Case Number: BC567697 Hearing Date: July 21, 2016 Dept: SEC

WILKINSON v. FOBI. M.D.
CASE NO.: BC567697
HEARING: 07/21/16

#2
TENTATIVE ORDER

Defendants MATHIAS FOBI, M.D. and CENTER FOR SURGICAL TREATMENT OF OBESITY’s demurrer to the Third Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to both defendants on the 2nd (battery) cause of action; SUSTAINED WITHOUT LEAVE TO AMEND as to the 1st (negligence) cause of action against defendant FOBI and OVERRULED as to the 1st (negligence) cause of action against defendant CENTER. C.C.P. § 430.10(e), (f).

Defendant CENTER has 10 days to serve and file a responsive pleading.

Plaintiff KIMBERLY SUE WILKINSON filed her initial complaint in January 2015. The operative SAC was filed in September 2015 and, after demurrer, the Third Amended Complaint was filed in April 2016. Therein, plaintiff alleges medical negligence and battery, arising from a gastric bypass surgery performed in April 2001.

As alleged, plaintiff did not discover the injury until October 2013, when she visited her chiropractor due to numbness in her abdomen and sharp pains. TAC, ¶13. X-Rays revealed hundreds of metal staples left in plaintiffs’ body cavity after the 2001 surgery. Id.

Defendants demurred to the Second Amended Complaint for failure to state sufficient facts and statute of limitations. The briefings made clear that plaintiff is relying on the foreign body exception to toll the statute of limitations. C.C.P. § 340.5(3). Plaintiff was granted leave to amend to plead facts supporting application of the exception. See Maher v. County of Alameda (2014) 223 Cal.App.4th 1340. Under Maher, the foreign body tolling rule applies to items placed in the body as part of a procedure, but meant to be removed at a later time or not removed after it ceases to have therapeutic value. Id. at 1350-52.
Plaintiff alleges that 300 staples were unnecessary and that they ceased having therapeutic value. TAC, ¶12. The Court finds the allegations sufficient to trigger the exception to overcome demurrer.

Plaintiff was also granted leave to amend to plead charging allegations to support the negligence claim against the moving defendants.

Plaintiff contends that Fobi initially informed her that he would be performing the surgery, although he later told her it would be done by co-defendants. TAC, ¶¶8, 9. That cannot constitute a breach of professional duty, as plaintiff consented and there was no alleged harm as a result.

Plaintiff also alleges that defendants (including Fobi) failed “to make a full and fair disclosure of all material facts related to plaintiff’s care.” ¶10. That allegation is conclusory, as it does not specify what information was withheld and how it caused plaintiff harm. A theory that defendant Fobi should have informed plaintiff of the staples left in her body cavity is nonsensical, as that act occurred during the surgery. The Court is persuaded by defendant Fobi’s argument that the facts do not support liability against him. His demurrer to the 1st cause of action is sustained without leave to amend.

Defendant Center argues that it cannot be held vicariously liable for Fobi’s actions because Fobi did not perform the surgery or commit any other negligent acts. Plaintiff alleges that defendant Center is liable for the actions of co-defendants Dr. Lee and Dr. Felahy, alleged employees of the Center. TAC, ¶4; Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798. Defendant did not address that theory of liability and thus has not established that the negligence claim against it is improper. Defendant Center’s demurrer to the 1st cause of action is overruled.

As to the battery cause of action, plaintiff relies on the doctrine of equitable tolling to avoid the statute of limitations. See Bollinger v. Nat’l Fire Ins. Co. 25 Cal.2d 399. The factual allegations do not support that theory, as there is nothing to suggest that defendants intentionally concealed facts. The claim is time-barred. C.C.P. § 335.1.

Additionally, plaintiff did not allege any intentional contact by defendant Fobi. Battery in the medical malpractice context is generally limited to contact or treatment to which the plaintiff did not consent. Cobbs v. Grant (1972) 8 Cal.3d 229. Plaintiff consented to the surgery. For those reasons, the battery cause of action fails.

Finally, the Court notes that defendants did not submit a declaration indicating that counsel made efforts to meet and confer prior to filing the subject demurrer. The parties did not meet and confer in connection with the prior demurrer either (as it was filed before the enactment of Code of Civil Procedure section 430.41). Counsel are reminded of the statutory requirement of a telephonic or in person meet and confer to resolve pleading disputes prior to presenting them to the Court.