Judge Mark H. Epstein, Case Number: 24SMCV06153, Date: 2025-03-12 Tentative Ruling

Judge: Mark H. Epstein, Case: 24SMCV06153, Date: 2025-03-12 Tentative Ruling

Case Number: 24SMCV06153 Hearing Date: March 12, 2025 Dept: I

The matter is here on defendants Shammas’ and Quest’s separate demurrers. They are SUSTAINED IN PART AND OVERRULED IN PART. This is a medical malpractice case. Plaintiff saw Dr. Shammas and underwent a pap test. The sample was sent to Quest Labs for analysis. Somehow, her sample was mixed up with a sample from a much older person whose sample showed potential cancer. Plaintiff was told that she might have cancer and was referred to Dr. Li, an oncologist. Dr. Li performed biopsies and allegedly repeated the pap test. Dr. Li’s office later called plaintiff and said that although the biopsy results were negative, she was not cleared and she had to undergo more procedures. Plaintiff had an adverse reaction to the anesthesia that was given to her with regard to that procedure. Plaintiff then was scheduled for more tests by Dr. Shammas. When she went in for those tests, she was told of the mix-up and that in fact her test results had never indicated cancer to begin with. Plaintiff sued. Both Dr. Shammas and Quest demurred. Plaintiff only opposed the demurrer by Quest, although much of that opposition would apply to Dr. Shammas as well. Dr. Shammas filed a reply, so the court construes the opposition as doing double-duty.

Plaintiff’s second cause of action is Negligent Infliction of Emotional Distress (NIED). Plaintiffs often bring this cause of action, but it rarely survives. NIED as a standalone tort is quite rare. It can be brought by a bystander who is in the zone of danger to an event or as a direct victim, which is the case here. However, in that latter context, NIED is really a form of negligence; nothing is added by asserting the separate tort and the separate tort is not really separate anyway. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195.) If Dr. Shammas was professionally negligent, then that is the tort. If Quest was negligent, then that is the tort. NIED has no place here. The demurrer is therefore SUSTAINED WITHOUT LEAVE TO AMEND as to that cause of action as to both demurrers.

Both defendants also demur to plaintiffs’ breach of fiduciary duty cause of action. Dr. Shammas asserts that medical malpractice is really the only tort here. Dr. Shammas claims that where the breach of fiduciary duty has to do with the medical care given, that is the only tort there is; there is no separate fiduciary duty tort. Plaintiff argues that Dr. Shammas breached the fiduciary duty by failing to obtain informed consent for the procedures. Such a cause of action does exist; a doctor has a fiduciary duty to provide the patient with all material information when obtaining consent to a procedure. However, the court does not understand how Dr. Shammas failed to do so. The original test was done with consent—that is the test that was mixed up, but the mix-up occurred after the test, not before. And it is not clear what tests Dr. Shammas did after that for which there was no informed consent. Further, the problem here is not that the doctor failed to inform plaintiff of the risks; the problem is that the doctor mis-stated the test results because the results were swapped with that of another person. That is another way of saying medical malpractice. There could be other facts that could be alleged, but on this draft, there is no separate cause of action as against Dr. Shammas for breach of fiduciary duty. The demurrer is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND.

As to Quest, the argument is different. Quest asserts that it is a medical lab and owed plaintiff no fiduciary duty. Quest does not deny that it may have owed plaintiff a duty of care, just not a fiduciary one. The court tends to agree. The court does not understand why a lab would owe a fiduciary duty to plaintiff here. It could be that facts might be alleged that would so establish, but they are not in this version of the complaint. Therefore, the demurrer is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND.

Plaintiff also sues for intentional infliction of emotional distress (IIED). That is a well recognized cause of action but requires conduct that is so outrageous that it exceeds all bounds that would be tolerated by a decent society. That can occur if a party abuses its power over the plaintiff or acts intentionally or unreasonably knowing that the acts are likely to cause this sort of distress. The problem, again, is that the court has trouble seeing that conduct here. There is no allegation that Dr. Shammas deliberately mis-stated the test results or mixed up the results on purpose. (It is not even clear that he is the one at fault, although that is an unknown for which plaintiff cannot be faulted). Nor is there any reason to believe that Quest did it on purpose. There could be facts alleged that would satisfy the test. For example, Quest’s procedures could have been so sloppy that these sorts of mix-ups were both predictable and not uncommon, or that might be the case with Dr. Shammas. But the closest that is alleged here is that no reasonable person could mix up the tests of a person described as a 71-year old woman (the one whose tests did disclose cancer) with plaintiff, who was in her 30’s. The court can readily understand how a reasonable person ought not to mix those tests up, and the court has no trouble with the negligence cause of action. If plaintiff wants to claim that the sloppiness is so out of bounds as to satisfy the tort, plaintiff will have to allege at least some facts as to how. But more facts will need to be alleged to suggest that this was done on purpose or through procedures so reckless as to meet the standard. The court does not rule out such allegations, but they probably ought to be made. The demurrer is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND. The court also notes that even if the tort cannot be alleged now, if facts develop in discovery that would justify the tort, the demurrer is without prejudice to a motion to amend.

Quest also argues that it cannot be liable for professional negligence. Quest’s major argument is that it did not cause this problem. But the court cannot tell at this stage whether the fault lied with Dr. Shammas, Quest, or both. Plaintiff is entitled to allege that both are responsible at this stage. Therefore, the demurrer is OVERRULED.

In short, the demurrers are all SUSTAINED WITH LEAVE TO AMEND except for the NIED cause of action, which is SUSTAINED WITHOUT LEAVE TO AMEND, and the negligence cause of action against Quest, which is OVERRULED.