applies to Plaintiffs causes of action, for: (a) Compensatory damages, according to proof; (b) General damages, according to proof; (c) Special damages, according to proof; (d) Costs of suit herein incurred; (e) Any prejudgment interest, according to law; and

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(f) Such other and further relief that the Court deems just and proper.
Jury Trial Request

Plaintiff hereby requests a trial by jury of all matters so triable as a matter of right

DATED: May 15, 2013

erts A 0r fir Plaintiff, ROBERT M. BITER, M.D.

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