Judge: Edward B. Moreton, Jr., Case: 23SMCV03170, Date: 2024-01-10 Tentative Ruling
Case Number: 23SMCV03170 Hearing Date: January 10, 2024 Dept: 205
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KEVIN MCGINN, Plaintiff, v. PETER B. MENDELSOHN, M.D., et al., Defendants. |
Case No.:
23SMCV02329 Hearing Date: January 10, 2024 [TENTATIVE]
order RE: DefendanT specialty surgical center, LLC’s DEMURRER TO COMPLAINT |
BACKGROUND
This
is a medical malpractice case. Defendants
David Kamen, Peter Mendelsohn and Specialty Surgical Center, LLC 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”. (First
Amended Complaint (“FAC”) ¶22.) 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 to the Complaint. Moving Defendant argues that (1) Plaintiff’s first
cause of action for medical negligence fails because Plaintiff has not alleged
duty, breach or 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, (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, (4) Plaintiff’s fourth
cause of action for intentional infliction of emotional distress fails because
Plaintiff does not plead facts showing extreme and outrageous conduct or intent
to cause or reckless disregard of the possibility of causing emotional
distress. 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 Plaintiff’s original complaint, first
amended complaint, and the Court’s order sustaining the demurrer of Defendant
David Kamen, MD. The Court grants the
request pursuant to Cal. Evid. Code §§ 452(d) and 453.
LEGAL STANDARD
“[A] demurrer tests the legal sufficiency of
the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235
Cal.App.4th 385, 388.) A 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 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 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 requires that before
the filing of a demurrer the moving party “shall meet and confer in person or
by telephone” with the party who filed the pleading that is subject to demurrer
for the purpose of determining whether an agreement can be reached that would
resolve the objections to be raised in the demurrer. (Code Civ. Proc. § 430.41(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).) Thereafter, the moving
party shall file and serve a declaration detailing their meet and confer
efforts. (Code Civ. Proc. § 430.41(a)(3).)
Moving Defendant submits the Declaration of Bryan Malone which fails to
show the parties met and conferred by telephone or in person. The declaration only states the parties
“completed our meet and confer on November 6, 2023, ultimately agreeing to
disagree.” Notwithstanding, the Court
cannot overrule or sustain a demurrer on the ground of an insufficient meet and
confer. (Code Civ. Proc. § 430.41(a)(4).) Accordingly, the Court will consider the
demurrer on its merits, although it cautions the parties that any future
failures to comply with their meet and confer obligations will result in the
continuance of the motion.
DISCUSSION
Medical Negligence
Moving
Defendant argues that Plaintiff fails to state a claim for medical negligence
because Plaintiff has not alleged duty, breach or causation. The Court agrees.
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. But Plaintiff
fails to allege how this failure to screen and monitor caused any damage to
Plaintiff. There is no indication that
any screening or monitoring would have prevented the harm to Plaintiff. There is no allegation, for example, that the
individual defendants had previously operated on patients with insufficient
sedation.
Plaintiff’s
reliance on Elam v. College Park Hosp. (1982) 132 Cal.App.3d 332 is
unavailing. Elam stands for the
proposition that a hospital owes a duty to patients to insure the competency of
its medical staff and to evaluate the quality of medical care rendered on its
premises. It does not say, however, that
a plaintiff need not plead causation in order to state a claim for medical
negligence.
Accordingly,
the Court sustains 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 alleged breach and causation, and in any event, the
claim for corporate negligence is duplicative of the medical negligence
claim. The Court agrees.
Plaintiff
alleges that Moving Defendant “failed to screen the expertise of Defendants
Kamen and Mendelsohn and monitor the quality of care provided.” (FAC ¶17.) Plaintiff, however, does
not allege facts to show how this failure to screen resulted in the particular
harm suffered by Plaintiff, a surgery with insufficient anesthesia. That is, there are no allegations supporting
causation.
Accordingly, the Court sustains the demurrer
to the second cause of action for corporate negligence.
Assault and Battery
Moving
Defendant argues that Plaintiff cannot state a claim for assault and 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.
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.)
As
a general rule, one who consents to a touching cannot recover in an action for
battery or assault. (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, a condition
that a transfusion should only use “family blood” is a specific condition. (Ashcraft, 228 Cal.App.3d at
613.) 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.
Accordingly, the Court sustains the demurrer to Plaintiff’s third
cause of action for assault and battery.
Intentional
Infliction of Emotional Distress
Moving Defendant argues that Plaintiff’s
claim for intentional infliction of emotional distress fails as a matter of law
because Plaintiff has not alleged extreme and outrageous conduct or that Moving
Defendant intended to cause or acted in reckless disregard of the probability
of causing emotional distress. The Court
disagrees.
The elements of a claim for intentional infliction of
emotional distress are: “(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.
(Wilson v. Hynek (2012) 207 Cal.App.4th 999,
1009.) To be outrageous, conduct must be
“so extreme as to exceed all bounds of that usually tolerated in a civilized
community.” (Id.) The defendant must have engaged in conduct
“intended to inflict injury or engaged in with the realization that injury will
result. It is not enough that the
conduct be intentional and outrageous.
It must be conduct directed at the plaintiff, or occur in the presence
of a plaintiff of whom the defendant is aware.”
(Christenson v. Superior Court (1991) 54 Cal.3d 868, 903.)
To avoid a demurrer, the plaintiff must allege with
“great specificity the acts which he or she believes are so extreme as to
exceed all bounds of that usually tolerated in a civilized society.” (Vasquez v. Franklin Management Real
Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) “Whether behavior is extreme or outrageous is
a legal determination to be made by the court, in the first instance.” (Faunce v. Cate (2013) 222 Cal.App.4th
166, 172; Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34,
44.)
Plaintiff argues Moving Defendant is vicariously liable for
the intentional conduct of the individual defendants. Plaintiff claims that during the procedure, he indicated to the surgeon
and anesthesiologist 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 the surgeon
and anesthesiologist proceeded with the surgery, knowing he was insufficiently
sedated. (Id.) These facts are sufficient to support a
finding that the doctors’ conduct was extreme and outrageous.
Moreover, Plaintiff has sufficiently alleged vicarious
liability on the part of Moving Defendant for this intentional conduct. Plaintiff cites in support to Doe v. Roman
Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953. That case held that a principal may be liable
for the wrongful conduct of its agent, even if that conduct is criminal, in one
of three ways: (1) if the principal directly authorizes the tort to be
committed; (2) if the agent commits the tort in the scope of his agency and in
performing service on behalf of the principal, or (3) if the principal
ratifies its agent’s conduct after the fact by voluntarily electing to adopt
the agent’s conduct as its own. (Id. at 969.) Here, Plaintiff's complaint alleges individual
defendants “were the employees, agents, servants, independent contractors
and/or joint venturers of their co-defendants and were as such, acting within
the course, scope and authority of said agency, employment and/or
venture.” (FAC ¶6.) These allegations
are sufficient to support a claim of vicarious liability on the part of Moving
Defendant.
Accordingly, the Court overrules the demurrer to
Plaintiff’s fourth cause of action for intentional infliction of emotional
distress.
CONCLUSION
Based on the foregoing, the Court SUSTAINS
IN PART and OVERRULES IN PART Defendant Specialty Surgical Center,
LLC’s demurrer with 20 days’ leave to amend.
IT IS SO ORDERED.
DATED: January 10, 2024 ___________________________
Edward
B. Moreton, Jr.
Judge
of the Superior Court