Judge: Mark H. Epstein, Case: 23SMCV02412, Date: 2024-01-22 Tentative Ruling

Case Number: 23SMCV02412    Hearing Date: January 22, 2024    Dept: I

The demurrer is OVERRULED IN PART and SUSTAINED WITHOUT LEAVE TO AMEND IN PART and SUSTAINED WITH LEAVE TO AMEND IN PART.

The gist of the demurrer here is that (according to the defense) this is at most a medical malpractice action that plaintiff is over-pleading.  Specifically, defendant contends that there is no basis to sue for negligence, products liability, emotional distress, or anything else beyond medical malpractice.  Defendants demur on that basis and plaintiff opposes.

At the heart of the case is a medical device.  Plaintiff alleges that she went to defendants for a medical procedure.  While she was on the gurney and hooked to an IV, she claims that she was coerced to buy a particular device and had to pay for it then and there—that’s right, on the gurney.  The device turned out (allegedly) to cause plaintiff significant harm and she is suing not just for malpractice, but also for product liability and negligence.  Defendants contend that they cannot be liable for product liability any more than can a hospital that uses a defective needle.  The point, according to defendants, is that they were providing a service and the product was incidental to that service; they are not sellers of goods.  That recitation of the law is correct.  A hospital that is providing a service is not liable for defective products used to provide that service on a product liability theory.  (Silverhart v. Mt. Zion Hospital (1971) 20 Cal.App.3d 1022.)  While Silverhart is an old case, the court believes it remains good law.  And that would protect defendants from product liability for the use of a defective product in the surgery, at least normally.  The difference here is that plaintiff contends that the manufacturer had co-opted defendants into not just a provider of services but also a seller of the product.  And there are allegations that would support that theory.  This was a particular product that was actually sold to plaintiff as she was on the gurney right before surgery.  She was forced to reach underneath the gurney and pay for it at the time.  At least in this court’s experience, in the more usual case, patients are ultimately sent a bill from a hospital and it might itemize the use of certain materials, but the patient is not asked to pay for the product separately and while being wheeled into surgery and hooked up to an IV, especially one that the patient had not previously discussed with the physician.  That apparently unusual process, at least as a pleading matter, takes this case out of the routine surgical cases and at least alleges enough to survive demurrer by casting defendants not just as providing a service, but also as selling a particular device.  That is especially so when coupled with the allegations of financial incentive.  Accordingly, the demurrer in this regard is OVERRULED.

The same logic carries forward into most of the other arguments defendants make.  The way the complaint is alleged, the problem is not just that the manufacturer knew of the dangers but did not warn the doctors (who therefore could not warn the patients), but rather that the doctors well knew that the device was not being used for the purpose for which it had been approved and that the device was dangerous but for financial gain elected to sell the product anyway.  Of course, the court is not saying that such is in fact the case.  But there are sufficient allegations to give rise to that reasonable inference.  Further, because the problem is more in the nature of concealment and less in the nature of affirmative misrepresentation, the specifics normally required for a fraud cause of action do not apply.  Where the allegation is concealment, one cannot plead who made the false statement.  No false statement was made at all in such a case; it is the failure to make an affirmative statement that gives rise to the cause of action.  The court believes that the allegations here are sufficient to meet the standard for pleading fraud, and the demurrer to that extent is OVERRULED.

Defendants also contend that the various flavors of negligence cannot survive because they are all subsumed in malpractice.  The court does not agree (for the most part).  To the extent that the argument is that the surgery went bad, the defendants would have a strong point.  But here, the argument is that defendants were force-selling a dangerous device in order to make more money irrespective of the known risks.  To the extent that the employer failed to supervise or manage those engaged in such conduct, that would give rise to a negligent supervision cause of action at least for pleading purposes.  As such, the general negligence causes of action survive demurrer and the demurrer is OVERRULED.  That does not mean that each piece of the cause of action will survive—but a demurrer does not lie as to a part of a cause of action.  Nor does it mean that the cause of action will survive summary adjudication.

Defendants further argue that there are no facts here sufficient to allege intentional infliction of emotional distress.  The court disagrees.  Selling a product to a patient while the patient is on the gurney—and a product known to be dangerous (as is alleged)—is sufficiently outrageous to survive a pleading motion.  The demurrer is OVERRULED.

The court feels differently as to negligence per se.  That is really not a separate tort; it is a doctrine where a statute or regulation substitutes for the standard of the duty of care.  But it is just another flavor of negligence and it is subsumed therein.  The demurrer is SUSTAINED WITHOUT LEAVE as to negligence per se.  As to Negligent Infliction of Emotional Distress, that is a very narrow tort and the court finds it is not made out or properly alleged here sufficiently to be a stand alone cause of action.  The demurrer is SUSTAINED.  The court will inquire of plaintiff whether plaintiff believes she can amend around that problem and if so how, but if not, then it will be WITHOUT LEAVE TO AMEND.

The demurrers by Callahom, Vintigni, and Ellis are SUSTAINED WITH LEAVE TO AMEND.  To name them individually, plaintiff must say what each of them did that was tortious. 

A word on the complaint’s length.  Defendant is right that it is very long and detailed.  But sometimes (though not most times) there is nothing wrong with that.  Here, plaintiff is trying to make a case of systemic wrongdoing by the demurring defendants and others.  Doing so with regard to medicine may well require length.  Many people—including judges—tend to give the benefit of the doubt to the medical profession in terms of the more exotic torts.  It can be viewed as prudent, therefore, to add detail to the complaint to explain the theory of the case and why the allegations give rise to more than a typical malpractice claim.  The court is not prepared to criticize plaintiff’s counsel for taking that course of action here.