Judge: Martha K. Gooding, Case: 2021-01218752, Date: 2022-08-22 Tentative Ruling
1. Demurrer to Amended Complaint
2. Motion to Strike Complaint
3. Case Management Conference
4. Order to Show Cause re: Monetary Sanctions
Defendant demurs to the second through fifth causes of action in Plaintiff’s FAC.
The demurrers to the second and fourth causes of action are sustained without leave to amend. The demurrers to the third and fifth causes of action are overruled.
2nd Cause of Action (“COA”) for Battery
“There are three elements to a claim for medical battery under a violation of conditional consent: the patient must show his consent was conditional; the doctor intentionally violated the condition while providing treatment; and the patient suffered harm as a result of the doctor's violation of the condition.” Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269.
Here, Plaintiff has not alleged facts that support his conclusory allegation that the nurses touched Plaintiff with “the intent to harm him,” and that they “intentionally pulled forcefully and unreasonably on his arms and legs while he was unconscious and/or semiconscious, and with more force than reasonably necessary to do their job as nurses.” Plaintiff does not allege he told Defendant there were any “conditions” to his consent. Moreover, as Conte points out, even assuming Plaintiff told Defendant he was consenting only to “reasonably necessary touching,” this is “such an intangible condition” that is does not meet the element of a “specific condition.” Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269.
Accordingly, the Court finds Plaintiff is unable to state a claim for battery in the medical context. Unless Plaintiff can articulate, at the hearing, specific additional facts he can allege to cure this defect, the demurrer will be sustained without further leave to amend.
3rd COA for Fraud
“The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 (citing Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748).
Here, the basis of Plaintiff’s fraud claim is that Defendant and “its employees and agents intentionally failed to disclose to Plaintiff and intentionally concealed from him the following facts: (a) that Plaintiff had a fracture in his back and a tear in his right shoulder; (b) that a CT scan performed on March 6, 2020 showed a fracture of Mr. Sadat's back but the doctors and
nurses intentionally concealed the existence of the fracture in his back and intentionally did not disclose the fracture so that they avoided liability for their actions; (c) Defendants intentionally failed to disclose that Plaintiff had a tear on his right shoulder and intentionally failed to treat him for such injury . . .” (FAC at ¶ 65.)
At this juncture, the Court accepts Plaintiff’s allegations as true, including the allegation that Defendant’s agents “concealed” the results of the CT scan done on 3/6/20 (which “showed a bilateral L5 pars fracture”) in order to conceal the nurses’ negligence. Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 (citations omitted) (“A demurrer tests only the legal sufficiency of the pleading. [] Thus, as noted, in considering the merits of a demurrer, ‘the facts alleged in the pleading are deemed to be true, however improbable they may be.’”).
Thus, the Court finds Plaintiff has sufficiently pled this claim.
4th COA for Breach of Fiduciary Duty
“The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” Williamson v. Brooks (2017) 7 Cal.App.5th 1294, 1300 (citation omitted). Plaintiff alleges “Defendants had a fiduciary duty to disclose to Plaintiff all information material to his decision to accept medical treatment and care.” Defendant breached this duty by failing “to disclose to Plaintiff all information material to his decision to accept medical treatment, as stated in great detail throughout this complaint” and also “by the substandard treatment” and the alleged “concealment.” (Compl. at ¶¶ 58-60.)
Plaintiff cites Weinberg v. Cedars-Sinai Medical Center (2004) 119 Cal.App.4th 1098, for the proposition that a hospital “owes a duty of a fiduciary nature to its patients and the public to deliver safe and competent medical services.” Weinberg v. Cedars-Sinai Medical Center (2004) 119 Cal.App.4th 1098, 1109 (citations omitted) (emphasis added).
However, Weinberg and the cases cited therein, O'Byrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797 and Hongsathavij v. Queen of Angels/Hollywood Presbyterian Medical Center (1998) 62 Cal.App.4th 1123, did not discuss a breach of fiduciary duty and whether such duty exists, in the context of a hospital-patient dispute. Rather, all three cases involved alleged breaches by the hospital in making decisions in their employment and staffing, (e.g., whether to terminate a physician’s staff privileges and membership). The only case relied upon by Weinberg that involved a hospital-patient relationship did not hold that that the hospital-patient relationship was a fiduciary one. Rather, in Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, the duty a hospital owes to its patent “to insure the competence of its medical staff” was discussed under a general duty of care and medical malpractice standard. Id. at 347.
On the other hand, in Moore v. Regents of University of California (1990) 51 Cal.3d 120, our high court held that, “in soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision.” Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129. However, as to “the remaining defendants,” including the hospital, Moore pointed out they “are not physicians,” and “in contrast to [the physician], none of these defendants stood in a fiduciary relationship with [the patient].” Id. at 133. In light of the foregoing authority, the Court is compelled to find that Plaintiff failed to state a claim for breach of fiduciary duty.
5th COA for Intentional Infliction of Emotional Distress
The elements of an IIED claim are: “(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” The “outrageous” conduct “must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” Thus, “to avoid a demurrer,” the “plaintiff must allege with ‘great[ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160–161 (internal citations omitted).
Plaintiff alleges that Defendants “engaged in extreme and outrageous conduct” by “intentionally concealing from Plaintiff that he had a fracture on his back and a tear in his right shoulder,” pull[ing] so hard on his arms and legs when Plaintiff was unconscious and semiconscious that they fractured his back and caused a tear on his right shoulder,” and a litany of other conduct further described in the complaint. (See FAC at ¶ 86.) Plaintiff further alleges he has experienced “severe emotional distress, anxiety, depression, lack of sleep, an overall lack of enjoyment of life, and … a tremendous strain on his relationship with his wife to the point that his marriage did not survive.” (FAC at ¶ 91.)
The majority of the allegations do not appear to amount to “outrageous” conduct that is “so extreme as to exceed all bounds of that usually tolerated in a civilized society.” Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534. Nevertheless, the Court cannot conclude, as a matter of law, that a reasonable factfinder could not find “reckless disregard” with respect to the alleged “concealment” of the results of Plaintiff’s 3/6/20 CT scan. And, because a demurrer does not lie to a portion of a cause of action, the demurrer to this claim is overruled in its entirety. PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1681-1682.
[2] Defendant’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is granted.
Defendant moves to strike the portions of the FAC requesting punitive damages. In “professional negligence” cases, punitive damages are not allowed “unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” Code Civ. Proc. § 425.13. Section 425.13 applies to all claims “directly related to the manner in which professional services were provided.” Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.
Plaintiff contends that section 425.13 does not apply to his intentional tort claims. However, his reliance on Central Pathology is misplaced because, to the extent the issue of “whether the intentional tort causes of action in this case may be said to originate, grow, or flow from ‘professional negligence” had been unsettled, Central Pathology settled the issue. Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 188 (holding that a patient’s claims for fraud and intentional infliction of emotional distress, which were “directly related to the manner in which defendants provided professional services,” and “emanates from the manner in which defendants performed and communicated the results of medical tests,” was “therefore governed by section 425.13(a)”).
Because Plaintiff has not complied with section 425.13(a), the motion to strike is granted.
Defendant shall answer the FAC within 15 days.
Plaintiff is ordered to give notice.