In this appeal, we must decide whether a plaintiff's claims for battery and intentional infliction of emotional distress are based on a health care provider's professional negligence and therefore are subject to the one-year limitations period set forth in Code of Civil Procedure section 340.5.
Larson appeals, arguing the two-year limitations period generally applicable to personal injury claims governs because he alleged intentional tort claims, not claims for professional negligence. As explained below, we disagree with Larson's contention and affirm the trial court's judgment because we must look past the labels Larson uses and examine the specific conduct Larson alleged to determine which limitations period applies. Larson bases his lawsuit on Shuman's conduct in providing professional health care by performing a preoperative checkup and administering anesthesia. Larson does not allege any other purpose for the challenged conduct. Because his claims constitute a challenge to how Shuman performed his professional services, Larson's claims are based on professional negligence and barred by section 340.5's one-year limitations period.
In September 2011, Larson filed a lawsuit (Earlier Action) to recover for injuries he allegedly sustained while he was a patient at UHS's hospital. Larson's complaint in the Earlier Action asserted claims for medical negligence, professional negligence, battery, and intentional infliction of emotional distress against UHS and Shuman. The complaint alleged Larson admitted
In November 2011, Larson filed a first amended complaint in the Earlier Action. The amended pleading dropped the claims for medical negligence and professional negligence, but alleged claims for assault, battery, and intentional infliction of emotional distress. The pleading continued to allege Shuman served as the anesthesiologist for Larson's surgery. Larson also continued to allege that, "[p]rior to the surgical procedure," Shuman "twisted [Larson's] arm to check up on him and pried open his mouth"; Shuman "lifted [Larson's] chin in an abrupt manner, hurting [Larson's] neck and chin"; Shuman "pushed [Larson's] head against the bed to the point where his neck started hurting"; "Shuman's hand continually pressed hard on [Larson's] upper chin and lip area"; and Shuman "pushed [Larson's] face again before [Larson] became unconscious." As a consequence, Larson "woke up with bruises on his face, and a swollen upper lip." Finally, Larson alleged he filed a complaint with UHS and a police report in November 2010.
Shuman and UHS separately demurred to the first amended complaint in the Earlier Action. The trial court sustained both demurrers with leave to amend on the ground Larson failed to allege sufficient facts to show he did not consent to Shuman's conduct because the alleged injuries occurred as Shuman provided medical care. Rather than amend his pleading, however, Larson voluntarily dismissed the Earlier Action without prejudice in March 2012.
Eight months later Larson filed this action. The complaint alleges claims for battery and intentional infliction of emotional distress against Shuman and UHS, but omits many of the specific facts Larson alleged in the Earlier Action. The claims against Shuman simply allege he "forcefully grabbed [Larson's] arm, pried open [his] mouth, violently punched, lifted and grabbed [Larson's] chin, face and mouth," and Larson "suffered pain, bruising, swelling, soreness and emotional trauma and distress." The claims against UHS include the same allegations. Larson also alleged Shuman "was acting as an agent and/or employee of [UHS] and within the scope of his agency
Shuman and UHS demurred and moved to strike portions of Larson's complaint on the grounds the claims were time-barred, Larson failed to allege sufficient facts to state a cause of action, and Larson failed to obtain a court order authorizing him to seek punitive damages against a health care provider. In support, Shuman and UHS asked the court to judicially notice Larson's two complaints, the demurrers, a notice of ruling, and the request for dismissal filed in the Earlier Action.
The trial court granted the requests for judicial notice, sustained the demurrers without leave to amend on the ground the statute of limitations barred Larson's claims, and granted the motions to strike without leave to amend. After the trial court entered two judgments dismissing his claims against Shuman and UHS, Larson timely appealed.
"We review [Larson's] complaint de novo to determine whether it alleged facts sufficient to state a cause of action under any legal theory. [Citation.] In doing so, we look past the form of the pleading to its substance and ignore any erroneous or confusing labels [Larson] attached. [Citation.] `"`We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] ...' ... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]"' [Citation.]" (Rosen, supra, 193 Cal.App.4th at p. 458.)
"`When a demurrer is sustained without leave to amend, the reviewing court must determine whether there is a reasonable probability that the complaint could have been amended to cure the defect....' [Citation.] The
Larson contends the trial court erred by considering the complaints he filed in the Earlier Action when it ruled on Shuman's and UHS's demurrers. According to Larson, the operative complaint in this action superseded the complaints he filed in the Earlier Action, and therefore the trial court could consider only the allegations in the operative complaint. We are not persuaded because Larson ignores well-established precedent authorizing courts to consider omitted and inconsistent allegations from earlier pleadings when ruling on a demurrer.
"`"The principle is that of truthful pleading."' ... [Citation.] When the plaintiff pleads inconsistently in separate actions, the plaintiff's complaint is nothing more than a sham that seeks to avoid the effect of a demurrer. [Citations.] Under such circumstances, the court will disregard the falsely pleaded facts and affirm the demurrer." (Cantu, supra, 4 Cal.App.4th at pp. 877-878, original italics; see CCC Information Services, supra, 149 Cal.App.4th at p. 412 [affirming trial court ruling sustaining demurrer because plaintiff bound by inconsistent factual allegations in complaint from earlier action]; Henry v. Clifford (1995) 32 Cal.App.4th 315, 322-323 [38 Cal.Rptr.2d 116] (Henry) [same].)
"The sham pleading doctrine is not `"intended to prevent honest complainants from correcting erroneous allegations ... or to prevent correction of ambiguous facts."' [Citation.] Instead, it is intended to enable courts `"to prevent an abuse of process."' [Citation.]" (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 426 [42 Cal.Rptr.3d 807]; see Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1391 [261 Cal.Rptr. 240] ["`A court has inherent power by summary means to prevent an abuse of its process and peremptorily to dispose of sham causes of action.'"].) Plaintiffs therefore may avoid the effect of the sham pleading doctrine by alleging an explanation for the conflicts between the pleadings. (CCC Information Services, supra, 149 Cal.App.4th at p. 412; Vallejo Development, supra, 24 Cal.App.4th at p. 946.)
The operative complaint therefore omits the previous allegations that Shuman was the anesthesiologist on Larson's kidney stone surgery, and that Larson alleged injuries occurred as Shuman administered anesthesia for the surgery. In the Earlier Action, Shuman and UHS successfully demurred to Larson's assault, battery, and intentional infliction of emotional distress claims on the ground Larson failed to allege sufficient facts to show he did not consent to Shuman's conduct because the alleged injuries occurred as Shuman provided medical care. The trial court sustained those demurrers with leave to amend, but rather than amend his pleading, Larson dismissed the Earlier Action and filed this action eight months later without the factual allegations showing his injuries occurred as Shuman administered anesthesia to Larson before Larson's surgery.
Larson is bound by the allegations of his complaints in the Earlier Action because he omitted facts the trial court relied on in sustaining Shuman's and UHS's earlier demurrers without providing an explanation for the omissions. The trial court therefore properly considered the allegations from Larson's earlier complaints when ruling on the demurrers in this action.
The trial court sustained Shuman's and UHS's demurrers on the ground Larson's claims were barred by the one-year limitations period in section 340.5 for claims based on a health care provider's professional negligence. Larson contends the trial court erred because he did not allege a claim for professional negligence, but rather claims for battery and the intentional
Section 340.5 is part of the Medical Injury Compensation Reform Act (MICRA), which the Legislature enacted in 1975 as its response to a "medical malpractice crisis." (Perry v. Shaw (2001) 88 Cal.App.4th 658, 667 [106 Cal.Rptr.2d 70] (Perry).) MICRA made several substantial changes to the law governing medical malpractice actions with the intent to reduce insurance rates by reducing the size and number of malpractice judgments, and "thereby ensuring available and affordable health care." (88 Cal.App.4th at p. 667.)
MICRA includes not only section 340.5, which shortened the limitations period for malpractice actions, but also several other statutes that abolished the collateral source rule (Civ. Code, § 3333.1), limited noneconomic damages to $250,000 (Civ. Code, § 3333.2), authorized periodic payments of future damages without the plaintiff's consent (Code Civ. Proa, § 667.7), limited the contingency fees attorneys could charge (Bus. & Prof. Code, § 6146), authorized arbitration agreements in medical services contracts (Code Civ. Proa, § 1295), and required prior notice to health care providers before a malpractice action may be commenced (Code Civ. Proa, § 364). (Perry, supra, 88 Cal.App.4th at p. 667; see Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1514, 1524 [35 Cal.Rptr.3d 612] (Smith).)
Despite the apparent clarity of this definition, applying it may pose difficulties because additional claims often arise out of the same facts as a professional negligence claim, including claims for battery, products liability, premise liability, fraud, breach of contract, and intentional or negligent infliction of emotional distress. (Smith, supra, 133 Cal.App.4th at p. 1514; see Unruh-Haxton, supra, 162 Cal.App.4th at pp. 352-353.) Indeed, "[b]ecause acts supporting a negligence cause of action might also support a cause of action for an intentional tort, [the Supreme Court has] not limited application of MICRA provisions to causes of action that are based solely on a `negligent act or omission' as provided in [MICRA's definition of professional negligence]." (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192 [10 Cal.Rptr.2d 208, 832 P.2d 924] (Central Pathology).) Instead, the Supreme Court "`has cautioned repeatedly that "the scope and meaning of the phrase[] ... `based on professional negligence' [may] vary depending upon the legislative history and `the purpose underlying each of [MICRA's] individual statutes.' [Citation.]" [Citation.]' [Citation.]" (Unruh-Haxton, supra, 162 Cal.App.4th at p. 353; see Smith, supra, 133 Cal.App.4th at p. 1515.)
We reversed because our review of the complaint revealed the plaintiffs based their intentional tort claims on intentional misconduct, not professional negligence, and therefore applying section 340.5 would not further MICRA's goal of reducing the number of medical malpractice actions filed: "The allegations of stealing and then selling a person's genetic material for financial gain [are] intentional act[s] of egregious abuse against a particularly vulnerable and trusting victim. None of the patients assert the egg harvesting medical procedures fell below the standard of care. Rather, it is the intentional and malicious quest to steal genetic material that is the focus of the lawsuit. [¶] ... It would be inconsistent with the letter and spirit of the statutory scheme to hold allegations of intentional fraud, emotional distress, and stealing are really just other forms of professional negligence." (Unruh-Haxton, supra, 162 Cal.App.4th at pp. 355-356; see Benun v. Superior Court (2004) 123 Cal.App.4th 113, 124, 125-126 [20 Cal.Rptr.3d 26] (Benun) [§ 340.5 does not apply to statutory cause of action for custodial elder abuse (Welf. & Inst. Code, § 15657) because the claim is not based on professional negligence, but rather reckless or intentional neglect by elder's custodian].)
In Perry, the plaintiff alleged the physician defendant had committed a battery by performing a breast enhancement procedure as part of another surgical procedure despite the plaintiff's specific instructions not to do so. (Perry, supra, 88 Cal.App.4th at pp. 661-662.) The Court of Appeal concluded MICRA's $250,000 limitation on noneconomic damages did not apply to the battery claim because it was not based on professional negligence and nothing in MICRA's legislative history suggested the Legislature intended to extend the monetary limitation to intentional torts. (88 Cal.App.4th at p. 668.)
In concluding the noneconomic damage limitation did not apply, the Perry court discussed at length the decision in Cobbs v. Grant (1972) 8 Cal.3d 229 [104 Cal.Rptr. 505, 502 P.2d 1], where the Supreme Court distinguished
In Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208 [87 Cal.Rptr.2d 187, 980 P.2d 895] (Preferred Risk), the Supreme Court emphasized the importance of examining the underlying basis for the claim and determined MICRA's prefiling notice requirement and its related tolling provision (§ 364) applied to an equitable indemnity claim. (Preferred Risk, at pp. 211-212.) Although equitable indemnity claims are based on the common law duty to reimburse a person who pays money because of another's wrongdoing, the Supreme Court explained equitable indemnity actions are nonetheless based on a health care provider's professional negligence when the actions "flow from professional negligence actions (as opposed to unrelated tort actions)." (Id. at pp. 215, 218; see Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 114 [32 Cal.Rptr.2d 263, 876 P.2d 1062] [MICRA's limit on noneconomic damages applied to equitable indemnity action based on earlier professional negligence lawsuit because indemnity cannot occur without liability].)
Finally, in Barris, the Supreme Court concluded MICRA's limit on noneconomic damages applied to a federal law claim under the Emergency Medical Treatment and Labor Act (42 U.S.C. § 1395dd), which prohibits hospitals from transferring or discharging a patient suffering from a known emergency medical condition until the patient's condition has been stabilized. (Barris, supra, 20 Cal.4th at pp. 108-109.) Although the federal law claim required a greater showing than a state law claim for professional negligence, including a showing the hospital had actual knowledge of the patient's emergency medical condition, the Supreme Court nonetheless concluded the federal law claim was based on professional negligence within the meaning of MICRA's noneconomic damages limitation because the law addressed a
Despite the case-by-case approach of the foregoing cases, Shuman urges a bright-line rule that section 340.5 broadly applies to any claim directly related to the professional services rendered by a health care provider, as opposed to only claims based upon a health care provider's professional negligence. Shuman cites Central Pathology to support this contention, but Central Pathology did not construe section 340.5 or any other MICRA provision, and later cases have refused to apply Central Pathology's standard to any MICRA provision.
Central Pathology construed section 425.13, which requires a plaintiff to establish a substantial probability of recovering punitive damages before alleging a punitive damages claim "[i]n any action for damages arising out of the professional negligence of a health care provider." (§ 425.13, italics added; see Central Pathology, supra, 3 Cal.4th at p. 184.) Although section 425.13 regulates punitive damage claims against health care providers and its requirement the claim must arise out of "professional negligence" is similar to MICRA's "based on professional negligence" requirement, section 425.13 does not include MICRA's definition of professional negligence and it is not part of MICRA. (§ 425.13; see Central Pathology, at pp. 187-188.) Section 425.13 was enacted more than a decade after MICRA as part of the Willie L. Brown Jr.-Bill Lockyer Civil Liability Reform Act of 1987 (Stats. 1987, ch. 1498, §§ 1-7, pp. 5777-5782), which revised statutory provisions addressing punitive damages as part of a larger tort reform effort. (Central Pathology, at p. 188.) Based on section 425.13's language and legislative history, the Central Pathology court "h[e]ld that whenever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such, then the action is one `arising out of the professional negligence of a health care provider,' and the party must comply with section 425.13(a)." (Central Pathology, at pp. 191-192.)
Because section 425.13 is not part of MICRA and employs different language than MICRA's statutes, the Supreme Court repeatedly has rejected attempts to apply the standard it announced in Central Pathology to MICRA or other statutory provisions. (Delaney v. Baker (1999) 20 Cal.4th 23, 39-40 [82 Cal.Rptr.2d 610, 971 P.2d 986] (Delaney); Barris, supra, 20 Cal.4th at pp. 115-116 [refusing to use Central Pathology standard to determine whether claim was based on professional negligence and therefore subject to MICRA's limit on noneconomic damages].) As the Supreme Court explained
We reject Shuman's efforts to apply the Central Pathology standard to section 340.5 for the same reasons and now consider whether the conduct Larson describes in his pleadings, the legal theories he alleges, and the purpose behind section 340.5 compel the conclusion his claims are based on professional negligence.
Although Larson labels his claims as intentional torts for battery and intentional infliction of emotional distress, the operative complaint's factual allegations, when read in conjunction with Larson's complaints in the Earlier Action, reveal Larson's claims are based on professional negligence within the meaning of section 340.5. Indeed, Larson alleges Shuman was the anesthesiologist for his surgery and injured Larson by forcefully grabbing and twisting his arm while conducting a preoperative checkup, and by prying open Larson's mouth and violently punching, lifting, and pushing Larson's face as he put on the mask to administer the anesthesia. These allegations challenge the manner in which Shuman rendered the professional health care services he was hired to perform; they do not allege intentional torts committed for an ulterior purpose.
Unlike the claims in Unruh-Haxton, the focus of Larson's claims concern the manner in which Shuman rendered his professional services as an anesthesiologist, not some collateral course of conduct pursued for Shuman's own gain or gratification. Larson does not allege Shuman acted with an intent to do anything other than administer the anesthesia for the surgery or that Shuman had any reason to intentionally injure Larson. Larson's allegations also are vastly different than the facts in Perry. Larson does not allege Shuman provided any medical treatment to which Larson did not consent or that Shuman deliberately deviated from the consent Larson provided for his surgery. Larson's claims are analogous to the claims the Supreme Court found to be based on professional negligence in Preferred Risk and Barris because they are necessarily based on Shuman's professional health care services.
Moreover, applying section 340.5's one-year limitations period to Larson's claims is consistent with MICRA's goal of reducing the number of medical malpractice actions by shortening the limitations period. (Perry, supra, 88 Cal.App.4th at p. 667; Benun, supra, 123 Cal.App.4th at pp. 125-126, fn. 6; Noble v. Superior Court (1987) 191 Cal.App.3d 1189, 1193 [237 Cal.Rptr. 38].) By looking past Larson's labels and characterizations to the conduct itself, we advance MICRA's purpose because we prevent Larson from avoiding MICRA's shorter limitations period through artful pleading. (See Smith, supra, 133 Cal.App.4th at p. 1514.) We therefore conclude Larson's claims are based on professional negligence and barred by section 340.5's one-year limitations period.
Larson relies on So v. Shin (2013) 212 Cal.App.4th 652 [151 Cal.Rptr.3d 257] (So) to support his argument Shuman's conduct fell outside the purview of professional services. We are not persuaded. Larson mischaracterizes and ignores his own allegations and nonetheless forfeited any argument based on So by failing to raise the argument and cite So until the reply brief, thereby
In So, the plaintiff underwent a dilation and curettage procedure following a miscarriage. The plaintiff alleged the defendant administered insufficient anesthesia causing her to awake during the procedure and experience pain and discomfort. Upon the plaintiff summoning the defendant to the recovery room and complaining about awaking during the procedure, the defendant became angry and verbally abusive toward the plaintiff, shoved a container filled with the plaintiff's blood and tissue at the plaintiff, and told the plaintiff she could not have felt anything. As the plaintiff became more and more distraught, the defendant attempted to comfort the plaintiff, and begged the plaintiff not to report the incident or that she awoke during the procedure. Based on this confrontation, the plaintiff sued the defendant and others for negligence, intentional infliction of emotional distress, assault, and battery. (So, supra, 212 Cal.App.4th at pp. 657-658.) The trial court granted the defendants' motion for judgment on the pleadings on the negligence cause of action based on section 340.5's one-year limitations period. The defendants, however, did not challenge any of the intentional tort claims based on section 340.5's limitation period. (So, at pp. 660-661.)
The Court of Appeal reversed because the plaintiff's factual allegations showed the negligence claim could be based on general negligence rather than professional negligence, and therefore subject to section 335.1's two-year limitations period rather than section 340.5's one-year period. The So court explained, "professional negligence is only that negligent conduct engaged in for the purpose of (or the purported purpose of) delivering health care to a patient — or, in the words of our Supreme Court in Central Pathology, conduct `directly related to the professional services provided by a health care provider acting in its capacity as such' and that `is an ordinary and usual part of medical professional services.' [Citation.] Stated simply, negligent actions undertaken by a health care provider for the purpose of delivering medical care to a patient constitute professional negligence;
So does not change the result in this case because Larson's allegations show Shuman necessarily undertook the alleged conduct in providing professional services — a preoperative checkup and administration of anesthesia. Unlike the allegations in So, Larson does not allege Shuman acted for any reason other than rendering professional services. Moreover, by relying on the standard Central Pathology announced in interpreting section 425.13, So is inconsistent with the Supreme Court decisions we discussed above that refused to apply Central Pathology to any MICRA provisions. (Delaney, supra, 20 Cal.4th at pp. 39-40; Barris, supra, 20 Cal.4th at pp. 115-116.)
Finally, because we affirm the trial court's decision sustaining Shuman's and UHS's demurrers based on section 340.5's one-year limitations period, we do not address whether Larson alleged sufficient facts to support his claims. We also do not address whether the trial court properly granted Shuman's and UHS's motions to strike.
As explained above, a trial court's decision to deny a plaintiff leave to amend after sustaining a demurrer is reviewed for an abuse of discretion. To establish an abuse of discretion, a plaintiff must show there is a reasonable possibility of amendment by specifically showing the additional facts that he or she intends to allege and how those facts would state a cause of action; "`[t]he assertion of an abstract right to amend does not satisfy this burden.'" (Rosen, supra, 193 Cal.App.4th at p. 458.) Here, Larson does not seek leave to amend, let alone explain how he could allege sufficient facts to overcome the bar of section 340.5's one-year limitations period. Accordingly, Larson failed to show the trial court abused its discretion in denying him leave to amend.
The judgments are affirmed. Shuman and UHS shall recover their costs on appeal.
Fybel, J., and Ikola, J., concurred.