Yanishevska vs. Laboratory Corporation of America Holdings

The demurrer to the First Amended Complaint is OVERRULED. Defendant to file an Answer within 10 days. Plaintiff to give notice 2. Case Management Conference

103 Yanishevska vs. Laboratory Corporation of America Holdings

26-01545506 1. Demurrer to Complaint Defendant Laboratory Corporation of America Holdings (“Defendant”) demurs to the second and fourth causes of action of plaintiff Iryna Yanishevska’s (“Plaintiff”) Complaint.

Second Cause of Action for Negligence (Res Ipsa Loquitur) Defendant argues that res ipsa loquitur is a rule of evidence and not an independent ground of liability. Defendant further argues that Plaintiff’s first and third causes of action already allege negligence and whether Plaintiff will be entitled to a jury instruction on res ipsa loquitur based on those claims will be determined at trial, but Plaintiff cannot plead the doctrine of res ipsa loquitur as a separate cause of action.

Plaintiff does not dispute that res ipsa loquitur is a presumption affecting the burden of producing evidence. However, Plaintiff requests leave to amend to incorporate the res ipsa loquitur allegations into the professional negligence cause of action. “Res ipsa loquitur is a rule concerning the presentation of evidence; it is not an independent ground of liability.” (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 78.) Thus, Plaintiff’s attempt to plead an independent cause of action based on the res ipsa loquitur doctrine is improper and the Demurrer is SUSTAINED with 20 days leave to amend.

Fourth Cause of Action for Medical Battery Defendant argues Plaintiff is improperly attempting to couch a medical negligence claim as one for medical battery. Defendant points out that Plaintiff admits that she consented to a routine venipuncture on her right arm and does not allege that Defendant performed a substantially different procedure. Instead, she merely alleges that the phlebotomist performing the procedure struck her median nerve.

Defendant further argues that Plaintiff’s attempts to plead revocation of her consent failed because, for Plaintiff to effectively withdraw her consent to the procedure, Plaintiff needed to clearly communicate her revocation to the phlebotomist, and Plaintiff alleges no such communication.

Plaintiff contends the allegations show that she revoked consent during the procedure. When the phlebotomist asked Plaintiff whether she wanted to continue, Plaintiff responded that she did not know. Thus, there was no valid, informed, and voluntary consent to proceed. “It is well settled that a physician who performs a medical procedure without the patient’s consent commits a battery irrespective of the skill or care used.” (Conte v. Girard Orthopedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266-1267.) “A typical medical battery case is where a patient has consented to a particular treatment, but the doctor performs a treatment that goes beyond the consent.” (Id. at p. 1267.)

Where, on the other hand, “the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation, the action should be pleaded in negligence.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 240.)

Here, Plaintiff alleges she consented only to a routine venipuncture procedure. During the procedure, a phlebotomist employed by Defendant negligently inserted a needle into her right arm, causing her permanent injuries. Immediately upon insertion of the needle, Plaintiff experienced an acute, severe, electriclike pain and complained to the phlebotomist, audibly reacted, and physically recoiled. In response to Plaintiff’s reaction, the phlebotomist asked Plaintiff if she wished to continue with the procedure and Plaintiff responded that she did not know. Plaintiff asserts that, based on this equivocal response, any prior consent to the procedure was revoked, limited, and/or rendered ineffective and the continued insertion and use of the needle in Plaintiff’s arm constituted a harmful and offensive touching of her person without her consent.

Defendant cites Cobbs in support of its first argument. However, in Cobbs, the Court of Appeal discussed instances in which consent was given to a procedure, but an undisclosed inherent complication arose. The Court of Appeal held that these circumstances give rise to a medical negligence claim based on the failure to disclose pertinent information. Here, Plaintiff does not allege that the injuries she sustained during the procedure were undisclosed such that her consent was ineffective. Instead, she is alleging that her consent was revoked. Thus, Cobb’s is inapt.

In arguing that Plaintiff’s alleged revocation of consent is insufficient, Defendant relies on non-binding out-ofstate authority while conceding that there are no California cases addressing withdrawal or revocation of consent in the middle of a medical procedure. Thus, Defendant has failed to demonstrate that Plaintiff’s medical battery cause of action fails as a matter of law under binding California authority.

Even if the Court were to consider Mims v. Boland (1964) 110 Ga. App. 477, Defendant’s argument would fail. Mims provides that for withdrawal of consent while treatment is in progress to be effective, “[t]he patient must act or use language which can be subject to no other inference, and which must be unquestioned responses from a clear and rational mind. These actions and utterances of the patient must be such as to leave no room for doubt in the minds of reasonable men that in view of all the circumstances consent was withdrawn.” (Id. at p. 478.)

Here, while Plaintiff did not respond to the question of whether she wanted to proceed with the procedure with a clear “no,” which would have shown that she unequivocally withdrew her consent, her response was also not a clear “yes,” which would have shown that she still consented to the procedure. Instead, her response that she was not sure was ambiguous. Whether this constitutes effective withdrawal of her consent is a question of fact not suitable for resolution on demurrer. Thus, the Demurrer is OVERRULED as to the fourth cause of action. Moving party to give notice 2. Case Management Conference

104 Jones vs. PHH Mortgage Inc.

25-01473497 1. Demurrer to Second Amended Complaint 2. Motion to Strike Portions Of Second Amended Complaint Defendants ONITY MORTGAGE CORPORATION f/k/a PHH MORTGAGE CORPORATION (erroneously sued as “PHH Mortgage Inc.”), successor