Medical Malpractice, Or Ordinary Negligence? IIED Demurrer Reversed.

dilation and curettagePlaintiff underwent a dilation and curettage procedure following a miscarriage. She alleges that she was administered inadequate anesthesia and awoke during the procedure. When she later confronted the anesthesiologist, the anesthesiologist became angry, shoved a container filled with plaintiff’s blood and tissue at her, and then urged plaintiff not to report the incident.

Plaintiff sued the anesthesiologist and her medical group, as well as the hospital, asserting that the anesthesiologist’s conduct constituted negligence, assault and battery, and intentional infliction of emotional distress, and that the hospital and medical group were liable to her directly and through the doctrine of respondeat superior.

The trial court sustained demurrers to the causes of action for assault and battery and intentional infliction of emotional distress; it later granted motions for judgment on the pleadings as to the cause of action for negligence. Plaintiff discovered the incident the day it happened, September 30, 2008, and filed her action on August 11, 2010. The appellate court stated: “The issue before us is whether plaintiff’s claim is for ‘professional’ negligence, [e.g., medical malpractice] and hence is time-barred, or ‘ordinary’ negligence, and thus, is timely.”

After noting that not every interaction between a doctor and a patient involves professional services, specifically pointing out that placing threatening phone calls about unpaid bills or sexual assaults would not be, the appellate court reversed the trial court’s dismissal on the statute of limitations issue. Regarding the dismissal of the cause of action for intentional infliction of emotional distress, the appellate court also reversed, stating:  “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.” So v. Shin (Cal. App. Second Dist., Div. 4; January 3, 2013) 212 Cal.App.4th 652.

About Mark Mellor

Mr. Mellor obtained his Bachelor of Science Degree from Cornell University in 1988. While at Cornell he was a member of Cornell University’s National Debate and Forensics Team, repeatedly recognized as an exceptional debater and individual public speaker throughout the country. Mr. Mellor obtained his Juris Doctorate from Southwestern University School of Law in 1992. He was admitted to both the California and the District of Columbia Bars and has been practicing law for over 18 years in both state and federal courts, including the Ninth Circuit Court of Appeals. Mr. Mellor started his own Real Estate and Business Litigation Practice in 2001 and has had three published opinions in the California Courts of Appeal since that time. Mr. Mellor is a past chair of the Executive Committee for the Litigation Section of the State Bar of California and was chair in (2007-2008); vice-chair (2006-2007); treasurer (2005-2006); secretary (2004-2005) and Executive Committee member (2002-2004). He also assists with the State Bar’s Real Estate Section Committee in California. He has special interests in real estate and business litigation involving loan modifications, foreclosures, mechanic’s liens, construction defects, business contracts, business entity formation, and technology.
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