Judge: Mel Red Recana, Case: 23STCV20057, Date: 2024-08-13 Tentative Ruling
Case Number: 23STCV20057 Hearing Date: August 13, 2024 Dept: 45
Hearing date: August
13, 2024
Moving Parties: Defendant
LA Downtown Medical Center, LLC
Responding Party: Plaintiff Christopher T. Manshardt
(1) Defendants LA Downtown Medical Center, LLC
The court has considered the moving, opposition, and reply papers.
The court SUSTAINS Defendant
LA Downtown Medical Center’s demurrer as to the second, third, fourth, fifth,
and sixth causes of action of the First Amended Complaint.
Background
Plaintiff Christopher T. Mandshardt
(“Plaintiff” or “Mandshardt”) filed this action on August 22, 2023, against Defendants
James Jaber, MD (“Dr. Jaber”); LA Downtown Medical Center, LLC (“LADMC”); and
Preferred IPA of California, a Professional Medical Corporation (“PIPA”)
(collectively “Defendants”) for seven causes of action concerning the medical
treatment Plaintiff received as a patient under Dr. Jaber’s care. On December
4, 2023, Plaintiff then filed the First Amended Complaint (“FAC”), which is the
operative complaint, alleging six causes of action against Defendants as
follows: (1) negligence; (2) battery; (3) fraud; (4) negligent
misrepresentation; (5) intentional infliction of emotional distress; and (6)
negligent supervision and/or retention. Plaintiff alleges that in November
2021, Plaintiff’s primary care physician made a referral request for Plaintiff
to see another provider, Dr. Jaber, in the PIPA network to treat Plaintiff for
chronic sinusitis and nasal congestion. Dr. Jaber subsequently performed
surgery on Plaintiff on December 16, 2021, which Plaintiff claims resulted in
gross disfigurement of his face. Furthermore, Plaintiff contends that Dr. Jaber
failed to adhere to his professional duty and standard of care by failing to
disclose to Plaintiff he had a malignant tumor in his right sinus that needed
excising, failed to properly get consent from Plaintiff to do so, and
negligently administered experimental drugs to Plaintiff which, in totality,
ultimately resulted in the exacerbation of Plaintiff’s present and cancerous
medical condition.
Defendant LADMC is a hospital in downtown Los Angeles which Plaintiff
alleges is responsible for reviewing the qualifications and fitness of the
doctors who practice of the hospital. Defendant PIPA is an Independent
Physicians Association which is a network managing healthcare for patients and
Plaintiff alleges is also responsible for reviewing the qualifications and
fitness of the doctors who are in its network.
On December 15, 2024, Defendant
LADMC filed the instant Motion for Demurrer (“Dem.”), demurring to the second,
third, fourth, fifth, and sixth causes of action in Plaintiff’s FAC, each on
the grounds that Plaintiff fails to state facts sufficient to cause a
constitute against LADMC. On July 31, 2024, Plaintiff filed an Opposition
(“Opp.”) which Defendant LADMC filed a Reply to on August 1, 2024.
Legal Standard
When considering
demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water
and Power (2006) 144 Cal.App.4th 1216, 1228.) “A demurrer tests the
pleadings alone and not the evidence or other extrinsic
matters. Therefore, it lies only where the defects appear on the face of
the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The
only issue involved in a demurrer hearing is whether the complaint, as it stands,
unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Discussion
Defendant LA Downtown Medical Center’s Demurrer
Defendant LA Downtown Medical Center (“LADMC”) demurs to the second,
third, fourth, fifth, and sixth causes of action of the Complaint on the
grounds that they fail to state facts sufficient to constitute a cause of
action. (CCP §§ 430.10(e), (f).
Second Cause of Action – Battery/Breach
of Fiduciary Duty
Medical malpractice is a form of negligence,
which requires that 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) a breach of that duty; (3) a
proximate causal connection between the negligent 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.) “Ordinarily, negligence may be alleged in general terms, without
specific facts showing how the injury occurred, but there are ‘limits to the
generality with which a plaintiff is permitted to state his cause of action,
and ... the plaintiff must indicate the acts or omissions which are said to
have been negligently performed. He may not recover upon the bare
statement that the defendant’s negligence has caused him injury.’
[Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518,
527.) However, there is no requirement that plaintiff identify and allege
the precise moment of the injury or the exact nature of the wrongful act.
(Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
“When the patient gives permission to perform one type of
treatment and the doctor performs another, the requisite element of deliberate
intent to deviate from the consent given is present. However, when the patient
consents to certain treatment and the doctor performs that treatment but an
undisclosed inherent complication with a low probability occurs, no intentional
deviation from the consent given appears; rather, the doctor in obtaining
consent may have failed to meet his due care duty to disclose pertinent
information. In that situation the action should be pleaded in negligence.” (Cobbs
v. Grant, supra, 8 Cal.3d at pp. 240–241; Saxena v. Goffney(2008)
159 Cal.App.4th 316, 324; Conte v. Girard Orthopaedic Surgeons Medical
Group, Inc.(2003) 107 Cal.App.4th 1260, 1267; Schiff v. Prados
(2001) 92 Cal.App.4th 692, 701 Jambazian v. Borden (1994) 25 Cal.App.4th
836, 844–845 see Townsend v. Turk(1990) 218 Cal.App.3d 278,
286-288.) “Where a doctor obtains consent of the patient to perform one
type of treatment and subsequently performs a substantially different treatment
for which consent was not obtained, there is a clear case of battery.” (Cobbs
v. Grant(1972) 8 Cal.3d 229, 239.)
Defendant argues that
Plaintiff fails to state facts sufficient to constitute a cause of action for
battery because intentional physical contact becomes “unlawful” only where the
plaintiff has expressly refused to consent. (Dem., pg. 6.) Thus, Defendant
argues that according to a number of California appellate court cases, battery
is intentional tort that occurs when a doctor performs a procedure without
obtaining any consent. (Saxena v.
Goffney (2008) 159 Cal.App.4th
316.) (Dem., pg. 7.)
With respect to the issue of
breach of fiduciary duty, Defendant argues that according to Flowers v. Torrance Memorial Hospital
Medical Center, the California
Supreme Court characterized the notion that “rendering medical treatment gives
rise to ‘two independent obligations’ as a ‘legal impossibility.” (Flowers v. Torrance Memorial Hospital
Medical Center (1994) 8 Cal.4th
992, 1000.) Thus, to allow Plaintiff to “recover for multiple breaches of one
duty to comply with the standard of care, through separate causes of action is
in contravention to the law as set forth by the Flowers Supreme Court.”
(Dem., pgs. 8- 9.) To determine otherwise would inappropriately afford
plaintiffs a double recovery. Accordingly, Plaintiff’s breach of fiduciary
claim must be encompassed through his medical malpractice cause of action. (Dem.,
pg. 9.)
In response to Defendant’s
argument that Plaintiff’s additional claims fall under the ambit of
professional negligence, Plaintiff cites to McCobb v. Wiley 2017 Lexis
67348, at 5-6 (Alameda Super. Dec. 18 2017) (quoting Unruh-Haxton, 162 Cal.App. 4th at 352) whereby the Court of Appeal wrote
“The fact that a plaintiff has brought a medical negligence claim, or that the
same facts would support a medical negligence claim as well as other claims,
does not mean those other claims will necessarily be subject to MICRA . . .
[W]e have no reason to conclude the Legislature intended to exempt intentional
wrongdoers from liability by treating such conduct as though it had been
nothing more than mere negligence.” (Opp., pg. 8.)
Plaintiff next argues that
Defendant is mistaken that physician’s intentional physical contact becomes
unlawful battery only when plaintiff has expressly refused to consent. (Opp.,
pg. 9.) Plaintiff states that Defendant miscites Ashcraft v. King 228
Cal.App.3d 604, 611 (1991) because the actual cite from Ashcraft is: “A contact is ‘unlawful’ if it is unconsented to.” (Id. at 611.) Thus, the California Supreme Court did not make “express
refusal” a required element of medical battery. (Opp., pg. 9.) Moreover, in Cobbs, the California Supreme Court stated that “when a patient gives
permission to a doctor to perform one type of surgical procedure, but the
doctor performs a substantially different operation, “the requisite element of
deliberate intent to deviate from the consent given is present” and a battery
has been committed. (Cobbs, 88 Cal.App.4th at 661.) In this
case, Plaintiff is alleging in the FAC that he gave consent for treatment of
his sinusitis by building a septum but that Dr. Jaber instead removed a
cancerous growth from his sinus.” “Plaintiff had only consented to having his
sinusitis treated by building him a septum for a bone graft . . . Dr. Jaber
intentionally violated the conditional consent for Plaintiff’s surgery by
excising a malignant tumor . . . being a
substantial cause of Plaintiff’s damages that include further medical costs for
remediation, pain, discomfort, etc.” (FAC, ¶ 59.) With respect to fiduciary duty, Plaintiff
argues that by alleging that Defendant intentionally failed to (a) disclose to
Plaintiff that his surgeries were to excise cancer and obtain consent; and (b)
intentionally failed to disclose that he was conducting illegal experiments on
Plaintiff to prove the efficacy of the three pills—Defendant breached its
fiduciary duty. (FAC, ¶ 63.) Moreover, any concerns of double recovery are not
appropriate to be resolved on demurrer. (Opp., pg. 14.)
On Reply, Defendant argues
that Plaintiff fails to plead facts in either the FAC, nor the original
complaint that establish LADMC is vicariously liable for any of the allegations
against Dr. Jaber made therein. Here, the Court agrees with Plaintiff that
Defendant’s argument fails to demonstrate that Plaintiff’s additional causes of
action for battery and breach of fiduciary duty are barred by MICRA or
precluded by the cause of action for professional negligence. However, the
Court ultimately finds that Plaintiff does not plead facts addressing the issue
of vicarious liability, nor how LADMC could be directly liable for any of the
alleged conduct.
Thus, the Court SUSTAINS Defendant’s
demurrer with respect to the second cause of action because Plaintiff does not
state facts sufficient to constitute these cause(s) of action for Defendant
LADMC’s alleged breach of duty or battery. The Court grants Plaintiff LEAVE TO
AMEND.
Third and Fourth Causes of
Action – Fraud & Negligent Misrepresentation
“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by
Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816 [52 Cal.Rptr.2d 650] [combining misrepresentation
and scienter as a single element].)
The Court notes that if Plaintiff is
attempting to assert a claim for fraud based on the misrepresentations, not
only is Plaintiff required to allege specific facts detailing the
misrepresentations that were made, who made such misrepresentations and when
they were made, but also, Plaintiff is required to allege specific facts which
establish that LADMC knew that that representation was false, that they
intended to defraud Plaintiff and that Plaintiff justifiably relied on these
misrepresentations thereby resulting in injury to Plaintiff. (See
Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173.)
Defendant argues that fraud claims are
highly disfavored causes of action under all circumstances. Moreover, Defendant
again argues that California appellate courts have found allegations should be
pled and treated under the single cause of action for medical malpractice.
(Dem., pg. 9.) Thus, Defendant maintains that Plaintiff’s claims for false
misrepresentation fall under the umbrella of medical negligence. (Id.)
Moreover, every element of a fraud cause of action must be alleged factually
and specifically and the general policy of “liberal construction of pleading”
will not be invoked to sustain a fraud pleading. (Scafidi v. Western Loan
& Bldg. Co. (1946) 72 Cal.App.2d 550, 558.) Thus, fraud is never
presumed, and Plaintiff must satisfy stringent pleading requirements which
Defendant argues Plaintiff’s to in this case. (Dem., pgs. 10-11.)
Defendant argues that Plaintiff’s fraud
claim falls short because Plaintiff fails to allege specific factual
allegations demonstrating elements of fraud, such as actual reliance,
justifiable reliance, or resulting damages. (Id.) With respect to
Plaintiff’s claim for negligent misrepresentation, Defendant argues that
“Negligent misrepresentation is a species of fraud or deceit specifically
requiring a ‘positive assertion’ (§ 1572, subd. 2) or ‘assertion’ (§ 1710,
subd. 2) of fact.” (Wilson v. Century 21 Great Western Realty (1993) 15
Cal.App.4th 298, 306.) “An implied assertion is not enough.”
Defendant further argues that negligent misrepresentation causes of action must
stand up to the very same pleading requirements as an intentional
misrepresentation cause of action and, here, Plaintiff fails to make
allegations evidencing an “adequate assertion” by LADMC. (Dem., pg. 11.)
In response, Plaintiff argues that he has
adequately pled the elements required for a fraud cause of action, or at
minimum, a constructive fraud cause of action. Plaintiff claims that (1) Dr.
Jaber intentionally failed to disclose to Plaintiff that he had cancer in a
timely manner or that excising the cancer was the purpose of his surgeries.
(Opp., pgs.16-17.) (2) Defendants had a
common law and fiduciary duty to disclose such facts to Plaintiff concerning
his own treatment, and that, (3) Defendant failed to disclose such material
facts. (4) Plaintiff claims that had he been aware of the material facts, he
would have obtained treatment elsewhere and undergone post-surgical radiation
and chemotherapy sooner than he had, giving him a statistically higher chance
of survival. Finally (5) Plaintiff argues that he has suffered damages in costs
to remediate the adverse effects of Dr. Jaber’s surgeries.
On Reply, Defendant contends that the
heightened pleading standard for fraud includes the requirement of
“particularized allegations of the basis for vicarious liability and of
ratification of the derivatively liable party.” (Simmons v. Ware (2013)
213 Cal.App 4th 1035, 1049.) The Court agrees here. Given there is a
heightened pleading standard for fraud, Plaintiff does not allege specific
facts imputing liability to Defendant LADMC as a hospital or demonstrating how
Dr. Jaber’s alleged intentional misrepresentations of material fact regarding
Plaintiff’s treatment can be legally attributed to Defendant LADMC as a
hospital. There are no facts demonstrating how Defendant LADMC is liable for
any specific intention or inducement to defraud Plaintiff. Plaintiff’s present
allegations are too vague to survive demurrer and Plaintiff does not even
attempt to address the issue of vicarious liability or apply the relevant legal
standards as to both the fraud and negligent misrepresentation causes of
action.
Thus, the Court SUSTAINS Defendant’s
demurrer as to the third and fourth causes of action for (3) fraud, (4) and
negligent misrepresentation, respectively, for failure to state facts
sufficient to demonstrate a cause of action. The Court does grant LEAVE TO
AMEND.
Fifth Cause of Action –
Intentional Infliction of Emotional Distress (“IIED”)
A cause of action for intentional
infliction of emotional distress exists when there is ‘(1) extreme and
outrageous conduct by the defendant with the intention of causing, or reckless
disregard of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous conduct.’ A
defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all
bounds of that usually tolerated in a civilized community.’ And the defendant’s
conduct must be ‘intended to inflict injury or engaged in with the realization
that injury will result.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [95 Cal.Rptr.3d
636, 209 P.3d 963])
Defendant argues Plaintiff fails to allege any facts relating to LADMC
that might fall within the definition of a cause of action for intentional
infliction of emotional distress (“IIED”). Defendant contends that Plaintiff
does not plead facts establishing outrageous conduct. (Dem., pg. 12.) Defendant
states that conduct found to be extreme or outrageous for purposes of IIED
includes subjecting a person to racial epithets and then firing a person;
deliberately and falsely accusing a person of a felony; and yelling at a
thirteen-year-old rape victim that the assault was her fault.” (See Alcorn
v. Anbro Eng’g, Inc. (1970) 2 Cal.3d 493.)
In response, Plaintiff argues that the outrageous conduct here is (a) “intentionally failing to disclose to
Plaintiff that he had cancer until the day of his November 1, 2022, surgery”;
(b) telling Plaintiff he did not have cancer and should forego radiation and
chemotherapy; and (c) Dr. Jaber telling Plaintiff he could be treated with
three unknown and unidentified pills that had not been approved for treatment
in the United States. (FAC, ¶ 69.)
In Reply, Defendant argues that again, Plaintiffs allegations only
refer to Dr. Jaber and fail to offer any allegations in the FAC for why LADMC
would be derivatively liable for that conduct. (Reply., pg. 7.) Here, the Court
agrees that Plaintiff has not sufficiently pled facts to state a cause of
action of IIED against Defendant LADMC as a hospital and entity. Plaintiff does
not address LADMC or the issue of vicarious or derivative liability. Plaintiff
also does not attempt to argue that LADMC is liable for Dr. Jaber’s alleged
conduct. As such, Plaintiff’s fifth cause of action is deficient as to
Defendant LADMC.
Accordingly, the Court SUSTAINS Defendant’s demurrer as to Plaintiff’s
fifth cause of action for IIED for failure to allege facts sufficient to state
a cause of action but grants Plaintiff LEAVE TO AMEND.
Sixth Cause of Action –
Negligent Supervision/Retention
“[A] negligent
supervision claim depends, in part, on a showing that the risk of harm was
reasonably foreseeable. [Citations.] ‘Foreseeability is determined in light of
all the circumstances and does not require prior identical events or injuries.’
[Citations.] ‘ “It is not necessary to prove that the very injury which occurred
must have been foreseeable by the school authorities . . .. Their negligence is
established if a reasonably prudent person would foresee that injuries of the
same general type would be likely to happen in the absence of [adequate]
safeguards.” ’ ” (D.Z. v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th
210, 229 [247 Cal.Rptr.3d 127], internal citations omitted.)
Defendant cites to So
v. Shin (2013) 212 Cal.App.4th 652 whereby a plaintiff alleged
negligent hiring and retention after a miscarriage procedure fell below the
standard of care. (Dem., pgs. 12-13.) In So, the Court held that since
Plaintiff’s allegations concerned the hospital’s duty to safeguard
incapacitated patients, such allegations arose out of the scope of services for
which the hospital was licensed. As such, the hospital’s “failure to do so
necessarily states a claim for professional negligence. Accordingly, plaintiff
cannot pursue a claim of direct negligence against the hospital.” (Dem., pgs.
12-13.) Thus, here, Defendant argues Plaintiff cannot pursue a claim for
negligent hiring or supervision either and, accordingly, the Court should
sustain the demurrer as to its sixth cause of action. (Id.)
In Reply, Defendant notes
that Plaintiff does not oppose Defendant’s demurrer as to the sixth cause of
action for negligent supervision/retention. (Reply., pg. 7.) Defendant is
correct. Plaintiff does not address the facts or allegations for this cause of
action in his Opposition. Although Defendant’s argument on demurrer is brief
and potentially inapplicable to Plaintiff’s cause of action, Plaintiff’s
failure to address this claim on Opposition leaves Defendant’s argument intact.
As such, the Court finds Plaintiff has failed to state a sufficient cause of
action for negligent supervision/retention and fails to refute the argument
that this cause of action is precluded by a professional negligence claim.
Thus, the Court SUSTAINS
Defendant’s demurrer as to Plaintiff’s sixth cause of action for negligent
supervision/retention but grants Plaintiff LEAVE TO AMEND.
It is so ordered.
Dated: August 12, 2024
_______________________
MEL
RED RECANA
Judge
of the Superior Court