Judge: Michael Shultz, Case: 20STCV00666, Date: 2024-07-16 Tentative Ruling
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Case Number: 20STCV00666 Hearing Date: July 16, 2024 Dept: A
20STCV00666
Tinisha Clay v. Watts Healthcare, et al.
Tuesday,
July 16, 2024
[TENTATIVE] ORDER OVERRULING DEMURRER TO THE FOURTH
AMENDED COMPLAINT BY DEFENDANT, ALEXANDER STEIN, M.D.
i.
BACKGROUND
The
fourth amended complaint (“4AC”) alleges claims for medical negligence arising
from the alleged failure to care and treat Alberta Childress for lung and
breast cancer. Decedent died on December 14, 2019.Tinisha Clay, decedent’s
daughter, alleged a survival action on behalf of decedent’s estate, wrongful
death, and “breach” of informed consent.
II. ARGUMENTS
Defendant,
Alexander Stein, M.D. (“Dr. Stein” or “Defendant”) demurs to the third cause of
action for “breach of informed consent” allegedly arising from Dr. Stein’s failure
to inform decedent of alternative, non-surgical treatment of lung cancer. Dr.
Stein argues the claim is duplicative of the medical negligence claim, is
unnecessary, superfluous and adds nothing to alleged claims.
In
opposition, Plaintiff argues that a claim for lack of informed consent is
different from medical negligence, the latter of which arises from Defendant’s
alleged failure to meet the applicable standard of care. The claim for lack of
informed consent arises from a defendant’s duty to disclose material
information which is a breach of fiduciary duty. If the court sustains demurrer, Plaintiff asks
for leave to amend.
In
reply, Defendant contends that the opposition refers to pleadings no longer at
issue, identifies other defendants who have not demurred, and is otherwise
confusing and replete with errors. Plaintiff cannot split a negligence cause of
action into two claims.
III.
LEGAL STANDARDS
The
bases for demurrer are limited by statute and may be sustained for failure to
state facts sufficient to state a cause of action. (Code
Civ. Proc., § 430.10). A demurrer “tests the sufficiency of a complaint as
a matter of law and raises only questions of law.” (Schmidt
v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706). The court must
assume the truth of (1) the properly pleaded factual allegations; (2) facts
that can be reasonably inferred from those expressly pleaded; and (3)
judicially noticed matters. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may not consider
contentions, deductions, or conclusions of fact or law. (Moore
v. Conliffe (1994) 7 Cal.4th 634, 638.)
A demurrer reaches defects that appear on
the face of the complaint. The court does not go beyond the four corners of the
pleading. The court considers the allegations and matters that are subject to
judicial notice. All facts are accepted as true. (Saunders
v. Superior Court (1994)
27 Cal.App.4th 832, 838.) A demurrer tests the legal sufficiency of
the allegations. It does not test their truth, the Plaintiff’s ability to prove
them, or the possible difficulty in making such proof. (Id. at 840.)
IV.
DISCUSSION
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.”
(Saxena v. Goffney (2008) 159
Cal.App.4th 316, 324.) To support a claim for medical negligence,
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.'” (Hanson
v. Grode (1999) 76 Cal.App.4th 601, 606.)
The claim for lack of informed consent is
not duplicative of the first cause of action for negligence. The negligence
claim alleges that Dr. Stein and a co-defendant did not perform lung resection
surgery until nine months after detection, when the tumors had spread. (4AC ¶
30.) The 4Ac alleges that the standard of care required Defendants to perform a
different radiotherapy for patients with inoperable cancer. (4AC, ¶ 31.
In contrast, the claim for lack of
informed consent, which also arises from Defendant’s failure to properly
perform the resection surgery, additionally alleges that Defendant “concealed
important potential results of alternatives to the resection surgery and the
aortic valve replacement surgery.” (4AC ¶ 59.) Plaintiff alleges that Dr. Stein
deliberately did not disclose alternative treatments with which he was familiar
and that were in effect. (F4AC, ¶ 61.) Each claim arises from a different set
of alleged facts.
V.
CONCLUSION
Based on
the foregoing, the demurrer to the fourth amended complaint is OVERRULED.
Defendant Dr. Stein is ordered to file an answer forthwith.