Judge: Curtis A. Kin, Case: 22STCV01666, Date: 2022-12-13 Tentative Ruling
Case Number: 22STCV01666 Hearing Date: December 13, 2022 Dept: 72
DEMURRER AND MOTION TO STRIKE
Date: 12/13/22
(9:30 AM)
Case: Tamara Khachatryan et al. v.
Richard Paulson, M.D. et al. (22STCV01666)
TENTATIVE
RULING:
Defendants Richard Paulson, M.D., University of Southern California,
Keck Medical Center of USC, USC Fertility, and Keck School of Medicine of USC’s
Demurrer to Second Amended Complaint is SUSTAINED IN PART.
Defendants Richard Paulson, M.D., University of Southern
California, Keck Medical Center of USC, USC Fertility, and Keck School of
Medicine of USC’s Motion to Strike Portions of Second Amended Complaint is
GRANTED.
I.
DEMURRER TO SECOND AMENDED COMPLAINT
A.
Second Cause of Action: Negligence
Defendants contend the second cause of action for negligence
is duplicative of the first cause of action for medical malpractice. “‘Professional negligence’
means a negligent act or omission to act by a health care provider in the
rendering of professional services, which act or omission is the proximate
cause of a personal injury or wrongful death, provided that such services are
within the scope of services for which the provider is licensed and which are
not within any restriction imposed by the licensing agency or licensed
hospital.” (CCP § 340.5(2).)
The test of whether an act or omission is considered
ordinary negligence or professional negligence, i.e., medical malpractice, is
“not whether the situation calls for a high or low level of skill, or whether a
high or low level of skill was actually employed, but rather the test is
whether the negligent act occurred in the rendering of services for which the
health care provider is licensed.” (Murillo
v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, 57; see also Flores
v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 86 [agreeing
with holding in Murillo].)
The second cause of action is based on defendants’ treatment
of plaintiff Tamara Khachatryan for infertility, including lab work and in
vitro fertilization. (SAC ¶¶ 4, 5, 8, 11-18, 38, 39, 43, 44, 47, 51, 52, 68,
69.) Plaintiffs allege that defendant Richard Paulson, M.D. misdiagnosed
Khachatryan with ovarian disorder instead of Congenital Adrenal Hyperplasia
(“CAH”), which caused Khachatryan to experience difficulties in becoming
pregnant. (SAC ¶¶ 8, 11, 15, 19, 42, 45, 46, 48, 49.) The alleged misdiagnosis
of CAH and resulting deficiencies in the fertility services provided by
defendants occurred in the rendering of services for which they are licensed. (See
Flores, 63 Cal.4th at 85 [“[T]he term ‘professional services,’ as it
relates to members of a profession, ordinarily is used to refer to ‘“services
... which can be judged against the skill, prudence, and diligence commonly
possessed”’ by other members of the profession”].)
Plaintiffs maintain that defendants did not implement
policies and procedures that would have preserved embryos during a two-hour
power outage. (SAC ¶¶ 14, 70, 72.) However, these cryopreservation services were
also part of the fertility services provided to plaintiffs. (SAC ¶ 71.)
Accordingly, any negligence in failing to preserve the embryos is professional
negligence.
Because plaintiff pleads a separate cause of action for
medical malpractice, the second cause of action for negligence is duplicative. A “merely duplicative pleading which adds
nothing to the complaint by way of fact or theory” is not sufficient to survive
demurrer. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d
1128, 1135.)
The demurrer to the second cause of action is SUSTAINED.
B.
Third Cause of Action: Gross Negligence
Defendants argue that there is no cause of action for gross
negligence.
“Gross negligence” is generally recognized to include a
“failure to employ even slight care,” or “an extreme departure from the
ordinary standard of conduct.” (City of Santa Barbara v. Superior Court
(2007) 41 Cal.4th 747, 778; Rosencrans v. Dover Images, Ltd. (2011) 192
Cal.App.4th 1072, 1082.) However, there is no distinct cause of action for
gross negligence apart from negligence. (Continental Insurance Co. v.
American Protection Industries (1987) 197 Cal.App.3d 322, 328-330 [“[I]n
light of the adoption of the doctrine of comparative negligence in California,
any attempt to categorize gross negligence separately from ordinary negligence
is unnecessary”].) Plaintiffs do not address how the holding of Continental
Insurance is inapplicable. Accordingly, the cause of action of gross
negligence is duplicative of the medical malpractice (i.e., professional
negligence) cause of action.
The demurrer to the third cause of action is SUSTAINED.
C.
Fourth Cause of Action: Lack of Informed
Consent – Medical Battery
Defendants contend that a cause of action for lack of
informed consent sounds in negligence and is therefore duplicative of the first
cause of action. However, plaintiffs sufficiently allege a cause of action for
medical battery because they conditioned their consent to treatment on a proper
diagnosis.
“There are three elements to a claim for medical battery
under a violation of conditional consent: the patient must show his consent was
conditional; the doctor intentionally violated the condition while providing
treatment; and the patient suffered harm as a result of the doctor's violation
of the condition.” (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc.
(2003) 107 Cal.App.4th 1260, 1269.)
Plaintiffs allege that they consented to treatment, in vitro
fertilizations, and transfer of embryos on the condition that Paulson correctly
diagnosed ovarian production of high levels of progesterone. (SAC ¶¶ 86, 91.)
Paulson allegedly knew from a test reported on June 19, 2018 that plaintiff
Khachatryan had CAH but failed to notify plaintiffs of the test results. (SAC
¶¶ 42, 90, 91.) Instead, Paulson diagnosed Khachatryan with an ovarian disorder
and gave her treatment based on that diagnosis. (SAC ¶¶ 42, 91.) As a result of
the incorrect treatment, plaintiffs were harmed. (SAC ¶¶ 6, 7, 54, 55, 92, 93.)
Accordingly, the cause of action for medical battery is not
duplicative of the medical malpractice cause of action. The demurrer to the
fourth cause of action is OVERRULED.
II.
MOTION TO STRIKE PORTIONS OF SECOND AMENDED
COMPLAINT
Defendants move to strike references to punitive damages
contained in the Second Amended Complaint. The alleged conduct – misdiagnosing
plaintiff Khachatryan with an ovarian disorder instead of CAH and providing
corresponding treatment – was conduct “arising out of” the alleged professional
negligence at issue in this matter and directly related to the professional
medical services Paulson provided. (Central Pathology Service Med. Clinic,
Inc. v. Superior Ct. (1992) 3 Cal.4th 181, 191-193; Davis v. Superior
Ct. (1994) 27 Cal.App.4th 623, 626-629.) This is true even if the
misdiagnosis were intentional. (Central Pathology, 3 Cal.4th at 191 [“By
including a cause of action for an intentional tort in a negligence action,
plaintiffs would sidestep section 425.13(a) and the resulting procedural
requirements the Legislature sought to impose on them”].) As such, plaintiffs’
claim for punitive damages in connection therewith is subject to the procedural
requirements of CCP § 425.13, which plaintiffs have not met.
Although the Court entered an order allowing plaintiffs to
file the Second Amended Complaint, plaintiffs were still required to file a
motion to include a claim of punitive damages in the pleading. (CCP § 425.13(a)
[“The court may allow the filing of an amended pleading claiming punitive
damages on a motion by the party seeking the amended pleading and on the basis
of the supporting and opposing affidavits presented that the plaintiff has
established that there is a substantial probability that the plaintiff will
prevail on the claim pursuant to Section 3294 of the Civil Code”].) No such
motion has been filed.
Accordingly, the motion is GRANTED. The words “exemplary and
punitive damage” contained in paragraph 84 and paragraph 3 of the Prayer for
Relief are STRICKEN.