982.

1(1)
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address) FOR COURT USE ONLY
ROBERT HEINTZ 152277
FfLED
Superior Court Of California,
6121 OAK AVENUE CARMICHAEL CA, 95608 Sacramento
TELEPHONENO 916 486-1147 FAXNO (Optional) 916 486-1149
Durmis Jortufi, Ex«eutive
E-MAIL ADDRESS (Optional) Officer
ATTORNEY FOR (Name) PLAINTIFF 02/03/2009
NAME OF COURT SACRAMENTO SUPERIOR COURT
amaefas
STREET ADDRESS

MAILING ADDRESS 720 NINTH STREET By f Deputy

CITY AND ZIP CODE SACRAMENTO CA, 96814 Casa Nuinbur
BRANCH NAME

PLAINTIFF: DAVID SCHUMACHER

DEFENDANT: TAN PHAM, M . D CATHOLIC HEALTHCARE WEST

MEDICAL FOUNDATION, MERCY MEDICAL GROUP,
DOES 1 TO loo YOUTHOLOG Y,~'ALCHEMY- WORLDWIDE
COMPLAINT—Personal Injury,Ti , Wrongful Death
CH AMENDED (Number):
Type (check all that apply):
MOTOR VEHICLE DO OTHER (specify): MEDICAL MALPRACTICE
I I Property Damage I I Wrongful Death Department
|_Xj Personal Injury | | Other Damages (specify): Assignments
Case Management 45
Jurisdiction (check all that apply): Law and Motion 53
I | ACTION IS A LIMITED CIVIL CASE CASE NUMBER
Minors Compromise 42
Amount demanded I I does not exceed $10,000
I I exceeds $10,000, but does not exceed $25,000
ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000)
ACTION IS RECLASSIFIED by this amended complaint
I I from limited to unlimited
I I from unlimited to limited
1. PLAINTIFF (name). Schumacher

alleges causes of action against DEFENDANT (name): ALL

2 This pleading, including attachments and exhibits, consists of the following number of pages. _\k
3 Each plaintiff named above is a competent adult
a. | | except plaintiff (name):
(1)1 I a corporation qualified to do business in California
(2) I I an unincorporated entity (describe):
(3)1 I a public entity (describe):
(4) I I a minor I I an adult
(a) I I for whom a guardian or conservator of the estate or a guardian ad litem has been appointed
_ (b) I I other (specify):
(5) I I other (specify) •

b. | | except plaintiff (name):

(1)1 I a corporation qualified to do business in California
(2)1 I an unincorporated entity (describe)'
(3) I I a public entity (describe).
(4) I I a minor I I an adult
(a) I I for whom a guardian or conservator of the estate or a guardian ad litem has been appointed
(b) I I other (specify):
(5) I I other (specify):

L I Information about additional plaintiffs who are not competent adults is shown in Complaint—Attachment 3
Page 1 of 3
Form Approved for Optional Use
Judicial Council of California COMPLAINT—Personal Injury, Property Code of Civil Procedure, § 425 12
982 1(1) [Rev July 1,2002] Damage, Wrongful Death
 SHORT TITLE. CASE NUMBER

SCHUMACHER V. TAN PHAM M . D . e t . a l .

I Plaintiff (name):
is doing business under the fictitious name (specify):

and has complied with the fictitious business name laws.

Each defendant named above is a natural person

a I x I except defendant (name): CHW except defendant (name): YOUTHOLOGY
(1)1 X I a business organization, form unknown (1)1 X I a business organization, form unknown
(2) | | a corporation (2) I I a corporation
(3) I I an unincorporated entity (describe): (3) I I an unincorporated entity (describe):

(4) I I a public entity (describe): (4) I I a public entity (describe):

(5) CH other (specify) • FOUNDATI ON (5) | | other (specify):

b. 1x1 except defendant (name): MERCY MED . GROUP . d except defendant (name): ALCHEMY WORLDWIDE
(1)1 X I a business organization, form unknown (1)1 X I a business organization, form unknown
(2) | | a corporation (2) I I a corporation
(3) I I an unincorporated entity (describe): (3) I I an unincorporated entity (describe):

(4) I I a public entity (describe): (4) I I a public entity (describe)-

(5) I I other (specify)' (5) I X I other (specify) • LLC .

I I Information about additional defendants who are not natural persons is contained in Complaint—Attachment 5.

6. The true names and capacities of defendants sued as Does are unknown to plaintiff

7. I x I Defendants who are joined pursuant to Code of Civil Procedure section 382 are (names): All
De£ndants including DOES acted as agents, employees, servant
Joint venturers, successors in interest, successor corp-
oration,co-conspirator , lessor or entity with each defendant.
8 This court is the proper court because
a. I X | at least one defendant now resides in its jurisdictional area
b. I I the principal place of business of a defendant corporation or unincorporated association is in its jurisdictional area.
c. I X I injury to person or damage to personal property occurred in its jurisdictional area,
d I I other (specify):

9. I I Plaintiff is required to comply with a claims statute, and

a I I plaintiff has complied with applicable claims statutes, or
b. I I plaintiff is excused from complying because (specify):

982 1(1) [Rev July 1,2002]

COMPLAINT—Personal Injury, Property Damage, Wrongful Death (DEB
 SHORT TITLE' CASE NUMBER

I SCHUMACHER V. TAN PHAM M . D . et.al.

10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more
causes of action attached):
a. I I Motor Vehicle
b. I X I General Negligence
c. I I Intentional Tort
d I X I Products Liability
e I I Premises Liability
f. DO Other (specify): MEDICAL MALPRACTICE

11 Plaintiff has suffered

a. I X I wage loss
b I I loss of use of property
c. I X | hospital and medical expenses
d. I X I general damage
e. I I property damage
f. I X I loss of earning capacity
g. I X I other damage (specify): FUTURE MEDICAL BILLS

12 I I The damages claimed for wrongful death and the relationships of plaintiff to the deceased are
a. I I listed in Complaint—Attachment 12.
b. I I as follows'

13 The relief sought in this complaint is within the jurisdiction of this court.

14. PLAINTIFF PRAYS for judgment for costs of suit; for such relief as is fair, just, and equitable, and for
a. (1) I X I compensatory damages
(2) I I punitive damages
b. The amount of damages is (you must check (1) in cases for personal injury or wrongful death):
(1) I X I according to proof
(2) | | in the amount of: $

15. I X I The paragraphs of this complaint alleged on information and belief are as follows (specify paragraph numbers):
ALL PARAGRAPHS AND CAUSES OF ACTIONS.

Date. 1/26/2009

ROBERT HEINTZ ESQ.

(TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY)

982 1(1) [Rev July 1.2002]

COMPLAINT—Personal Injury, Property Damage, Wrongful Death €EB Page 3 of 3
SHORT TITLE CASE NUMBER

SCHUMACHER

CAUSE OF ACTION—General Negligence Page

(number)

ATTACHMENT TO HH Complaint I I Cross-Complaint

(Use a separate cause of action form for each cause of action.)

GN-1 Plaintiff (name). DAVID SCHUMACHER

alleges that defendant (name): YOUTHOLOGY, ALCHEMY WORLDWIDE LLC . JEFFREY GUNTER

Does to

was the legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act, defendant
negligently caused the damage to plaintiff
on (date): ON OR ABOUT 2/4/2008
at (place) SACRAMENTO CALIFORNIA

(description of reasons for liability):

PLAINTIFF WHILE USING DEFENDANTS PRODUCT YOUTHOLOGY, CLINICAL ESSENTIALS,
90 SECOND WRINKLE EYE SERUM CONTRCTED NECROTIZING FASCIITIS, SEPSIS, AND
PERMENENT DISFIGUREMENT, INTERNAL ORGAN INJURY AND SCARING AROUND
PLAINTIFF'S EYES, AND OTHER INJURIES. DEFENDANTS AND EACH OF THEM
MANUFACTURED OR ASSEMBLED,DESIGNED OR MANUFACTURED COMPONENT PARTS AND/OR
PROCESSES, MARKETED, ADVERTISED, FAILED TO TEST, AND WARRANTED THE
PRODUCT TO BE SAFE FOR PUBLIC USE.

PLAINTIFF USED THE PRODUCT IN THE MANNER INTENDED BY DEFENDANTS AND IN A

MANNER THAT IT WAS NOT READILY APPARENT TO PLAINTIFF WOULD INVOLVE
SUBSTANCIAL DANGER. DEFENDANTS AND EACH OF THEM, WERE RESPONSIBLE FOR THE
SAFETY OF THE PRODUCT. THESE DEFEMDAMTS INCLUDING BUT NOT LIMITED TO
MANAGERS, DESIGNERS, MANUFACTURERS, SUBCONTRACTORS, SUPERVISORS AND
OWNERS OF THE PRODUCT WERE SOLEY RESPONSIBLE FOR THE SAFETY OF THE
PRODUCT SOLD TO THE PUBLIC.

AT THE TIME OF THE ACCIDENT DEFENDANTS AND EACH OF THEM WERE SO CARELESS
AND NEGLIGENT IN MANUFACTURING, MARKETING, INSTRUCTING ITS USE, DESIGNING
THIS PRODUCT AS TO ALLOW THIS PRODUCT TO BECOME A DANGEROUS
INSTRUMENTALITY.

DEFENDANT AND EACH OF THEM WERE UNDER A DUTY TO INSURE THAT THIS PRODUCT
WAS WARRANTED TO BE SAFE FOR PUPBLIC USE AND WOULD NOT CAUSE BODILY
INJURY TO PLAINTIFF OR OTHERS.

AS A DIRECT AND PROXIMATE CONSEQUENCE/CAUSE OF DEFENDANTS NEGLIGENCE IN

THE MARKETING PRODUCTION, MANUFACTURING, WARRANTING, ASSEMBLY,
ESTING,DESIGNED, OWNERSHIP AND CONTROL OF SAID PRODUCT. PLAINTIFF
SUFFERED SEVERE AND EXTENSIVE PERSONAL INJURIES, EMOTIONAL DISTRESS,
FUTURE MEDICAL EXPENSES, LOST WAGES, IN A SUM TO BE PROVEN AT TRIAL

Form Approved for Optional Use

Judicial Council of California
Effective January 1 1982 %W • • ^
Ruie982i(3) CAUSE OF ACTION—General Negligence Vr>l .1,/ CCP42512
SHORT TITLE. CASE NUMBER

SCHUMACHER V. TAN PHAM M . D . e t . a l .

one CAUSE OF ACTION—Products Liability Page.

(number)

ATTACHMENT TO I"x1 Complaint I I Cross-Complaint

(Use a separate cause of action form for each cause of action.)

Plaintiff (name) DAVID SCHUMACHER

Prod.L-1 On or about (date): 2 / 5 / 2 0 0 8 plaintiff was injured by the following product:

YOUTHOLOGY, CLINICAL ESSENTIALS, 90 SECOND WRINKLE EYE SERUM.

Prod L-2. Each of the defendants knew the product would be purchased and used without inspection for defects
The product was defective when it left the control of each defendant The product at the time of injury
was being
QD used in the manner intended by the defendants
DTI used in a manner that was reasonably foreseeable by defendants as involving a substantial danger not
readily apparent. Adequate warnings of the danger were not given.
Prod.L-3. Plaintiff was a
purchaser of the product LID user of the product
bystander to the use of the product. CD other (specify):

PLAINTIFFS INJURY WAS THE LEGAL (PROXIMATE) RESULT OF THE FOLLOWING

Prod L-4. LTD Count One—Strict liability of the following defendants who
a. rXH manufactured or assembled the product (names): YOUTHOLOGY, ALCHEMY WORLDWIDE LLC.
JEFFREY GUNTER

QD Does 1 to 5
b fXI designed and manufactured component parts supplied to the manufacturer (names) YOUTHOLOGY,
ALCHEMY WORLDWIDE LLC. JEFFREY GUNTER

fin Does 5 to 10
c rX"l sold the product to the public (names):
YOUTHOLOGY, ALCHEMY WORLDWIDE LLC.JEFFREY GUNTER

rXI Does 10 to 20
Prod.L-5. nn Count Two—Negligence of the following defendants who owed a duty to plaintiff (names)
YOUTHOLOGY, ALCHEMY WORLDWIDE LLC. JEFFREY GUNTER

rXI Does 20 to 30
Prod.L-6. LID Count Three—Breach of warranty by the following defendants (names): YOUTHOLOGY, ALCHEMY
WORLDWIDE LLC. JEFFREY GUNTER

fin Does 30 to 40
a. QQ who breached an implied warranty
b. CD who breached an express warranty which was
ED written CD oral
Prod.L-7. I I The defendants who are liable to plaintiffs for other reasons and the reasons for the liability are
I I listed in Attachment—Prod L-7 I I as follows.

Form Approved for Optional Use

Judicial Council of California
Effective January 1, 1982 — .. . ,„_. __ .,«_,,%., _ ,
Rule 982 KB) CAUSE OF ACTION—Products Liability -v=*i_*i~r CCP 42512
SHORT TITLE CASE NUMBER

SCHUMACHER

TWO CAUSE OF ACTION—General Negligence Page

(number)

ATTACHMENT TO DD Complaint I I Cross-Complaint

(Use a separate cause of action form for each cause of action )

GN-1. Plaintiff (name): DAVID SCHUMACHER

alleges that defendant (name) TAN PHAM M . D . CATHOLIC HEALTHCARE WEST MEDICAL
CATHOLIC HEALTHCARE WEST MEDICAL FOUNDATION, MERCY
MEDICAL GROUP,

Does _ _ to

was the legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act, defendant
negligently caused the damage to plaintiff
on (date,): ON OR ABOUT 2/5/2008
at (place): SACRAMENTO CALIFORNIA

(description of reasons for liability).

PLAINTIFF WHILE UNDER THE CARE OF DEFENDANTS TAN PHAM, CATHOLIC
HEALTHCARE WEST MEDICAL FOUNDATION, AND MERCY MEDICAL GROUP , CONTRACTED
NECROTIZING FASCIITIS AND SEPSIS. AT ALL TIMES IT IS BELIEVED THAT TAN
PHAM M.D. WAS AN EMPLOYEE OF CATHOLIC HEALTHCARE WEST MEDICAL FOUNDATION,
MERCY MEDICAL GROUP AND THAT THE HOSPITAL AND FOUNDATION WERE SOLEY
RESPONSIBLE FOR THE ACTS OF ITS EMPLOYEES AND SANITATION OF ITS FACILITY
AND STAFF.
THE INFECTION WAS SO SEVERE AS TO CAUSE SERIOUS PERSONAL INJURY TO
PLAINTIFF. PLAINTIFF'S INJURIES WERE CAUSED BY THE NEGLIGENCE OF
DEFENDANTS EMPLOYEES IN EXPOSING PLAINTIFF TO NECROTIZING FASCIITIS
LEADING ALSO TO SEPSIS AND PERMENENT INJURY AND SCARING. PLAINTIFF
INCORPORATES HEREIN BY REFERENCE EACH AND EVERY ALLEGATION CONTAINED IN
PLAINTIFF'S COMPLAINT AND FURTHER ALLEDGES :
DEFENDANTS AND EACH OF THEM BREACHED A DUTY OF CARE, SKILL, ABILITY,
TRAINING, HYGENE PROTOCOLS, AND/OR LEARNING EXPECTED OF DEFENDANTS, AND
EACH OF THEM, COMMON TO MEDICAL PRACTITIONERS AND/OR HEALTH CARE
PROVIDERS. DEFENDANTS AND EACH OF THEM NEGLIGENTLY TREATED, CARED FOR,
DIAGNOSED, MISDIAGNOSED, INFECTED, IMPROPERLY MEDICATED, FAILED TO OBTAIN
INFORMED CONSENT, PRESCRIBED MEDICATION AND/OR TREATMENT, PROVIDED CONTRA
INDICATED MEDICATIONS, FAILED TO PROPERLY TEST/EXAM PLAINTIFF, NEGLIGENTLY
HIRED AND MANAGED STAFF, OPERATED UPON, ADVISED, OBSERVED, MANAGED,
CONTROLLED, EXAMINED, MADE AND OR FAILED TO MAKE DISCLOSURE OF RELEVANT
INFORMATION, PERFORMED SURGERY UPON, BATTERED AND/OR OTHERWISE ACTED
NEGLIGENTLY TOWARD PLAINTIFF.
DEFENDANTS AND EACH OF THEM WERE UNDER A DUTY TO INSURE THAT
PLAINTIFF WAS NOT INFECTED WITH NECROTIZING FASCIITIS, A HOSPITAL BOURNE
DISEASE, AND TO INSURE THE SANITARY CONDITION OF THE HOSPITAL AND ITS
STAFF, INCLUDING PROPER SANITATION PROTOCOLS AND TRAINING OF STAFF IN
SUCH A MANNER AS TO NOT CAUSE BODILY INJURY TO PLAINTIFF OR OTHERS. AS A
DIRECT AND PROXIMATE CONSEQUENCE /CAUSE OF DEFENDANTS NEGLIGENCE IN
TREATMENT, MANAGEMENT AND CONTROL OF STAFF PLAINTIFF SUFFERED SEVERE
. PESONAL IN JURIES, EMOTIONAL DISTRESS, FUTURE MEDICAL EXPENSES , SCARING, IN
A SUM TO BE PROVEN AT TRIAL.

Form Approved lor Optional Use ^^

Judicial Council ol California mf^^^ mJ
Effective January 1. 1982 %tlSJ t I 1
Rule 982 1(3} CAUSE OF ACTION — General Negligence ^ZZst J / ccpaas 12
ATTACHMENT PAGE 1.

COMPLAINT FOR PESONAL INJURIES: Medical Malpractice

FIRST CAUSE OF ACTION

COME NOW plaintiff, DAVID SCHUMACHER, and alleges as and for a First

Cause of Action against defendants, and each of them, as follows:

1. At all times relevant herein, plaintiff was a resident of the State of

California.

2. At all times material herein, defendants, CATHOLIC HEALTHCARE

WEST MEDICAL FOUNDATION, MERCY MEDICAL GROUP and each of them,

were health care providers organized and existing under the laws of the State of

California, with their principal places of business in the County of Sacramento, State

of California, and now are, and at all times herein mentioned were, engaged in

operating and managing a general hospital, clinic and/or medical care facility in the

County of Sacramento, State of California.

3. At all times material herein, defendants, TAN PHAM, M.D. and each of

them, were physicians arid surgeons duly licensed to practice medicine and/or perform

surgery in the State of California, County of Sacramento, and held themselves out to

possess that degree of skill, ability and learning, common to medical practitioners in

said community.

4. The true names and capacities of defendants, and each of them, sued

herein as DOES 1 through 100, inclusive, are presently unknown to plaintiffs who
 PAGE 2.

therefore sue said defendants by such fictitious names, pursuant to Code of

Civil Procedure Section 474. Plaintiff is informed and believes and thereon allege that

the fictitiously named defendants, and each of them, are negligently or in some manner

legally responsible to plaintiff for the events and happenings herein referred to and

proximately caused damages to plaintiffs as set forth herein.

5. Plaintiff is informed and believes and thereon allege that each of the

defendants was the agent, partner, joint venturer, co-conspirator, corporate successor,

lessor, lessee, and/or employee of each of the remaining defendants, and others named

herein as Doe defendants, and in doing the acts or things alleged herein were acting

within the course and scope of said agency, employment and/or other relationship

stated herein.

6. Commencing on or before 2005, plaintiff, DAVID SCHUMACHER,

employed defendants, and each of them, for medical needs and/or necessities. Said

defendants, and each of them, at said time and place undertook said employment

and/or undertook and agreed to diagnose, care and treat plaintiff and to do all things

necessary and proper in connection therewith, and said defendants, and each of them,

thereby entered into a patient/physician employment relationship, individually, and by

and through their agents and employees. Said defendants, and each of them, agreed to

provide such medical attention to plaintiff for compensation which plaintiff agreed to

pay.

7. In the course of providing medical services, attention, treatment and/or

 care for plaintiff, DAVID SCHUMACHER, defendants, and each of them,

failed to exercise that degree of due care and/or skill, common to medical practitioners

and/or health care providers in said specialty, thereby breaching the duty owed by said

defendant, and each of them, to plaintiff to exercise that degree of care, skill, ability

and/or learning expected of said defendants, and each of them, and/or common to

medical practitioners and/or health care providers in said specialty. Further, said

defendants, and each of them, so negligently treated, cared for, diagnosed,

misdiagnosed, infected, improperly medicated, failed to obtain informed consent,

prescribed medication and/or treatment, operated upon, advised, observed, managed,

controlled, examined, made and/or failed to make disclosure of relevant information,

performed surgery upon, battered and/or otherwise acted negligently towards plaintiff,

also including negligent hiring and management of co-defendants, that he was caused

to and did experience injury and damage as stated herein. The conduct of defendants,

and each of them, complained of herein includes, but is not limited to: Prescribed

contra-indicated medications, and/or infecting or failing to diagnosis plaintiff with

necrotizing fasciitis and sepsis, failed to properly treat/test or diagnosis plaintiffs

conditions leading to multiple surgeries.

8. As a legal result of the negligence, carelessness, and wrongdoing of

defendants, and each of them plaintiff, DAVID SCHUMACHER, has been injured in

his health, strength and activity and has sustained grievous injury to his body and

profound shock and injury to his person and nervous system, all of which injuries

resulted in great mental, physical and nervous pain and suffering. Said injuries will

Page 3.
 result in some permanent disability to plaintiff, all to his general damage in a

sum as yet uncertain, in excess of the minimum jurisdiction of this court. Plaintiff will

seek leave of court to plead and prove general damages, according to proof at time of

trial, together with interest and/or prejudgment interest thereon at the legal lawful rate.

9. As a further direct and legal result of the negligence, carelessness and

wrongdoing of defendants, and each of them, plaintiff, DAVID SCHUMACHER, has

been in the past and will be required in the future to employ physicians and surgeons

for examination, treatment surgeries and care. The exact amount of said medical

expenses are unknown to plaintiff and plaintiff will seek leave of court to plead and

prove the exact amount of said expenses at time of trial, together with interest and/or

prejudgment interest thereon at the legal lawful rate.

10. As a further direct and legal result of the negligence, carelessness and

wrongdoing of defendants, and each of them, plaintiff, has been prevented from

attending to his usual occupation, and/or will be so prevented in the future, all to his

further damage in an amount unknown. Plaintiff will seek leave of court to plead and

prove the exact amount of said lost wages and lost earning capacity, according to proof

at time of trial, together with interest and/or prejudgment interest thereon at the legal

lawful rate.

11. Plaintiffs will also seek prejudgment interest on all items of damage

including general and special damages. These will include, but are not limited to, past

and future medicals expenses, any lost wages and lost earning capacity, and any and all

incidental and compensatory damages as permitted by law. See CCP §685.010(a) and
Page 4.
CCP§3291.

WHEREFORE, plaintiffs pray for judgment against defendants, and each of

them, as hereinafter set forth.

WHEREFORE, plaintiffs pray for judgment against defendants, and each of

them, as follows:

General damages in excess of the minimum jurisdiction of this court, according

to proof at time of trial;

Medical and incidental expenses, according to proof;

Damages for loss of earnings or earning capacity, past, present and future,

according to proof;

Incidental expenses incurred as a result of the above incident; or interest and/or

prejudgment interest on all damages sought and/or incurred herein at the legal

lawful rate;

For costs of suit incurred herein;

and For such other and further relief as may be proper .

Dated:
^ /W 01

JZ
PAGE 5. " ^^