Judge: James A. Mangione, Case: 37-2023-00021780-CU-MM-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  09:00:00 AM  C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited  Medical Malpractice Demurrer / Motion to Strike 37-2023-00021780-CU-MM-CTL BARNEY VS UCSD CENTER FOR SURGERY OF ENCINITAS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant UCSD Center for Surgery of Encinitas's Demurrer is sustained without leave to amend.

Plaintiff's second cause of action for negligent hiring, supervision and retention is subsumed by his cause of action for professional negligence. (See Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1000 (holding that the same factual predicate cannot support a cause of action for ordinary negligence and professional negligence.) Both causes of action assert that Plaintiff was injured by improperly sterilizing the surgical equipment/facilities used to perform the shoulder surgery on Plaintiff. (FAC ¶¶ 34, 41.) Specifically, Plaintiff's negligent hiring, supervision and retention claim is based the allegations that Defendant 'failed to perform a proper background check regarding qualifications for the surgeons and medical staff before hiring them, failed to properly train them, and failed to ensure that proper assistance was given to the medical staff, including exercising proper sterile techniques in both the cleaning and use of instruments as well as their own hands and protective equipment.' (Id. ¶ 41.) However, maintenance of surgical equipment and hiring and supervising staff are duties governed by the professional negligence standard. (See Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88 '[I]f the act or omission that led to the plaintiff's injuries was negligence in the maintenance of equipment that, under the prevailing standard of care, was reasonably required to treat or accommodate a physical or mental condition of the patient, the plaintiff's claim is one of professional negligence . . . .'); So v. Shin (2013) 212 Cal.App.4th 652, 668 ('Since hiring and supervising medical personnel . . . [is] clearly within the scope of services for which the hospital is licensed, its alleged failure to do so necessarily states a claim for professional negligence. Accordingly, plaintiff cannot pursue a claim of direct negligence against the hospital.').).) Because no amendment can be made that will remedy this deficiency, leave to amend is denied.

The minute order is the order of the Court.

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