Judge: Ronald F. Frank, Case: 22TRCV00427, Date: 2022-09-15 Tentative Ruling

Case Number: 22TRCV00427    Hearing Date: September 15, 2022    Dept: 8

Tentative Ruling, Christina Marie New vs Providence Health System etc,. et al., 22TRCV00427

Defendant’s Demurrer to Plaintiff’s Complaint, causes of action 1 and 2.  Tentative: OVERRULE and order Answer within 10 days.

                The Complaint alleges a cause of action for medical battery in the 1^st c/a, and for IIED in the 2^nd c/a.  Paragraph 4 alleges that plaintiff consented to a bilateral tubal ligation, a surgical procedure which leaves the tubes intact but ties or cuts them in order to block or prevent a path for fertilization.  Plaintiff further alleges that a tubal ligation can be reversed.  Paragraph 7 of the Complaint alleges that Plaintiff suffered extreme emotional distress from learning that her fallopian tubes had been removed and then saw the removed body parts in a clear plastic container.  Paragraph 9 alleges that the informed consent plaintiff signed states that the procedure she consented to would result in permanent sterilization.  Paragraph 11 alleges medical battery and in its context, it appears to allege a mitigated form of medical battery addressed by CACI 530B for medical battery with conditional consent.  Paragraph 13 alleges that the actions of certain defendants were “outrageous” and with “reckless disregard” of the probability that plaintiff would suffer emotional distress. 

                The Demurrer and Reply argue that the result of the bilateral salpingectomy is no different than what she consented to, and thus as a matter of law cannot be medical battery or support a c/a for IIED.  The Court disagrees.  Defendants’ effort to draft CACI 530B’s bracketed language to include the prevention-of-pregnancy result is premature at the pleading stage.  The Court does not find the allegations conclusory; rather, there are numerous factual details alleged that state all of the required elements of a c/a for medical battery.  Someone performed the operation to remove plaintiff’s fallopian tubes so it is not an improper pleading conclusion to allege they were removed “intentionally.”  The Complaint alleges that the consent form contains no agreement on plaintiff’s part to have a bilateral salpingectomy performed.  It is not an improper pleading conclusion to allege that Defendants “knew” plaintiff had not consented to removal of her tubes.

As to the IIED c/a, the outrageousness of a defendant’s conduct is generally a question of fact.  A jury could reasonably find that removing the fallopian tubes was wrongful, non-consensual, and could meet the standard of outrageous conduct.  At the pleading stage, the Court finds the allegations of IIED and outrageous conduct to be sufficient.  Plaintiff does not allege that the result of permanently preventing pregnancy is the outrage; rather, she alleges IIED from being shown her surgically removed body parts and learning that the excision she never agreed to occur had happened without her consent.  From a reading of the Complaint, it also appears that plaintiff is alleging that she did not understand that the operation was irreversible, and that she gave verbal consent to a reversible operation, even though she also alleges that the written informed consent she signed states that it would result in permanent infertility. 

Whether these allegations will survive the dispositive motion phase of this case, the Court is satisfied at the pleading phase that Plaintiff has satisfied her burden of alleging sufficient facts to support c/a’s for medical battery and for IIED.