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Yun Hee So v. Sook Ja Shin et al

January 3, 2013

YUN HEE SO, PLAINTIFF AND APPELLANT,
v.
SOOK JA SHIN ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dunn, Judge. (Los Angeles County Super. Ct. No. BC443520)

The opinion of the court was delivered by: Suzukawa, J.

CERTIFIED FOR PUBLICATION

Reversed.

Plaintiff Yun Hee So (plaintiff) underwent a dilation and curettage procedure (D&C or procedure) in September 2008 following a miscarriage. She alleges that she was administered inadequate anesthesia and awoke during the procedure. When she later confronted the anesthesiologist, the anesthesiologist became angry, shoved a container filled with plaintiff's blood and tissue at her, and then urged plaintiff not to report the incident. Plaintiff sued the anesthesiologist and her medical group, as well as the hospital, asserting that the anesthesiologist's conduct constituted negligence, assault and battery, and intentional infliction of emotional distress, and that the hospital and medical group were liable to her directly and through the doctrine of respondeat superior. The trial court sustained demurrers to the causes of action for assault and battery and intentional infliction of emotional distress; it later granted motions for judgment on the pleadings as to the cause of action for negligence. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Complaint

Plaintiff filed the present action on August 11, 2010, and filed the operative first amended complaint (complaint) on January 6, 2011. The complaint alleges the following: Defendant Sook Ja Shin (Dr. Shin) is an anesthesiologist employed by defendant HP Anesthesia Medical Group (medical group). On September 30, 2008, plaintiff was admitted to defendant Hollywood Presbyterian Medical Center (hospital)*fn1 for a D&C following a miscarriage. Dr. Shin was the attending anesthesiologist. Plaintiff was administered insufficient anesthesia and awoke during the procedure, experiencing pain and discomfort.

After the procedure was over, plaintiff asked to speak to Dr. Shin, who came to the recovery room. Plaintiff asked Dr. Shin why she had awakened during the procedure. Dr. Shin became visibly upset and raised her voice. After hearing what plaintiff experienced, Dr. Shin admitted that plaintiff could have awakened during the procedure, but said that the suction sound and pain was nothing more than blood being suctioned from plaintiff's uterus. Dr. Shin was clearly angry that plaintiff had questioned her competence. Dr. Shin then left the room and returned with a container filled with blood and other materials. She was still visibly angry and spoke in a loud voice. She gestured with the container as if to hand it to plaintiff and then "stated words to the effect that Plaintiff could see that it was only blood which was suctioned therefore, there could not have been any pain. SHIN had come within a few inches of Plaintiff and motioned as though she was going to drop the container in Plaintiff's lap. When SHIN made those comments and movements, Plaintiff realized that the contents of the container were Plaintiff's blood and possible fragments of body parts of her dead baby. Plaintiff nearly fainted and screamed at SHIN to get away from her. [¶] . . . Realizing what she had done in her state of anger, SHIN came even closer to Plaintiff with the container still in her hand and tried to touch Plaintiff, and did touch Plaintiff's hands, arms and shoulders. Plaintiff[,] in a state of shock, kept screaming and crying for SHIN to get out of the room. SHIN left, but then later returned and asked Plaintiff to keep quiet about what had just happened and not to discuss the situation with the hospital. SHIN again touched Plaintiff, grabbed Plaintiff's hand and told Plaintiff she should keep quiet about what had just happened." Subsequently, Dr. Shin offered to buy plaintiff dinner and "even bribed Plaintiff with a refund for the cost of the anesthesia, in exchange for Plaintiff's silence about the incident."

At the time of the incident, Shin was on the verge of being terminated by the medical group or the hospital. Shin feared that plaintiff might report her conduct to the medical group or the hospital, and therefore "lashed out at Plaintiff to try to prove to Plaintiff that SHIN had done nothing wrong. Plaintiff alleges that SHIN's anger, upset and resulting conduct towards Plaintiff was a result of SHIN being notified that she was too old and no longer competent, which in turn caused SHIN to act with anger towards Plaintiff." Plaintiff reported the incident to the hospital, but it did not take any remedial action. Moreover, the hospital and medical group "knew at all times that SHIN was unfit to administer health care services and employed her and continued to employ her in spite of their knowledge of SHIN's unfitness."

Plaintiff asserted three causes of action. The first cause of action, for negligence, alleges that Dr. Shin breached her duty of care to plaintiff, the incident did not constitute any form of health care, and "any reasonable person could foresee that showing Plaintiff a container filled with blood and other fragments, knowing Plaintiff had just finished a D&C procedure in the middle of which Plaintiff felt she had awoken and experienced the actual procedure being conducted, would cause Plaintiff to suffer emotional distress." It also alleges that the hospital and medical group are liable to plaintiff pursuant to two theories: (1) directly, because they hired and continued to employ Dr. Shin despite their knowledge that she was not fit to provide health care services, and (2) indirectly, because Shin was their agent/employee. The second cause of action, for intentional infliction of emotional distress, alleges that during the incident, Dr. Shin had actual knowledge that plaintiff was physically and emotionally distressed: Plaintiff had just been through a D&C, she had told Dr. Shin she had awakened during the procedure, and she was emotionally distraught and crying. Nonetheless, Dr. Shin reacted "with anger, rage and conscious disregard for Plaintiff's condition when SHIN brought in the container to try to prove to Plaintiff that Plaintiff was wrong and that SHIN was right." The third cause of action, for assault and battery, alleges that Dr. Shin acted with the intent to place plaintiff in fear of an imminent offensive contact. Among other things, Dr. Shin "walked towards Plaintiff with the container, motioned with her arms as though handing the container to Plaintiff, and acted as though she was about to place the container on Plaintiff. Plaintiff alleges that she never consented to nor agreed to permit SHIN to approach her, motion to her, or to touch her with the container filled with blood and fragments. . . . Plaintiff further alleges that after SHIN committed the assault and realizing what she had done, SHIN actually did touch Plaintiff on her hands, arms and shoulders telling Plaintiff not to report what had just occurred." The second and third causes of action allege that the hospital and medical group knew of Dr. Shin's tortious acts but did nothing about them, and therefore "have ratified, approved and consented to SHIN's intentional conduct and should be held liable to plaintiff."

II. Demurrers to the First Amended Complaint

Dr. Shin and the hospital demurred to the second and third causes of action; the medical group joined the demurrers. As to the second cause of action (intentional infliction of emotional distress), Dr. Shin asserted that "[t]here are no facts alleged in the First Amended Complaint which can in any way be classified as extreme, outrageous, or outside the bounds of decency. In fact, if the facts as posed by Plaintiff are true, the most that can be said under any reasonable interpretation of the First Amended Complaint is that Dr. Shin was attempting to calm the patient subsequent to the surgery and to show her that the material removed from the plaintiff was blood and nothing more. This is further established by Plaintiff's claim that Dr. Shin attempted to touch her arms. This demonstrates that Dr. Shin was attempting to soothe the patient and did not have the requisite intent to inflict emotional distress." Further, Dr. Shin said, plaintiff pled no facts showing that she actually suffered severe emotional distress. Therefore, "because Plaintiff failed to plead facts establishing that this Defendant engaged in anything that approached 'outrageous conduct,' or that Plaintiff suffered 'severe emotional distress,' the Second Cause of Action is defective and this demurrer should be sustained." As to the third cause of action (assault and battery), Dr. Shin contended that touching plaintiff was an essential part of providing the surgery to which plaintiff consented. Further, Dr. Shin's subsequent attempts to comfort her patient by "approaching the plaintiff to show her what was suctioned from her for the purposes of reassurance can hardly be argued to establish the requisite intent for a harmful and offensive contact; therefore, it is not an assault."

The hospital also demurred to the second and third causes of action. The hospital contended that the second cause of action failed to plead extreme or outrageous conduct because "[t]he best that can be said under any reasonable interpretation of the pleading is that SHIN was trying to calm the plaintiff down by showing her the products of conception and soothing her with a physician's healing touch." Further, the hospital asserted that Dr. Shin was not its agent and plaintiff failed to plead specific facts alleging the elements of the cause of action--i.e., "the who, where, what and why necessary to state either an intentional cause of action or ratification thereof." As to the third cause of action, the hospital contended that plaintiff consented to the alleged offensive touching and, thus, no battery existed. It asserted: "A touching of the person is a necessary component of performing a D&C procedure and, especially, when trying to soothe a distraught patient, that touching cannot be considered to be an assault and battery. Furthermore, the approaching of the plaintiff with the products of conception in order to assure her that body parts of a fetus were not suctioned out of the patient during the procedure can hardly be said to be an assault."

The trial court sustained the demurrers. The minute order said: "Re Cause of Action 2 [Intentional Infliction of Emotional Distress]: Plaintiff . . . fails to allege facts sufficient to support the element of 'outrageous conduct.' Re Cause of Action 3 [Assault & Battery]: The facts alleged [are] insufficient to show either: a) that any touching by defendant Shin was unconsented to (i.e.[,] beyond the scope of the subject medical treatment); or b) a basis for vicarious liability as against moving party defendant. Plaintiff alleges that Shin was employed by defendant HP Anesthesia rather than moving party. There are still no facts alleged to show authorization or ratification of Shin's alleged conduct on the part of an officer, director or managing agent of moving party."

III. Motions for Judgment on the Pleadings

The hospital and Dr. Shin moved for judgment on the pleadings on April 15, 2011; the medical group joined in the motions. Defendants contended that although the first cause of action purported to state a claim for ordinary negligence, it in fact alleged professional negligence because the alleged injuries occurred during the performance of professional services. Thus, the claim was subject to the one-year statute of limitations set forth in Code of Civil Procedure section 340.5.*fn2 Because plaintiff claimed to have been harmed on September 30, 2008, but did not file suit until August 2010, the suit was time-barred.

Plaintiff opposed the motions. She urged that the statute of limitations for medical malpractice did not apply because her claim did not concern the provision of medical care. Further, even if section 340.5 did apply, the statute of limitations would not begin to run until the patient-physician relationship was terminated, and there was no evidence before the court as to when that relationship had terminated or when the statute of limitations commenced to run.

The court granted the motion, stating as follows: "Plaintiff was admitted to the hospital and had the medical procedure (D&C) on or about September 30, 2008. The applicable statute of limitations under MICRA [Medical Injury Compensation Reform Act] is CCP 340.5 which provides that an action against a healthcare provider must be filed within three years after the date of injury, 'or one year after plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever comes first.' The complaint in this action was filed on 8/11/10, almost two years after plaintiff discovered or should have discovered the injury. Plaintiff argues that this is not a . . . cause of action for negligence of a healthcare provider, but rather some kind of general negligence action and therefore CCP 340.5 does not apply. The court disagrees. The primary consideration for the court is whether the alleged negligent act or omission occurred in the 'rendering of professional services.' Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 808. After three versions of the complaint plaintiff has laid out in great detail the factual circumstances supporting her claim, [e.g.,] [s]he awakened during the D&C procedure and suffered as a result of seeing and hearing the procedure, and [defendant] came into the room with a jar which contained blood and possibly body parts which were the result of the procedure. There is no question that these alleged acts occurred in the rendering of professional services. Plaintiff alleges the conclusion that i[t] was not 'in the course of rendering of professional services,' but the court is not bound to accept as a fact the legal conclusion of plaintiff when the detailed facts alleged established the contrary.

"Plaintiff also alleges that defendant hospital is responsible for hiring and retaining an incompetent doctor and for a nurse's failure to come to plaintiff's aid, and therefore these are separate duties outside of the rendering of professional services. 'The competent selection and review of medical staff is precisely the type of professional service a hospital is licensed and expected to provide . . . ," and this allegation comes within MICRA as well. See Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1050-51.

"This latter argument also goes to the alleged liability of defendant HP Anesthesia Medical Group. The Motion [for] Joinder is granted, and for the same reasons stated above, the motion ...


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