Judge: Ronald F. Frank, Case: 22TRCV00427, Date: 2022-12-06 Tentative Ruling
Case Number: 22TRCV00427 Hearing Date: December 6, 2022 Dept: 8
Tentative Ruling¿
¿¿
HEARING DATE: December 6, 2022¿¿
¿¿
CASE NUMBER: 22TRCV00427
¿¿
CASE NAME: Christina
Marie New v. Providence Health Systems – Southern California, et al
¿¿
MOVING PARTY: Defendant, Providence Health System – Southern California
dba Providence Little Company of Mary Medical Center, Torrance
¿¿
RESPONDING PARTY: Plaintiff, Christina Marie New,
¿¿
TRIAL DATE: None set¿
¿¿
MOTION:¿ (1) Demurrer¿
¿
Tentative Rulings: (1) Defendant Demurrer is DENIED¿
¿¿
¿
I. BACKGROUND¿¿
¿¿
A. Factual¿¿
¿
On May 26, 2022, Plaintiff,
Christina Marie New (“Plaintiff”) filed this action against Defendants, Providence
Health System – Southern California dba Providence Little Company of Mary
Medical Center, Torrance, Mia Je Naee Sanders, and Does
1 through 100. Plaintiff alleged the following causes of action: (1) Medical
Battery; (2) Intentional Infliction of Emotional Distress; and (3) Medical
Malpractice. The Complaint alleges that following the delivery of Plaintiff’s baby, Dr. Sanders-Madati
did not perform a tubal ligation as per the written informed consent, but
rather the doctor removed Plaintiff’s fallopian tubes, rendering Plaintiff
permanently infertile. On September 15, 2022 the Court considered and
overruled the Demurrer of the alleged treating physician, Dr. Mia J.
Sanders-Madatai M.D. (“Dr. Sanders-Madati”) which was brought on different
grounds than the hospital’s demurrer to the same Complaint.
B. Procedural¿¿
¿
On October 31, 2022, after the
ruling on the treating doctor’s demurrer, Defendant, Providence Health System –
Southern California dba Providence Little Company of Mary Medical Center,
Torrance (“Providence”) filed this demurrer to the 1st and 2nd
causes of action, for battery and intentional infliction of emotional distress
(“IIED”). On November 21, 2022,
Plaintiff filed an opposition. On November 28, 2022, Providence filed a reply
brief.
¿
¿II. MOVING PARTY’S GROUNDS
FOR THE DEMURRER¿¿
¿
Providence demurs to Plaintiff’s
complaint on the grounds that: (1) Plaintiff’s First Cause of Action for
Battery is uncertain, as it is ambiguous and unintelligible. (Code of Civil Procedure §430.10(f).) It also fails to
state facts sufficient to constitute a cause of action against this demurring
defendant. (Code of Civil Procedure §430.10(e).); and (2) Plaintiff's
Second Cause of Action for IIED is uncertain, as it is ambiguous and
unintelligible. (Code of Civil Procedure §430.10(f).) The Demurrer asserts that the Complaint also
fails to state facts sufficient to constitute an IIED cause of action against
this demurring defendant, and fails to sufficiently plead extreme and
outrageous or intentional conduct. (C.C.P. § 430.10(e); C.C.P. § 430.10(f); Cochran
v. Cochran (1998) 65 Cal.App.4th 488, 494; Plotnik v. Meihaus (2012)
208 Ca1.App.4th 1590, 1609; Larson v. UHS of Rancho Springs, Inc. (2014)
230 Ca1.App.4th 336, 340.) The gravamen
of the hospital’s Demurrer is that while the Complaint may be detailed enough
to state causes of action against the obstetrician/gynecologist defendant Dr. Sanders-Madati,
it is not sufficiently specific as to what the hospital or any of its
unidentified nurses or staff did or failed to do to satisfy the requirements
for pleading an intentional tort.
¿¿
¿III. ANALYSIS¿
¿
A. Demurrer¿¿¿
¿
A demurrer can be used only to challenge defects that
appear on the face of the pleading under attack or from matters outside the pleading
that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) “To survive a demurrer, the complaint need only allege facts sufficient
to state a cause of action; each evidentiary fact that might eventually form
part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart
Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of
testing the sufficiency of the cause of action, the demurrer admits the truth
of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions,
deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co.
(1967) 67 Cal.2d 695, 713.)¿¿¿
¿¿
A pleading is uncertain if it is ambiguous or unintelligible.
(Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if
the failure to label the parties and claims renders the complaint so confusing
defendant cannot tell what he or she is supposed to respond to.¿ (Williams
v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
However, “[a] demurrer for uncertainty is strictly construed, even where a
complaint is in some respects uncertain, because ambiguities can be clarified
under modern discovery procedures.” (Khoury v. Maly's of California, Inc.
(1993) 14 Cal.App.4th 612, 616.)¿¿
¿¿
Medical Battery
As alleged,
Plaintiff’s Complaint provides that Plaintiff’s consent extended only to the undergoing a bilateral tubal ligation surgery. (Compl., ¶
4.) Instead, Plaintiff’s Complaint alleges that Dr. Sanders-Madati did not
perform a tubal ligation, but instead removed Plaintiff’s fallopian tubes,
without justifiable medical cause or Plaintiff’s consent, rendering Plaintiff
permanently infertile. (Compl., ¶ 5.)
Therefore, the Complaint alleges there was no consent received for the surgery
performed, giving rise toa claim for medical
battery.
¿
In Providence’s moving papers it asserts
that all of the allegations in Plaintiff’s complaint focus on Dr. Sanders-Madati’s
treatment and do not allege that Dr. Sanders-Madati is employed by Providence.
Additionally, Providence asserts that the only reference to Providence is that
its nurses “aided and abetted” Dr. Sanders-Madati in committing a medical battery. Plaintiff’s Opposition notes
that paragraph 3 of her Complaint states that Dr. Sanders-Madati “is a
physician specializing in obstetrics and gynecology who is affiliated with
defendant [Providence] as a partner, shareholder, employee, or agent
and was plaintiff’s physician.” (Compl., ¶ 3 [emphases added].) The Complaint also includes some specifics as to the
unidentified members of the hospital staff, as follow: “the nurses who assisted
defendant Sanders-Madati were agents and/or employees of [Providence] knowingly
assisted defendant Sanders-Madati in the removal of plaintiff’s fallopian tubes,
despite their knowledge that plaintiff had consented only to a bilateral tubal
ligation.” (Compl., ¶ 6
[emphasis added].) Additionally, the Complaint alleges that “[t]he nurses of
defendant [Providence] knew that plaintiff had not consented to a bilateral
salpingectomy but nevertheless aided and abetted the battery performed by
defendant Sanders.” (Compl., ¶ 11 [emphasis added].)
“California case precedent establishes
a hospital may be held liable for a doctor's [negligence] when
the physician is actually employed by the hospital or is ostensibly
the agent of the hospital.” (Elam v. Coll. Park Hosp. (1982)
132 Cal. App. 3d 332, 337); see also id. at 340 (“a
hospital has a duty of reasonable care to protect patients from harm”.)
If an employment or agency relationship is sufficient to allege a cause of
action against a hospital for a doctor’s tort committed on hospital premises, it
logically follows that a Complaint sufficiently alleges a cause of action
against a hospital by including agency or employment or aiding and abetting
relationships between a doctor and nurses or other staff
and the treating physician. While the
Demurrer contends the Complaint fails to allege an employment relationship,
Providence is mistaken per Paragraphs 2, 3, and 6.
The California Supreme Court has also established that “an
employee's willful, malicious and even criminal torts may fall within the scope
of his or her employment for purposes of respondeat superior, even though
the employer has not authorized the employee to commit crimes or intentional
torts.” (Lisa M. v. Henry Mayo
Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296–297.) Where
is the line to be drawn for vicarious liability for intentional torts when an
agent or employee or independent contractor is sued along with her
principal? Lisa M discussed
circumstances where a principal or employer will not be held liable for an assault
or other intentional tort “that did not have a causal nexus to” the employee or
agent or contractor’s work. (Id. at p. 298.) What is required for vicarious liability to
attach was pleading and proof, in addition to “but for” causation, “that the
risk of the tort have been engendered by, ‘typical of or broadly incidental to,’
or, viewed from a somewhat different perspective, ‘a generally foreseeable
consequence of,’ [the] Hospital's enterprise.”
(Id. at 301, quoting Hinman v. Westinghouse Elec. Co. (1970)
2 Cal.3d 956, 960.) In Lisa M,
the intentional tort was a sexual battery of a 19-year-old pregnant patient in
a hospital by an ultrasound technician who was ultimately criminally prosecuted
and pleaded no contest to a felony charge arising out of his molestation of the
plaintiff there. The agent/employee in Lisa
M was shown to have motivating emotions were not causally attributable to
his employment
but rather was an ultrasound technician who simply took advantage of
solitude, access and superior knowledge to commit a sexual assault. Summary judgment in the hospital’s favor was
affirmed.
Here, there
are no allegations of “emotional involvement” or an “aberrant decision to
engage in conduct unrelated to” the alleged agent or employee’s job duties at a
hospital, which was not foreseeable in
the context of the claimed principal’s particular enterprise as in Lisa M. Reviewing
the pleadings here, the Court cannot say as a matter of law that it is not
foreseeable that an OB/GYN specialist’s (or her attending staff or nurses’) alleged
intentional act of completely removing rather than merely cutting and tying off
plaintiff’s fallopian tubes was not “broadly incidental to” or a “generally
foreseeable consequence” of Providence’s enterprise. Thus, at the pleading stage, the Court finds
plaintiff has sufficiently alleged a potential vicarious liability relationship
between Dr Sanders-Madati and the hospital, and between the unidentified nurses
and the hospital, to pass muster under California’s liberal pleading
rules. Whether the salpingectomy rather
than tubal ligation is a medical battery “is a factual question for a finder of
fact to decide and, at least in this instance, not one capable of being decided
on demurrer.” (Kaplan v. Mamelak (2008)
162 Cal.App.4th 637, 647) (error to sustain demurrer on medical battery cause
of action where orthopedic surgeon mistakenly operated on wrong thoracic discs.)
The Court
expressly makes no determination or finding based on a review of evidence, as
the Lisa M Court did on motion for summary judgment, as to whether the
facts of this case will or will not be sufficient to warrant a trial against
Providence. But the allegations are
sufficient at the pleading stage.
¿¿
Intentional Infliction of Emotional Distress
“The
elements of a prima facie case for the tort of intentional infliction of
emotional distress are: (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. Conduct to be outrageous must be so extreme
as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th
999, 1009, citation and ellipses omitted.)
Plaintiff’s
Complaint alleges that “[t]he actions of defendant sanders and the nurses of
defendant LCOM were outrageous and with reckless disregard of the probability
that plaintiff would suffer emotional distress upon learning that her fallopian
tubes had been removed without her consent.” (Compl., ¶ 13.)
Providence asserts that Plaintiff has not
alleged sufficient facts to support a claim for intentional infliction of
emotional distress because there is no reference or citation to specific facts
of “extreme and outrageous” conduct on the part of Providence, or a specific
employee. Providence asserts that alleging that unidentified nurses somehow
aided and abetted Dr. Sanders-Madati in battery is insufficient. Providence is partially correct, in that
there is no specific allegation as to what Providence itself did or what any specifically
identified employee of the hospital did that was extreme or outrageous. But Providence urges a standard for more
specific pleading than what the law requires.
In opposition, Plaintiff cited to a
Second District case where plaintiff
awoke from a dilation and curettage procedure following a miscarriage, and was
visually confronted with a container filled with plaintiff's blood and
tissue that may have been remnants of her unfortunate pregnancy outcome. (So
v. Shin (2013) 212 Cal.App.4th 652.)
The So v. Shin Court reversed a trial court’s sustaining of a demurrer,
holding: “There is no bright line standard for judging outrageous conduct and .
. . its generality hazards a case-by-case appraisal of conduct filtered through
the prism of the appraiser’s values, sensitivity threshold, and standards of
civility. . . . .) Thus, whether conduct
is ‘outrageous’ is usually a question of fact.” (So v. Shin (2013) 212
Cal.App.4th 652, 671–672.) Here, Plaintiff’s Complaint alleged that while in
the operating room, “she learned that her fallopian tubes had been removed and
then saw [them] in a clear plastic container.” (Compl., ¶¶ 7.) Paragraph 7 thus alleges very similar facts
to those the Second District found sufficient to state a cause of action for
IIED in the medical setting.
The
vicarious liability allegations discussed above apply with equal force and
effect as to the battery causes of action as they do the IIED cause of action. Discovery will inform the parties as to
precisely what the factual context was, what persons or person placed or left
the clear plastic container in the plain view of the patient, whether the
informed consent discussed other topics or granted more patient approvals than
those alleged in the Complaint, and other facts pertinent to the IIED cause of
action.
IV. CONCLUSION¿¿
¿¿¿
For the foregoing reasons,
Defendant’s Demurrer is OVERRULED.¿¿ Unless notice is waived, plaintiff
shall give notice of the Court’s ruling.
¿¿¿¿
¿¿¿