Plaintiff Benjamin John Taylor (“Plaintiff”), acting through Aleatha Taylor, his mother and guardian ad litem, is suing several defendants for medical malpractice committed at the time of his birth. Plaintiff alleges that on June 15, 2006, Ms. Taylor went into preterm labor, and went to the Community Hospital of Los Gatos, also known as Los Gatos Community Hospital (“LGCH”) at the direction of her physician. (Second Amended Complaint (“SAC”), ¶ 17.) LGCH did not have a neonatal intensive care unit (“NICU”), and was not equipped to deal with high risk, preterm pregnancies. (Id.) LGCH admitted Ms. Taylor, even though there was ample time to transfer her to a nearby facility with an NICU, such as Good Samaritan Hospital (“GSH”). (Id. at ¶¶ 17, 18.) Plaintiff was born several hours later at LGCH, weighing only about three pounds and requiring specialized care at a hospital with an NICU to ensure that he received an adequate supply of oxygen. (Id. at ¶¶ 17, 21-23.) Plaintiff was therefore transferred to GSH. (Id. at ¶ 25.) However, instead of transporting him in an “NICU Mobile Transport Unit,” Plaintiff was transported in a neonatal ambulance. (Id.) Plaintiff’s condition stabilized at GSH, but only after he suffered brain damage during and before the transfer. (Id. at ¶¶ 27-28.) LGCH, GSH, and the other defendants allowed Plaintiff to be transported in a regular ambulance despite their knowledge of the risk involved. (Id. at ¶ 31.) As a result of the defendants’ negligence, Plaintiff sustained periventricular leukomalacia, which resulted in cerebral palsy and quadriplegia. (Id. at ¶¶ 28, 30, 34.)

Plaintiff filed this action on June 7, 2012, and filed a first amended complaint (“FAC”) on June 13, 2012. On January 24, 2013, the Court (Hon. Pierce) granted in part and denied in part GSH’s motion to strike portions of the FAC. On December 17, the Court (Hon. Pierce) adopted its tentative ruling granting Plaintiff’s motion for leave to file the SAC, and Plaintiff filed the same on December 18.

Currently before the Court are the demurrer of defendants Cindy Chen, MD; Donna Conom, MD; Richard Powers, MD; Meera Sankar, MD; and Katie Wohlstattar, NNP (the “Individual Defendants”); the demurrer and motion to strike of defendants LGCH, San Ramon Regional Medical Center, Tenet Healthcare Corp., and HCP Inc. (the “LGCH Defendants”); and the demurrer and motion to strike of defendants GSH and Kelly Ryan, RN (the “GSH Defendants”). The GSH Defendants joined in the Individual Defendants’ demurrer, and the Individual Defendants joined in the GSH Defendants’ demurrer and motion to strike.

The GSH Defendants’ request for judicial notice is GRANTED given that it pertains to relevant court records. (Evid. Code § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice]; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [courts may take judicial notice of the existence of documents in a court file, including the truth of results reached, but not of the truth of hearsay statements therein].)

The Individual Defendants’ demurrer is SUSTAINED with 10 days’ leave to amend as to Dr. Sankar and Nurse Wohstattar and OVERRULED as to the remaining Individual Defendants.

As an initial matter, “negligence per se” is not an independent cause of action but is merely a means of proving negligence. (Quiroz v. Seventh Ave. Center (2006) 140 Cal App 4th 1256, 1285-1286.) Thus, the question here is whether, regardless of whether the regulatory scheme cited by Plaintiff alters his burden of proof, Plaintiff has adequately pleaded any form of negligence against the Individual Defendants. While the SAC is not a model of clarity, Plaintiff adequately alleges that an infant in Plaintiff’s condition should not be transported without an arterial blood gas machine or by a team lacking a physician and respiratory therapist (see SAC, ¶¶ 27, 31, 38(3)), and all of the defendants breached their duty of care by allowing Plaintiff to be transported in this fashion (SAC, ¶ 31; see also SAC, ¶¶ 27, 38(3)). In addition, Plaintiff alleges that it was negligent for the defendants to admit his mother into a hospital without an NICU and keep her there during her labor. (See SAC, ¶¶ 17-23, 38(1), 38(2).) In light of these statements, Plaintiff has adequately alleged the manner in which the defendants assertedly breached their duties of care to him, regardless of whether these actions may be found to constitute negligence per se. (See Landeros v. Flood (1976) 17 Cal.3d 399, 408-410 [medical malpractice may be pleaded in general terms and what treatments the standard of care requires is ordinarily a question of fact]; Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 101 [“while negligence may be pleaded in general terms, the plaintiff must indicate the acts or omissions which are said to have been negligently performed [and] may not recover upon the bare statement that the defendant’s negligence has caused him injury”].)

Nevertheless, the decisions concerning Plaintiff’s admittance and transport are so far removed from the specific allegations against Dr. Sankar and Nurse Wohstattar (see SAC, ¶ 27) that Plaintiff does not plead facts adequate to support any claim for negligence as to them. (See Code Civ. Proc., § 430.10, subd. (e) [complaint must state facts sufficient to constitute a cause of action in order to withstand a general demurrer].)

As to Dr. Powers, the Individual Defendants essentially argue that, because Plaintiff alleges that he was a GSH staff doctor, it would not be reasonable to infer that he was involved in the decision concerning Plaintiff’s transport. However, whether a doctor at the receiving hospital would have been involved in this decision is a factual issue concerning which the defendants would have superior knowledge. (See Landeros v. Flood, supra, 17 Cal.3d at pp. 408-410; see also Okun v. Super. Ct. (1981) 29 Cal.3d 442, 458 [“Less particularity is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense.”].) Further, contrary to the Individual Defendants’ argument on this point, Plaintiff adequately alleges another breach of the duty of care against Dr. Powers: namely, that he negligently “aggressively weaned” Plaintiff from his ventilator after his arrival at GSH, worsening his condition. (SAC, ¶ 33.)

As to Drs. Conom and Chen, it is reasonable to infer from the facts alleged in the SAC, which pertain to the quality of medical care they provided to Plaintiff, that they were Plaintiff and/or Ms. Taylor’s medical care providers, and Plaintiff specifically alleges their involvement in the decisions to keep Ms. Taylor at LGCH and/or order the inadequate transport unit and team. (See SAC, ¶¶ 17, 18, 20, 25, 27.) With respect to these defendants, the SAC is not so uncertain that they should be unable to understand and respond to it when read as a whole. (See Williams v. Beechnut Nutrition Corp. (1986)185 Cal.App.3d 135, 139 [no obligation even to specify which cause of action is directed at which defendant; “Although inconvenient, annoying and inconsiderate, the lack of labels for plaintiff’s causes of action does not substantially impair [the defendant’s] ability to understand the complaint, and a demurrer [based on uncertainty] … should have been overruled.”]; Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 810 [plaintiff is not required to resolve uncertainty as to the legal effect of facts alleged on demurrer], disapproved of on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300; see also Adams v. Paul (1995) 11 Cal.4th 583, 593 [“a party may plead in the alternative and may make inconsistent allegations”].)

The LGCH Defendants’ demurrer is OVERRULED. Like the Individual Defendants, the LGCH Defendants argue that the authorities cited by Plaintiff in support of his negligence per se theory do not apply to LGCH because it is not an NICU, and do not apply to the remaining LGCH Defendants because their liability is alleged only through LGCH via an agency and/or respondeat superior theory. This argument fails for the reasons discussed above. Plaintiff adequately alleges a claim for negligence against the LGCH Defendants on the basis of both Ms. Taylor’s assertedly improper admission and treatment by LGCH and Plaintiff’s dangerous transport to GSH.

The GSH Defendants’ demurrer is SUSTAINED with 10 days’ leave to amend as to Nurse Ryan and OVERRULED as to GSH. While it is unclear whether GSH as the receiving hospital should be held responsible for the method of Plaintiff’s transport, facts concerning this issue are more within defendants’ knowledge. (See Landeros v. Flood, supra, 17 Cal.3d at pp. 408-410; see also Okun v. Super. Ct., supra, 29 Cal.3d at p. 458.)

With respect to Nurse Ryan, however, Plaintiff alleges only that he was “given” to her, apparently upon his arrival at GSH, “and still no Arterial Blood Gas done.” (See SAC, ¶ 27.) As with Dr. Sankar and Nurse Wohstattar, Plaintiff does not allege that Nurse Ryan’s specific actions were negligent, and he includes no facts that would support a reasonable inference that she was involved in the decisions to admit and keep Ms. Taylor at LGCH or to transport him to GSH in a particular fashion.

The LGCH Defendants’ motion to strike is DENIED, and the GSH Defendants’ motion to strike is also DENIED insofar as it pertains to paragraph 12. The Court (Hon. Pierce) already ruled on the issue of whether the regulatory scheme cited by Plaintiff may support a theory of negligence per se in its January 24th order concerning GSH’s motion to strike portions of the FAC. Defendants’ arguments again fail in light of the authority discussed by Judge Pierce. The LGCH Defendants do not argue that they are exempted from the Health and Safety Code licensing requirements in general, and Plaintiff’s theory may apply to them even though they do not operate an NICU facility on the logic that they treated Plaintiff and his mother without the appropriate license and without having satisfied the underlying requirements of such a license.

The GSH Defendants’ motion to strike is otherwise GRANTED. Again, these issues were previously resolved by Judge Pierce. Accordingly, the Court hereby strikes paragraph 10 and the amounts alleged at page 18, lines 26 and 27 from the SAC.

The Court will prepare the order. The parties are reminded of the case management conference scheduled for April 8, 2014 at 10:00 A.M.