NICOLE SETZER, ET AL VS. SETH LAWRENCE SHERMAN, M.D., ET AL

Nonetheless, in an attempt to be fair to Plaintiffs, the Court adopted the statement of facts from Plaintiffs’ opposition below – but in doing so, had to make several modifications to omit misleading citations and

June 5, 2026 Law and Motion Calendar PAGE 16 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ uncited allegations not found anywhere in the Complaint. Going forward, Plaintiffs’ counsel is advised to take care that such citations are accurate and not misleading.

BACKGROUND

On October 31, 2024, Setzer underwent a left knee arthroscopy and meniscus repair surgery performed under the direction of defendant and orthopedic surgeon Lawrence Sherman, M.D. (Complaint, ¶ 12.). During pre-surgery, on October 16, 2024, Setzer was evaluated by Dr. Sherman, for the meniscus tear repair surgery set for October 31, 2024. (Id., ¶ 14.) Additional pre-operative appointments took place on October 25, 2024 and October 28, 2024 with defendants’ surgical team members. (Ibid.) There was no discussion of Bupivacaine between Dr. Sherman, Dr. Albersheim, and Setzer prior to the surgery. (Ibid.)

On the morning of October 31, 2024, Setzer and her husband Michael Klieger spoke to defendants, anesthesiologists Dr. Mogal, and Dr. Boublik. She told them that she had an allergy to Bupivacaine. (Id., ¶ 15.) The surgery was delayed because of the Bupivacaine discussions between Setzer, Dr. Mogal, and Dr. Boublik. (Ibid.) Both physicians confirmed before the surgery began that Bupivacaine would not be given to Setzer during surgery. (Id., ¶¶ 15, 16). It was determined before surgery that based on Setzer’s allergy to Bupivacaine, the risk of giving Bupivacaine would outweigh any benefit.

Dr. Mogal, and Dr. Boublik told the plaintiffs, prior to surgery, that Bupivacaine would not be during Setzer’s surgery. (Id., ¶ 15.) Setzer’s medical records confirm that Bupivacaine should not have been ordered and used by any medical provider during her surgery on October 31, 2024. (Id., ¶ 16.) Dr. Mogal’s pre-op note explicitly listed Setzer’s allergy as “Lido/Bupi” establishing actual knowledge of Setzer’s allergy before the surgery. (Ibid.)

Surgery proceeded with Dr. Sherman, Dr. Albersheim, Wyatt Jeffrey Andersen, PA-C, Dr. Mogal and Dr. Boublik among other Stanford staff. (Id., ¶ 17.) Despite these pre-surgery agreements, the anesthetic Bupivacaine was in fact administered by Dr. Albersheim intraoperatively at port sites. (Id., ¶ 18.) Medical records confirm Bupivacaine was given by Dr. Albersheim during the surgery. (Id., ¶ 19.) There was no consent for the administration of Bupivacaine, despite Setzer’s known and documented allergy before the surgery. (Id., ¶ 14, 20.)

Post-op anesthesia notes confirm Bupivacaine was “inadvertently given by the surgical team at port sites during procedure.” (Id., ¶ 19 [emphasis added].). The administration of Bupivacaine “was a medical error” that substantially changed the nature of the medical procedure and caused progressing severe pain, extensive rash, burning, vasculitis, numbness in Setzer’s left leg and foot, and eventually CRPS. (Id., ¶¶ 19, 20 [emphasis in original].)

Dr. Mogal informed Setzer post-surgery that there had been a Bupivacaine injection. (Id., ¶ 67.) The orthopedic team, including Dr. Sherman and Dr. Albersheim failed to disclose that Bupivacaine was given. (Id., ¶ 66.) Plaintiff alleges that the failure to timely identify and treat the symptoms related to the Bupivacaine injection exacerbated her condition and prevented her from getting essential early care that to a reasonable degree of medical probability would have mitigated symptoms. (Id., ¶ 66,67, 68.)

LEGAL STANDARD

The purpose of a demurrer is to test the legal sufficiency of the facts alleged in the operative complaint to see whether they state a cause of action under any legal theory, as a matter of law. (New Livable Cal. v. Association of Bay Area Gov’ts (2020) 59 Cal.App.5th 709, 714–715; Genis v. Schainbaum (2021) 66 Cal.App.5th 1007, 1014.) When considering demurrers, courts “are required to construe the complaint

June 5, 2026 Law and Motion Calendar PAGE 17 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“The complaint must be given a reasonable interpretation and read as a whole with its parts considered in their context.” (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 824.) The court “may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law. (Young v. Gannon (2002) 97 Cal.App.4th 209, 220 (citing Moore v. Conliffe (1994) 7 Cal.4th 634, 638; Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790).)

If there is any reasonable possibility that plaintiff can cure the deficiency by amendment, then leave to amend should be granted even if the demurrer is sustained. (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1379.) However, where there is no reasonable possibility that amendment can cure the defects of the Complaint, a trial Court does not abuse its discretion by sustaining a demurrer without leave to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

ANALYSIS

Vicarious Liability (Second COA)

Defendants’ demurrer does not challenge whether Plaintiff has pleaded vicarious liability. Rather, Defendants merely assert that it is not a standalone cause of action.

Defendants’ demurrer is SUSTAINED as to the “Vicarious Liability” claim (Second COA), to the extent that the claim is alleged to constitute a standalone cause of action. However, the Court acknowledges the Plaintiffs’ pleading in the claim adequately alleges vicarious liability against Defendant SHC related to the Medical Negligence claim (First COA).

Direct Negligence against SHC (Third COA)

Defendant argues that Plaintiffs’ claim against SHC for “direct negligence” is redundant of Plaintiffs’ medical negligence claim, including Plaintiffs’ claim for vicarious liability for medical negligence against SHC.

The Court disagrees. While Plaintiffs’ claim does borrow the same list of issues from the medical negligence claim, the claim alleges that Defendant SHC “breached its duty to plaintiffs by failing to author, maintain, implement, and execute global hospital policies and procedures related to [those issues.]” (Complaint, ¶ 49.)

The Court finds that Plaintiffs’ Third COA is claim is not redundant of the First COA. Rather, it attempts to assert corporate negligence claim against SHC based on its failure to maintain adequate policies and procedures.

“A hospital is negligent if it does not use reasonable care toward its patients. A hospital must provide procedures, policies, facilities, supplies, and qualified personnel reasonably necessary for the treatment of its patients.” (CACI 514; Walker v. Sonora Regional Medical Center (2012) 202 Cal.App.4th 948, 960.)

June 5, 2026 Law and Motion Calendar PAGE 18 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ “The elements of a cause of action for negligence are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach [was] the proximate or legal cause of the resulting injury.” (Walker v. Sonora Regional Medical Center (2012) 202 Cal.App.4th 948, 958 [citations omitted])

“Duty, of course, is an essential element of a negligence cause of action.” (Ibid.) “The extent and character of the care that a hospital owes its patients depends on the circumstances of each particular case.” (Id., at p. 963.)

Here, Plaintiffs allege that SHC “owed a direct and independent duty” to Plaintiffs, but fail to state what that duty is:

At all times herein mentioned, defendants STANFORD UNIVERSITY HOSPITAL, STANFORD HEALTHCARE, STANFORD MEDICINE, and REDWOOD CITY SURGERY CENTER owed a direct and independent duty to the plaintiffs NICOLE SETZER and MICHAEL KLIEGER.

(Complaint, ¶ 48.)

Plaintiffs go on to allege that Defendants violated this unspecified duty by failing to implement sufficient policies related to a laundry list of issues. However, Plaintiffs still do not identify the duty (or duties) owed by SHC.

Plaintiffs separately allege that:

Defendants further failed in its independent duty to supervise its employees, physicians, residents, fellows, PA’s, nurses, agents and personnel and ensure that patient care was safely delivered. Instead, there were systemic process failures that permitted a known allergen such as Bupivacaine to be present and administered during surgery despite an agreement between patient SETZER and her doctors to the contrary.

(Complaint, ¶ 50.)

However, Plaintiffs do not allege how defendant failed to supervise those employees or agents nor do Plaintiffs describe what systemic processes failed. The fact that Bupivacaine was administered during Plaintiffs’ surgery does not establish corporate negligence. Plaintiffs must identify policies and procedures at issue, tie those policies to an independent duty (or duties) owed by the hospital to its patients, and establish that the claim represents a direct institutional failure that is not merely a repackaging of vicarious liability. (See, e.g., Walker, supra, 202 Cal.App.4th 948; Santa Rosa Memorial Hospital v. Superior Court (1985) 174 Cal.App.3d 711.)

Accordingly, Defendants’ demurrer to Plaintiffs’ “Direct Negligence” claim (Third COA) is SUSTAINED, with leave to amend.

Medical Battery (Fourth COA)

Plaintiffs argue that Defendants performed a substantially different procedure on Plaintiff by administering Bupivacaine to Plaintiff as an anesthetic despite that Plaintiff is allergic to the anesthetic and it was agreed before surgery that it would not be used. Defendants argue that Plaintiffs’ pleading

June 5, 2026 Law and Motion Calendar PAGE 19 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ acknowledges that the administration of Bupivacaine was inadvertent and that the mistake does not constitute a substantially different procedure.

Plaintiffs’ argument relies heavily on Duncan v. Scottsdale Med. Imaging, Lt. (Arizona.2003) 70 P.3d 435 – an out-of-state case that is not binding on this Court.

California law recognizes two types of medical battery: substantially different treatment (CACI No. 530A) and violation of conditional consent (CACI No. 530B).

The substantially different treatment theory applies “where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 239; CACI No. 530A.) In such cases intent is satisfied by the performance of the substantially different treatment: “the requisite element of deliberate intent to deviate from the consent given is present.” (Id. at p. 240.)

Separately, the violation of conditional consent theory applies “when a plaintiff gave conditional consent to a medical procedure and when it is alleged that the defendant proceeded without the condition having been satisfied.” (Dennis v. Southard (2009) 174 Cal.App.540, 543; CACI No. 530B.)

In such cases, intent is not deemed established by the deviation from consent. Rather, “a claim for battery against a doctor as a violation of conditional consent requires proof the doctor intentionally violated the condition placed on the patient's consent." (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1498; Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269; Dennis v. Southard (2009) 174 Cal.App.4th 540, 561-62; CACI No. 530B.)

Based on the allegations in the Complaint, the Court finds that Plaintiffs gave consent to perform the procedure though with an express condition that Bupivacaine would not be used. It is unclear that Defendants performed a substantially different procedure by administering Bupivacaine. It is clearer that Defendants violated the conditional consent given by Plaintiffs. Accordingly, Plaintiffs must establish that Bupivacaine was administered intentionally. Plaintiffs’ current pleading only references post-op notes that Bupivacaine was “inadvertently given by the surgical team at port sites during the procedure” and that “the Bupivacaine injection was a medical error.” (Complaint, ¶ 19 [emphasis in original].) There are inadequate allegations that to the contrary, the Bupivacaine was given intentionally. Thus, Plaintiffs fail to currently state a claim for medical battery.

Accordingly, Defendants’ demurrer to Plaintiffs’ claim for medical battery (Fourth COA) is SUSTAINED, with leave to amend.

Negligent Misrepresentation/Concealment

Plaintiffs allege that Dr. Mogal informed Plaintiff that Bupivacaine was used during her procedure during post-surgery. (Complaint, ¶ 67.) Plaintiffs argue that Plaintiff was “only informed of the Bupivacaine when she was still under an anesthesia haze post surgery.” (Oppo., at p. 10:1-2.) Plaintiffs cite ¶ 66 of the Complaint for that assertion, but ¶ 66 does not address Plaintiff’s state of mind at all. Nor does the Court find that allegation anywhere else in Plaintiffs’ Complaint.

Plaintiffs’ argue that Dr. Mogal, as an anesthesiologist, was not qualified to diagnose Plaintiff’s reaction to the Bupivacaine. Rather, Dr. Sherman, Dr. Albersheim, or PA-C Wyatt were the providers in the best position to disclose and diagnose the effects of the administration of Bupivacaine but failed to do so in

June 5, 2026 Law and Motion Calendar PAGE 20 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ their orthopedic notes. Plaintiffs essentially allege that Plaintiff relied on the silence of the Defendants as to the use of Bupivacaine, despite that Dr. Mogal disclosed to her that the anesthetic was used. However, Plaintiffs fail to explain why Dr. Mogal, the anesthesiologist, would not be qualified disclose and diagnose the effects of anesthetic used during the surgery.

Plaintiffs’ Complaint is also unclear about what she was specifically told, and by whom. For example, Plaintiffs allege that “SETZER relied on her physicians clinical directions which included false and misleading statements that downplayed or ignored the complications from administering Bupivacaine.” (Complaint, ¶ 25.)

Plaintiffs’ Complaint is similarly unclear as to what Dr. Mogal told her beyond that Bupivacaine was used: “When MOGUL, M.D. informed Plaintiff SETZER post-surgery that there had been a Bupivacaine injection, SETZER reasonably relied on the doctors false and misleading statements surrounding the Bupivacaine injection in failing to get immediate care and treatment related to the symptoms that resulted from the injection.” (Complaint, ¶ 67.)

Based on the facts as currently pleaded, the Court cannot find that Defendants concealed from Plaintiff that Bupivacaine was used during the surgery.

Accordingly, Defendants’ demurrer to Plaintiffs’ claim for Negligent Concealment is SUSTAINED, with leave to amend.

Plaintiffs shall file an amended complaint, if any, within 10 days of notice of entry of this order. As the Court has ruled that the Second Cause of Action for “Vicarious Liability” is not a standalone claim, but nonetheless adequately establishes that Plaintiff claims vicarious liability against SHC for the Medical Negligence claim, any amended complaint shall incorporate with any necessary modifications the substantive pleading from the “Vicarious Liability” claim into the First Cause of Action for Medical Negligence and resulting in the deletion of the current separate cause of action for “Vicarious Liability.”

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.