LUCY T DUNCAN vs TODD LARSEN, et al.

B. Second Cause of Action: Common-Law Battery

The SAC alleges that Dr. Larsen repeatedly and lingeringly rubbed Plaintiff’s upper thigh and later rubbed or massaged her calf, that neither contact was related to her presenting complaint or explained as medically necessary, and that Plaintiff did not consent. (SAC, ¶¶ 24-28, 33-34, 77-89.) These circumstances support a reasonable inference that the alleged contact was intended to offend. The SAC also alleges that Plaintiff was actually harmed or offended and that a reasonable person in her position would have been offended. (So v. Shin (2013) 212 Cal.App.4th 652, 668-670.)

The common-law battery claim is not duplicative of the medical-battery claim because it is based on separate alleged physical contact. The demurrer to the second cause of action is overruled.

C. Third Cause of Action: Intentional Infliction of Emotional Distress

The SAC alleges that, while Plaintiff was vulnerable and dependent upon emergency medical personnel, Dr. Larsen engaged in nonconsensual touching unrelated to treatment and participated in care during which the ketamine infusion continued despite Plaintiff’s repeated withdrawal of consent. The touching was allegedly repeated and lingering, and not part of any complaint or examination. These allegations, if proven, could support a finding of extreme and outrageous conduct undertaken intentionally or with reckless disregard of the probability of causing emotional distress.

The SAC also specifically alleges chronic PTSD, panic disorder, generalized anxiety disorder, ongoing therapy, increased medication, insomnia, hyperarousal, discomfort with physical touch, and impaired daily functioning. (SAC, ¶¶ 51-59, 91-110.) The allegations are sufficient to plead severe emotional distress and causation. The demurrer to the third cause of action is overruled.

D. Demurrer for Uncertainty

The demurrer under CCP § 430.10(f), is also overruled. The SAC identifies the date, location, participants, alleged contacts, words used to withdraw consent, approximate timing, witnesses, injuries, and the factual basis for each cause of action. It is not so uncertain or unintelligible that Defendant cannot reasonably respond. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)

2025CUPP054261: LUCY T DUNCAN vs TODD LARSEN, et al.

Defendant’s demurrer to the first, second, and third causes of action is DENIED. Defendant shall file and serve an answer within 15 days.

II. Defendant Todd Larsen, M.D.’s Motion to Strike the request for punitive and exemplary damages from Plaintiff Lucy T. Duncan’s Second Amended Complaint

The SAC alleges two materially different categories of conduct.

First, Plaintiff alleges that Dr. Larsen and emergency-department personnel continued administering a ketamine infusion for approximately five minutes after Plaintiff expressly withdrew consent and repeatedly asked that the infusion and IV be removed. Because this theory concerns medical treatment allegedly continued beyond the scope of Plaintiff’s consent, CCP § 425.13 applies. A battery claim based on treatment exceeding or differing from that to which the patient consented arises from the manner in which professional services were provided. (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.) Plaintiff therefore may not pursue punitive damages based on the ketamine-infusion theory unless she first obtains leave under CCP § 425.13.

Second, the SAC alleges a separate basis for punitive damages. Plaintiff alleges that, while she was in pain and dependent on Dr. Larsen for emergency care, Dr. Larsen repeatedly and lingeringly rubbed her upper right thigh and later rubbed or massaged her left calf. The SAC alleges that neither contact was incidental, medically explained, or related to Plaintiff’s presenting condition, examination, or treatment; that Plaintiff did not consent; that she froze because she was terrified; and that her husband witnessed the unwanted touching.

Accepting those allegations as true, the alleged thigh-and-calf touching was personal, nonclinical conduct rather than the rendering of professional medical services. CCP § 425.13 does not apply merely because the alleged conduct occurred in a hospital or was committed by a physician. The relevant inquiry is whether the alleged injury was directly related to professional services. (Central Pathology, supra, 3 Cal.4th at pp. 191-192.)

The alleged repeated, nonconsensual, and nonclinical touching of a vulnerable patient supports a reasonable inference of despicable conduct undertaken in conscious disregard of Plaintiff’s bodily autonomy and dignity. The SAC therefore adequately pleads malice or oppression under Civil Code § 3294, although it does not allege sufficient facts supporting fraud.

Defendant’s contention that Plaintiff has presented no evidence does not warrant striking the punitive-damages prayer. Except as to a punitive-damages theory governed by CCP § 425.13, the present motion tests the sufficiency of the allegations rather than Plaintiff’s ability to prove them.

Because the SAC alleges an independent and adequately pleaded basis for punitive damages arising from Dr. Larsen’s alleged nonclinical touching, the Court declines to strike the punitive-damages prayer in its entirety. This ruling does not authorize Plaintiff to pursue punitive damages based on the ketamine-infusion theory absent compliance with CCP § 425.13.

Defendant’s motion to strike is DENIED. Counsel for Plaintiff is to give notice of the Court’s ruling.

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