Judge: Jon R. Takasugi, Case: 24STCV12852, Date: 2024-09-06 Tentative Ruling

Case Number: 24STCV12852    Hearing Date: September 6, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendants’ demurrer is OVERRULED.

            Defendants’ motion to strike is DENIED.

            On 5/21/2024, Plaintiff Ramon Arias Moreno (Plaintiff) filed suit against Hamideh Moayedpardazi, M.D., De La Pena Eye Clinic, a Medical Group, Inc., and Med-Laser Surgical Center, LLC, alleging: (1) professional negligence; (2) medical battery, and (3) intentional infliction of emotional distress.

            On 7/29/2024, Defendants Hamideh Moayedpardazi, M.D. and De La Pena Eye Clinic, a Medical Group, Inc., (collectively, Defendants) demurred to Plaintiff’s second and third causes of action.

Factual Background

            This action arises out of a surgery performed on Plaintiff’s eyes. Plaintiff alleges that he consented to undergoing bilateral “selective laser trabeculoplasty,” first on the left eye, followed by the right eye “a few weeks later.” (Complaint ¶ 13.) Plaintiff alleges the surgery was performed on the wrong eye, and without the proper pre-operative markings or numbing drops.

Discussion

            Defendants argue that Plaintiff cannot state a claim for medical battery or intentional infliction of emotional distress.

            After review, the Court disagrees.

            “The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 240.)

 Here, Plaintiff alleges that he consented to surgery being performed first on his left eye, and then on his right eye. By allegedly performing surgery first on his right eye, Plaintiff has alleged facts which could show that Defendants exceeded the scope of his consent.

Second, Plaintiff has alleged sufficient facts at the pleading stage which could show deliberate intent. “[I]n a case involving conditional consent, the requisite element of deliberate intent to deviate from the consent given cannot be presumed simply from the act itself.” (Dennis v. Southard (2009) 174 Cal.App.540, 544.) Here, Plaintiff alleges that when he entered the operating room, marking were made on his left-eye. Then:

Defendant Dr. Moayedpardazi [] entered the operating room and placed the surgical instrument on Plaintiff MORENO’s right eye as opposed to the left eye. Plaintiff MORENO initially was under the impression that perhaps Defendant Dr. MOAYEDPARDAZI was merely checking his right eye. It was not until he felt a sharp, intense pain in his right eye that he realized Defendant Dr. MOAYEDPARDAZI was performing surgery on the wrong eye. Despite his excruciating pain, Plaintiff MORENO attempted to alert Defendant Dr. MOAYEDPARDAZI of the error, but she ignored his protests and hastily exited the operating room.

Subsequently, Plaintiff MORENO tried to communicate his distress to the nurse (hereinafter referred to as Defendant "Doe 1") who had initially marked his left eye and administered the numbing drops. Unfortunately, Doe 1 also left the room following Defendant Dr. MOAYEDPARDAZI, disregarding Plaintiff MORENO's pleas for assistance. As a result, the selective laser trabeculoplasty was not only performed on the incorrect eye, but it was also done without the proper pre-operative markings or numbing drops, causing Plaintiff MORENO to endure severe pain and discomfort during the procedure.

            (Complaint ¶¶ 15-16.)

            As such, Plaintiff alleged facts which could show he only consented to surgery on his left eye at this stage of the procedure, and that only his left eye was prepared with drops and visible markings. Despite this, and despite Plaintiff’s attempts to alert Defendant Dr. Moayedpardazi, Dr. Moayedpardazi ignored his protests, did not investigate further, and continued to perform surgery on the incorrect eye, which had neither been marked nor treated with numbing drops. Accepted as true, this could show that Defendant Dr. Moayedpardazi’s deviation from Plaintiff’s consent was deliberate.

            Given this conclusion, Plaintiff has necessarily also alleged sufficient facts to state a claim for emotional distress. Whether or not Defendant Dr. Moayedpardazi did, in fact, intend to deviate from Plaintiff’s consent or inflict emotional distress on Plaintiff is a factual determination not properly made at this time. Plaintiff alleges that Dr. Moayedpardazi was alerted to the error, ignored the error, and continued to perform the surgery despite Plaintiff’s “pleas for assistance.” (Complaint ¶ 16.) Accepted as true, Plaintiff’s allegations could constitute extreme and outrageous conduct intended to inflict emotional distress.

            Based on the foregoing, Defendants’ demurrer to the second and third causes of action is overruled.

Motion to Strike

            Defendants argue that Plaintiff has not alleged sufficient facts to support a prayer for punitive damages, and Plaintiff has not complied with CCP section 425.13. As set forth above, the Court overruled Defendants’ demurrer to Plaintiff’s battery and emotional distress claims. As such, Plaintiff’s claim is not limited to medical negligence, and thus has not run afoul of section 425.13.

Accepted as true at the pleading stage, Plaintiff has alleged facts which could show that Defendants engaged in conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).)

            Based on the foregoing, Defendants’ motion to strike is denied.

It is so ordered.

Dated:  September    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.