Case Name:   Elizabeth H. Neumann v. Episcopal Senior Communities, et al.

Case No.:       1-14-CV-265542

 

Currently before the Court is the demurrer of defendants John Wortley, M.D. (“Wortley”) and Almaden Family Physicians Medical Group, Inc. (collectively, “Defendants”) to the first amended complaint (“FAC”) of plaintiff Elizabeth H. Neumann (“Neumann”). Defendants demur to the second, third, fourth and seventh causes of action in the FAC on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subds. (e), (f).)

 

Uncertainty

 

Defendants demur to the second, third, fourth, and seventh causes of action for negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and unfair business practices, respectively, on the ground of uncertainty. In particular, Defendants contend that Neumann improperly combines causes of action for negligence and medical malpractice and alleges these causes of action in a conclusory fashion.

 

“A demurrer for uncertainty is strictly construed, even where a [pleading] 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.) A demurrer for uncertainty will be sustained only where the pleading is so incomprehensible that the opposing party cannot reasonably respond. (See Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

 

Here, the pleading is not so incomprehensible that Defendants cannot reasonably respond and any remaining ambiguities can be clarified in discovery. Accordingly, the demurrer on the ground of uncertainty is OVERRULED.

 

Second Cause of Action for Negligence

 

In their reply brief, Defendants withdraw their demurrer to the second cause of action for negligence. Accordingly, the demurrer to the second cause of action for negligence is MOOT.

 

Third Cause of Action for Intentional Infliction of Emotional Distress

Defendants first argue that the alteration of Neumann’s pain medication does not constitute extreme and outrageous conduct. In opposition, Neumann contends that Wortley’s decision to reduce Neumann’s pain medication on three different occasions, despite being affirmatively instructed not to lower the dosage, constitutes extreme and outrageous conduct.

Here, Neumann alleges that Wortley abused the power to affect her interests by reducing the amount of pain medication provided to her on three different occasions without the consent of Irving, the holder of Neumann’s durable power of attorney for health care decisions. (FAC, ¶¶ 14, 16, 25.)  Given Wortley’s power to affect Neumann’s interests and his alleged refusal to comply with Irving’s express directives, reasonable minds could differ as to whether Wortley’s conduct was sufficiently extreme and outrageous. (See Cross v. Bonded Adjustment Bureau (1996) 48 Cal.App.4th 266, 283 [whether conduct considered “outrageous” generally question of fact unless reasonable minds must conclude conduct is not “outrageous”.].)

Second, Defendants argue that Neumann cannot state a cause of action for intentional infliction of emotional distress because “there is no allegation that Dr. Wortley was in close enough proximity to direct his conduct at the plaintiff, or occur in the presence of the plaintiff of whom he was aware.” (Mem. Ps & As., p. 5:19-21.) In support of this argument, Defendants rely on the following quotation from Christensen v. Superior Court (1991) 54 Cal.3d 868, 902-903: “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” This argument is not persuasive. Here, Wortley’s conduct, the alteration of Neumann’s pain medication, was necessarily directed at her, and Neumann alleges that Wortley altered her medication with knowledge of the likelihood that she would suffer emotional distress. (FAC, ¶ 50.) Thus, Neumann alleges sufficient facts to indicate that Wortley’s conduct was directed at her.

Third, Defendants contend that Neumann fails to allege that she was aware that Wortley altered her medication. This argument lacks merit. Neumann alleges that she suffered severe pain, a decrease in appetite and the inability to get dressed, shower or use the bathroom as a result of the change in medication. (FAC, ¶ 50.) Thus, she alleges sufficient facts to indicate that she was aware of Wortley’s conduct.

Fourth, Defendants contend that Neumann does not allege that she suffered severe emotional distress. Neumann alleges that “Defendants’ actions were intended to cause and did cause severe emotional distress” (FAC, ¶ 51), including “great pain, mental anguish, suffering, feelings of helplessness and desperation.” (FAC, ¶ 52.) In particular, she alleges that, after her pain medication was altered for the second time, her appetite decreased and she was in so much pain that she could not get dressed, shower, or use the bathroom. (FAC, ¶ 17.) After her pain medication was altered for the third time, she experienced increased pain, anxiety, agitation, and confusion. (FAC, ¶ 24.) She further alleges that she was “extremely tearful and cried often.” (FAC, ¶ 24.)

Based on these allegations, it is unclear whether Neumann’s decrease in appetite, inability to get dressed, shower, or use the bathroom, anxiety, agitation and confusion was due to physical pain or emotional distress occasioned by the alteration of her pain medication. As the allegations must be liberally construed in favor of the pleader on demurrer (Joffe v. United California Bank (1983) 141 Cal.App.3d 541, 549), Neumann’s pain, decrease in appetite, inability to get dressed, shower or use the bathroom must be construed as the result of emotional distress caused by the alteration of her pain medication. Given this construction, the allegations are sufficient to allege severe emotional distress. (See Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797, 806 [inability to go anywhere or do anything due to emotional distress considered severe emotional distress].)

Finally, Defendants argue that Neumann does not allege facts indicating that Wortley proximately caused her distress. This argument is without merit. Neumann alleges that the reduction of her pain medication was intended to cause and did cause her severe emotional distress, including decreased appetite and the inability to get dressed, shower or use the bathroom. (FAC, ¶ 17.)

Based on the foregoing, Neumann alleges sufficient facts to state a cause of action for intentional infliction of emotional distress. Accordingly, the demurrer to the third cause of action is OVERRULED.

 

Fourth Cause of Action for Negligent Infliction of Emotional Distress

 

Defendants contend that the fourth cause of action for negligent infliction of emotional distress is unnecessary because Neumann may recover damages for her emotional distress claim as part of her medical negligence claim. This argument is without merit. Code of Civil Procedure section 430.10, which sets forth the grounds for demurrer, does not provide that an unnecessary or duplicative claim is a basis for demurrer. Accordingly, the demurrer to the fourth cause of action is OVERRULED.

 

Seventh Cause of Action for Unfair Business Practices

 

In her opposition, Neumann agrees to dismiss the seventh cause of action for unfair business practices against Defendant. Accordingly, the demurrer to the seventh cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.