Judge: Daniel S. Murphy, Case: 22STCV17687, Date: 2022-10-21 Tentative Ruling

Case Number: 22STCV17687    Hearing Date: October 21, 2022    Dept: 32

BACKGROUND

            On May 27, 2022, Plaintiffs filed this medical malpractice action on behalf of their deceased son, who died after several MRI scans. Plaintiffs allege that Decedent was improperly exposed to the chemical gadolinium throughout the course of the MRIs, resulting in severe burns, health complications, and eventually death. Plaintiffs allege that Decedent had a history of hypersensitivity to gadolinium and that Defendants were put on notice of Decedent’s condition and should have been aware of the risks of gadolinium exposure in children. The complaint alleges causes of action for (1) medical malpractice, (2) medical malpractice-lack of informed consent, (3) medical battery, and (4) a survival action.

            On August 18, 2022, Defendant Children’s Hospital of Los Angeles filed the instant demurrer to the second cause of action for lack of informed consent on the grounds that it duplicates the first cause of action for medical malpractice.

LEGAL STANDARD

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. (Code Civ. Proc., § 430.30, subd. (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. (Ibid.) 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, supra, 147 Cal.App.4th at 747.)

A demurrer for uncertainty is disfavored and is only granted “if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) A complaint does not need to be a “model of clarity” to survive a demurrer because most ambiguities can be clarified through discovery. (Ibid.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Kjar Decl. ¶¶ 3-4.)

DISCUSSION

            A duplicative pleading may be properly stricken. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.) A pleading is duplicative if it “adds nothing to the complaint by way of fact or theory.” (Ibid.) For example, alleging identical allegations in two causes of action adds nothing to the complaint. (Ibid.) Or, where a cause of action merely “combines all the preceding causes, alleging they are joint and concurrent causes of plaintiffs' damages,” it also adds nothing to the complaint. (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 498, 501.)

The complaint here does not satisfy the standard for being duplicative. The first cause of action for medical malpractice alleges that Defendants were careless and unskillful in the management of Decedent’s condition, as well as reckless in their administration of the MRIs. (Compl. ¶ 61.) By contrast, the second cause of action for lack of informed consent alleges that Decedent’s parents were not adequately informed of the risks of the MRI treatment and would not have consented to such treatment had they been properly notified. (Id., ¶ 68.) Although both alleged failures are considered negligence, Plaintiffs are entitled to pursue alternate theories of recovery. (See Gherman v. Colburn (1977) 72 Cal.App.3d 544, 565 [“A plaintiff may plead cumulative or inconsistent causes of action”].)

The second cause of action is not a duplicative pleading that offers nothing by way of fact or theory. Instead, the second cause of action is based on distinct facts and theory. The failure to administer the MRIs with due care is distinct from the failure to inform Decedent’s parents of the risks associated with MRIs. Defendant relies on Cobbs v. Grant (1972) 8 Cal.3d 229 for the proposition that lack of informed consent is a negligence claim, thereby making it duplicative of the first cause of action, which is also based in negligence. However, Cobbs did not hold that a plaintiff could not pursue negligence liability under distinct theories. In fact, Cobbs actually acknowledged the distinction described above: “The jury could have found for plaintiff either by determining that defendant negligently performed the operation, or on the theory that defendant's failure to disclose the inherent risks of the initial surgery vitiated plaintiff's consent to operate.” (Cobbs, supra, 8 Cal.3d at p. 235.) The court in Cobbs found that the plaintiff had failed to present sufficient evidence to sustain his theory that the surgery was negligently performed, but remanded for a new trial on the issue of whether the defendant obtained the plaintiff’s informed consent. (Id. at pp. 237-38.)

Although Plaintiffs are substantively seeking redress for one injury, they are entitled to pursue liability through distinct theories. Even if there can only be one duty of care, Plaintiffs are entitled to have multiple theories for how Defendants breached that duty. That their complaint is formatted to represent these distinct theories is not a reason for sustaining the demurrer. Even if Plaintiffs could have alleged all pertinent facts under one heading, neither inartful pleading nor poor formatting are reasons for sustaining a demurrer. (See Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364-65; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Lastly, Defendant argues that it is the physician’s duty to obtain informed consent and therefore only the treating physician may be held liable. However, none of Defendant’s cited caselaw holds that a hospital cannot be held liable for informed consent. (See Reply 5:6-18.)

CONCLUSION

            Defendant Children’s Hospital of Los Angeles’s demurrer is OVERRULED.