Grieves v. Superior Court

• Decision Date: 14 June 1984
• Citation: 157 Cal.App.3d 159,203 Cal.Rptr. 556
• Court: California Court of Appeals Court of Appeals
• Parties: James Philip GRIEVES and Cheryl Louise Grieves, Petitioners, v. SUPERIOR COURT of the State of California, Orange County, Respondent, Leonard L. FOX, M.D., et al., Real Parties in Interest. Civ. 34328. G000986.

Page 556

203 Cal.Rptr. 556

157 Cal.App.3d 159

James Philip GRIEVES and Cheryl Louise Grieves, Petitioners, v. SUPERIOR COURT of the State of California, Orange County, Respondent Leonard L. FOX, M.D., et al., Real Parties in Interest.

Civ. 34328.

G000986.

Court of Appeal, Fourth District, Division 3, California.

June 14, 1984.

[157 Cal.App.3d 161] Ruston & Nance, Inc. and Catherine A. Vincent, Tustin, for petitioners.

No appearance for respondent.

[157 Cal.App.3d 162] Beam, DiCaro, D'Antony & Stafford and Joseph S. D'Antony, Santa Ana, for real party in interest Nandi Wijesinghe, M.D.

Harrington, Foxx, Dubrow, Canter & Keene, Dale B. Goldfarb, Edward R. Leonard and Mark W. Flory, Los Angeles, for real parties in interest Leonard L. Fox, M.D. and Martin Luther Hospital.

Robert V. Wills and Daniel M. Hodes, Tustin, for real party in interest Andrew M. Kenlon, M.D.

OPINION

TROTTER, Presiding Justice.

The threshold issue before us is whether petitioners' first amended complaint states facts sufficient to constitute a cause of action for battery. Since the sufficiency of the complaint was tested in the trial court by means of demurrer, we accept as true all of its material factual allegations. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)

On May 1, 1981, while pregnant, petitioner Cheryl Grieves discussed with her physician, Andrew M. Kenlon, M.D. (Kenlon), the possibility of undergoing a surgical procedure known as a tubal ligation ¹ following the delivery of her child. On June 26, 1981, they discussed her desire the procedure not be performed if the child was born with any abnormalities. She gave birth to a daughter on September 8, 1981, and thereafter a tubal ligation was performed. Immediately following the surgery she was informed the newborn child had been diagnosed as having a genetic disorder, Trisomy 18. Two months later the child died.

Petitioners Cheryl Grieves and her husband filed suit against Kenlon; Martin Luther Hospital (Hospital); Nandi Wijesinghe, M.D. (Wijesinghe), the assistant surgeon; and Leonard L. Fox, M.D. (Fox), a pediatrician; seeking general and special damages for medical malpractice, wrongful life and wrongful death. A demurrer was sustained with leave to amend, the grounds for which are not disclosed, and in April 1983 petitioners amended their complaint and added a sixth cause of action for battery. It is this cause of action which is central to our discussion.

Paragraphs 36 through 38 allege real parties' failure to advise petitioners of the child's abnormalities before performing the tubal ligation "deprived [Cheryl] of the opportunity to choose not to have the tubal ligation performed," and had she been so informed she "would not have consented to the tubal ligation ..., and any consent given ... did not constitute a knowledgeable or informed consent, and such tubal ligation constituted a battery on the person of [Cheryl]." Paragraph 40 alleges, "[Cheryl] is informed and believes and thereon alleges that said defendants did the things herein alleged willfully, maliciously, fraudulently and oppressively. [Cheryl] is therefore entitled to exemplary damages and punitive damages pursuant to Civil Code Section 3294 in an additional sum to be determined by the court." The prayer was also amended to include a request for punitive damages.

Wijesinghe filed a general demurrer to the sixth cause of action, and a motion to strike paragraph 40 and the portion of the prayer seeking punitive damages. Kenlon filed a notice of intention to join in Wijesinghe's demurrer. Fox and Hospital jointly filed their own demurrer to the sixth cause of action on the ground it failed to state facts sufficient to constitute a cause of action and to entitle petitioners to punitive damages. ² They also filed a motion to strike the entire complaint, the sixth cause of action, paragraph 40, the prayer for punitive damages, and any other allegations of punitive damages.

Following hearing on the demurrers and motions the court ruled:

"The demurrers of defendants Fox, Martin Luther Hospital, and Wijesinghe to the sixth cause of action of the First Amended Complaint are sustained without leave to amend. The motion to strike of defendant Wijesinghe is moot. The motion to strike by defendants Fox and Martin Luther Hospital to the entire complaint is denied; the motion to strike the sixth cause of action and punitive damages is moot. The motion re joinder of defendant Kenlon is granted." ³

Although petitioners request the order be vacated in its entirety, the thrust of their claim is the trial court abused its discretion in sustaining the demurrers. We note the trial court's ruling failed to indicate the grounds upon which the demurrers were sustained. Since a demurrer does not lie to a part of a cause of action (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 807, p. 2418), petitioners' punitive damage allegations were not subject to real parties' demurrers. "There is no cause of action for punitive damages. Punitive or exemplary damages are remedies available to a party who can plead and prove the facts and circumstances [set forth in Civil Code section 3294 ⁴ .... 'Punitive damages are merely incident to a cause of action, and can never constitute the basis thereof.' [quoting from Gold v. Los Angeles Democratic League (1975) 49 Cal.App.3d 365, 373, fn. 3, 122 Cal.Rptr. 732]." (Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391, 196 Cal.Rptr. 117.) Consequently, the trial court's ruling could have pertained only to the demurrers made on the ground the sixth cause of action failed to state a cause of action for battery. The adequacy of the punitive damage allegations could, however, have been tested by motion to strike. (Cf. Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 962, 178 Cal.Rptr. 470; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 85, 168 Cal.Rptr. 319.)

In the absence of a transcript of the proceedings, we can only surmise that in ruling the motions to strike were moot the trial court presumed sustaining the demurrers to the sixth cause of action eliminated the issue of petitioners' entitlement to punitive damages. That notion may have been accurate, at least as to the cause of action for battery, ⁵ had the demurrers been properly sustained. Since we conclude they were not, we will address petitioners' right to punitive damages in light of real parties' motions to strike paragraph 40.

I

A surgical operation performed without informed consent is a technical battery. (Berkey v. Anderson (1969) 1 Cal.App.3d 790, 803, 82 Cal.Rptr. 67.) Although petitioners allege Cheryl consented to the post-partum surgery, they also state facts to indicate the consent was conditioned upon the delivery of a normal child.

Real parties, relying on Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, contend Cheryl consented to the identical operation which was performed, thus the cause of action may only be pleaded in negligence. In Cobbs our Supreme Court examined the trend towards categorizing failure to obtain informed consent as negligence:

"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, there is a clear case of battery. [Citations and examples omitted.]

"However, when an undisclosed potential complication results, the occurrence of which was not an integral part of the treatment procedure but merely a known risk, the courts are divided on the issue of whether this should be deemed to be a battery or negligence. [Citations and examples omitted.]

"...

"We agree with the majority trend. The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when 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." (Id., at pp. 239-241, 104 Cal.Rptr. 505, 502 P.2d 1; emphasis added.)

Real parties contend their failure to inform petitioners of the newborn's abnormality prior to performing the surgery was not "a deviation from the consent given," but rather was an "undisclosed inherent complication" which, at most, represented "a failure to meet their due care duty to disclose pertinent information." We disagree and find their reliance on Cobbs to be misplaced. Cobbs refers to complications which result from a surgical procedure, not complications which occur prior to surgery. Moreover, a negligence theory as espoused by Cobbs would be predicated on a practitioner's breach of duty to advise of risk factors which accompany a consented-to surgery. Here we do not reach that issue since the sixth cause of action alleges only conditional consent.

Petitioners' first amended complaint is hardly a model pleading. The sixth cause of action contains allegations which sound in both negligence ⁶ and battery predicated on conditional consent. However, all petitioners need do at this stage of the lawsuit is inform real parties of their claims. Whether petitioners' consent was conditional is a factual question to be determined at trial. We thus construe the sixth cause of action liberally and find it states Cheryl consented to a tubal ligation only upon the condition her baby was born without any abnormalities. These allegations are sufficient to apprise real parties of the issues they are to meet (see 3 Witkin,...