Judge: Craig Griffin, Case: "Hamilton vs. Troell, M.D.", Date: 2022-08-22 Tentative Ruling

Defendant Robert J. Troell, M.D.’s (“Defendant”) Demurrer to plaintiff Julie Hamilton’s (“Plaintiff”) First Amended Complaint (“FAC”) is OVERRULED in part and SUSTAINED in part.

A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The issue is the sufficiency of the pleading, not the truth of the facts alleged.  Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer.  (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)  Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer.  (Day v. Sharp (1975) 50 Cal.3d 904, 914;  Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.)

“In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.]  However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. [Citations omitted.]”  (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672.)

Under Section 430.10(e) the test is whether the complaint states any valid claim entitling plaintiff to relief, even if Plaintiff’s cause of action is improperly titled, or an improper remedy is stated.  (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38.)  

Defendant demurs to the second and third causes of action (“COA”) on the basis they fail to state sufficient facts to constitute a COA.  (Civ. Proc. Code § 430.10(e).)

1)   COA No. 2 – Medical Battery

“A physician who performs any medical procedure without the patient's consent commits a battery irrespective of the skill or care used.”  (Thor v. Superior Court (1993) 5 Cal. 4th 725, 735.)  “[T]he patient must have the capacity to reason and make judgments, the decision must be made voluntarily and without coercion, and the patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis.”  Id.  “[I]t is the prerogative of the patient, not the physician, to determine for himself the direction in which he believes his interests lie.”  (Cobbs v. Grant (1972) 8 Cal. 3d 229, 242 (“Cobbs”).)

Plaintiff consented to removal and a replacement of similar sized breast implants, which were estimated to be between 400cc and 450cc.  (FAC ¶ 11.)  Plaintiff received implants that were 560cc, which were significantly larger than the existing implants and were contraindicated by Plaintiff’s physical body size and stature.  (Id.)  The size she received was anywhere between 24% (from 450cc) and 40% (from 400cc) larger than Plaintiff what consented to.  Plaintiff alleges she did not consent to the improper sized implant and as such, the surgery was substantially different from that which she did content to.  (FAC ¶¶ 12-13.)  Plaintiff additionally alleges she consented to a have a reverse abdominoplasty procedure to revise the wrinkles in her upper abdominal area.  (FAC ¶ 16.)  Defendant had advised Plaintiff that Plaintiff was very skinny, did not have any fat in her abdominal area, and was assured liposuction could not be performed on Plaintiff as she had “no fat” to remove.  (Id.)  Despite no consent for liposuction being given, Defendant performed liposuction on Plaintiff.  (Id.)  As a result, Plaintiff suffered severe and permanent injuries, disfigurations, and damages to her person that have required six reconstructive surgeries, increased medical expenses, and loss of earnings.  (FAC ¶¶ 13-14, 17-18.)  Plaintiff will also be required to undergo future additional medical care and treatment in the future.  (FAC ¶ 13, 19.)

Plaintiff has pled sufficient facts to constitute a COA against Defendant.

Defendant improperly asks the court review evidence and make a determination of fact based thereon, which is improper.  A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice.  (Blank, supra, 39 Cal.3d at 318.)  The issue is the sufficiency of the pleading, not the truth of the facts alleged.  Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer.  (Del E. Webb Corporation, supra, 123 Cal.App.3d at 604.) 

Defendant argues that this COA is improper as it appears to be a lack of informed consent COA and that medical battery are separate COA.

“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. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.”  (Saxena v. Goffney (2008) 159 Cal. App. 4th 316, 324.)  “Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.”  (Cobbs, supra, 8 Cal. 3d at 239.)  “However, when an undisclosed potential complication results, the occurrence of which was not an integral part of the treatment procedure but merely a known risk, the courts are divided on the issue of whether this should be deemed to be a battery or negligence.”  (Id.)  “A typical medical battery case is where a patient has consented to a particular treatment, but the doctor performs a treatment that goes beyond the consent. “When an action is based upon the theory of surgery beyond consent, the gist of such action is the unwarranted exceeding of the consent. This is a theory of technical battery.” ‘ “  (Conte v. Girard Orthopaedic Surgeons Med. Grp., Inc. (2003) 107 Cal. App. 4th 1260, 1267.)  “In such a situation, “the requisite element of deliberate intent to deviate from the consent given is present.” ‘ “  (Id.)

Plaintiff has alleged two different acts she contends are medical battery.  The first is replacing the breast implant, which she consented to, with an implant that was approximately 28% larger than what Plaintiff consented to.  The second was that Defendant allegedly performed liposuction on Plaintiff, which Plaintiff contends not only that she was told she was not a candidate for, but also that she did not consent to that procedure. 

Regarding the implant size issue, this issue could ultimately fall under either medical negligence or medical battery, and needs to be resolved by the jury.  However, Plaintiff has pled sufficient facts to support the latter COA.  As to the liposuction, Plaintiff alleges she did not consent to the procedure.  A medical procedure that is performed without the consent of the patient falls under medical battery. 

Defendant cites to medical records attached to the demurrer for the premise that Plaintiff did not actually undergo liposuction with Defendant.  Plaintiff on the other hand contends the records show Defendant performed a VASER liposuction.  The question of whether or not liposuction was actually performed by Defendant on Plaintiff is again not an issue the court can determine at this time.  The allegations must be accepted as true during a demurrer and the court may not consider contents of exhibits when ruling on a demurrer.  The only question is whether sufficient facts have been pled to support this COA. 

Plaintiff has met the pleading requirement as to this COA.

The Demurrer is OVERRULED as to this COA.

2)   COA No. 3 – Patient Abandonment

“[A] physician who abandons a patient may do so “only ... after due notice, and an ample opportunity afforded to secure the presence of other medical attendance.”’”  (Payton v. Weaver (1982) 131 Cal. App. 3d 38, 45.)  “A physician cannot just walk away from a patient after accepting the patient for treatment. A physician cannot withdraw treatment from a patient without due notice and an ample opportunity afforded to secure the presence of another medical attendant.”  (Hongsathavij v. Queen of Angels/Hollywood Presbyterian Med. Ctr. (1998) 62 Cal. App. 4th 1123, 1138 (“Hongsathavij”).)

Defendant maintained two offices, one in Newport Beach and one in Las Vegas, and travelled between the offices seeing patients and performing surgery out of both locations.  (FAC ¶ 21.)  Defendant undertook the care, treatment, examination, and diagnosis of the plaintiff.  (FAC ¶¶ 22.)  Defendant allegedly did not assign, designate, or otherwise identify any back-up providers to attend to Plaintiff’s urgent needs in his absence.  (FAC ¶¶ 21, 23.)  Following Plaintiff first procedure with Defendant, Plaintiff developed signs and symptoms of an infection at the surgical site and attempted to consult with Defendant, but he was at his Las Vegas location and unable to consult promptly.  (FAC ¶ 23.)  On another occasion, Plaintiff’s surgical stitches opened up, were bleeding, and required repair, but Plaintiff had to wait several days for Defendant to return to his Newport Beach office to be seen at 9:00 p.m.  (FAC ¶ 24.)  Other issues regarding obtaining treatment from Defendant for various issues related to the procedures occurred on two additional dates as well.  (FAC ¶¶ 25-26.)  In one instance Plaintiff had to seek treatment from a different physician (Dr. Robert Kessler), who then called Defendant at the Las Vegas office to inform Defendant of Plaintiff’s situation and request Defendant return to Newport to attend to Plaintiff.  (FAC ¶ 26.)  Defendant indicated he would not be able to return until the following day, which resulted in Kessler admitting Plaintiff to the ER to remove the infected implant.  (Id.)  Plaintiff alleges the failure to provide proper needed follow-up care and/or back up coverage equates to abandonment.  (FAC ¶ 25.)

As pled, this COA seems to fall more under a medical negligence COA instead of an abandonment COA.  It may have been negligence on the part of Defendant not to provide Plaintiff with a back-up physician for treatment when Defendant was at his Las Vegas office, but there are no allegations that Defendant actually withdrew from treating Plaintiff, only that he was not available when she supposedly needed treatment.  A physician, “may limit his obligation by undertaking to treat the patient only for a certain ailment or injury at a certain place and at a specified time. When he so limits his employment the physician is not required to treat his patient at another place nor to follow him into another city.”  (McNamara v. Emmons (1939) 36 Cal. App. 2d 199, 204.) 

Although Defendant appears not to have been available at certain points when Defendant was at a different facility, Plaintiff also alleged that she continued to receive medical care and treatment from Defendant.  Given Plaintiff has pled Defendant continued to treat Plaintiff, just not when she demanded/needed it, it appears Plaintiff has not sufficiently pled this COA.

The Demurrer is SUSTAINED as to this COA with leave to amend.

A)  Motion to Strike

Defendant’s Motion to Strike (“MTS”) portions of the FAC is DENIED in part, and MOOT in part.

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. . .”  (Civ. Proc. Code § 435(b)(1).  “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.  (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  (Civ. Proc. Code § 436.)

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Ct. (1998) 67 Cal. App. 4th 1253, 1255.)

Defendant moves to strike the words “recklessly” and “wantonly” from FAC ¶ 6.  Though Defendant seeks to strike the same words from FAC ¶ 7, that paragraph actually states “recklessness” and “wantonness.”  Defendant also seeks to strike the entirety of COA Nos. 2 (FAC ¶¶ 10-19) and 3 (FAC ¶ 20-29).  The basis for Defendant’s MTS is that the above are allegedly irrelevant and improper matters pursuant to Civ. Proc. Code § 436.

1)   Reckless and wanton

Defendant cited to no cases in the MTS that support striking these words.  The only argument made was that they are unnecessary to support a medical malpractice action.  In the reply brief, Defendant cited to one case for the premise, “[b]y definition, irrelevant matters have no tendency in reason to prove or disprove any disputed fact of consequence to the determination of a matter, and are specifically excluded from consideration. Irrelevant matters thus are not “under consideration or review” in an official proceeding.”  (Paul v. Friedman (2002) 95 Cal. App. 4th 853, 868.)

Wanton is defined as, “[u]nreasonably or maliciously risking harm while being utterly indifferent to the consequences.”  (WANTON, Black's Law Dictionary (11th ed. 2019).)

Recklessly/recklessness is defined as conduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk.  (RECKLESSNESS, Black's Law Dictionary (11th ed. 2019).)

Although Reckless and wanton suggest “gross negligence,” rather than “ordinary negligence,” the two types of negligence are essentially the same cause of action. (See, e.g., Continental Insurance Co. v. American Protection Industries (1987) 197 Cal.App.3d 322, 3309.  “[I]n most instances any attempt to categorize gross negligence separately from ordinary negligence is unnecessary.” Continental Insurance Co. v. American Protection Industries, supra, 197 Cal.App.3d at p. 330,  Thus, Plaintiff may prove its negligence cause of action by demonstrating either ordinary or gross negligence.  Thus, the challenged phrases are not irrelevant.

The MTS is DENIED as to these words.

2)   COA No. 2

As noted in the demurrer, this COA has sufficiently been pled.  There is no reason to strike it.

The MTS is DENIED at to COA No. 2.

3)   COA No. 3

The MTS as to the third COA is MOOT as Defendant’s demurrer was sustained as to that COA.  (Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal. App. 4th 1256, 1281.)

Defendant to give notice.