Case Number: BC624011??? Hearing Date: October 14, 2016??? Dept: 98
JIA S. LEE, et al.,
DR. GEORGE RAPPARD, et al.,
CASE NO: BC624011
[TENTATIVE] ORDER RE: DEFENDANTS? DEMURRER TO FIRST AMENDED COMPLAINT
October 14, 2016
On June 16, 2016, Plaintiffs Jia S. Lee (?Mrs. Lee?) and John Lee (collectively, ?Plaintiffs?) filed this action against Defendants George Rappard, M.D. (?Dr. Rappard?) and Los Angeles Minimally Invasive Spine Institute (collectively, ?Defendants?). Plaintiffs? operative First Amended Complaint (?FAC?) includes causes of action for: 1) medical negligence; 2) failure to obtain informed consent; and 3) loss of consortium. Defendants now demur to Plaintiffs? second cause of action on the grounds that it is uncertain, duplicative, and fails to state sufficient facts.
When any ground for objection appears on the face of a complaint, a defendant may object by a demurrer to the pleading. Cal. Code of Civ. Proc. ? 430.30(a). Grounds for objection include failure to state facts sufficient to constitute a cause of action and uncertainty. Id., ?? 430.10(e)-(f). A court ?must accept properly pleaded facts as true, but a demurrer does not admit the plaintiff?s contentions nor conclusions of law or fact.? Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173. A demurrer may be sustained as to a claim that duplicates another. Holcomb v. Wells Fargo Bank, NA (2007) 155 Cal.App.4th 490, 501.
Defendants contend that the second cause of action should be subsumed within the first cause of action for medical negligence. Defendants also assert that Plaintiffs? have failed to allege sufficient facts to support a claim for lack of informed consent.
Plaintiffs allege that Dr. Rappard recommended that Mrs. Lee undergo a L4-5 micro-decompressive discectomy for injuries she sustained in a vehicle collision. FAC, ? 14. They allege that no other treatments were recommended prior to surgery and at no time did Defendants discuss with Mrs. Lee alternative, more conservative treatments available to her or the risks and benefits of the recommended surgery. FAC, ?? 14-15. After the surgery, Mrs. Lee was on an antibiotic and developed a rash. FAC, ? 19. Dr. Rappard instructed her to stop taking the antibiotic and did not advise her of the possible complications in doing so. FAC, ? 19. Mrs. Lee asserts that she would not have consented to the surgery or discontinuing antibiotic treatment if she had been adequately informed. FAC, ? 55.
The Court finds that Plaintiffs? allegations are sufficient to state a claim for lack of informed consent. However, the Court agrees that the cause of action for informed consent should be pleaded as part of Plaintiffs? medical negligence claim. Defendants? Demurrer is therefore SUSTAINED with twenty days leave to amend.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 14th day of October, 2016
Hon. Holly J. Fujie
Judge of the Superior Court