Yun Hee So v. Sook Ja Shin
212 Cal. App. 4th 652
| Cal. Ct. App. | 2013Background
- Plaintiff So alleges she awoke during a D&C after inadequate anesthesia and was later confronted by Dr. Shin in recovery.
- Shin allegedly showed a container of So's blood and tissue, gestured as if to hand it to So, and urged silence about the incident.
- So sued Shin, the hospital, and the medical group for negligence, assault and battery, and intentional infliction of emotional distress; hospital and group were sued on direct and respondeat superior theories.
- The trial court sustained demurrers to IIED and battery, and granted judgment on the pleadings for negligence against Shin and for the hospital/medical group on respondeat superior.
- The appellate court reverses, holding the negligence claim against Shin can be non-professional and that the hospital/medical group may be liable under respondeat superior; battery and IIED claims survive to be decided at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 340.5 applies to plaintiff's claim | So's claim is ordinary negligence, not MICRA professional negligence. | Shin’s acts occurred in rendering professional services; MICRA applies. | Section 340.5 applies to professional negligence; determination reserved for facts; controversy unresolved at demurrer. |
| Whether Shin's alleged conduct was professional negligence | Conduct occurred during postoperative period and related to reporting; alleged to be negligent in delivering care. | Postoperative conduct by Shin was still part of delivering professional services; should be professional negligence. | Court held the alleged negligence was not necessarily within professional services; reversed judgment on pleadings as to Shin. |
| Whether hospital/medical group liable under respondeat superior | Hospital/Group liable for Shin's tortious acts as her employer/agent. | No vicarious liability because acts not within scope of professional services; demurrer dismissed. | Remandable; cannot conclude as a matter of law that hospital/group are not liable; reversal as to respondeat superior. |
| Whether hospital has direct negligence claim | Hospital's hiring/supervision failures caused harm; direct negligence separate from professional duty. | Hiring/supervision are professional services; direct negligence not viable. | Hospital cannot sustain a direct negligence claim; those duties fall within professional negligence. |
| Whether assault and battery and IIED survive demurrer | Postoperative conduct included fear-inducing, non-consented contact; battery and IIED viable. | Postoperative contact could be within consent; conduct not outrageous. | Battery is a factual question for trial; IIED survived demurrer given outrages like Bundren/Kaplan guidance. |
Key Cases Cited
- Murillo v. Good Samaritan Hospital, 99 Cal.App.3d 50 (Cal. Ct. App. 1979) (professional negligence scope under MICRA includes acts in hospital care)
- Canister v. Emergency Ambulance Service, Inc., 160 Cal.App.4th 388 (Cal. Ct. App. 2008) (ambulance operation within professional services for MICRA)
- Atienza v. Taub, 194 Cal.App.3d 388 (Cal. Ct. App. 1987) (misconduct by physician not necessarily professional negligence even if during service period)
- Central Pathology Service Medical Clinic, Inc. v. Superior Court, 3 Cal.4th 181 (Cal. 1992) (distinguishes actionable professional negligence from unrelated misconduct)
- Kaplan v. Mamelak, 162 Cal.App.4th 637 (Cal. Ct. App. 2008) (consent scope and battery analysis for treatment boundaries)
- Bundren v. Superior Court, 145 Cal.App.3d 784 (Cal. Ct. App. 1983) (outrageous conduct in medical context can raise triable issues for IIED)