Judge Jill Feeney, Case 22STCV12956 2022-08-05 Tentative Ruling

This is an action for medical negligence and medical battery arising from a dental procedure for extractions, implants, and grafts which took place in January 2021. On April 18, 2022, Plaintiff Huizhen Meng filed her complaint against Keum Kang Choi, Keum Kang Choi Dental, Udream Dental, George Xenakis, George Denakis D.D.S., P.C., and Does 1 through 20. Plaintiff alleges that Defendants failed to treat her periodontal disease before proceeding with the implants, leading to severe infection, abscess, necrotizing fasciitis, inability to swallow or eat or drink resulting in acute kidney failure, and the loss of her breasts from a double mastectomy.

Moving Defendants argue that the FAC (1) fails to state facts sufficient to allege Plaintiff’s second cause of action for medical battery against Moving Defendants and (2) fails to state facts sufficient to allege Plaintiff’s third cause of action for breach of fiduciary duty. Moving Defendants argue that Plaintiff’s FAC alleges facts that could show a lack of informed consent, which is not appropriate for a claim for medical battery. Defendants claim Plaintiff’s cause of action revolves around the fact that she gave consent to the procedure which was conditional upon the treatment of her periodontal disease.

Plaintiff argues that the Complaint does allege facts sufficient to sustain her claim for medical battery because it states Defendants violated the terms of her conditional consent. Plaintiff argues Defendants were to treat her periodontal disease before proceeding with the other procedures. Second, Plaintiff argues that the Complaint alleges sufficient facts to support her claim for breach of fiduciary duty or that the claim can be easily amended. Plaintiff argues that her counsel accidentally left in the word “gastroenterology.” Additionally, Plaintiff argues that the FAC alleges facts supporting all three elements of breach of fiduciary duty.

Moving Defendants argue in their reply that the FAC does not state (1) what periodontal condition she had; (2) which periodontal condition had to be addressed prior to the January 5th and 19th surgeries, to which Plaintiff consented; (3) how Plaintiff communicated her conditional consent to Defendant Choi, (4) when that express communication occurred, and (5) whether Defendant Choi understood said condition expressed by the Plaintiff. Additionally, Moving Defendants argue the FAC does not state that Defendant Choi intended to violate Plaintiff’s conditioned consent.

A demurrer for sufficiency tests 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 context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the 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. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Medical battery occurs when (1) defendant performed a medical procedure without plaintiff’s consent or (2) plaintiff consented to one medical procedure, but defendant performed a substantially different medical procedure. (Dennis v. Southard (2009) 174 Cal.App.4th 540 fn. 1.) Whether a medical procedure that was performed is “substantially different” from the one that a plaintiff consented to is a question for the jury. (See Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 647.)

A physician may be liable for battery when he fails to obtain the patient's consent to a procedure or performs a substantially different procedure than the one the patient consented to. (Cobbs v. Grant (1972) 8 Cal.3d 229, 240-241.) 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. (Ibid.) 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 occurs. (Ibid.)

Here, Plaintiff’s FAC states “MS. MENG consented only on the condition that DEFENDANTS would first address and cure MS. MENG’s periodontal disease.” (FAC, ¶87.) Thereafter, “DEFENDANTS…did perform, the extraction of six of MS. MENG’s teeth at the same time without first addressing and curing MS. MENG’s periodontal disease.” (Id.) Then, “DEFENDANTS…proceeded to perform the PROCEDURES without the condition of first addressing and curing Ms. Meng's periodontal disease having occurred.” (FAC, ¶89.) As alleged, Plaintiff gave her conditional consent to Defendants to perform the dental procedures after treating her periodontal disease. In proceeding to perform the procedures without addressing Plaintiff’s periodontal disease, Defendants exceeded the scope of Plaintiff’s conditional consent. The alleged facts show Defendants had permission to perform the procedures on condition that they treat the periodontal disease first. These facts are sufficient to infer an intent to willfully disregard Plaintiff’s conditional consent. consent. (Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.)

Moving Defendants argue the FAC is insufficient because it does not state whether the treatment performed on Plaintiff was substantially different from the procedure to which Plaintiff agreed.. Additionally, Moving Defendants argue the FAC does not dispute that Plaintiff consented to Choi’s dental treatment. However, the FAC states that Plaintiff gave consent conditioned upon Defendants first treating her periodontal disease, which they did not do. As alleged, these facts are sufficient to allege that Defendants exceeded the scope of Plaintiff’s consent.

In their reply, Moving Defendants additionally argue that the FAC fails to state “(1) what periodontal condition she had, (2) which periodontal condition had to be addressed prior to the consented January 5th and 19th surgeries, (3) how she communicated her conditional consent to Dr. Choi, (4) when that express communication occurred, and (5) whether Dr. Choi understood said condition expressed by the Plaintiff.” (Compl., p. 3) These questions are ones that will be answered in discovery. However, the FAC as pled is sufficient as to this claim. The FAC does not contain facts that would call into question whether Defendant Choi understood Plaintiff’s conditional consent. As alleged, the FAC states Plaintiff gave Defendants her informed consent to perform dental procedures after treating her periodontal disease which is sufficient at this stage.

Lastly, Moving Defendants argue the FAC did not allege facts to show Defendant Choi intended to violate the conditional consent. Although Defendants cite Dennis v. Southard, that case is concerned with the scenario where a physician performed a procedure unaware of a patient’s conditional consent. (Dennis v. Southard (2009) 174 Cal.App.4th 540, 544.) Having knowledge of the patient’s conditioned consent and performing beyond the scope of that consent is enough to show the requisite intent was present. (Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.)

Moving Defendants argue that the FAC does not sufficiently allege facts showing Defendant Choi had any personal interests unrelated to Plaintiff’s health that may have affected his professional judgment. Additionally, there is no evidence that Defendant Choi profited financially as a direct result of recommending and performing the dental procedures on Plaintiff. In their reply, Moving Defendants argue that it is unclear from the FAC what fiduciary duty Defendant Choi owed and breached.

“The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) A physician has a fiduciary duty to disclose all information material to a patient’s decision when seeking informed consent. (Moore v. Regents of University of California¿(1990)¿51 Cal.3d 120, 129.) When a physician fails to disclose personal interests unrelated to the patient’s health, a cause of action for breach of fiduciary duty may arise. (Id.)¿

Here, the third cause of action in the FAC restates facts from the first two causes of action. The FAC does not allege what personal interests Defendant Choi failed to disclose to Plaintiff. Thus, the cause of action for breach of fiduciary duty is insufficiently pled. Moving Defendant’s demurrer is sustained as to the cause of action for breach of fiduciary duty.

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173, citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.)