Judge Michael J. Strickroth, Case 2022-01266319 2023-05-15 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2022-01266319, Date: 2023-05-15 Tentative Ruling

Demurrer to Complaint

Defendant Matthew H. Clark, M.D.’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Defendant generally demurs to Plaintiff’s complaint, which alleges causes of action for (1) assault, (2) battery, and (3) false imprisonment.

“A demurrer tests the legal sufficiency of factual allegations in a complaint. [Citation.] In reviewing the sufficiency of a complaint against a general demurrer, [the] court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.” Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42-43.

Plaintiff’s complaint alleges she went to an appointment with Defendant, her gynecologist, on 7/9/21. Plaintiff allegedly consented to a visual examination but without warning or permission, Defendant inserted an eight-inch device with a swab into her vagina. (Complaint, ¶ 4.) Defendant did not promptly comply with Plaintiff’s demand to remove the device, and Plaintiff injured her groin trying to get away from the device. (Complaint, ¶¶ 4-5.)

“[W]hen a plaintiff asserts a claim against a health care provider on a legal theory other than professional negligence, courts must determine whether the claim is nonetheless based on the health care provider's professional negligence, which would require application of MICRA. To make that determination, courts must examine not only the legal theory alleged, but also the nature of the health care provider's alleged conduct and the legislative history of the MICRA provision at issue. Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347 (Larson) (cleaned up).

“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.

“A claim based on lack of informed consent—which sounds in negligence—arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.

In Perry v. Shaw (2001) 88 Cal.App.4th 658 (Perry), the appellate court upheld a jury verdict of intentional battery against a physician who performed a breast augmentation when the patient had only consented to skin removal, not breast augmentation.

Defendant cites Larson, supra, in which the plaintiff’s allegation that their anesthesiologist, “injured Larson by forcefully grabbing and twisting his arm while conducting a preoperative checkup, and by prying open Larson's mouth and violently punching, lifting, and pushing Larson's face as he put on the mask to administer anesthesia” constituted medical negligence, not intentional battery. The court held, “Despite Larson's characterizations, the nature of the acts on which he bases his claims form part of the professional health care services Shuman rendered as an anesthesiologist. Larson simply claims Shuman performed his professional services in an unnecessarily harsh and forceful manner, which amounts to a claim Shuman failed to meet the applicable standard of care in rendering his services.” Id., at 351–352.

Here, Plaintiff has adequately alleged intentional torts of assault and battery against Defendant. This case is closer to Perry than Larson because by inserting a device into her vagina, Defendant performed a substantially different type of procedure than the visual examination to which Plaintiff had allegedly consented.

Plaintiff also adequately alleges a cause of action for false imprisonment. This claim is based on Defendant “locking [Plaintiff’s] legs into stirrups in the chair” and “refus[ing] to release her upon demand being made upon him by Plaintiff.” (Complaint, ¶ 20.) T]he elements of false imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege (3) for an appreciable period of time. Jon Davler, Inc. v. Arch Insurance Co. (2014) 229 Cal.App.4th 1025, 1034. At this stage Plaintiff has adequately alleged she “was trapped in the chair” by Defendant while he completed the procedure despite her attempts to escape in order to support a claim for false imprisonment. (Complaint, ¶ 20.)

Therefore, the demurrer is overruled.

Plaintiff to give notice.

Motion to Strike Portions of Complaint

Defendant’s Motion to Strike is GRANTED in part.

Defendant moves to strike each of Plaintiff’s individual causes of action, which are addressed above.

Defendant also moves to strike Plaintiff’s punitive damages allegations at page 3, lines 20-23 of the complaint under Code of Civil Procedure section 425.13(a), which states,

“(a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”

Plaintiff has not opposed the motion to strike. The motion is granted as to Plaintiff’s punitive damages allegation at page 2, lines 20-23 of the complaint.

Plaintiff to give notice.

Case Management Conference

Regardless whether the parties submit on the tentative to the Court’s ruling on the demurrer and motion above, counsel for the parties are required to appear, either in person or remotely, for the Case Management Conference.