Judge: Andrew E. Cooper, Case: 23CHCV01278, Date: 2024-04-16 Tentative Ruling

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Case Number: 23CHCV01278    Hearing Date: April 16, 2024    Dept: F51

DEMURRERS

Demurrers Filed: 10/24/23, 1/22/24

MOVING PARTY: Defendants Michael Robinson, M.D.; The Regents of the University of California; and Henry Mayo Newhall Memorial Hospital (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Manish Mishra (“Plaintiff”) 

NOTICE: OK 

RELIEF REQUESTED: Defendants Michael Robinson, M.D. and The Regents of the University of California demur against the third cause of action in Plaintiff’s first amended complaint (“FAC”). Defendant Henry Mayo Newhall Memorial Hospital demurs against the entire FAC.

TENTATIVE RULING: Both demurrers are sustained with 30 days leave to amend.  The Plaintiff’s late filed opposition was not considered. 

BACKGROUND 

This is a medical malpractice action in which Plaintiff alleges that on 4/26/22, during a colectomy procedure, his doctor, Defendant Michael Robinson, M.D. “attempted and performed a second procedure, the removal of Mr. Mishra’s transverse colon, which was not only medically unnecessary, it was outside the scope of Mr. Mishra’s consent.” (FAC ¶ 1.) “It was soon discovered that Mr. Mishra’s colon was leaking and a second surgery was scheduled. During this follow-up surgery, performed to repair the colon leak, Dr. Robinson once again performed negligently, and Mr. Mishra’s colon was not repaired.” (Id. at ¶ 2.) Defendant Henry Mayo Newhall Memorial Hospital (the “Hospital”) allegedly employed Dr. Robinson. (Id. at ¶ 4.)

On 5/1/23, Plaintiff filed his original complaint against Defendants, alleging the following causes of action: (1) Medical Negligence; (2) Medical Negligence – Lack of Informed Consent; and (3) Medical Battery. On 9/20/23, Plaintiff filed his FAC, alleging the same causes of action. On 10/13/23, Plaintiff named The Regents of the University of California (the “Regents”) as previously unnamed Doe Defendant 2.

On 10/24/23, Dr. Robinson and the Regents filed their demurrer. On 1/22/24, the Hospital filed its demurrer. Plaintiff filed her late opposition on April 12, 2024.

ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Dr. Robinson and the Regents demur to Plaintiff’s third cause of action for failure to allege facts sufficient to constitute a cause of action for Medical Battery. The Hospital demurs to the entire FAC for failure to allege facts sufficient to constitute any cause of action, and for uncertainty.

A.    Meet and Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, counsel for Dr. Robinson and the Regents declares that on 10/20/23, he sent Plaintiff’s counsel a meet and confer letter regarding the issues raised in his clients’ demurrer, but the parties were unable to resolve the dispute. (Decl. of John Aitelli, ¶¶ 4–5.) Counsel for the Hospital declares that on 10/30/23, 11/15/23, 11/29/23, 12/6/23, 1/9/24, and 1/14/23, he met and conferred with Plaintiff’s counsel regarding the issues raised in the Hospital’s demurrer, but the parties were unable to resolve the dispute. (Decl. of Tony Hsu, ¶¶ 6–10.) Therefore, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Medical Negligence

Plaintiff’s first cause of action alleges against all Defendants Medical Negligence. “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571.)

Here, the Hospital argues that “the FAC fails to specify when plaintiff was under the care of defendant HENRY MAYO, the care that was rendered to him by HENRY MAYO, and in what way the care provided to plaintiff by HENRY MAYO was substandard.” (Hospital Dem. 4:12–14.) “The factual allegations plead in the FAC make no mention of facts relevant to plaintiff’s claims against HENRY MAYO. … Furthermore, Plaintiff’s allegations are entirely based on the medical care and treatment he received from Dr. Robinson without any factual allegations pertaining to the HENRY MAYO hospital staff.” (Id. at 8–11.)

Upon review of the FAC, the Court finds that the only mention of the Hospital is as follows: “Defendant Henry Mayo Newhall Memorial Hospital, is, and at all times herein relevant was, a healthcare facility lawfully conducting business in Valencia, in Los Angeles County, California, and is the ostensible employer of Dr. Robinson and Does 2-20, inclusive.” (FAC ¶ 4.) However, Plaintiff fails to allege any conduct by the Hospital nor any theory of liability against the Hospital. The Court notes that Plaintiff has failed to file any opposition to the instant demurrers. Based on the foregoing, the Court finds that Plaintiff has not alleged facts sufficient to constitute a cause of action for Medical Negligence against the Hospital.

Accordingly, the Hospital’s demurrer is sustained as to Plaintiff’s first cause of action.

C.    Lack of Informed Consent

Plaintiff’s second cause of action alleges against all Defendants Medical Negligence – Lack of Informed Consent. To state this cause of action, a plaintiff must allege that (1) the defendant performed a medical procedure on him, (2) the defendant failed to disclose certain information to him that was material to his decision when soliciting his consent to a medical procedure, (3) a reasonable person in the plaintiff’s position would not have agreed to the procedure if he had been adequately informed, and (4) breach of the duty to disclose certain information caused damaged to the plaintiff. (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1164; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [“A claim based on lack of informed consent—which sounds in negligence—arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives”]; Cobbs v. Grant (1972) 8 Cal.3d 229, 245 [“There must be a causal relationship between the physician’s failure to inform and the injury to the plaintiff. Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given”].)

Here, the Hospital argues that “as a matter of law, a patient’s physician, not the hospital, is responsible for obtaining any necessary informed consent.” (Hospital Dem. 5:23–24, citing Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343; Cobbs, 8 Cal.3d at 242; Mahannah v. Hirsch (1987) 191 Cal.App.3d 1520, 1527–1528.) The Hospital therefore contends that “Plaintiff’s FAC seeks to extend a physician’s duty to obtain informed consent to an entity with whom they have no physician-patient relationship at all.” (Id. at 6:1–2.)

The Court agrees, and again notes that Plaintiff has failed to oppose the instant demurrers. Based on the foregoing, the Court finds that Plaintiff has not alleged facts sufficient to constitute a cause of action for Lack of Informed Consent against the Hospital. Accordingly, the Hospital’s demurrer is sustained as to Plaintiff’s second cause of action.

D.    Medical Battery

Plaintiff’s third cause of action alleges against all Defendants Medical Battery. To state this cause of action, a plaintiff must allege: (1) that the defendant performed a medical procedure without the plaintiff’s consent, or that the plaintiff consented to one medical procedure, but the defendant performed a substantially different medical procedure; (2) harm to the plaintiff; and (3) that the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (Judicial Council of California Civil Jury Instruction No. 530A.)

“The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.” (Cobbs, 8 Cal.3d at 240.)

Here, the Hospital reiterates its argument that it had no duty to obtain Plaintiff’s informed consent, and therefore cannot be liable for Medical Battery. (Hospital Dem. 6:26–7:1.) Defendants further argue that Plaintiff’s central allegation, namely that Dr. Robinson removed Plaintiff’s transverse colon without first obtaining Plaintiff’s informed consent, is based on a medical procedure that is not “substantially different” to a colectomy procedure, to which Plaintiff consented. (Id. at 6:24–26; Robinson Dem. 5:16–22 [“Nowhere does plaintiff state that defendants MICHAEL ROBINSON, M.D. and/or his employer, THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, performed a substantially different procedure than that to which he consented. In fact, Dr. ROBINSON performed the exact procedure to which plaintiff consented and no others.”].)

The Court agrees with Dr. Robinson and the Regents that “plaintiff’s First Amended Complaint fails to identify how the surgery performed (a colectomy, i.e. removing a portion of the colon) was different from that to which plaintiff consented and what facts established that defendants intended to perform a procedure different from that to which he consented.” (Robinson Dem. 7:7–10.) As the demurrers are unopposed, the Court finds that Plaintiff has failed to allege facts sufficient to constitute a cause of action for Medical Battery against Defendants. Accordingly, the Court sustains both demurrers against Plaintiff’s third cause of action.

E.     Uncertainty

Generally speaking, “demurrers for uncertainty are disfavored and thus are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. Such demurrers are granted only if the pleading is so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d 135, 139 fn.2.)

Here, the Hospital that Plaintiff’s complaint is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f). In applying the stringent standard for demurrers filed on this ground, the Court finds that the complaint is not “so incomprehensible” that the Hospital cannot respond, especially given the extensive analysis it has offered against the pleading. Accordingly, the Hospital’s demurrer is overruled on this ground.

F.     Leave to Amend

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Here, the Court notes that while Plaintiff failed to timely oppose the demurrers, these are the first demurrers brought against Plaintiff’s operative pleading in this action. Therefore, under the Court’s liberal policy of granting leave to amend, Plaintiff is granted 30 days leave to amend the FAC to cure the defects set forth above.

CONCLUSION 

Both demurrers are sustained with 30 days leave to amend.