Case Number: BC567668 Hearing Date: July 21, 2016 Dept: 37

CASE NAME: Shabsis v. The Regents of the University of California, et al.

CASE NO.: BC567668

HEARING DATE: 7/21/16

DEPARTMENT: 37

CALENDAR NO.: 8

TRIAL DATE: 10/10/17

NOTICE: OK

SUBJECT: Demurrer to First Amended Complaint

DEMURRING PARTY: Defendant Philip H. Cogen, M.D.

OPPOSING PARTY: Plaintiff Michael Shabsis

COURT’S TENTATIVE RULING

The demurrer is sustained with 20 days leave to amend. Counsel for Defendant to give notice.

STATEMENT OF THE CASE

In this action, Plaintiff Michael Shabsis alleges that he suffered a psychotic breakdown as a result of Defendants’ prescription of Chantix, a smoking cessation medication. Defendant Philip H. Cogen, M.D., the physician who allegedly prescribed the Chantix, demurs to the eleventh cause of action for general negligence. For the reasons set forth below, the demurrer is sustained with 20 days leave to amend.

DISCUSSION

I. Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

II. Analysis

In the First Amended Complaint, Plaintiff asserts three causes of action that are purportedly based on the alleged negligence of Dr. Cogen. Plaintiff asserts the first cause of action for medical negligence (FAC ¶¶ 29-31), the second cause of action for

respondeat superior against the Regents and the hospital for whom Dr. Cogen allegedly worked (FAC ¶¶ 35-36), and the eleventh cause of action for general negligence against all defendants, who include the County of Los Angeles, the County Sheriff’s Department, Leroy Baca, and Pfizer, Inc. (FAC ¶¶ 98-103). Dr. Cogen demurs to the eleventh cause of action, contending that it duplicates the first and is, essentially, an attempt to circumvent the Medical Injury Compensation Reform Act (MICRA), which provides a $250,000 cap on noneconomic damages. (Civ. Code, § 3333.2.)

In evaluating the sufficiency of a pleading, the court looks to the substance of a cause of action, not the litigant’s label for it. The tort of negligence is based on the defendant’s breach of a duty of care owed to the plaintiff—the breach being the failure to exercise the care that a person of ordinary prudence would exercise under the same or similar circumstances. (Civ. Code, § 1714, subd. (a); Polk v. City of Los Angeles (1945) 26 Cal.2d 519, 525.) “Because application of this principle is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances.” (Flowers v. Torrance Medical Hospital Medical Center (1994) 8 Cal.4th 992, 997 (Flowers).)

Medical professionals are held to the same duty to exercise reasonable care, although a physician’s education and training are considered to determine whether the physician adhered to the applicable standard of care. A cause of action for professional negligence by a medical physician consists of four elements: “ ‘(1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.’ ” (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571.) Thus, the standard of care applicable to a physician in a cause of action for professional negligence is based on the amount of care ordinarily exercised by physicians having the same knowledge and skill and in the same circumstances. (Flowers, supra, 8 Cal.4th at pp. 997-998.)

For these reasons, Dr. Cogen’s objection to the eleventh cause of action is well taken. The California Supreme Court addressed this issue in Flowers. There, the trial court granted the motion for summary judgment of a hospital and nurse who had attended to the plaintiff in the emergency room. The Court of Appeal reversed, finding that although the defendants had negated any so-called “professional negligence,” the pleadings were “ ‘broad enough to encompass a theory of liability for ordinary as well as professional negligence.’ ” (Flowers, supra, 8 Cal.4th at p. 996.) The California Supreme Court reversed, determining that the appellate court’s “analysis necessarily implies that the same factual predicate can give rise to two independent obligations to exercise due care according to two different standards.” (Id. at p. 1000.) This, the Court stated, “is a legal impossibility: a defendant has only one duty, measured by one standard of care, under any given circumstances.” (Ibid.)

In the first cause of action for professional negligence, Plaintiff alleges that Dr. Cogen failed to exercise due care in treating Plaintiff’s disorder by prescribing him Chantix. (FAC ¶¶ 15, 22, 29.) Plaintiff alleges that Dr. Cogen should not have prescribed Chantix because he should have known Chantix was contraindicated for a person in Plaintiff’s condition. (FAC ¶ 31.) Plaintiff alleges that because Dr. Cogen failed to exercise the same degree of care as others in his profession, Plaintiff suffered serious injuries. (FAC ¶ 32.) These allegations give rise to a cause of action for professional negligence, based on whether Dr. Cogen adhered to the standard of care applicable to persons of his education and training in the same or similar circumstances. If his conduct fell below that standard of care, then he breached his duty to exercise due care in the circumstances.

To the extent it is asserted against Dr. Cogen, the eleventh cause of action for general negligence is duplicative of the first cause of action. Plaintiff simply incorporates the preceding allegations, without setting forth a unique set of facts giving rise to a separate breach of the duty to exercise due care in the circumstances. (FAC ¶¶ 98, 100.) Thus, this cause of action is based on the same duty to exercise due care in the circumstances. “Since the standard of care remains constant in terms of ‘ordinary prudence,’ it is clear that denominating a cause of action as one for ‘professional negligence’ does not transmute its underlying character. For substantive purposes, it merely serves to establish the basis by which ‘ordinary prudence’ will be calculated and the defendant’s conduct evaluated. Nor does it distinguish a claim separate and independent from some other form of negligence. As to any given defendant, only one standard of care obtains under a particular set of facts, even if the plaintiff attempts to articulate multiple or alternate theories of liability.” (Flowers, supra, 8 Cal.4th at p. 998.)

Plaintiff raises a number of points in opposition to the demurrer. First, Plaintiff contends that “medical negligence” is still “negligence” but “with a heightened standard of care for duty, even under MICRA.” (Opposition 2: 21-23.) This argument conflates the duty to exercise due care in the circumstances with the standard of care applicable to physicians in Dr. Cogen’s position. Dr. Cogen had a duty to exercise due care in the circumstances according to his education and training. If he should have known not to prescribe the Chantix, it was because of his education and training. “As to any given defendant, only one standard of care obtains under a particular set of facts, even if the plaintiff attempts to articulate multiple or alternate theories of liability.” (Flowers, supra, 8 Cal.4th at p. 998.)

Plaintiff also contends that the demurrer addresses only part of a cause of action, namely the element of duty. This misapplies the rule. As a procedural matter, the general rule is that a general demurrer does not lie to only part of a cause of action. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy”].) Here, however, the element of duty is a necessary element to any negligence cause of action—i.e., without a duty of care, there can be no

negligence. The demurrer is based on the principle that there can be only one standard of care under a particular set of facts.

Finally, Plaintiff argues that the demurrer violates California Rules of Court, rule 3.1320, which requires each ground for a demurrer to be set forth in a separate paragraph. (Cal. Rules of Court, rule 3.1320(a).) Here, the demurrer states, “Plaintiff’s Eleventh Cause of Action fails to state facts sufficient to constitute a cause of action for general negligence, is uncertain, and is duplicative of Plaintiff’s First Cause of Action for Medical Negligence. Cal. Code of Civ. Proc. § 430.10(e) and (f).” This paragraph substantially complies with rule 3.1320, particularly with respect to the operative objection for the failure to state sufficient facts. Given the policy of the law favoring resolution on the merits, as opposed to technical grounds (see Davis v. Wood (1943) 61 Cal.App.2d 788, 799), it is appropriate to consider the parties’ substantive arguments.

For these reasons, the demurrer is sustained with 20 days leave to amend.