Case Number: BC541874    Hearing Date: July 15, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

G. AHAMIAN, ET AL.,
Plaintiff(s),
vs.

MARIAN BURSTEIN, M.D., ET AL.,

Defendant(s).

CASE NO: BC541874

[TENTATIVE] ORDER SUSTAINING DEMURRER IN PART AND OVERRULING DEMURRER IN PART

Dept. 92
1:30 p.m. — #15
July 16, 2014

Defendants’ Demurrer is Sustained in Part and Overruled in Part as Set Forth Fully Below. Plaintiffs are ordered to file a First Amended Complaint within twenty days. Defendants are ordered to file a responsive pleading within the statutory time thereafter.

1. Background Facts
Plaintiffs, G. Ahamian, a minor, by and through his GAL, Oleg Ahamian, as well as Oleg and Liliya Ahamian, in their individual capacity, filed this action against Defendants, Marina Burstein, M.D. dba Calabasas Pediatrics and Marina Burnstein, M.D., an individual, for professional negligence, premises liability, and negligent infliction of emotional distress. The minor plaintiff was at the defendants’ office when he put his hand in an unlabeled container that contained dirty syringes; the minor plaintiff was pricked by a syringe, causing him to cry in pain.

2. Demurrer
a. First Cause of Action, Professional Negligence
Plaintiffs’ first cause of action is for professional negligence. As an initial note, Defendants argue the parent plaintiffs cannot state a claim for professional negligence, and Plaintiffs concede as much in their opposition. The demurrer to the parents’ claim for professional negligence is therefore sustained without leave to amend.

The more difficult issue is whether the minor plaintiff can state a claim for professional malpractice. Defendants argue he cannot, and rely on Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965 (mis-cited by Defendants as 25 Cal.4th 965) and Macy’s California, Inc. v. Superior Court (1995) 41 Cal.App.4th 744 to support their position. Defendants contend Potter establishes that Plaintiff cannot sue for professional negligence based solely on fear of disease, and Macy’s establishes that a pin prick from a needle is not actionable, as it does not cause damage in and of itself.

The first issue is whether Plaintiff can state a cause of action under Potter. In Potter, the plaintiffs consumed water that they believed was toxic, and they sued the toxic waste dumpers for damages arising out of the fear that they could potentially develop cancer. The Supreme Court held that the plaintiffs could not recover damages for their “fear of developing cancer.” Specifically, it held, “Unless an express exception to this general rule is recognized, in the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves that (1) as a result of the defendant’s negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer; and (2) the plaintiff’s fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure.”

The Court did, however, hold that the plaintiffs could recover damages for their medical costs associated with monitoring for potential cancer. Id. at 1007-1008. Plaintiffs herein argue that, at a minimum, they should be allowed to recover damages for the cost of medical monitoring. Notably, Defendants’ reply only mentions this briefly, at page 9, lines 20-21 of the reply, wherein they state that this proposition is contradicted by the passage from Potter Plaintiffs quote. \

The Potter Court affirmed the ruling of Miranda, which was discussed therein. The Court held, “In holding that recovery of medical monitoring damages is not contingent upon a showing of a present physical injury or upon proof that injury is reasonably certain to occur in the future, the Miranda court aligned itself with a number of other courts that have considered the issue (citations). Consistent with these other decisions, the court determined that such recovery was not available solely upon proof of an exposure to toxic chemicals; rather, there must be a further showing that the need for monitoring is a reasonably certain consequence of the exposure, based upon a consideration of at least the following five factors: (1) the significance and extent of the plaintiff’s exposure to the chemicals; (2) the relative toxicity of the chemicals; (3) the seriousness of the diseases for which plaintiff is at an increased risk; (4) the relative increase in the plaintiff’s chances of developing a disease as a result of the exposure, when compared to (a) plaintiff’s chances of developing the disease had he or she not been exposed, and (b) the chances of members of the public at large of developing the disease; and (5) the clinical value of early detection and diagnosis. (Miranda, supra, 17 Cal.App.4th at pp. 1657-1658, citing Ayers, supra, 525 A.2d at p. 312.)

The Court finds Plaintiffs have, at the pleading stage, met the requirements of Miranda. Notably, Plaintiffs allege that the minor plaintiff was exposed to unknown pathogens at a doctor’s office. Plaintiffs, in their opposition papers, explain that they have not been able to identify the pathogens because the syringes were destroyed the same day of the incident. It is reasonable and prudent for a parent to have a child monitored, at least for a period of time, after exposure to needles in a doctor’s office.

The demurrer to the first cause of action for professional negligence is overruled. The Court need not consider the issue of whether Plaintiff can recover damages for the pain of the pinprick, as the demurrer must be overruled regardless.

b. Second Cause of Action, Premises Liability
Defendants demur to the second cause of action, correctly noting that a cause of action for premises liability is redundant with the cause of action for professional malpractice. Plaintiffs concede as much in opposition. The demurrer to the second cause of action is sustained without leave to amend.

c. Third Cause of Action, NIED
As an initial note, the third cause of action is pled by all three of the plaintiffs. Defendants correctly note, in their opposition, that the minor plaintiff cannot state a claim for NIED based on a bystander theory. Plaintiffs concede as much in the opposition. The demurrer to the third cause of action is sustained without leave to amend to the extent it is brought by the minor plaintiff.

To the extent the cause of action is brought by the parents, Defendants contend Herbert v. Regents of the University of California (1994) 26 Cal.App.4th 782 bars recovery. Herbert contains facts strikingly similar to the facts of this case. In Herbert, a three-year-old boy stuck his hand on a needle at the UCLA medical office. The boy’s mother sued for negligent infliction of emotional distress, contending she immediately feared her son might contract AIDS when she saw him stick his finger. The court of appeals held that no claim could be stated based on those facts, finding that the rule set forth in Potter, supra (no recovery for fear of contracting a disease), barred the mother’s claim.

Plaintiffs herein attempt to distinguish Herbert, contending they were in the room with their child when their child was stuck by needles, and suffered emotional distress due to hearing him cry out in pain. At ¶45, however, Plaintiffs specifically plead that they suffered emotional distress because they were terrified that their son was exposed to harmful and unknown pathogens. This is precisely the type of recovery that is not permitted by Herbert. The demurrer is therefore sustained. Leave to amend is granted if and only if Plaintiffs can plead actionable NIED that does not relate to fear of potential disease.

Dated this 16th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court