Judge: Gregory Keosian, Case: 23STCV09380, Date: 2023-10-05 Tentative Ruling
Case Number: 23STCV09380 Hearing Date: October 5, 2023 Dept: 61
Defendant Alyssa Mae Quimby, M.D.’s
Demurrer to the Complaint is OVERRULED. Defendant to answer within 30 days.
I.
DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) In particular, as is
relevant here, a court should sustain a demurrer if a complaint does not allege
facts that are legally sufficient to constitute a cause of action. (See
id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We
treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. . . . Further, we give
the complaint a reasonable interpretation, reading it as a whole and its parts
in their context.” (Id. at p.
318; see also Hahn. v. Mirda (2007)
147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the
evidence or other extrinsic matters. Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. [Citation.]”)
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer
for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
Defendant Alyssa
Mae Quimby, M.D. (Defendant) demurrers to the second cause of action for
medical battery on the grounds that Plaintiff Holly Reyes (Plaintiff) has
alleged only an inadvertent perforation of her uterus during a medical
procedure, not the performance of a different procedure than she consented to,
as a claim for medical battery would require. (Demurrer at pp. 5–9.)
It is well
settled that a physician who performs a medical procedure without the patient's
consent commits a battery irrespective of the skill or care used. In the
medical context, the law has developed the doctrine of informed consent, which
requires a patient's consent be an informed consent to be effective and imposes
a duty on the physician to provide material information about any proposed
treatment, such as risks and alternative procedures. Under the informed consent
doctrine, the patient must have the capacity to reason and make judgments, the
decision must be made voluntarily and without coercion, and the patient must
have a clear understanding of the risks and benefits of the proposed treatment
alternatives or nontreatment, along with a full understanding of the nature of
the disease and the prognosis.
. . .
A typical
medical battery case is where a patient has consented to a particular
treatment, but the doctor performs a treatment that goes beyond the consent.
When an action is based upon the theory of surgery beyond consent, the gist of
such action is the unwarranted exceeding of the consent. This is a theory of
technical battery. For example, the patient consents to an electromyogram, a
relatively uncomplicated procedure, but the doctor performs a myelogram, which
involves a spinal puncture. Or, the patient consents to an operation on his
right ear, but the doctor operates on the left ear.
(Conte v. Girard Orthopaedic
Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260,
1266–68, internal quotation marks and citations omitted.)
A medical battery is alleged here. Plaintiff alleges that
she consented to a hysteroscopic endometrial polyp resection, and received
instead a resection of her fallopian tubes. (Complaint ¶¶ 8, 16.) Although
Defendant argues that there was no intent to deviate from the consented-to
procedure, the authority holds that in the medical battery context, the
requisite intent is measured by the substantiality of the deviation: “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.” (Cobbs v. Grant
(1972) 8 Cal.3d 229, 240.) This applies even when the deviation from the
consent is inadvertent. (See Kaplan v. Mamelak (2008) 162
Cal.App.4th 637, 639 [holding that complaint stated medical battery claim when
the surgeon “intend[ed] to excise the herniated portion of disk T8–9,”
but during surgery “mistook the disks” and “operated on the disks between the
sixth and seventh (T6–7) and seventh and eighth thoracic vertebrae (T7–8),
instead of the targeted—and correct—T8–9”].) Whether the procedure that
Plaintiff alleges is actually “substantially different” is “a factual question
for a finder of fact to decide.” (Id. at p. 647.) Defendant’s argument
that the Kaplan holding is inconsistent with the Cobbs holding is
unsupported by authority.
The demurrer is OVERRULED.