Monday, January 5, 2013
Court Allows Suit by Woman Who Awoke During Procedure
Patient Who Was Shown What She Thought Was Dismembered Fetus May Sue Over Mental Distress, Panel Says
By JACKIE FUCHS, Staff Writer
A woman who awoke while undergoing a medical procedure following a miscarriage may proceed with her case against the anesthesiologist and hospital, this district’s Court of Appeal has ruled.
Div. Four Thursday unanimously held that Los Angeles Superior Court Judge James R. Dunn erred when he ruled as a matter of law that an anesthesiologist who allegedly touched the woman while she was in the recovery room and showed her a jar that contained what the woman thought was her dismembered fetus had not engaged in extreme and outrageous conduct.
Yun Hee So underwent a dilation and curettage, commonly known as a “D&C,” in September 2008 following a miscarriage. Just under two years later she sued the anesthesiologist, Dr. Sook Ja Shin, HP Anesthesia Medical Group, and Hollywood Presbyterian Medical Center, alleging that she was administered inadequate anesthesia.
She claimed that when she confronted Shin in the recovery room, the anesthesiologist became angry and shoved a container filled with So’s blood and tissue at her, touched her hands, arms and shoulders, and urged So not to report the incident.
So argued that such 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.
Dunn sustained demurrers to So’s complaint, saying that Shin’s conduct was neither extreme nor outrageous, and granted judgment on the pleadings in favor of defendants based on Code of Civil Procedure Sec. 340.5, under which a complaint against a healthcare provider must be filed within three years after the date of injury, or one year after plaintiff discovers, or should have discovered, the injury, whichever comes first.
There was no dispute that So discovered Shin’s alleged negligence on the day it happened—Sept. 30, 2008—so the question on appeal was whether the action, filed on Aug.11, 2010, was for “professional” negligence, and thus time-barred, or timely under the two-year statute of limitations for “ordinary” negligence.
Acted for Own Benefit
The panel held that while an anesthesiologist’s post-surgical contact with a patient may be for the purpose of rendering professional services, Shin’s alleged conduct was for the purpose of persuading So not to report to the hospital or medical group that So had awakened during surgery. In allegedly so doing, Shin acted for her own benefit, and not for the benefit of her patient. Thus the panel concluded such conduct would not constitute professional negligence.
The negligence claims against the hospital were correctly dismissed, however, the panel said. Hiring and supervising personnel, and safeguarding incapacitated patients, are “clearly within the scope of services for which the hospital is licensed,” Justice Steven Suzukawa wrote, making So’s claim of direct negligence untimely.
The panel further held that Dunn erred in ruling against So’s claims for assault and battery and infliction of emotional distress as a matter of law, saying that although consent to surgery necessarily encompasses consent to postoperative care, not all postoperative contact between doctor and patient constitutes “care.”
The justice wrote:
“The question of the nature of the contact between plaintiff and Dr. Shin, and whether that contact was within the scope of plaintiff’s consent, is a factual question for a finder of fact to decide.”
Likewise, Suzukawa wrote, a trier of fact could conclude that the conduct alleged in the complaint was “extreme, outrageous, or outside the bounds of decency” so as to constitute intentional infliction of emotional distress.
So had recently undergone surgery and was still in the recovery room after having awakened during a procedure to remove a dead fetus from her uterus. Under such circumstances, the justice said, a reasonable juror could conclude that So was vulnerable and that Shin’s alleged conduct in forcing So to look at what she believed to be her dismembered fetus was extreme and outrageous.
Presiding Justice Norman Epstein and Justice Nora Manella concurred in the opinion.
Attorneys on appeal were Henry M. Lee and Robert Myong for the plaintiff; Kenneth R. Pedroza, Cassidy C. Davenport, Taylor Blessey, Raymond L. Blessey, and Barbara M. Reardon of Cole Pedroza for Shin; Kenneth A. Maranga and Stephanie Charles of Maranga Morgenstern, with Timothy T. Coates and Carolyn Oill of Greines, Martin, Stein & Richland, for CHA-Hollywood Presbyterian Medical Center; and Jeffrey C. Bogert for HP Anesthesia Group.
The case is So v. Shin; 13 S.O.S. 47.
Copyright 2013, Metropolitan News Company