Judge: John J. Kralik, Case: 23BBCV01487, Date: 2024-06-07 Tentative Ruling
Case Number: 23BBCV01487 Hearing Date: June 7, 2024 Dept: NCB
North
Central District
|
mahnaz sadanian,
et al., Plaintiffs, v. burbank emergency medical group, et al., Defendants. |
Case
No.: 23BBCV01487 Hearing Date: June 7, 2024 [TENTATIVE]
order RE: demurrer |
BACKGROUND
A.
Allegations
Plaintiff Mahnaz Sadanian (“Sadanian”) alleges
that on April 18, 2022, she was admitted to the Emergency Department at
Providence St. Joseph Medical Center where she was seen by Defendant Dr. Roger
C. Lai and staff. Sadanian alleges that
Dr. Lai is employed by Defendant Burbank Emergency Medical Group (“Burbank
EMG”). Sadanian alleges that Dr. Lai and
his staff performed blood tests and other tests. She alleges, thereafter, that a female nurse/staff
turned her over and held her while Dr. Lai penetrated her rectum, causing
Sadanian to experience pain and to scream.
Sadanian alleges that she did not consent to being penetrated in the
rectum and that the pain lasted for over 2 days. She alleges that she was discharged from the
emergency department.
Plaintiff and counsel Isaac Toveg
(“Toveg”) alleges that he is the husband of Sadanian and that as a result of
Sadanian’s injuries, she has been unable to perform the necessary duties as a
wife, such that Toveg has suffered a loss of consortium.
The first amended complaint (“FAC”), filed
on March 6, 2024, alleges causes of action for: (1) professional negligence by
Sadanian against Dr. Lai; (2) intentional tort by Sadanian against Defendants;
and (3) loss of consortium by Toveg against Dr. Lai.
B.
Demurrer on Calendar
On April 9, 2024, Dr. Lai and Burbank EMG
filed a demurrer to the complaint.
On May 23, 2024, Plaintiff Sadanian filed
an opposition brief.
On May 31, 2024, Defendants filed a reply
brief.
DISCUSSION
Defendants demur to the 1st
cause of action for professional negligence and the 2nd cause of
action for intentional tort.
A.
1st cause of action
To
establish a medical malpractice claim, the plaintiff must establish: “(1) the
duty of the professional to use such skill, prudence, and diligence as other
members of his profession commonly possess and exercise; (2) breach of that
duty; (3) a proximate causal connection between the negligence conduct and the
resulting injury; and (4) actual loss or damage resulting from the
professional’s negligence.” (Borrayo v. Avery (2016) 2 Cal.App.5th
304, 310.)
The
allegations of the 1st cause of action are summarized above in the
“Background” section of this order. (See
FAC at PLD-PI-001(2).) Defendants argue
that Sadanian
has not alleged the basic elements of duty, breach, and causation for the injury
she suffered as a result of a rectum examination.
Indeed, the allegations of the FAC are
sparse. Sadanian has not alleged what
duty Dr. Lai owed to Sadanian in connection with her presentation at the
Emergency Department, how Dr. Lai breached that duty, and thereby caused her
damages. As such, the demurrer to the 1st
cause of action is sustained with leave to amend.
B.
2nd cause of action
In the 2nd cause of action,
Sadanian alleges that she was admitted to the Emergency Department and seen by
Dr. Lai and his staff. She alleges that
while she was in bed by herself, Dr. Lai and a female nurse came in and did not
disclose or ask permission from Sadanian if they could examine her private
parts. She alleges that Dr. Lai and the
female staff turned Sadanian over and penetrated her rectum. (FAC at PLD-PI-001(3).)
The
allegations to the intentional tort cause of action are similarly lacking. As currently alleged, the cause of action is
duplicative of the 1st cause of action. Sadanian has not alleged facts showing how
this cause of action is different than the professional negligence cause of
action, or how Defendants acted intentionally to cause Sadanian injury.
As such, the demurrer to the 2nd
cause of action is sustained with leave to amend.
CONCLUSION AND
ORDER
Defendants Roger C. Lai, M.D. and Burbank
Emergency Medical Group, Inc.’s demurrer to the FAC is sustained with 20 days
leave to amend as to the 1st and 2nd causes of action.
Defendants shall give notice of
this order.
DATED: June 7,
2024 ___________________________
John
Kralik
Judge
of the Superior Court