Judge David A. Rosen, Case 22GDCV00724 2023-03-24 Tentative Ruling

Judge: David A. Rosen, Case: 22GDCV00724, Date: 2023-03-24 Tentative Ruling

Case Number: 22GDCV00724 Hearing Date: March 24, 2023 Dept: E

Hearing Date: 03/24/2023

Case No: 22GDCV00724

Trial Date: Not Set

Case Name: MARTA SANTOS TOBAR, et al. v. RODOLFO QUINTERO, M.D., et al.

Tentative Ruling on Demurrer to FAC

Moving Party: Defendant Rodolfo Quintero

Responding Party: Plaintiff Marta Santos Tobar

Proof of service timely filed (CRC 317(b)):¿¿ ok¿

Correct Address (CCP §§ 1013, 1013(a)):¿¿¿¿ok¿

16/+5 day¿lapse (CCP §1005):¿¿ok¿¿

RELIEF REQUESTED:

Defendant Rodolfo Quintero requests the Court to sustain the demurrer to the first amended

complaint’s second cause of action for medical battery.

BACKGROUND:

The operative pleading is the first amended complaint (“FAC”) filed on January 5, 2023 by Plaintiffs Marta Santos Tobar, et al. (“Plaintiffs”) against Defendants Rodolfo Quintero, et al. (“Defendants”). The FAC alleges three causes of action: (1) medical negligence; (2) medical battery; and (3) loss of consortium.

Plaintiff Tobar’s second cause of action for battery alleges that Plaintiff Tobar consented to a laparoscopic ovarian cystectomy, but Defendant Quintero also performed a resection of myoma and polyps in Plaintiff Tobar’s colon without having obtained Plaintiff Tobar’s consent to such a procedure. (FAC ¶ 30.) Defendant Quintero also misidentified Plaintiff’s colon for her uterus even though Plaintiff Tobar previously informed Defendant Quintero that she had a hysterectomy (removal of uterus). (FAC ¶ 11.)

On February 6, 2023, Defendant Quintero filed a demurrer to the FAC arguing:

· The second cause of action for medical battery fails to state facts sufficient to constitute any cause of action pursuant to CCP § 430.10(e).

o There is no battery, only medical negligence because Plaintiff Tobar consented to the laparoscopic surgery and Defendant Quintero performed it. (Demurrer p. 9.)

In Opposition, Plaintiffs Tobar and Recinos argue:

· The FAC states a claim for medical battery.

o “Defendant Dr. Quintero’s argument that he ‘misidentified some other body organ for a uterus in a woman with a hysterectomy’ (Demurrer, 10:2-4) completely ignores the specific allegations in the Complaint that Dr. Quintero performed two (2) separate procedures: (1) the agreed ovarian cystectomy where the ‘cyst was identified, grasped and ... and cut after draining’; and (2) the unconsented procedure where he ‘Resected uterine myoma, polyps.’” (Opposition p. 7.)

In Reply, Defendant argues:

· Injuring one internal organ while doing surgery on another internal organ and misidentifying an internal structure in an operative report is not a battery. (Reply pp. 2-6.)

ANALYSIS:

Legal Standard

A demurrer tests the sufficiency of 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 contest--any 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 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.¿¿(Cal. Civ. Proc. Code §§ 430.30, 430.70.)¿ The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action.¿¿(Hahn¿147 Cal.App.4th¿at¿747.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Discussion

1. Meet and Confer

CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. (CCP § 430.41.) The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (CCP §§ 430.41(a)(4) & 435.5(a)(4).)

Here, the Court notes that Defendant Quintero complied with the meet and confer requirement. (Declaration of Dik ¶ 2.)

2. Second Cause of Action: Medical Battery

Defendant Quintero’s demurrer to the FAC’s second cause of action for medical battery should be overruled because Plaintiff Tobar has alleged a substantial deviation from the procedure consented to.

Defendant Quintero demurs to the second cause of action for medical battery for failing to state facts sufficient to constitute an action pursuant to CCP § 430.10(e) because Plaintiff Tobar consented to the laparoscopic ovarian cystectomy, and Defendant Quintero did just that. There is no battery, only medical negligence according to Defendant Quintero. In opposition, Plaintiff Tobar argues that Defendant Quintero exceeded the scope of the consent performed. Plaintiff Tobar consented to the laparoscopic ovarian cystectomy, and Defendant Quintero performed a completely different procedure without consent, specifically the resection of myoma and polyps in Plaintiff Tobar’s colon.

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

“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 v. Grant¿(1972) 8 Cal.3d 229, 239.)

“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, supra, 8 Cal.3d at pp. 240–241; Saxena v. Goffney¿(2008) 159 Cal.App.4th 316, 324; Conte v. Girard Orthopaedic Surgeons Medical Group, Inc.¿(2003) 107 Cal.App.4th 1260, 1267; Schiff v. Prados (2001) 92 Cal.App.4th 692, 701 Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844–845 see Townsend v. Turk¿(1990) 218 Cal.App.3d 278, 286-288.)

Here, the FAC alleges that Plaintiff Tobar sought treatment from Defendant Quintero who diagnosed an ovarian cyst. (FAC ¶ 10.) Defendant Quintero recommended a laparoscopic ovarian cystectomy and Plaintiff Tobar agreed but did not consent to any other medical procedure. (FAC ¶ 10.) When Plaintiff Tobar consulted with Defendant Quintero, she informed him that she had a hysterectomy (removal of uterus). (FAC ¶ 11.) On October 20, 2021, Defendant Quintero performed the laparoscopic ovarian surgery. (FAC ¶ 12.) “In his operative report, Dr. Quintero stated that during the procedure: ‘The cyst was identified, grasped, and using monopolar cauterized and cut after draining. The cyst was placed inside an endo catch bag and removed.’ Dr. Quintero reported findings: ‘Anteflexed anteverted uterus, cm submucous myoma, polyps, normal bilateral ostia and uterine cavity.’ Defendant Quintero further reported: ‘Specimen: Resected uterine myoma, polyps.’” (FAC ¶ 13.)

During the laparoscopic cystectomy, Plaintiff Tobar sustained an unrecognized perforated colon when Defendant Quintero resected myoma and polyps from Plaintiff Tobar’s colon (misidentified as uterus). (FAC ¶¶ 17-19.) “Dr. Quintero’s resection or removal of polyps from Ms. Santos Tobar’s colon was not an accidental injury or ‘nick’ to the colon occurring during the agreed laparoscopic cystectomy. To the contrary, Dr. Quintero intentionally and deliberately made a decision to resect or remove polyps from the colon (which was described in his operative report as ‘resected ... polyps”’, after he erroneously identified Ms. Santos Tobar’s colon as a uterus) without having requested or obtained Ms. Santos Tobar’s consent to such a procedure.” (FAC ¶ 31.)

Based on the foregoing, the Court should overrule Defendant Quintero’s demurrer because Plaintiff Tobar has alleged a substantial deviation from the procedure consented to. Defendant Quintero performed two separate procedures, namely the laparoscopic ovarian cystectomy and the removal of polyps and myoma from Plaintiff Tobar’s colon. That Defendant Quintero misidentified Plaintiff Tobar’s colon as her uterus even though Plaintiff Tobar had previously informed Defendant Quintero that her uterus had been remove could be medical negligence but that should not distract from the fact that Defendant Quintero performed a substantially different treatment for which consent was not obtained. Plaintiff Tobar consented to the laparoscopic ovarian cystectomy but did not consent to any other medical procedure, including resection of myoma and polyps from Plaintiff Tobar’s colon.

Defendant Quintero relies on Cobbs v. Grant (1972) 8 Cal.3d 229. In Cobbs, the plaintiff patient went if for an operation of his duodenal (intestinal) ulcer, and during the operation plaintiff’s artery was severed at the hilum of his spleen. (Cobbs v. Grant (1972) 8 Cal.3d 229.) Unlike the defendant in Cobbs, however, Defendant Quintero did not perform the identical operation to which Plaintiff Tobar had consented. (Id. at 241.)

TENTATIVE RULING:

Defendant Quintero’s demurrer to the second cause of action for medical battery is OVERRULED because Plaintiff Tobar has alleged a substantial deviation from the procedure to which Plaintiff consented.

The Court will set a Case Management Conference at this hearing.