A woman suffered a miscarriage and underwent a dilation and curettage procedure. She alleged that she was administered insufficient anesthesia and awoke during the procedure. When she confronted the anesthesiologist, the doctor yelled and shoved a container of the woman’s bodily fluids and tissue at her. Then, the anesthesiologist asked the woman not to tell anyone about what she had done and offered her bribes in exchange for not reporting the incident.
Two years later the woman sued the anesthesiologist for negligence, assault and battery, and intentional infliction of emotional distress. She also sued the medical group and hospital for negligence under a theory of respondeat superior and for negligent hiring. The Superior Court of Los Angeles County dismissed the assault and battery for failing to allege that any touching by the defendant doctor was beyond the scope of the subject medical treatment. The court dismissed the intentional infliction of emotional distress claims for failing to allege facts sufficient to support the element of outrageous conduct. The court granted the defendants’ motions for judgment on the pleadings for the negligence claims on the ground that the claims were barred by the one-year statute of limitations pertaining to professional negligence against a healthcare provider.
The statute of limitations for general or ordinary negligence is two years. The Medical Injury Compensation Reform Act describes the statute of limitations for professional negligence against a healthcare provider, “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” “Professional negligence” is defined in another part of the statute as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.”
The California Court of Appeal for the Second District, Division 4, reversed in part and affirmed in part. In reversing the lower court’s judgment in favor of the defendants with regard to the negligence claim against the doctor, the court reasoned that while an anesthesiologist's postsurgical contact with a patient may be for the purpose of rendering professional services, all such contact is not necessarily for that purpose. A health care provider’s actions undertaken for the purpose of delivering medical care to a patient may constitute professional negligence. However, actions undertaken for a different purpose are not. Here, the plaintiff alleged that the doctor undertook the allegedly negligent acts not to deliver medical care to the plaintiff, but to prevent the patient from reporting the incident. Therefore, as plead, the claim was for general negligence. Therefore, the two-year statute of limitations applied to the negligence claim against the doctor and the respondeat superior claims against the other defendants.
Conversely, the court found that hiring and supervising medical personnel, as well as safeguarding incapacitated patients, are clearly within the scope of services for which the hospital was licensed. Therefore, the lower court did not err in holding that the one-year statute of limitations barred plaintiff’s direct negligence claims against the hospital.
The court reversed the lower court’s dismissal of the plaintiff’s assault and battery claim for failing to allege that any touching by the defendant doctor was beyond the scope of the subject medical treatment. In reversing, the court followed the same reasoning as it employed in determining that, as plead, the doctor’s conduct was not part of postoperative care. Consent to surgery necessarily encompasses consent to postoperative care, but not all postoperative contact between doctor and patient constitutes care. The court held that a finder of fact must decide the nature of the contact between the plaintiff and the doctor and whether that contact was within the scope of plaintiff's consent.
The court reversed the lower court’s dismissal of the plaintiff’s intentional infliction of emotional distress claim for failing to allege facts sufficient to support the element of outrageous conduct. The appellate court found that the plaintiff was in the recovery room after undergoing surgery, had recently miscarried, had required a procedure to remove the dead fetus from her uterus, and claimed to have awakened during the procedure. Under these circumstances, a trier of fact may well draw the conclusion that the plaintiff was in all probability vulnerable and the doctor unquestionably knew of the plaintiff's physical state. Additionally, a reasonable juror could conclude that forcing a patient who had recently miscarried to look at what she believed to be her dismembered fetus was extreme and outrageous.
See: Yun Hee So v. Sook Ja Shin, 2013 WL 28785 (Cal.App. 2 Dist., January 03, 2013) (not designated for publication).