Case Number: 18STCV03766 Hearing Date: May 14, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT NICOLAI FOONG, M.D.’S DEMURRER TO THE COMPLAINT

I. INTRODUCTION

On November 5, 2018, Plaintiff Wenyi Zhu (“Plaintiff”) filed this action against Defendants Nicolai Foong, M.D. (“Defendant”) and AHMC Garfield Medical Center LP (collectively, “Defendants”) for medical malpractice, medical malpractice under Elam, battery, lack of informed consent, intentional infliction of emotional distress, and negligent infliction of emotional distress arising out of care and treatment rendered to Plaintiff in September, October, and November 2017.

II. LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) However, a demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

III. DISCUSSION

Plaintiff alleges that that she visited Defendant multiple times in September, October, and November 2017 while she was pregnant. In October and November 2017, there were clear signs of fetal demise and/or reduced fetal heart rate. This condition required prompt medical intervention but Defendant ignored this condition and Plaintiff’s fetus died. Plaintiff alleges her fetus could have survived but for the negligence of Defendant. (Complaint, ¶¶ 15, 16.)

Meet and Confer Requirement

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a).) On April 4, 2019, defense counsel sent a letter via fax and mail to Plaintiff’s counsel setting forth the grounds for this demurrer. (Declaration of Dona T. Abdo, ¶ 30.) On April 10, 2019, defense counsel sent an email to Plaintiff’s counsel asking him to meet and confer. (Abdo Decl., ¶ 31.) However, defense counsel received no response from Plaintiff’s counsel. (Abdo Decl., ¶ 32.)

Third Cause of Action – Battery

Plaintiff alleges Defendant knew he had failed to timely diagnose and treat low fetal heart rate, causing the death of Plaintiff’s fetus, and “[i]n order to cover his tracks and make it appear that some other cause was the reason for Plaintiff’s fetus’s death, Defendant committed battery against Plaintiff.” (Complaint, ¶ 24.) Specifically, after the fetus was delivered, Defendant placed both of his hands and arms within Plaintiff’s vaginal cavity and began twisting the umbilical cord still inside the Plaintiff, which was extremely painful and lasted several minutes. (Complaint, ¶ 25.) When Defendant removed his hands and arms, he pulled out the umbilical cord and said it was twisted and was the cause of the baby’s death. (Complaint, ¶ 26.) Plaintiff alleges Defendant touched her when he put both hands and arms within her vaginal cavity and twisted the umbilical cord, Plaintiff did not consent to the touching, the conduct offended her and caused her great pain, the wrongful conduct harmed Plaintiff, and a reasonable person in Plaintiff’s position would have been offended by the conduct. (Complaint, ¶¶ 27-31.)

Defendant demurs to this cause of action for battery on grounds Plaintiff failed to state facts sufficient to constitute a cause of action for battery and her allegations are uncertain and ambiguous. Defendant argues: Plaintiff has failed to plead facts establishing intent by Defendant to cause harmful or offensive contact with Plaintiff; allege what harm she suffered as a result of the contact; and plead any facts showing Defendant knew he had failed to timely diagnose the low fetal heart rate and that Defendant’s action were done with the intent to “cover his tracks.” Defendant argues Plaintiff has not alleged facts as to how she knows Defendant “twisted the umbilical cord” as opposed to the umbilical cord having been naturally twisted throughout the delivery process or any time before. Finally, Plaintiff has not alleged facts as to the extent of the consent she gave Defendant during delivery or why a reasonable person undergoing delivery would be offended by the delivering physician going back into the vaginal cavity to assure all clots and complications were eradicated. Defendant contends there are no facts showing Defendant performed a procedure that was substantially different from the one consented to and it is conceivable, if not obvious, that delivering a baby might inevitable require the physical to place his hands in the patient’s vagina, both for the purposes of extracting the baby and to assure no clots or complications are left in the cavity thereafter.

The elements of battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff, (2) plaintiff did not consent to the touching, (3) plaintiff was harmed or offended by defendant’s conduct, and (4) a reasonable person in plaintiff’s position would have been offended by the touching. (CACI No. 1300.) “A medical battery occurs where ‘a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained . . .’ [Citation.]” (So v. Shin (2013) 212 Cal.App.4th 652, 669.)

In So v. Shin, the plaintiff underwent a dilation and curettage procedure following a miscarriage, but was administered inadequate anesthesia and awoke during the procedure. (So, supra, 212 Cal.App.4th at p. 656.) When the plaintiff later confronted the anesthesiologist, the anesthesiologist became angry, shoved a container filled with plaintiff’s blood and tissue at her, and then urged her not to report the incident. (Ibid.) Specifically, the anesthesiologist, who was on the verge of being terminated by the medical group or the hospital feared that plaintiff might report her conduct to the medical group or the hospital and “lashed out at Plaintiff to try to prove to Plaintiff that [she] had done nothing wrong.” (Id. at p. 658.) The anesthesiologist brought a container of plaintiff’s blood that had been suctioned from plaintiff’s uterus, came within inches of plaintiff, and then touched plaintiff’s hands, arms and shoulders. (Id. at p. 657.) The anesthesiologist later grabbed plaintiff’s hand and told plaintiff she should keep quiet about what had just happened. (Ibid.)

The plaintiff sued for negligence, assault and battery, and intentional infliction of emotional distress. (So, supra, 212 Cal.App.4th at p. 656.) The hospital demurred and argued a reasonable interpretation of the pleading was that the anesthesiologist was trying to calm the plaintiff down by showing her the products of conception and soothing her with a physician’s healing touch. (Id. at p. 659.) The trial court sustained the demurrer as to plaintiff’s assault and battery cause of action on grounds the plaintiff failed to allege facts showing the touching by the anesthesiologist was unconsented to, i.e., beyond the scope of the subject medical treatment. (Id. at p. 660.) The appellate court reversed, stating “[a]lthough, as we have said, consent to surgery necessarily encompasses consent to postoperative care, not all postoperative contact between doctor and patient constitutes care. The question of the nature of the contact between the plaintiff and [the anesthesiologist] and whether that contact was within the scope of plaintiff’s consent, is a factual question for a finder of fact to decide.” (Id. at p. 669.) The appellate court further explained, “[h]ere, the complaint alleges that [the anesthesiologist] interacted with plaintiff postoperatively to defend her professional competence and to attempt to persuade plaintiff not to report that plaintiff had awoken during surgery—not to provide plaintiff with medical care. The complaint further alleges that plaintiff did not consent to this interaction . . . Whether this alleged conduct was within the scope of plaintiff’s consent ‘is a factual question for a finder of fact to decide and, at least in this instance, not one capable of being decided on demurrer.’ [Citation.]” (Id. at p. 671.)

Similarly, here, Plaintiff alleged that Defendant, in an effort to conceal that he had failed to diagnose low fetal heart rate which resulted in the fetus’s death, re-entered Plaintiff’s vaginal cavity, twisted her umbilical cord, and then pulled it out and claimed the twisted cord was the cause of the fetus’s death. Plaintiff alleged she had not consented to this touching by Defendant. Like in So, it cannot be determined on demurrer whether the re-entering of Plaintiff’s vaginal cavity by Defendant constituted post-operative care encompassed by Plaintiff’s consent to the delivery, or whether this contact exceeded the scope of her consent and was an attempt to cover up his misdiagnosis. Construing the allegations of the complaint as true, Plaintiff has alleged sufficient facts to state a cause of action for battery.

Alternatively, Defendant argues the factual allegations supporting Plaintiff’s battery cause of action are identical to those supporting her medical negligence cause of action and therefore, they add nothing to the complaint by way of fact or theory of recovery. A demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint by way of fact or theory of recovery. (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.) However, the allegations supporting Plaintiff’s medical negligence cause of action relate to Defendant’s failure to diagnose her baby’s low fetal heart rate, resulting in its death, and the allegations supporting Plaintiff’s battery cause of action relate to Defendant’s attempts to cover up his negligence by committing unconsented-to and harmful contact on her. Therefore, the facts and causes of action are not duplicative or uncertain.

Accordingly, the demurrer to the third cause of action is OVERRULED.

Fifth Cause of Action – Intentional Infliction of Emotional Distress

Plaintiff alleges that Defendant’s conduct was outrageous and Defendant acted with reckless disregard of the probability that Plaintiff would suffer emotional distress. (Complaint, ¶ 38.) Plaintiff suffered severe emotional distress due to Defendant’s conduct and the conduct was a substantial factor in causing Plaintiff’s severe emotional distress. (Complaint, ¶ 39.)

Defendant demurs to this cause of action on grounds Plaintiff has pled “virtually no facts to support her claim.” Defendant argues Plaintiff’s allegations are conclusory that Defendant’s conduct was outrageous, that Defendant acted with reckless disregard of the probability that Plaintiff would suffer emotional distress, and that Plaintiff did suffer severe emotional distress. Defendant argues Plaintiff does not allege which of Defendant’s actions or inactions allegedly caused severe emotional distress. Defendant argues egregious conduct must be pled.

The elements of intentional infliction of emotional distress are: (1) the defendant engages in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or severe emotional distress. (So, supra, 212 Cal.App.4th at p. 671.) “Outrageous conduct is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community. The defendant’s conduct must be directed to the plaintiff, but malicious or evil purpose is not essential to liability.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204.) “‘There is no bright line standard for judging outrageous conduct and “ . . . its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical . . .” [Citation.]’” (Cochran v. Cochran (1998) 65 Cal.App.4th 448, 494.) Whether conduct is “outrageous” is usually a question of fact. (Ragland, supra, 209 Cal.App.4th at p. 204.)

In So, the plaintiff had recently undergone surgery, was still in the recovery room, had recently miscarried and required a procedure to remove the dead fetus from her uterus, and claimed to have awakened during the procedure. (So, supra, 212 Cal.App.4th at pp. 672-673.) “Under these circumstances, a trier of fact ‘may well draw the conclusion that she was in all probability vulnerable’ and, . . . that [defendant] unquestionably knew of plaintiff’s physical state. Moreover, a reasonable juror could conclude that forcing a patient who had recently miscarried to look at what she believed to be her dismembered fetus was extreme and outrageous. Accordingly, the trial court erred in concluding [the] conduct was not extreme or outrageous as a matter of law.” (Id. at p. 673.)

Here, reading Plaintiff’s complaint as a whole, Plaintiff has alleged sufficient facts stating a cause of action for intentional infliction of emotional distress. Plaintiff, whose deceased fetus had just been delivered, was in a vulnerable state under the alleged negligent care of Defendant. A reasonable trier of fact could conclude, assuming the allegations are true, that re-entering Plaintiff’s vaginal cavity and twisting her umbilical cord for several minutes and causing great pain to Plaintiff, in an attempt to conceal the fact that the fetus had died due to Defendant’s failure to diagnose its low heart rate, was outrageous conduct done with reckless disregard for probability of causing emotional distress.

Accordingly, the demurrer to the fifth cause of action is OVERRULED.

IV. CONCLUSION

Defendant’s demurrer to the complaint is OVERRULED in its entirety.

Moving party to give notice.