2013-00143355-CU-PO

Ray L. Tongson vs. Dignity Health

Nature of Proceeding: Hearing on Demurrer

Filed By: McPherson, Dennis P.

Defendant Dignity Health’s Demurrer to the Complaint is sustained with leave to
amend for the reasons stated in the demurring papers.

Plaintiff alleges the he was assaulted and battered at Methodist Hospital when a
“DOE” nurse “physically and without warning pushed, hit, and punched repeatedly”
the plaintiff. (Complaint ¶ 7) Plaintiff alleges that the nurse was acting within the scope
of employment, and that the nurse intentionally and with conscious disregard injured
the plaintiff. Plaintiff seeks punitive damages from the employer but the Complaint
does not allege that moving party authorized or ratified the nurses conduct as required
by Civil Code section 3294(b). The Complaint alleges that the event occurred June 11,
2012 but another allegation in the negligence cause of action stated that it occurred on
August 3, 2010.

Defendant contends that since the claims arise out of the provision of medical
services, plaintiff cannot allege punitive damages against Dignity Health without first
complying with CCP 425.13.

1st cause of action Assault and Battery: Sustained with leave to amend. Plaintiff
has agreed to plead these causes of action separately in the proposed amended
complaint and to amend to reflect the correct date. CRC 2.112 (requires each cause
of action to be separately stated). Plaintiff also agrees to remove the negligence
language from this cause of action.

2nd cause of action Intentional Infliction of Emotional Distress : Sustained with
leave to amend for failure to state facts sufficient to constitute a cause of action. The
plaintiff may cure the deficiency regarding the uncertain date. Plaintiff also agrees to
remove the negligence allegations to clarify intentional conduct.

3rd cause of action Negligent Infliction of Emotional Distress: Sustained with
leave to amend for uncertainty, based on the date alleged for the negligence. Other
than a bystander theory, which is not appear to be alleged here, this cause of action is
a duplicative negligence claim.

4th cause of action Negligence: Sustained with leave to amend for failure to state
facts sufficient to constitute a cause of action. The Complaint alleges the negligent act
occurred in August of 2010, outside the statute of limitations. Plaintiff agrees to correct
the defect.

5th cause of action Premises Liability (no demurrer) 6th cause of action Negligent Entrustment: Sustained with leave to amend.
(Plaintiff’s opposition states that this cause of action has been removed from the
proposed 1st amended complaint.

Motion to Strike

The motion to strike punitive damages language is granted, without prejudice to
seeking to amend pursuant to the requirements of CCP 425.13. No punitive damages
may be alleged against a health care provider for actions arising from providing
medical care.

In any action for damages arising out of the professional negligence of a health care
provider, no claim for punitive damages shall be included in a complaint or other
pleading unless the court enters an order allowing an amended pleading that includes
a claim for punitive damages to be filed. The court may allow the filing of an amended
pleading claiming punitive damages on a motion by the party seeking the amended
pleading and on the basis of the supporting and opposing affidavits presented that the
plaintiff has established that there is a substantial probability that the plaintiff will
prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not
grant a motion allowing the filing of an amended pleading that includes a claim for
punitive damages if the motion for such an order is not filed within two years after the
complaint or initial pleading is filed or not less than nine months before the date the
matter is first set for trial, whichever is earlier . CCP 425.13(a).

Whenever an injured party seeks punitive damages for an injury that is directly related
to the professional services provided by a health care provider acting in its capacity as
such, then the action is one “arising out of the professional negligence of a health care
provider,” and the party must comply with CCP § 425.13(a). Central Pathology Service
Medical Clinic, Inc. v. Superior Court (1992) 3 Cal 4th 181. Plaintiff contends that the
acts alleged against the nurse do not arise out of the professional negligence of a
health care provider but rather, an intentional act unrelated to the provision of medical
care. However, when an employee is alleged to have committed an intentional tort
against a patient, and plaintiff seeks to hold the health care provider liable, plaintiff is
required to comply with CCP 425.13. United Western Medical Centers v. Superior
Court (1996, Cal App 4th Dist) 42 Cal App 4th 500 [claim against defendant hospital
based on alleged sexual assault of plaintiff by defendant’s employees arose out of the
hospital’s alleged failure to adequately protect plaintiff and therefore plaintiff was
required to abide by § 425.13 before she could pursue a punitive damage claim. ]

Since the claim against defendants arose out of Dignity Health’s provision of medical
services to the plaintiff, plaintiff is required to comply with CCP 425.13 before he can
allege punitive damages against moving party.

Plaintiff alleges that Dignity Health is liable for the acts of a “DOE” nurse who was
allegedly acting within the course and scope of employment with Dignity Health when
he/she assaulted and battered the plaintiff. The Complaint and proposed amended
complaint do not allege facts regarding the context of the nurse’s actions. The
opposition points and authorities contend that because the acts occurred while plaintiff
was exiting the facility, they are not related to the provision of medical care and
therefore no motion to amend pursuant to CCP 425.13 is required. The Court rejects
this argument. The plaintiff has agreed to strike other language concerning the loss of a family pet
that was inadvertently included in the Complaint.

Plaintiff may file and serve a 1st amended complaint deleting the claim for punitive
damages against Dignity Health and otherwise amending the causes of action as
agreed by plaintiff.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.