2013-00153732-CU-PO

Suzanne Brooks vs. Dr Whiley Fowler

Nature of Proceeding: Hearing on Demurrer to Complaint

Filed By: Salenko, Bruce E.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the causes of action that will
be addressed at the hearing. Counsel are also reminded that pursuant to local
court rules, only limited oral argument is permitted on law and motion matters.
***

Defendant’s demurrer to the complaint is SUSTAINED with leave to amend, as follows.

Plaintiff’s counsel is admonished for failing to comply with CRC Rule 3.1110(b)(3)-(4).

This action arises out of a medical procedure which plaintiff underwent while in the
care of defendant doctor. Specifically, plaintiff had a cyst on her bladder which was to
be removed. Plaintiff consented to have her left ovary removed if the cyst were
attached to it but she refused to consent to the removal of her right ovary unless there
was some medical necessity for its removal. (Compl., ¶¶4-6, 16.) Plaintiff now alleges
that her right ovary was unnecessarily removed by defendant doctor with plaintiff’s
authorization and consent. (Compl., ¶23.) The complaint purports to assert causes of
action (“COA”) for medical battery, breach of fiduciary duty, false promise and
constructive fraud.

Defendant doctor demurs to each COA arguing that each is not sufficiently pled and is
essentially a claim for professional negligence within the meaning of MICRA. Plaintiff
opposes.

At the outset, the Court notes that when a COA is asserted against a health care
provider on a legal theory other than medical malpractice, the trial court must
determine whether it is nevertheless based on the professional negligence of a health
care provider so as to trigger the provisions of MICRA. (Unruh-Haxton v. The Regents
of the University of California (2008) 162 Cal.App.4th 343, 353.)

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1 COA for Medical Battery. This COA asserts that defendant committed medical
battery because the removal of the right ovary was done without her consent and was
unnecessary. (Compl., ¶23.) However, as noted above, plaintiff has effectively
admitted that she did in fact consent to its removal provided there was some medical
necessity for doing so. (Compl., ¶¶4-6, 16.) Because plaintiff has failed to plead facts
which show that defendant performed a “substantially different” medical procedure
than the one to which she consented, the complaint does not state a valid COA for
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medical battery and the demurrer to the 1 COA is hereby sustained.

2nd COA for Breach of Fiduciary Duty. This COA alleges that by virtue of the
healthcare provider/patient relationship, defendant owed a fiduciary duty to plaintiff “to
act with the utmost good faith and in her best interest” but that he breached that duty
“based on the above stated facts.” (Compl., ¶¶26-27.) Defendant demurs because
plaintiff failed to adequately plead not only the existence of a fiduciary relationship but
also defendant’s breach of any fiduciary duty.

In opposition, plaintiff asserts “A physician has a fiduciary duty to a patient to make a
full and fair disclosure to the patient of all facts which materially affect the patience [sic]
rights and interest” and “The relationship between a physician and his patient is
fiduciary, which, like all such relationships imposes a duty of full disclosure.” (Oppos.,
p.6:7-13.) The opposition further asserts defendant breached this fiduciary duty by
failing “to disclose…that he removed her right ovary without her consent” and plaintiff
was damages because she “suffered the emotional turmoil of not knowing what
happened to her right ovary…” (Oppos., p.6:14-22.)

The demurrer to this COA is sustained because while the opposition asserts defendant
owed a fiduciary duty requiring “full disclosure,” the complaint does not actually allege
such a duty. Instead, the 2nd COA merely states that defendant owed a fiduciary duty
to plaintiff “to act with the utmost good faith and in her best interest.” The opposition
does not cite any authority for such a fiduciary duty on defendant’s part. Moreover, the
2nd COA fails to plead those facts claimed to constitute a breach of the alleged
fiduciary duty. To the extent plaintiff may be attempting to allege here that defendant’s
removal of her right ovary was without medical necessity, it should be expressly pled.
To the extent she is attempting to allege defendant breached the duty of disclosure, it
should be clearly pled. If the latter, then the 2nd COA also fails to plead any damages
proximately caused by defendant’s alleged failure to admit he removed the ovary
without plaintiff’s consent.

3rd COA for False Promise. This COA asserts that defendant made a promise not to
remove plaintiff’s right ovary unless it medically necessary but that defendant
nevertheless removed it despite not being medically necessary and despite plaintiff’s
lack of consent. (Compl., ¶¶32-33.) Defendant contends this fraud claim is not pled
with the requisite specificity, including facts showing how, when, where, to whom and
by what means the representations were tendered.

The Court agrees that this COA is not pled with the requisite particularity and thus, the
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demurrer to the 3 COA is sustained.

4th COA for Constructive Fraud. This COA states in pertinent part that by virtue of
the healthcare provider/patient relationship, defendant owed a fiduciary duty to
disclose to plaintiff that he removed her right ovary without her consent but he instead
breached this duty by telling her it had been removed previously. (Compl., ¶¶38-39.)
Defendant contends that a claim for constructive fraud is inappropriate here since
plaintiff explicitly alleges in Paragraph 40 defendant “acted with fraud” and since this
allegation of “fraud” is conclusory in the absence of any specific facts to support it.
Defendant further asserts that plaintiff has failed to sufficient plead any “reliance” on
the alleged misrepresentation which ostensibly caused any injury or damage.

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The Court finds that the 4 COA is not adequately pled in various respects, including
have the necessary factual particularity and the elements of “reliance” and “damages.”
Accordingly, the demurrer is sustained to this COA as well.

Since this is the first challenge to the complaint, leave to amend is granted. Plaintiff
may file and serve an amended complaint no later than 5/19/2014. Although not
required by court rule or statute, plaintiff is directed to present a copy of this
order when the amended complaint is presented for filing.

Defendant to respond within 10 days if the amended complaint is personally served,
15 days if served by mail.

If defendant demurs to the amended complaint or moves to strike, a copy of the
amended complaint shall be included with the moving papers.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)