Judge: Daniel M. Crowley, Case: 21STCV28653, Date: 2022-10-20 Tentative Ruling

Case Number: 21STCV28653    Hearing Date: October 20, 2022    Dept: 28

Defendant Pasadena Hospital Association, LTD. dba Huntington Memorial Hospital’s Demurrer

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On August 3, 2021, Plaintiff Melissa Montero (“Plaintiff”) filed this action against Defendants Troy LaMar, M.D. (“LaMar”), Noah Swann, M.D. (“Swann”) and Pasadena Hospital Association, LTD. dba Huntington Memorial Hospital (“PHA”) for negligence, intentional infliction of emotional distress and medical battery.

On November 29, 2021, LaMar filed an answer.

On August 10, 2022, PHA filed a Demurrer to be heard on October 20, 2022. On October 6, 2022, Plaintiff filed an opposition. On October 13, 2022, PHA filed a reply.

Trial is scheduled for August 7, 2023. 

PARTY’S REQUESTS

PHA requests the Court sustain PHA’s demurrer to the second and third causes of action.

Plaintiff requests the Court overrule the demurrer.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

“‘[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . . .’ ‘The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.’” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 internal citations omitted.)

Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (CCP § 435(b).) 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 asserted 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." (CCP § 436.) The Court's authority to strike improper pleadings includes the power to strike those pleadings that are "not filed in conformity with its prior ruling." (Janis v. California State Lottery Com (1998) 68 Cal.App.4th 824, 829.)

“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 v. Grant (1972) 8 Cal.3d 229, 240.)

In order for a hospital to be found liable under a theory of ostensible agency, Plaintiff must prove two elements: “(1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital, and (2) reliance on that apparent agency relationship by the plaintiff.” (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal App. 4th 1448, 1454.)

DISCUSSION

Plaintiff’s complaint alleges that Plaintiff was admitted to PHA with a complaint of lower abdominal pain, lasting over 24 hours, and diarrhea. Following a CT scan, Defendants advised Plaintiff she needed immediate surgery to remove her appendix; she alleges she was not provided with the option to not have surgery or seek additional testing. During the surgery, the appendix appeared normal; Plaintiff alleges that a hemorrhagic ovarian cyst and endometriosis was identifiable as the apparent cause of her pain. Despite the appendix looking normal, LaMar, assisted by Swann, removed her appendix. Post-surgery, LaMar confirmed the issue was endometriosis, but stated they still removed her appendix, despite it being healthy. Plaintiff alleges that as a result of this surgery, she has scars that have formed keloids. Plaintiff alleges that she only consented to have her appendix removed on the basis that she had appendicitis—she did not consent to the removal of a healthy organ.

PHA argues that the cause of action for medical battery cannot stand as there are no facts alleged that indicate PHA is liable for the surgery. It specifically argues that PHA did not perform the surgery, that no facts alleged support that PHA caused the surgery to be performed outside the scope, or that consent was given to PHA. This is effectively the same as their second argument, which his that PHA is not liable for the actions of LaMar and Swann because “any attempt to claim that the doctors were employees of the hospital and therefore the hospital is liable for the doctor’s actions will be a meritless claim.” PHA states that this is an establish principles in California and that none of the exceptions apply.

The Court agrees, in part; in order for a hospital to be found liable for the actions of a doctor, a Plaintiff must establish that the doctor was an ostensible agent of the hospital. This requires conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital, and reliance on that apparent agency relationship by the plaintiff. Although Plaintiff’s complaint alleges that Swann was employed by PHA, there is no actual factual allegations to provide a basis for ostensible agency. The Court sustains the demurrer as to this cause of action.

The Court similarly sustains the cause of action for IIED. IIED requires extreme or outrageous conduct; unless the subject doctors are established as ostensible agents of PHA, there is no way to attribute any conduct to PHA, much less extreme and outrageous conduct. The Court sustains the demurrer.

Plaintiff’s opposition notes that the Court previously overruled LaMar’s demurrer that argued similar points to this. The distinctive difference between the two is that LaMar was a treating doctor, while PHA is a hospital. Without ostensible agency, Plaintiff does not articulate a cause of action against PHA.

CONCLUSION

Defendant Pasadena Hospital Association, LTD. dba Huntington Memorial Hospital’s Demurrer is SUSTAINED, with 30 days leave to amend.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.