Case Number: BC675841 Hearing Date: December 27, 2019 Dept: NCB

Superior Court of California
County of Los Angeles

North Central District
Department B

rita cabeza, et al.,

Plaintiffs,

v.

huntington memorial hospital, et al.,

Defendants.

Case No.: BC675841

Hearing Date: December 27, 2019

[TENTATIVE] order RE:

demurrer

BACKGROUND

Allegations

Plaintiffs Rita M. Cabeza (“Mrs. Cabeza”) and Perfecto I. Cabeza (“Mr. Cabeza”) commenced this action against various medical Defendants, alleging that on June 16, 2016, Mrs. Cabeza sought urgent medical attention from Defendant Health Care Partners Urgent Care aka Health Care Partners, Inc. (“Health Care Partners”) for symptoms of impending stroke. They allege that Mrs. Cabeza informed Defendants of her symptoms and was transported to Defendant Huntington Memorial Hospital (“Hospital”) by ambulance, but Hospital’s physicians and nursing staff failed to properly evaluate, screen, test, and detect her stroke symptoms and thereby failed to provide adequate medical treatment. They allege that the physicians and nurses failed to administer appropriate anti-stroke medication during a critical 3-hour window after Mrs. Cabeza was admitted, she was left unattended, and they did not give her appropriate care and medication.

The second amended complaint (“SAC”), filed September 17, 2019, alleges causes of action for: (1) medical malpractice by Mrs. Cabeza; (2) NIED by Mrs. Cabeza and Mr. Cabeza; and (3) loss of consortium by Mr. Cabeza.

Demurrer

On September 17, 2019, Defendants Woo Sok Lee, M.D. (“Dr. Lee”), Boris Pearlman, M.D. (“Dr. Pearlman”), and HealthCare Partners Affiliates Medical Group (“HealthCare Partners”). They demur to each cause of action alleged in the SAC.

On December 13, 2019, Plaintiffs filed an opposition.

On December 19, 2019, Defendants filed a reply brief.

DISCUSSION

Allegations Against Dr. Lee

Defendants demur to the SAC, arguing that the allegations of the SAC fail to allege any conduct on the part of Dr. Lee.

In the SAC, Dr. Lee is alleged to be employed by HealthCare Partners. (SAC, ¶5.) While Dr. Lee is not mentioned specifically in the SAC or the causes of action, the Court overrules the demurrer. Plaintiffs allege that on June 16, 2016, Mrs. Cabeza sought urgent medical attention at HealthCare Partners of symptoms of impending stroke and she informed the staff of her symptoms prior to being transported to Huntington Memorial Hospital. (Id., ¶10.) She alleges that the physicians and nursing staff of HealthCare Partners failed to administer the appropriate anti-stroke medications during a critical 3-hour window after Mrs. Cabeza was admitted. (Id., ¶13.)

Although the HealthCare Partner defendants are referred together, the allegations of the SAC are not so vague or ambiguous such that Dr. Lee is unable to respond. Plaintiffs allege that the events (or inactions) occurred at HealthCare Partners on June 16, 2016 and that Mrs. Cabeza suffered a stroke on June 17, 2016. (SAC, ¶¶10, 14.) The harm complained of in the SAC is regarding Mrs. Cabeza’s care in the span of these two days—and in particular, the June 16 day when she was under HealthCare Partners’ care.

At the pleading stage, the Court will find that this is sufficient to put Defendants on notice of the medical malpractice claim alleged against them.

Thus, the demurrer on the basis that the SAC lacks sufficient allegations to constitute a cause of action against Dr. Lee is overruled.

NIED (2nd cause of action)

NIED is not an independent tort, but is the tort of negligence; thus, the traditional elements of duty, breach of duty, causation, and damages apply. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213.) NIED is typically analyzed by reference to 2 theories: (1) the bystander theory; and (2) the direct victim theory. (Id.) Under the bystander theory, a duty is owed in a limited class of cases where the plaintiff is: (1) closely related to the injury victim, (2) 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 emotional distress beyond that which would be anticipated in a disinterested witness. (Id.) Under the direct victim theory, a duty is owed directly to the plaintiff that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Id.)

Defendants argue that Mrs. Cabeza’s 2nd cause of action is essentially a cause of action in negligence, and not emotional distress. In turn, they argue that because she already has a medical malpractice cause of action, this 2nd cause of action (which is essentially a negligence claim) is duplicative and should be sustained without leave to amend.

While NIED is not an independent tort, an NIED claim is a tort of negligence such that the traditional elements of negligence must be satisfied and that there were 2 theories of NIED—bystander and direct victim cases. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) However, the Supreme Court did not state that an NIED claim was subsumed in or duplicative to a professional negligence claim. Thus, so long as Plaintiffs have established the elements of an NIED claim, this is a viable cause of action that may be alleged separate from professional negligence.

Next, Defendants demur to the NIED cause of action, arguing that Plaintiffs fail to allege facts showing that Mr. Cabeza was a bystander victim.

In the 2nd cause of action, Plaintiffs allege that Defendants knew or should have known that their failure to exercise due care in performing their duties would cause Plaintiffs severe emotional distress. (SAC, ¶37.) They allege that Defendants’ conduct and inaction constituted a breach of duty, which proximately resulted in Mrs. Cabeza suffering as a patient and direct victim of Defendants’ negligence, and Mr. Cabeza (Mrs. Cabeza’s spouse) suffering as a bystander when he was present during Mrs. Cabeza’s stroke and had contemporary sensory awareness of the causal connection between Defendants’ negligence and Mrs. Cabeza’s resulting injury. (Id., ¶¶38-39.)

Here, the allegations are sufficient to allege that Mrs. Cabeza was a patient of Defendants at the Hospital and thus there was a duty that arose by nature of a doctor-patient relationship. With regard to Mr. Cabeza, the SAC sufficiently alleges that Mr. Cabeza has a close relationship with Mrs. Cabeza as her spouse, and that he was at the scene of the stroke and was aware that Defendants’ negligence caused both Cabezas to suffer emotional distress. At the pleading stage, the allegations are sufficient to allege NIED. Putting the plausibility of the allegations aside, “[w]hether the plaintiff[s] will be able to prove the pleaded facts is irrelevant to ruling upon a demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.)

The demurrer to the 2nd cause of action is overruled.

3. Loss of Consortium (3rd cause of action)

The Court notes that though the notice of the demurrer states that Defendants were demurring on the 3rd cause of action, there are no substantive arguments or discussions on this cause of action in the demurrer papers. Thus, the demurrer to the 3rd cause of action is overruled for the same reasons stated above.

CONCLUSION AND ORDER

Dr. Lee, Dr. Pearlman, and HealthCare Partners’ demurrer to the SAC is overruled. Defendants are directed to answer within 10 days of this order.

Plaintiffs shall provide notice of this order.