Case Number: BC692954 Hearing Date: June 12, 2018 Dept: J

Re: Magaly Lopez, et al. v. Citrus Obstetrics and Gynecology Medical Associates, Inc., et al. (BC692954)

DEMURRER TO COMPLAINT

Moving Party: Defendant Citrus Valley Medical Center, Inc.

Respondents: Plaintiffs, Magaly Lopez, Austin Lopez, a minor by and through his Guardian ad Litem, Magaly Lopez, and Eder Lopez

POS: Moving OK; Opposing OK; Reply served by regular mail contrary to CCP § 1005(c)

Plaintiffs contend that defendants failed to diagnose and treat Plaintiff Magaly Lopez’s (“Magaly”) infection, failed to diagnose fetal abnormalities and were otherwise negligent in rendering care to Magaly and minor Plaintiff Austin Lopez (“Austin”). The complaint, filed 2/5/18, asserts causes of action against Defendants Citrus Obstetrics and Gynecology Medical Associates, Inc. (Citrus Obstetrics”), Citrus Valley Medical Center, Inc. (“Citrus Valley Medical”), Jason Sean Begley, M.D. (“Begley”), Ian Douglas Macagy, M.D. (“Macagy”), Carols Beharie, M.D. (“Beharie”), Western University of Health Sciences (“Western University”), Stephanie White, D.O. (“White”)and Does 1-100 for:

Medical Malpractice (By Plaintiffs Magaly and Austin);
Violation of EMTALA (By Plaintiffs Magaly and Austin);
Negligent Infliction of Emotional Distress, Statutory Duty (by Plaintiff Magaly);
Negligent Infliction of Emotional Distress, Direct Victim (by Plaintiff Magaly);
Negligent Infliction of Emotional Distress, Bystander (by Plaintiffs Magaly and Eder Lopez); and
Violation of Business and Professions Code §§ 17200, et seq. (By Plaintiffs Magaly and Austin).

On 3/29/18, this case was transferred from Department 92 (personal injury hub) to this instant department. On 4/23/18, plaintiffs dismissed their sixth cause of action against Defendants Citrus Obstetrics, Begley, Macagy, Beharie, Western University and White, without prejudice. On 4/23/18, Plaintiff Magaly Lopez dismissed her third cause of action against Citrus Valley Medical, without prejudice.

A Status Hearing is set for 6/12/18.

Defendant Citrus Valley Medical Center, Inc. (“defendant”) demurs, per CCP § 430.10(e)&(f), to the 2nd and 4th-6th causes of action in Plaintiffs Magaly Lopez’s (“Magaly”), Austin Lopez’s, a minor by and through his Guardian Ad Litem, Magaly Lopez (“Austin”), and Eder Lopez’s (“Eder”) (collectively, “plaintiffs”) complaint, on the basis that they each fail to state facts sufficient to constitute causes of action and are uncertain.

SECOND CAUSE OF ACTION (i.e., VIOLATION OF EMTALA):

Plaintiffs allege that “MAGALY…presented to [defendant’s] ED on 2-9-17 complaining of abdominal pain, right flank pain and with a temperature of 100.3. Both MAGALY and AUSTIN were tachycardic. Defendant BEGLEY diagnosed MAGALY with UTI. BEGLEY also determined that MAGALKY was suffering from pyelonephritis, a kidney infection. BEGLEY ordered Ceftiaxone, every 24 hours, starting on 2-9-17 and ending 2-23-17. However, on 2-11-17, Defendant MACAGY determined that the IV antibiotics should be discontinued and oral agents prescribed. Defendants discharged MAGALY home on 2-11-17 without a prescription for antibiotics.” (Complaint, ¶ 21). They also allege that “[o]n 4-3-17, MAGALY presented to CVMC ED, admitted by Defendant BEGLEY…Baby AUSTIN was born on 4-4-17…[t]he day after AUSTIN’s birth, on 4-5-17 MAGALY continued to suffer from infection. Nonetheless, she was discharged without antibiotics.” (Id., ¶¶ 26, 27 & 30). Magaly and Austin claim that “on at least two occasions, MAGALY was discharged from [defendant] before her emergency condition has stabilized. (A) On 2-9-17 when MAGALY was diagnosed with bacterial infections requiring continued administration of IV antibiotics MAGALY was discharged before her infection was in control and stable and without any prescription for antibiotics; and (B) On 4-6-17, when MAGALY was still suffering from bacterial infections she was discharged without being stabilized or properly medicated.” (Id., ¶ 41).

The above allegations reflect that Magaly was admitted to defendant for inpatient care on 2/9/17, where she remained until her 2/11/17 discharge. It is also apparent that Magaly was admitted to defendant for inpatient care on 4/3/17, where she remained until her discharge on either 4/5/17 or 4/6/17. In Bryant v. Adventist Health System/West (9th Cir. 2002) 289 F.3d 1162, 1167, the 9th Circuit Court of Appeals held that “EMTALA’s stabilization requirement ends when an individual is admitted for inpatient care.” Id. at 1168. In doing so, it reasoned that “Congress enacted EMTALA ‘to create a new cause of action, generally unavailable under state tort law, for what amounts to failure to treat’ and not to ‘duplicate preexisting legal protections.’ Gatewood [v. Wash. Healthcare Corp.,] 933 F.2d [1037] at 1041 (D.C.Cir.1991); see also Hardy v. N.Y. City Health & Hosps. Corp., 164 F.3d 789, 792-93 (2d Cir.1999) (‘EMTALA was enacted to fill a lacuna in traditional state tort law by imposing on hospitals a legal duty (that the common law did not recognize) to provide emergency care to all.’); Brooks v. Md. Gen. Hosp., Inc. 996 F.2d 708, 710 (4th Cir.1993). After an individual is admitted for inpatient care, state tort law provides a remedy for negligent care. If EMTALA liability extended to inpatient care, EMTALA would be ‘convert[ed]…into a federal malpractice statute, something it was never intended to be.’ Hussain v. Kaiser Found. Health Plan, 914 F.Supp. 1331, 1335 (E.D. Va. 1996).” Id. at 1169.

Defendant’s demurrer to the second cause of action, then, is sustained.

FOURTH CAUSE OF ACTION (i.e., NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, DIRECT VICTIM [BY PLAINTIFF MAGALY]):

The basis of Plaintiff Magaly’s fourth cause of action is the contention that as a result of an EMTALA violation Plaintiff Magaly suffered emotional distress. Under the EMTALA, “[a]ny individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.” 42 U.S.C. § 1395dd(d)(2)(A).

“[T]here is no independent tort of negligent infliction of emotional distress.” Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984. “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” Id. at 985. Here, Plaintiff Magaly alleges that as the direct victim of an EMTALA violation, she suffered a negligent infliction of emotional distress; accordingly, she alleges defendant’s breach of duty proximately caused her emotional distress.

The fourth cause of action merely seeks damages already alleged under the second cause of action, and adds nothing to the complaint by fact or theory. Since the second cause of action fails, the fourth cause of action likewise fails.

Accordingly, defendant’s demurrer to the fourth cause of action is sustained.

FIFTH CAUSE OF ACTION (i.e., NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, DIRECT VICTIM [BY PLAINTIFFS MAGALY AND EDER LOPEZ]):

Plaintiffs’ Magaly’s and Eder’s fifth cause of action arises from their alleged observations of injury to Plaintiff Austin in the hours after his birth. The elements of a bystander negligent infliction of emotional distress cause of action are: “plaintiff (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim, and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.

In Bird v. Saenz (2002) 28 Cal.4th 910, plaintiffs sought to recover damages for negligent infliction of emotional distress based on medical malpractice suffered by their mother. One of the plaintiffs had brought their mother to the hospital to undergo an outpatient surgical procedure to insert a venous catheter. During the procedure, an artery was pierced, which led to severe internal bleeding. Plaintiffs heard a call for a thoracic surgeon, saw their mother being rushed by medical personnel to another room, heard the doctor’s report of the mother possibly having suffered a nicked artery or vein, and saw their mother being rushed into surgery. They were not present at the scene of the transection of their mother’s artery, but alleges that they were aware their mother’s artery or vein “had been injured as a result of Defendants’ conduct…and that Defendants failed to treat that injury while it was occurring.” Id. at 917. The California Supreme Court determined that “[t]he problem with defining the injury-producing event as defendants’ failure to diagnose and treat the damaged artery is that plaintiffs could not meaningfully have perceived any such failure. Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders…. Even if plaintiffs believed, as they stated in their declarations, that their mother was bleeding to death, they had no reason to know that the care she was receiving to diagnose and correct the cause of the problem was inadequate. While they eventually became aware that one injury-producing event—the transected artery—had occurred, they had no basis for believing that another, subtler event was occurring in its wake.” Id. at 917.

The Court went on to advise that “[t]his is not to say that a layperson can never perceive medical negligence, or that one who does perceive it cannot assert a valid claim for NIED. To suggest an extreme example, a layperson who watched as a relative’s sound limb was amputated by mistake might well have a valid claim for NIED against the surgeon. Such an accident, and its injury causing effects, would not lie beyond the plaintiff’s understanding awareness. But the same cannot be assumed of medical malpractice generally.” Id. at 918.

Here, Plaintiffs Magaly and Eder have alleged that they witnessed Plaintiff Austin experience respiratory issues and turn blue. (Complaint, ¶ 64). They have not stated a claim under the bystander theory because at the time Plaintiff Austin was in respiratory distress Plaintiffs Magaly and Eder were unaware of the alleged injury producing event (i.e., failure to protect from infection). (Id., ¶ 67).

Since Plaintiffs Magaly and Eder have not sufficiently alleged the contemporaneous awareness element required to state a cause of action for bystander negligent infliction of emotional distress, defendant’s demurrer to the fifth cause of action is sustained.

SIXTH CAUSE OF ACTION (i.e., VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200):

Plaintiffs Magaly and Austin allege that defendant violated Business and Professions Code § 17200 as a result of the alleged premature discharge of Plaintiff Magaly in February and April 2017. They contend that Plaintiff Magaly’s discharge constituted an unlawful business act under the UCL.

As plaintiffs fail to state a cause of action under the EMTALA, the derivative UCL claim also fails. Defendant’s demurrer to the sixth cause of action is sustained.

The court will hear from counsel for plaintiffs as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.