defendants owed them a duty of care. Third, the Kings contend the trial court erred by
denying them leave to amend. We affirm the sustaining of the demurrer but reverse the
denial of leave to amend.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
The facts in this section are taken from the allegations in the Kings’ complaint.
On February 15, 2008, Kirk sustained a back injury while at work. In July 2011, Kirk
suffered anxiety and depression due to chronic back pain resulting from the back injury.
In 2011, Kirk was prescribed a psychotropic medication known as Klonopin.
1 We use first names for the sake of clarity. No disrespect is intended.
2 The Kings also sued Mohammed Ashraf Ali, M.D. (Ali); Whittier Drugs; and Does 1 through 100. The forgoing three defendants are not respondents in this appeal. At the time of the hearing on the demurrer, Ali had not been served with the complaint.
2
The Klonopin was provided to Kirk through Workers’ Compensation. In July
2013, a Workers’ Compensation utilization review was conducted to determine if the
Klonopin was medically necessary.3 (Labor Code, § 4610, subd. (a).)4 Sharma, an
anesthesiologist, conducted the utilization review. Sharma determined the drug was
unnecessary and decertified it. As a result, Kirk was required to immediately cease
taking the Klonopin. Typically, a person withdraws from Klonopin gradually by slowly
reducing the dosage. Due to the sudden cessation of Klonopin, Kirk suffered four
seizures, resulting in additional physical injuries.
In September 2013, someone requested Kirk again be permitted to take
Klonopin. In October 2013, Ali, a psychiatrist, conducted a second utilization review.
Ali also determined Klonopin was medically unnecessary. Neither Sharma nor Ali
examined Kirk in-person, and neither warned Kirk of the dangers of an abrupt
withdrawal from Klonopin. Sharma and Ali were employees of CompPartners.
CompPartners was a Workers’ Compensation utilization review company.
B. DEMURRER
Defendants demurred to the complaint. Defendants asserted the Kings’ claims
were preempted by the WCA because they arose out of a utilization review. Defendants
interpreted the complaint as objecting to the decision to decertify Klonopin. Defendants
3“Utilization review” is the process by which employers “review and approve, modify, delay, or deny” employees’ medical treatment requests within the Workers’ Compensation system. (Labor Code, § 4610, subd. (a); State Compensation Ins. Fund v. Workers’ Comp Appeals Bd. (2008) 44 Cal.4th 230, 234, fn. 3 (State Fund).)
4 All subsequent statutory references will be to the Labor Code unless indicated.
3
asserted the utilization review was performed at the behest of Kirk’s employer and was
conducted in connection with the payment of benefits for Kirk’s workplace back injury.
Defendants contended the Labor Code set forth a procedure for objecting to a utilization
review decision, and that procedure preempted the Kings’ complaint.
Alternatively, defendants asserted they did not owe Kirk a duty of care.
Defendants argued there was no doctor-patient relationship because they never
personally examined Kirk and did not treat him. Defendants reasoned that because
there was no relationship, there was no duty of care.
Defendants further asserted the Kings had improperly split a medical malpractice
cause of action into two negligence causes of action. Defendants contended the
emotional distress causes of action were subsumed by what should have been a single
medical malpractice claim, and that Sara’s loss of consortium claim failed because there
was no underlying tort cause of action to support it.
C. OPPOSITION
The Kings opposed the demurrer. First, the Kings asserted their claims were not
preempted by the WCA. The Kings asserted their claims concerned the failure to
provide Kirk with a Klonopin-weaning regimen; they were not disputing the decision to
decertify the Klonopin. The Kings contended this claim fell within the ambit of a
negligence cause of action—it did not fall within the procedures set forth in the Labor
Code/WCA for disputing a utilization review decision.
Second, the Kings asserted defendants owed Kirk a duty of care because Kirk’s
medical treatment was effectively being determined by defendants’ decisions at the
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utilization reviews. Third, the Kings asserted they did not improperly split a medical
malpractice cause of action because their cause of action for general negligence was
brought in the alternative, in case the court determined the defendants were not
healthcare providers for purposes of the professional negligence cause of action.
Fourth, the Kings asserted Kirk’s cause of action for intentional infliction of emotional
distress set forth sufficient facts to support an independent cause of action; however, the
Kings also referenced a proposed First Amended Complaint filed concurrently with the
opposition that alleged additional facts to support the cause of action for intentional
infliction of emotional distress.5 Fifth, the Kings asserted there were sufficient facts
alleged to support the loss of consortium cause of action.
D. HEARING
The trial court issued a tentative opinion sustaining the demurrer due to the
lawsuit being preempted by the WCA. At the hearing on the demurrer, the Kings
explained they were not disputing the decision to decertify Klonopin; rather, they were
focused on the manner in which the decision was carried out—the decision to abruptly
halt the medication rather than gradually reduce the dosage. The Kings asserted there
were two requirements that triggered Workers’ Compensation—(1) the employee was
working at the time of the injury, and (2) the injury was proximately caused by the
employee’s job. The Kings asserted Kirk’s seizures did not meet these two
5The Kings did not file the Proposed First Amended Complaint. The proposed First Amended Complaint is not included with the Opposition in the Appellant’s Appendix.
5
requirements and, thus, fell outside the ambit of the WCA. Further, to the extent the
WCA encompasses derivative or collateral claims, the seizures were “a wholly separate
injury.”
The trial court said, “So if I’m wrong on the exclusivity, you trip over another
issue which is duty.” The Kings explained that a doctor-patient relationship was not
needed for a duty to be created. Rather, a duty is owed when a doctor’s decision affects
the patient’s treatment. The Kings asserted Sharma’s decision affected Kirk’s treatment
by effectively dictating the treatment. No other doctor was involved in the decision to
terminate the Klonopin; the insurance company asked Sharma if the Klonopin was
medically necessary, and based upon Sharma’s answer, the Klonopin was discontinued.
The Kings asserted Sharma’s decision was negligent because no weaning schedule or
warnings about seizures were given.
Defendants asserted the Kings were “obviously” contesting the utilization review
decision, and a challenge to the utilization review falls within the ambit of the WCA.
Next, defendants asserted they owed no duty to Kirk because Kirk did not hire
defendants and defendants did not meet Kirk when performing the utilization review.
The Kings again explained that they were not contesting the utilization review
decision. The Kings said they did not want Klonopin to be prescribed again; rather,
they were complaining about Sharma’s decision to abruptly stop the Klonopin rather
than gradually stop the Klonopin.
The trial court said, “You may have convinced me that, you know, maybe
Worker’s Comp exclusivity may or may not apply; because you are correct, he’s not
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actually trying to challenge the decision directly.” However, the trial court also said, “I
don’t think there is a duty.” The trial court explained Sharma did not prescribe the
Klonopin; rather, “[h]e made a recommendation under the utilization review that it be
withdrawn.” The court said, “Somebody else prescribed this medication. Somebody
else took it off—took him off it immediately without any slow withdrawal. That’s the
person who made the medical decision for your client, not the doctor who was simply
reviewing the procedure.”
The Kings asserted “it wasn’t anybody else’s decision other than Dr. Sharma’s to
discontinue [the Klonopin]. [¶] It wasn’t merely a recommendation. It was Dr.
Sharma—is this patient—essentially, the question was: Is this patient going to continue
receiving this medication or not, put your stamp on it. He says, No. It ceases.”
The trial court asked the Kings what facts they could add if they were granted leave to
amend their complaint. The Kings said they would add facts about “the patient-client
relationship, that CompPartners hired this doctor to make treatment decisions. Based
off of a review of the patient’s chart, the doctor made treatment decisions.”
CompPartners responded with two points. First, CompPartners said that if the
Kings were suing due to a discreet injury then Kirk could “directly amend his
application for adjudication of claim in the Workers’ Compensation Appeals Board and
seek retribution or damages for whatever treatment decisions were made during the
process.” Second, CompPartners argued, “Just think about the duty implications if this
Court ruled that someone who reviewed medical records and made a recommendation
could be held liable for whatever ultimate decision. Because it’s not his decision to
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make. He’s making a review and making a recommendation. They don’t have to agree
with [the] utilization review. The statute doesn’t require it. It just says they will review
it and make recommendations, and then it’s out of his hands.” The Kings again
explained that their claim involved a third party physician—not Kirk’s employer—and
therefore, the claim did not come within the WCA.
The trial court said, “My ruling stands. I’m sustaining the demurrer without
leave to amend.” The trial court added, “[T]his needs to go up to the Court of Appeals.
There is really no good law, any much law under the utilization.” The trial court
explained that it sustained the demurrer due to both the exclusivity and duty issues.
DISCUSSION
A. OVERVIEW OF THE WORKERS’ COMPENSATION UTILIZATION
REVIEW PROCESS
“The workers’ compensation scheme makes the employer of an injured worker
responsible for all medical treatment reasonably necessary to cure or relieve the worker
from the effects of the injury. [Citation.] When a worker suffers an industrial injury,
the worker reports the injury to his or her employer and then seeks medical care from
his or her treating physician. After examining the worker, the treating physician
recommends any medical treatment he or she believes is necessary and the employer is
given a treatment request to approve or deny.” (State Fund, supra, 44 Cal.4th at pp.
237-238.)
Disputes about treatment requests are resolved via the utilization review process,
in which “employers can have their utilization review doctors review treatment
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requests.” (State Fund, supra, 44 Cal.4th at pp. 243-244.) After a utilization review is
conducted, a treatment request may be approved, modified, delayed or denied. (§ 4610,
subd. (a).) “[U]nder the statutory scheme, only an employer’s utilization review
physician applying approved criteria can modify, delay, or deny treatment requests—an
employer may not, on its own, object to a treatment request. (§ 4610, subds. (e) & (f).)”