Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a medical malpractice case.  Defendants David Kamen, Peter Mendelsohn and Specialty Surgical Center performed cataract surgery on Plaintiff Kevin McGinn’s right eye.  Plaintiff alleges Defendants performed the cataract surgery “knowing that insufficient sedation and anesthesia was provided”.  (Second Amended Complaint (“SAC”) ¶23.)  Plaintiff claims that during the procedure, he indicated to both individual Defendants that he was awake and had not been properly anesthetized and sedated and was aware of the surgery and could feel the incisions made.  (Id. ¶11.)   Despite this, Plaintiff claims Defendants proceeded with the surgery, knowing he was insufficiently sedated.  (Id.) 

The operative complaint alleges four claims for (1) medical negligence, (2) corporate negligence, (3) assault and battery and (4) intentional infliction of emotional distress.   

This hearing is on Defendant Specialty Surgical Center, LLC’s (“Moving Defendant’s”) demurrer and motion to strike the SAC.  Moving Defendant argues that (1) Plaintiff’s first cause of action for medical negligence fails because Plaintiff has not alleged causation on the part of Moving Defendant, (2) Plaintiff’s second cause of action for corporate negligence fails to plead the essential elements of breach and causation and is also duplicative of Plaintiff’s medical negligence claim, and (3) Plaintiff’s third cause of action for assault and battery fails because Plaintiff has not alleged what touching or contact was performed by Moving Defendant that would give rise to a claim for medical battery and the Complaint does not plead the elements of a claim for assault.  Moving Defendant also argues that all four claims are fatally uncertain as the Complaint fails to specify what acts or omissions on the part of Moving Defendant give rise to each claim.    

REQUEST FOR JUDICIAL NOTICE 

Moving Defendant requests judicial notice of (1) Plaintiff’s first amended complaint (“FAC”), (2) the notice of ruling on Moving Defendant’s demurrer to the FAC, (3) Plaintiff’s second amended complaint, (4) the fact that Moving Defendant is a certified ambulatory surgery center under Health & Safety Code §1248.1 et seq. and within the statutory definition of “health care provider” as defined under Code Civ. Proc. §425.13, and (5) the fact that the Medical Board of California fully restored the medical license of Peter Mendelsohn, M.C. to renewed/current status and free of probation requirements effective March 30, 2015.  There is no opposition to the request for judicial notice.  The Court grants the request pursuant to Cal. Evid. Code §§ 452(d), 452(h) and 453. 

LEGAL STANDARD 

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A general demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

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.”).)  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.)  

MEET AND CONFER¿ 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.¿ (Code Civ. Proc. §§ 430.41(a), 435.5(a).)¿ The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)¿ Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)¿ Moving Defendant submits the declaration of Bryan Malone who attests the parties met and conferred by telephone at least five days before the demurrer and motion to strike were filed, which satisfies the requirements of §§430.41 and 435.5.¿ 

DISCUSSION 

Medical Negligence 

Moving Defendant argues that Plaintiff fails to state a claim for medical negligence because Plaintiff has not alleged causation.  The Court disagrees.   

To state a claim for medical negligence, a plaintiff must allege (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise, (2) a breach of the duty, (3) a proximate causal connection between the negligent conduct and the injury, and (4) resulting loss or damage.  (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) 

Here, Plaintiff alleges that Moving Defendant failed to screen the expertise of the individual defendants and to monitor the quality of care provided at their health care facilities.  (SAC ¶18.)  Plaintiff further alleges that had Moving Defendant properly screened Defendant Mendelsohn, it would not have allowed him to practice in its facility when he had been subject to prior discipline by the Medical Board.  (Id.)  Without access to Moving Defendant’s facility, Mendelsohn would not have been able to perform the procedure on Plaintiff.  At the pleading stage, these facts are sufficient to support a finding of causation.   

Moving Defendant argues that there is no causal nexus because while Mendelsohn was placed on probation by the Medical Board of California earlier in his career, his license was fully restored to renewed/current status at the time of the procedure.  But regardless of whether Mendelsohn was on probation at the time of the surgery, his past discipline is relevant to a proper screening, and it is a question of fact for the jury as to whether given his past discipline, he should have been allowed to practice at Moving Defendant’s facility.    

Moving Defendant also argues that Plaintiff’s claim for medical negligence is uncertain because it fails to specifically allege what Moving Defendant did or did not do with respect to Plaintiff’s care and treatment, and how, if at all, that caused or contributed to his alleged injury and his alleged damages.  The Court disagrees.   

A¿demurrer for uncertainty is a¿special demurrer that is¿disfavored and strictly construed because “ambiguities can reasonably be clarified under modern rules of discovery.”  (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal. App. 4th 1125, 1135.) ¿Moreover, special demurrers will be overruled where “the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable by invoking discovery procedures… .” (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Furthermore, to sustain a demurrer for uncertainty, the complaint must be so vague or ambiguous that the defendant cannot reasonably respond.  (Id. at 614.) 

Here, Plaintiff’s medical negligence claim is not so vague or ambiguous that Moving Defendant cannot reasonably respond.  Plaintiff has alleged what Moving Defendant did or failed to do – namely, that they failed to screen the expertise of the individual defendants and failed to monitor the quality of care provided in their facilities.  Plaintiff has also alleged how the alleged acts or omissions caused Plaintiff’s injury – namely, that had Moving Defendant properly screened Mendelsohn, he would not have been allowed to practice at Moving Defendant’s facility and operate on Plaintiff.  These facts are sufficient to support a claim for medical negligence at the pleading stage.     

Accordingly, the Court overrules the demurrer to the first cause of action.   

Corporate Negligence 

Moving Defendant argues that Plaintiff fails to state a claim for corporate negligence because Plaintiff has not sufficiently alleged breach and causation and the claim for corporate negligence is duplicative of the medical negligence claim.  The Court agrees as to the second ground. 

A demurrer can be sustained based on the ground that a cause of action is duplicative.  (See¿Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 (“Regardless, as Parth argues, the cause of action for breach of governing documents appears to be duplicative of the cause of action for breach of fiduciary duty.  This court has recognized this as a basis for sustaining a demurrer.”); see also¿Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135¿(“But stating them in two¿causes of action, as real party has done, is merely¿duplicative pleading which adds nothing to the complaint by way of fact or¿theory.  For that reason, the demurrer should have been sustained as to this cause of action . . . .”).) 

Here, Plaintiff’s claim for corporate negligence adds nothing to the complaint by way of fact or theory.  The facts pleaded for both claims are virtually identical.  And both claims are negligence-based.  Moreover, the Opposition fails to address Moving Defendant’s argument that the claims are duplicative.   

Accordingly, the Court sustains the demurrer to the second cause of action for corporate negligence without leave to amend.     

Assault and Battery 

Moving Defendant argues that Plaintiff has not stated a claim for assault but his allegations merely go to a claim for battery.  The Court disagrees.   

The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3)¿ plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI No. 1301;¿Plotnik v. Meihaus¿(2012) 208 Cal.App.4th 1590, 1603–1604.) 

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.¿(CACI No. 1300; see¿Kaplan v. Mamelak¿(2008) 162 Cal.App.4th 637, 645.)   

The¿differences between assault and battery are that assault may involve a threat to touch any part of plaintiff’s person and no actual contact is required, while battery requires actual contact.  Battery includes assault; in fact, battery is a consummated assault.  Accordingly, Defendant’s argument that Plaintiff has only alleged battery but not assault is not well-taken.  By alleging battery, Plaintiff necessarily alleges assault.     

Moving Defendant next argues that Plaintiff cannot state a claim for battery because Plaintiff consented to the procedure performed and medical battery requires that a doctor perform a substantially different medical procedure than one to which the patient consented.  The Court agrees.   

As a general rule, one who consents to a touching cannot recover in an action for battery.  (So v. Shin (2013) 212 Cal.App.4th 652, 668-69.)  Thus, one who gives consent to a surgery cannot recover for assault and battery where the consented to surgery was actually performed.   

However, it is well recognized a person may place conditions on the consent.  If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for battery.  (Ashcraft v. King (1991) 228 Cal.App.3d 604, 610.) 

The rule of conditional consent has been applied in battery actions against physicians and surgeons in California.  (Ashcraft, 228 Cal.App.3d at 610 (consent to blood transfusion but only using blood from the patient’s family); Grieves¿v.¿Superior Court¿(1984) 157 Cal.App.3d 159, 165¿(consent to tubal ligation only if baby born without deformities);¿Keister v.¿O'Neil (1943) 59 Cal.App.2d 428, 434-435¿(operation consented to but “absolutely did not want . . . a spinal anesthetic”).) 

However, breach of conditional consent has only been found in situations where the condition is specific and is not intangible.  For instance, it is found when a patient conditions her consent to surgery during the AIDS crisis on the use of “family blood” during operation.  (Ashcraft, 228 Cal.App.3d at 613.)  Also, the condition is specific when a patient conditions tubal ligation on the birth of a baby without deformities.  (Grieves, 157 Cal.App.3d at 165.)   

On the contrary, in Conte v. Girard Orthopaedic Surgeons, Medical Group, Inc. (2003) 107 Cal.App.4th 1260, a nonsuit case involving a battery claim, the plaintiff argued his consent to shoulder surgery was conditioned upon a repair of his shoulder fractures with internal fixation hardware.  When the surgeon did not repair the fractures, the plaintiff claimed his conditional consent had been violated.  The Conte surgeon began a surgical procedure arthroscopically and determined that further surgery to repair the shoulder fractures would cause disintegration of the bone, and thus, the surgeon did not repair the bone.  The Conte plaintiff wanted surgery with a repair but got surgery without a repair.  The Conte court declined to extend a battery cause of action, where treatment was within the bounds of consent, but less than plaintiff’s authorization.  (Conte, 107 Cal.App.4th at 1268.)  The Conte court found the alleged condition of a repair to be an “intangible condition,” unlike the “specific condition” found in Ashcraft.  (Id. at 1269.) 

In the present case, Plaintiff’s claim of battery rests on the theory that although the cataract surgery was consented to, the consent was subject to a condition: the surgery had to be performed with adequate anesthesia.  (Ashcraft, 228 Cal.App.3d at 610.)  Plaintiff, however, does not quantity what constitutes “adequate anesthesia.”  It is an intangible condition not based on any objectively verifiable fact, but on a physician’s subjective medical judgment which sounds purely in negligence.  “Adequate anesthesia” is not a “specific condition” as found in Ashcraft or Grieves.  

Further, in cases of conditional consent, the defendant must have an “inten[t] to perform the procedure with knowledge that the condition had not occurred.”  (Dennis v. Southland (2009) 174 Cal.App.4th 540, 544.)  The defendant must have knowledge of the condition to intentionally deviate from it.  (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1498.)   

Thus, the court in Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, noted that a battery claim based upon conditional consent would not lie where the plaintiff fails to explicitly state an express condition.  (Id. at 1269.)  Likewise, the Piedra court found that a claim of battery based upon conditional consent would not lie where the plaintiffs failed to communicate their condition to the defendant, and the defendant did not have knowledge of the condition.  (123 Cal.App.4th at 1498.) 

Here, there are no allegations establishing that Plaintiff expressly communicated the condition to his consent.  There are no allegations about the terms of Plaintiff’s condition (i.e., how much anesthesia he wanted to receive), to whom he communicated this condition and when the communication took place.  In short, the SAC is silent as to whether Plaintiff ever communicated his conditional consent to anyone prior to undergoing the surgery.  Instead, it merely alleges that Plaintiff consented to the procedure only if sufficient anesthesia was used.    (SAC ¶22.)  This allegation does not say Plaintiff communicated his condition to anyone.   

Accordingly, the Court sustains the demurrer to Plaintiff’s third cause of action for assault and battery without leave to amend. 

Motion to Strike 

Moving Defendant moves to strike paragraph 18 of the SAC on the ground that it is purportedly false.  The Court disagrees. 

Paragraph 18 of the SAC states in relevant part: “Defendant Specialty Surgical Center was furthermore on notice of the fact that Defendant Mendelsohn had been subject to discipline by the State of Medical Board which had resulted in the revocation of his medical licenses which was stayed with a three year period of probation.  Said discipline related to the practice of medicine.  If Defendant Specialty Surgical Center had performed reasonable screening procedures, Defendant Mendelsohn would not have been allowed privileges to practice anesthesiology in Defendant’s surgical center.”   

Moving Defendant argues that this paragraph is false because “the Medical Board of California fully restored Dr. Mendelsohn’s license to renewed/current status and free of probation requirements effective March 30, 2105, i.e., some seven years before Plaintiff’s procedure here.”  But nothing in Paragraph 18 states Mendelsohn’s license was suspended at the time of the procedure.  It merely notes that it was suspended at some point, and this prior discipline should have caused Moving Defendant to disallow Mendelsohn’s privileges to practice anesthesiology in Moving Defendant’s surgical center.  Accordingly, the allegations in paragraph 18 are not inconsistent with the fact that the Medical Board restored Dr. Mendelsohn’s license to practice medicine, and there is no reason to strike the allegations as false.  Accordingly, the Court denies the motion to strike.   

CONCLUSION 

Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendant Specialty Surgical Center, LLC’s demurrer and DENIES Defendant’s motion to strike.   

 

IT IS SO ORDERED. 

 

DATED: April 17, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court