MICRA: Intentional Torts

By on May 30, 2013 - Comments off

Yun Hee So v. Sook Ja Shin, HP, (Second District, January 3, 2013) 212 Cal.App.4th 652, 151 Cal.Rptr. 34d 257, 13 Cal. Daily Op. Serv. 168, 2013 Daily Journal D.A.R. 153

A woman who awoke while under anesthesia during a D & C procedure following a miscarriage, filed an action against the anesthesiologist as well as the hospital, asserting various theories including negligence, assault and battery and intentional infliction of emotional distress. The plaintiff alleged that after the procedure while she was in the recovery room, she had questioned the anesthesiologist as to why she had awakened, and that the defendant became visibly upset and angry, left the room and returned with a container of “blood and other materials.” The plaintiff further alleged that the defendant was angry that she had questioned her competence, motioned as if she would drop the container in the plaintiff’s lap, and then touched her hands, arms and shoulders, causing her to sustain severe emotional distress.

The trial court sustained demurrers without leave to amend, finding that, inter alia, the facts as alleged were insufficient to support the element of outrageous conduct on the emotional distress claim, nor to show that any touching was non-consensual or beyond the scope of the subject medical treatment as to the battery claim. However, the court of appeal reversed, holding that the trial court had erred in sustaining the demurrers:

“Here, the complaint alleges that Dr. Shin 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: ‘SHIN’s menacing conduct, motions to bring the blood container closer to Plaintiff’s face, and her subsequent touching of Plaintiff’s hands, arms and shoulder [were not] consented to, either expressly or impliedly, as Plaintiff expressly told SHIN to get away from her.’ As in Kaplan, 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.’

[P]laintiff here had recently undergone surgery; indeed, in the present case plaintiff was not only still in the hospital—she was in the recovery room. Further, plaintiff had recently miscarried, had required a procedure to remove the dead fetus from her uterus, and claimed to have awakened during the procedure. Under these circumstances, a trier of fact ‘may well draw the conclusion that she was in all probability vulnerable’ and, as in Bundren, that Dr. Shin 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 that Dr. Shin’s conduct was not extreme or outrageous as a matter of law.”

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