Case Number: BC516950 Hearing Date: May 15, 2014 Dept: NCD

Demurrer of Defendant Kenneth Sim, M.D. to Plaintiff’s First Amended Complaint

TENTATIVE:
Demurrer is SUSTAINED.
To the extent the third cause of action is a direct negligence claim as to plaintiff Elvia Arroyo, it appears to be based on the alleged failures to act within the appropriate standard of care, which is the subject of the medical malpractice cause of action.

To the extent this is a direct negligence claim on the part of the remaining plaintiffs, this must be specifically and factually pleaded, particularly any negligence duty owed, and the damages allegedly caused to these plaintiffs as direct victims.

To the extent this is a bystander NIED claim, such a claim must be clearly and narrowly pled, establishing each element of such a cause in the medical malpractice context, including identification of the alleged injury producing event and facts showing a contemporaneous awareness by plaintiffs that the event was then causing harm.

The court expects a more thorough legal analysis of the sufficiency of the allegations and appropriateness of the cause of action by both sides in connection with any further challenge to the pleadings on these grounds.

Ten days leave to amend.

CAUSES OF ACTION: from First Amended Complaint
1) Professional Negligence
2) Loss of Consortium
3) NIED

SUMMARY OF FACTS:
Plaintiff Elvia Arroyo, her husband, plaintiff Ramiro Arroyo, and her children, plaintiffs Ingrid Carbajal, Jose Carbajal and Rene Carbajal bring this medical malpractice action alleging that in July 2012, defendant Kenneth Sim, M.D., after repeatedly failing conservative treatment for diverticulitis, suggested that Ms. Arroyo have surgery. Plaintiffs allege that during the surgery, Dr. Sims failed to notice Ms. Arroyo was suffering from a resected ureter, and subsequently misdiagnosed Ms. Arroyo with advanced stage cancer, and failed to properly diagnose or treat the resected ureter which Dr. Sims had caused during the surgery. The FAC alleges that Dr. Sims notified plaintiff’s daughter, plaintiff Ingrid Carbajal, that Ms. Arroyo had late stage cancer and her prognosis was likely terminal, and subsequently met with the immediate family to discuss the diagnosis, as a result of which Ms. Arroyo’s family suffered serious emotional and physical distress. Plaintiffs allege that Dr. Sims ultimately informed the Carbajal plaintiffs that he had made an error, that Ms. Arroyo was not in fact suffering from an advanced and aggressive form of cancer, or any form of cancer at all, but that he might have confused Ms. Arroyo with another patient.

The FAC alleges that in August 2012, a month after the surgery, Ms. Arroyo was admitted to the emergency room at Glendale Memorial Hospital, and was diagnosed with ureter damage, and other conditions caused by the ureter being damaged during a recent surgery. As a result, Ms. Arroyo has had to undergo further medical procedures, has suffered physical, mental and emotional injury, and may need continuing medical care.

ANALYSIS:
Third Cause of Action—NIED
The demurrer argues that as to Ms. Arroyo, the cause of action is redundant of the first cause of action for medical negligence, and does not constitute a separate cause of action.

The opposition does not substantially address this issue, or point to any negligent acts – – other than those described in the first cause of action for professional negligence, which form the basis for this cause of action – – that would justify bringing a separate claim, when this plaintiff is already entitled to emotional distress damages caused by the alleged negligence in connection with the first cause of action. The demurrer is therefore sustained.

With respect to professional negligence cases, it is recognized that where the same circumstances are alleged with respect to such claims, only one duty arises, and one cause of action. In Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal. 4th 992, the California Supreme Court noted:
“The Court of Appeal thus erred in finding plaintiff’s pleadings “broad enough” to state a cause of action for ordinary negligence as well as professional negligence. This analysis necessarily implies that the same factual predicate can give rise to two independent obligations to exercise due care according to two different standards. But this is a legal impossibility: a defendant has only one duty, measured by one standard of care, under any given circumstances.”
Flowers, at 1000.

Accordingly, to the extent this NIED cause of action could be interpreted as seeking emotional distress damages under general negligence principles, it is improper. The demurrer is therefore sustained.

The demurrer also argues that as to the remaining plaintiffs, who are not the direct victims of the alleged negligence, the pleading fails to sufficiently allege bystander NIED.

With respect to the NIED claim, to state a cause of action for NIED in the absence of physical injury to the plaintiff himself, the plaintiff must allege:
1) A close relationship to the injury victim
2) That plaintiff was present at the scene of the injury producing event at the time it occurred and is then aware that it is causing injury to the victim; and
3) Resulting serious emotional distress.
Thing v. La Chusa (1989) 48 Cal.3d 644.

In Thing, the California Supreme Court held, as a matter of law, that a plaintiff to recover on such a theory must contemporaneously witness the accident causing injury. Defendant argues here that no injury producing event is adequately alleged.

The opposition argues that the husband and children here were direct victims of Dr. Sims’ negligence, as they had a special relationship with Dr. Sims, who indicated he would take care of the family, as Ingrid Carbajal was like a daughter to him, and that the children besides suffering emotional distress associated with learning their mother was going to die from cancer, since cancer has hereditary attributes, had a reasonable fear for their own health.

None of this is alleged in the FAC, however, and to the extent there is an intent here to allege direct victim negligence, the FAC does not do so, and the demurrer is therefore sustained.

Plaintiffs also argue that they have stated a claim under a bystander theory. The argument is that plaintiffs witnessed conduct and understood it was causing harm when they witnessed their mother in pain and understood Dr. Sim’s conduct was causing harm, such as when Dr. Sims failed to provide needed pain medications to her because he had confused her file with another patient’s. This incident is not clearly alleged in the pleading. The argument also seems based on knowledge at the time of a misdiagnosis or of errors which were only later admitted or discovered. There is also an argument that plaintiff Ingrid Carbajal is a vocational nurse with specific knowledge to recognize that Dr. Sim’s actions were causing harm, but this is also not alleged in the FAC. The demurrer is therefore sustained to more clearly allege this claim.