Judge: Robert B. Broadbelt, Case: 23STCV08831, Date: 2023-11-06 Tentative Ruling
Case Number: 23STCV08831 Hearing Date: November 6, 2023 Dept: 53
Superior Court of California
County of Los Angeles – Central District
Department
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23STCV08831 |
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Hearing
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November
6, 2023 |
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[Tentative]
Order RE: (1)
defendant’s
demurrer to complaint (2)
defendant’s
demurrer to complaint |
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MOVING PARTY: Defendant Sang Do Kim, M.D.
RESPONDING PARTY: Plaintiff Christine Ikhi Chung
(1)
Demurrer
to Complaint
MOVING PARTY: Defendant Cedars-Sinai Medical
Center
RESPONDING PARTY: Plaintiff Christine Ikhi Chung
(2)
Demurrer
to Complaint
The court
considered the moving and opposition papers filed in connection with the demurrers. No reply papers were filed.
BACKGROUND
Plaintiff Christine Ikhi Chung (“Plaintiff”) filed this action on
April 20, 2023, against defendants Sang Do Kim, M.D., Willis H. Wagner, M.D.,
and Cedars-Sinai Medical Center.
Plaintiff alleges two causes of action for (1) medical negligence, and
(2) failure to obtain informed consent.
Defendants Sang Do Kim, M.D. (“Dr. Kim”) and Cedars-Sinai Medical
Center (“Cedars-Sinai”) (collectively, “Defendants”) separately filed demurrers
directed to Plaintiff’s second cause of action for failure to obtain informed
consent.
DR. KIM’S DEMURRER
As a threshold matter, the court notes that Plaintiff asserts, in her
opposition, that she “is not opposing” Dr. Kim’s demurrer and instead requests
leave to amend the Complaint to include the allegations supporting the second
cause of action in the first cause of action.
However, the court believes that, for the sake of clarity, it is more
appropriate to plead the second cause of action separate from the first cause
of action. The court therefore rules on
the merits of Dr. Kim’s demurrer.
The court overrules Dr. Kim’s
demurrer to the second cause of action for failure to obtain informed consent
(1) on the ground of uncertainty, because it is not ambiguous or unintelligible
as duplicative, and (2) on the ground that it does not state facts sufficient
to constitute a cause of action as duplicative.
(Code Civ. Proc., § 430.10, subds. (e), (f).)
The court agrees, as defendant Dr.
Kim argues, that a claim based on the alleged failure of a physician to obtain
his patient’s informed consent sounds in negligence. (Flores v. Liu (2021) 60 Cal.App.5th
278, 292 [a physician who fails to obtain his patient’s informed consent is
liable for negligence].) The court also
acknowledges that Plaintiff’s first cause of action asserts a claim for medical
negligence. (Compl., pp. 3:13-5:4.) However, the first cause of action is based
on seven different alleged breaches of Defendants’ duty of care, independent of
their alleged failure to obtain Plaintiff’s informed consent. (Compl., ¶ 13; Flores, supra,
60 Cal.App.5th at p. 290 [discussing the “interrelationship between two duties
of a physician—namely, a physician’s duty of care and a physician’s duty to
obtain his patient’s informed consent to medical procedures”].) Thus, although Plaintiff has alleged two
causes of action for negligence, the causes of action are not duplicative of
the other because (1) the first cause of action alleges Defendants’ failure to
use reasonable care in, inter alia, diagnosing Plaintiff, taking into
consideration relevant health information, and considering the potential
complications of surgery, while (2) the second cause of action alleges that
Plaintiff did not give her informed consent to the lumbar fusion and
decompression surgery. (Compl.,
¶¶ 13, 19.)
The court therefore finds that the second cause of action is not
duplicative of the first cause of action.[1]
CEDARS-SINAI’S DEMURRER
The court overrules defendant Cedars-Sinai’s
demurrer to the second cause of action for failure to obtain informed consent
on the ground of uncertainty because it is not ambiguous or unintelligible as
duplicative for the same reasons set forth above. (Code Civ. Proc., § 430.10, subd. (f).)
The court sustains defendant Cedars-Sinai’s
demurrer to the second cause of action for failure to obtain informed consent
on the ground that it does not state facts sufficient to constitute a cause of
action because Plaintiff has not alleged (1) that Cedars-Sinai owed Plaintiff a
duty to obtain her informed consent to undergo the subject medical procedure,
or (2) facts showing that Cedars-Sinai, under any legal theory, owed Plaintiff
such a duty. (Code Civ. Proc., § 430.10,
subd. (e); Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th
680, 687 [“The elements of any negligence cause of action are duty, breach of
duty, proximate cause, and damages”].)
ORDER
The court overrules defendant Sang Do Kim, M.D.’s demurrer to
plaintiff Christine Ikhi Chung’s second cause of action for failure to obtain
informed consent.
The court sustains defendant Cedars-Sinai Medical Center’s demurrer to
plaintiff Christine Ikhi Chung’s second cause of action for failure to obtain
informed consent.
The court grants plaintiff Christine Ikhi Chung 20 days leave to file
a First Amended Complaint that cures the deficiencies with the second cause of
action for failure to obtain informed consent set forth in this ruling.
The court orders defendant Cedars-Sinai Medical Center to give notice
of this ruling.
IT IS SO ORDERED.
DATED:
_____________________________
Robert
B. Broadbelt III
Judge
of the Superior Court
[1]
Defendant Dr. Kim does not argue that the second cause of action does not state
facts sufficient to constitute a cause of action for any other reason.