Doe v. KachruDoe v. Kachru
I. INTRODUCTION
Appellants Jane and John Doe allege they selected the medical facility where their child was born based on publications and marketing materials that led them to expect “privacy,” “round-the-clock midwifery support,” and delivery care consistent with “evidence-based, low-intervention care.” However, when it came time for Jane to give birth, the Does allege none of the labor and delivery staff provided care consistent with these assurances. They claim to have suffered, and continue to suffer, traumatizing injuries from the difficult labor and birth.
The Does sued the hospital and most of the medical personnel involved in the birth, including respondent Dr. Amita Kachru. Kachru attended Jane* at the very end of her prolonged labor, after concerns about Jane‘s and the baby‘s condition arose, at which point Kachru allegedly told Jane she had two options, a cesarean section (C-section) or a vacuum-assisted vaginal delivery. Jane alleges she objected to both procedures and told Kachru she wanted to continue laboring. Kachru did not perform a C-section, but she did perform a vacuum-assisted delivery.
In their operative complaint, the Does alleged nine causes of action against Dr. Kachru, including for medical battery, gender violence, and abuse of a dependent adult. They did not allege Kachru was negligent or violated applicable medical standards of care. After the trial court sustained Kachru‘s demurrer to all claims against her except one, which the Does then asked be dismissed, the court entered a judgment of dismissal from which the Does now appeal. Except as to Jane‘s medical battery claim, we affirm.
II. BACKGROUND
Because this case comes to us following the sustaining of a demurrer without leave to amend, we must accept as true the well-pleaded allegations
As to Dr. Kachru, the Does alleged in pertinent part as follows:
The Does wanted a birth experience that afforded “privacy,” was based on “the American College of Nurse Midwives . . . model of evidence-based, low-intervention care,” and provided “round-the-clock midwifery support,” including support for a multitude of pushing positions, for freedom of movement, and for non-pharmacologic pain relief.
In printed and Internet publications, including its Web site, in Facebook pages, and in YouTube videos, defendant Sutter Health stated it endorsed and would provide this kind of birth experience. For example, a handout, under the heading ” ‘Appropriate Intervention,’ ” stated, ” ‘Our group is committed to honoring pregnancy as a largely healthy, natural process that usually requires little to no intervention from your medical team. We don‘t perform procedures or recommend interventions universally, but tailor them to what‘s needed on an individual basis.’ ” It also stated, ” ‘Doctors and midwives participate equally in the care of all patients. Midwives are experts in low risk and uncomplicated pregnancy and childbirth, while MDs are available 24/7 if things become more complicated.’ ” Accordingly, the couple chose Sutter‘s Mission Bernal Women‘s Center for Jane‘s prenatal care and delivery. Due to the Covid-19 pandemic, the venue was later changed to another Sutter facility, the CPMC Birth Center, Van Ness campus.
Jane went into labor on October 19, 2020, when she was 39 weeks pregnant. “Throughout the day,” the couple monitored Jane‘s contractions, and “in the 8:00 p.m. hour,” Jane called the birth center. After “observing her labor by phone,” medical staff told her to come to the hospital. The couple therefore traveled the approximately 50 miles to the hospital.
When Jane was finally taken to the obstetrics triage area, she spoke with the person to whom she had spoken on the phone. This person told her she could agree to the administration of morphine and remain at the hospital, or return home. Because she did not want to make the trip home, Jane “acquiesced to” the administration of morphine.
Despite the procedure, Jane‘s cervical dilation was only three centimeters, still insufficient to remain at the hospital. So, over her objection, but with the approval of the physician who had “cared for [her] during her prenatal course,” she was discharged the following morning to return home. She was in “unbearable” pain during the drive back and vomited on the way.
“Sometime later,” after the couple returned home, Jane again spoke with staff at the birth center, who said she could return. When she arrived at the hospital, there was again a “very long intake process.” The amended complaint includes no allegations as to the contents of the admitting documents and authorization to treat forms.
Jane was taken to the obstetric triage area, and then to a labor-delivery-recovery room where she expected to be cared for in accordance with Sutter‘s assurances of privacy, round-the-clock midwifery support, and low-intervention care. The room was “extremely cold,” and she was placed under blankets. But the blankets were repeatedly partially removed for the “many” vaginal examinations staff performed and as to which she had no opportunity to object. During one of the exams, a certified nurse-midwife ruptured Jane‘s membrane with her fingers, a procedure to which Jane had no opportunity to object. The nurse-midwife observed the amniotic fluid “had meconium staining” but said there “was no reason not to anticipate a normal vaginal delivery.”
Jane‘s labor continued, and her cervix eventually dilated to 10 centimeters. However, another certified nurse-midwife stated the “cervical lip was still on one side of the baby‘s head” and proceeded to move it. The nurse-midwife did not say why this “was necessary” or obtain Jane‘s consent to do so.
Jane was then told to “start pushing,” although she had no urge to do so. At that point, the Does wanted to talk about their birth plan with the medical staff, but staff did not engage with them.
One of the certified nurse-midwives told Jane to lie on her back. Jane did not want to do so and said her prenatal providers had “agreed” “she could push and birth in any position that her body needed.” After discussing the issue, the nurse-midwives again told her to lie on her back. One of the providers was concerned she could not otherwise “see well or feel” Jane‘s contractions.
Shortly after this, a “new clinical team” entered the room. This included Dr. Kachru, who immediately approached Jane and said they (the new medical team) would ” ‘take over now.’ ” Kachru also said “they were going to do a C-section, ‘now.’ ” Jane objected and asked, ” ‘Why?’ ” Kachru replied that Jane had “developed a slight fever” and “the baby‘s heart rate had increased.” Jane again said she did not ” ‘want this,’ ” and wanted “to continue pushing” and give birth vaginally. Kachru said the “only way” to “avoid a C-section” was by “a vacuum-assisted delivery.” Jane said, ” ’ [n]o.’ ” Kachru repeated that was the only way to avoid a C-section. Jane again refused.
At that point, “[s]omeone” performed an ultrasound and the pediatrics team was called into the room. Jane objected, saying she wanted “privacy” and there had been a “plan” for that. Dr. Kachru said the team could stand behind the baby warming station and “look away” during the birth. Jane continued to object and said only the pediatrician could enter the room and “[e]veryone else” had to wait behind the curtain.
“All of a sudden,” the lights in the room, which had been dimly lit, were turned on and glaringly bright. “Unknown people” entered the room; no one remained behind the curtain. Two unknown persons placed Jane‘s legs in the bed stirrups and, “[w]ithout permission,” removed her socks. Dr. Kachru, seated between Jayne‘s legs, performed a vacuum-assisted delivery. The procedure was extremely painful, and the baby was born, apparently with no ill effects as none are alleged in the complaint.
Dr. Kachru then “forcibly removed Jane‘s placenta” by pressing on Jane‘s abdomen without obtaining Jane‘s consent. After that, Kachru inserted a catheter into Jane‘s urethra, without Jane‘s consent. Kachru then gave Jane an injection and “started suturing,” without Jane‘s consent. Jane continually complained of pain, but neither Kachru nor anyone else responded. After completing the sutures, Kachru asked Jane if she wanted “an IUD.” Jane declined, and Kachru did not insert one. Kachru then removed the catheter and left.
Jane has been diagnosed with “acute stress reaction and Postpartum Post-Traumatic Stress Disorder” and continues to suffer its disabling effects. She has also been diagnosed with “pudendal nerve neuralgia, vaginal burning, pelvic floor dysfunction, and muscle spasticity.” These conditions
The Does subsequently filed the instant action, naming as defendants Sutter Health, Dr. Kachru and two other doctors, four midwifery specialists, and two nurses, and alleging numerous causes of action. In the fifth amended, and operative, complaint, Jane alleged the following causes of action against Kachru: medical battery, “gender violence” in violation of
Dr. Kachru interposed a demurrer to all causes of action asserted against her, which the trial court sustained without leave to amend except as to John Doe‘s loss of consortium claim. At the Does’ request the trial court also dismissed that claim and thereafter entered a judgment of dismissal.1
III. DISCUSSION2
A. Medical Battery
Pointing to their allegations of unauthorized examinations and procedures, the Does maintain the trial court erred in sustaining Dr. Kachru‘s demurrer to
Governing Law
“Our Supreme Court has distinguished between ‘two qualitatively different types’ of medical battery. (Larson [v. UHS of Rancho Springs, Inc. (2014)] 230 Cal.App.4th [336,] 349 [discussing Cobbs v. Grant (1972) 8 Cal.3d 229 . . . (Cobbs)].) The first, an intentional tort, ‘occurs when a physician obtains the patient‘s consent to perform one type of treatment, but performs a substantially different treatment for which the plaintiff gave no consent.’ (Larson, at p. 349.)” (Burchell v. Faculty Physicians & Surgeons etc. (2020) 54 Cal.App.5th 515, 523–524 (Burchell).) “The second type ‘occurs when a physician performs the treatment for which consent was obtained and an infrequent complication occurs that the physician failed to disclose when obtaining the patient‘s consent.’ (Larson, supra, 230 Cal.App.4th at p. 349.) ‘In that circumstance, the claim is based on professional negligence, not intentional misconduct, because the physician did not deliberately deviate from the consent, but merely failed to disclose all known potential complications.’ (Ibid.)” (Burchell, at p. 524.) In short, “[t]he battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.” (Cobbs, at p. 240.)
Thus, the question before us is whether Jane alleged the requisite intentional tort and thus stated a claim for medical battery, rather than medical negligence.
“A physician who performs any medical procedure without the patient‘s consent commits a battery irrespective of the skill or care used.” (Thor v. Superior Court (1993) 5 Cal.4th 725, 735 (Thor); accord, Burchell, supra, 54 Cal.App.5th at p. 525 [“the elements of a medical battery claim do not involve a jury determination as to whether the standard of care was violated“].) “A typical medical battery case is where a patient has consented to a particular treatment, but the doctor performs a treatment that goes beyond the consent. . . . For example, the patient consents to an electromyogram, a relatively uncomplicated procedure, but the doctor performs a myelogram, which involves a spinal puncture. [Citation.] Or, the patient consents to an operation on his right ear, but the doctor operates on the left ear.” (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1267 (Conte).)
Accordingly, “[i]n the medical battery context, the scope of the consent is important because the gist of such battery is that the doctor has intentionally touched the patient without consent or in a manner that exceed[ed] the consent and without justification.” (Conte, supra, 107 Cal.App.4th at p. 1268; see, e.g., Kaplan, supra, 162 Cal.App.4th at pp. 639–640, 645 [patient signed consent form to operate on disk T8-9, described as a ” ‘thoracic eight-nine transvers pedicular diskectomy,’ ” but surgeon mistakenly operated on disks T6-7 and T7-8].) “Consent to medical care . . . may be express or may be implied from the circumstances.” (Bradford v. Winter (1963) 215 Cal.App.2d 448, 454 (Bradford).) Consent can also be “conditional.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 609–610 [patient‘s consent to surgery was “subject to a specific condition: only family donated blood would be used,” but no family blood was used and some of the blood used was contaminated with the HIV].)
“[A] doctor may act beyond the patient‘s express authorization,” however, “in ‘life-or health-threatening situations.’ ” (Burchell, supra, 54 Cal.App.5th at p. 525; see CACI No. 554 [“Affirmative Defense—Emergency“].) “[I]n an emergency[,] consent is implied.” (Cobbs, supra, 8 Cal.3d at p. 243.)
Only the Allegations Pertaining to the Vacuum-Assisted Delivery Suffice to State a Medical Battery Claim
We first consider the nature of Jane‘s medical battery claim. The Does maintain she pleaded a “no-consent” battery claim apparently meaning, in light of the allegations of the operative complaint, it was Jane‘s prerogative to accept or reject any examination or procedure during her labor and delivery that involved touching her and was allegedly uncomfortable or painful. Dr. Kachru contends, in contrast, that because Jane made no objection to a physician delivering her baby, but now complains she was confronted with the choice of a C-section or vacuum-assisted vaginal delivery, her battery claim was pled as one of “conditional consent,” i.e., you can deliver my baby but only if you refrain from performing a C-section or a vacuum-assisted delivery. Kachru then adds that Jane‘s alleged statement—” ‘I do not want
While the trial court agreed with Dr. Kachru that the Does had not sufficiently pleaded a medical battery claim, it did so for a reason different than advocated by Kachru. As the court saw it, Jane consented to admission to the hospital for the delivery of her baby and did not allege any “intentional deviation from the consented treatment for childbirth.”
We do not agree with either party‘s characterization of Jane‘s medical battery claim. Nor do we agree with the trial court‘s conclusion that, as a matter of law, none of the procedures Dr. Kachru allegedly performed even arguably amounted to a “substantial deviation” from Jane‘s authorization of obstetric care when she entered the hospital.
This is not a “no-consent” case as the Does argue because Jane necessarily consented to care and treatment during her labor and delivery in voluntarily seeking admission to the hospital, and there is no allegation she refused obstetric care by a physician. Indeed, as we have recited, the Does alleged that one of the hospital‘s publications they relied on in choosing Sutter stated, ” ‘Doctors and midwives participate equally in the care of all patients. Midwives are experts in low risk and uncomplicated pregnancy and childbirth, while MDs are available 24/7 if things become more complicated.’ ” Nor is this a “conditional” consent case, as Dr. Kachru maintains. The Does did not allege Jane consented to physician-assisted delivery on the condition delivery be unaided by any surgical or mechanical technique—they alleged Jane, when presented at the eleventh hour with the choice to have either a C-section or vacuum-assisted vaginal delivery, expressly and unequivocally refused both.
Thus, as the trial court recognized, the essence of Jane‘s medical battery claim with respect to Dr. Kachru is that the alleged procedures she performed exceeded the scope of the authorization Jane gave for obstetric care on entering the hospital. More specifically, the question at this juncture is whether Jane alleged that Kachru performed any procedure ” ‘substantially different’ ” than those for which consent was given. (Conte, supra, 107 Cal.App.4th at p. 1267; accord, Burchell, supra, 54 Cal.App.5th at p. 524.) We conclude they do not, except for Jane‘s allegations with respect to the vacuum-assisted delivery.
We agree with the trial court that by voluntarily admitting herself into the hospital for the purpose of concluding labor and giving birth, Jane impliedly consented to medical staff providing care and performing procedures generally associated with obstetric care, some of which would involve staff
Specifically, the Does maintain the trial court erred in relying on Bradford, supra, 215 Cal.App.2d 448, in concluding these procedures at the time of delivery and immediately thereafter do not support a cause of action for medical battery. The case does not, however, support the Does’ claim.
In Bradford, the plaintiff consented to a surgical procedure to diagnose whether a lesion was cancerous. (Bradford, supra, 215 Cal.App.2d at pp. 450–451.) Because “[a]n unexpected sudden massive hemorrhage” occurred during the procedure, the physician said it was in the plaintiff‘s best interest to undergo surgery, and the plaintiff agreed. (Id. at pp. 451–452.) When surgery revealed the spread of cancer, the doctor excised the plaintiff‘s right lung. (Id. at p. 452.) The appellate court affirmed judgment for the physician, concluding the scope of the plaintiff‘s consent encompassed the surgery. (Id. at pp. 450, 454–455.) In other words, the lung removal was not “substantially different” from the procedure to which the plaintiff had consented.
So, too, here. The vaginal touching by Dr. Kachru and the enumerated procedures she performed at the moment of birth and immediately thereafter were not “substantially different” from the general labor and delivery care Jane authorized on admission to the hospital. (See Bradford, supra, 215 Cal.App.2d at p. 454 [biopsy considered “normal incident of a bronchoscopy“].) Indeed, were we to adopt the Does’ proposed standard, obstetric providers would have to obtain express consent for every uncomfortable touching and every procedure generally associated with labor and delivery. This does not, however, comport with our state‘s established tort law governing medical battery. Nor with that in other jurisdictions. (See Bronneke v. Rutherford (Nev. 2004) 89 P.3d 40, 43 [” ‘as a practical matter, health professionals cannot be required to obtain express consent before each touch or test they perform on a patient’ “]; see also Devitre v. Orthopedic Center of St. Louis, LLC (Mo. 2011) 349 S.W.3d 327, 335 [although patient alleged he told doctor to stop touching him during examination because of pain, complaint did not plead an unconsented touching].)
Other out-of-state cases cited by the Does do not suggest otherwise. In Schloendorff v. New York Hospital (1914) 211 N.Y. 125, 128 (Schloendorff), for example, the plaintiff alleged she consented to general
Nor does Burchell assist the Does. To the contrary, it also supports our conclusion that, other than the vacuum-assisted delivery, there is no basis for a medical battery claim against Dr. Kachru. In Burchell, the patient agreed to surgery to remove a mass in his scrotum. However, during the surgery, the surgeon discovered the mass extended to the penis, so he removed it despite knowing that would render the patient impotent. (Burchell, supra, 54 Cal.App.5th at pp. 519–520.) In explaining why this constituted medical battery rather than medical malpractice, the court explained it was not a case where the battery “arose from failure to disclose an infrequent complication of a consented-to procedure,” which would sound in negligence. (Id. at p. 525.) Instead, the surgeon “performed a substantially different treatment” than that consented to, which amounted to “the performance of an unexpected and unconsented-to procedure.” (Id. at p. 526.)
However, vaginal touching immediately prior to birth and the procedures Dr. Kachru performed at the moment of birth and immediately thereafter cannot be described as “substantially different” treatment than general obstetric care authorized on being admitted to a medical facility. While Jane alleged the vaginal touching and other procedures were painful and some were unnecessary (she argues, for example, there was no need to “forcibly” press on her abdomen to expel the placenta), these are allegations that might arguably support a claim the procedures were not performed in accordance with the standard of care, but that is not a cause of action Jane ever advanced.
And that was the issue in Cruz Flores v. Ryder Memorial Hospital, Inc. (2022) 210 D.P.R. 465, on which the Does also rely. In that case, the Supreme Court of Puerto Rico upheld a medical malpractice claim against the hospital based on the obstetric provider inducing labor four weeks early
Jane‘s allegations with respect to the vacuum-assisted delivery, however, stand on different footing. As we have pointed out, this matter is before us after the sustaining of a demurrer without leave to amend. Accordingly, all we have before us are allegations of a medical procedure that at least arguably was substantially beyond the scope of Jane‘s general authorization
It may also well be that Dr. Kachru reasonably concluded an emergency situation had developed that required immediate delivery of the child. Indeed, the complaint alleges Jane‘s labor had persisted for nearly two days and arguable complications had arisen, i.e., Jane had developed a slight fever, the baby had developed an elevated heartrate, and Kachru stated the baby was going to be delivered ” ‘now,’ ” and the ” ‘only’ ” way to avoid a C-section at that point was a vacuum-assisted vaginal delivery. But given the limited factual matrix before us—none of which pertains to Kachru‘s affirmative defense—we cannot at this point in the proceedings conclude as a matter of law that there was, in fact, an emergency requiring Kachru to disregard Jane‘s refusal of a vacuum-assisted delivery.
We hasten to add that our conclusion in this regard is not based on the broad proposition advanced by the Does in their briefing that Jane had an absolute right to refuse any medical intervention no matter what consent she had previously given or how medically necessary—even if, as Does’ counsel urged at oral argument, her refusal would result in injury to herself or her baby. To begin with, this assertion is contrary to this state‘s established law of medical battery, which recognizes that to be actionable the complained-of medical care or treatment must have been “substantially different” from that for which consent was given, and further recognizes that in a medical emergency consent is implied.
The Does are also misguided in their reliance on caselaw involving incarcerated and institutionalized patients, wherein courts have ruled some patients can refuse medical treatment even when doing so will lead to their death. In Thor, supra, 5 Cal.4th 725, for example, cited by the Does, a quadriplegic prison inmate risked death after refusing food and medical care. (Id. at p. 732.) The prison‘s treating physician sought an ex parte order allowing forced feeding and medication. (Id. at p. 733.) In evaluating the propriety of such an order, our Supreme Court was called on to determine “whether the right to ‘exercise of control over [one‘s] body’ is sufficiently broad to permit an individual to decline life-sustaining treatment, even if to do so will cause or hasten death.” (Id. at p. 732.) “[F]ully appreciative of the profound considerations, both philosophical and personal, at issue,” and “[a]fter due deliberation,” the court held “under California law a competent,
The case before us bears no similarity to the circumstances in Thor. And more importantly, the Supreme Court held only that the personal consequences to an inmate of refusing food or medical treatment are insufficient to justify forced treatment, pointing out there was no evidence of a threat to other inmates and personnel (i.e., to institutional security). Here, it was not just Jane‘s personal interests at stake; her full-term baby‘s interests were also at stake. And, thus, unlike in Thor, the Does’ complaint alleged a threat to someone other than Jane. In short, the analytical rubric that is brought to bear with respect to inmates and incapacitated patients in custodial settings is not determinative of the case at hand. (See, e.g., Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127, 1134, 1136–1137 [competent but immobile patient at public hospital had right to refuse life-sustaining medical treatment]; Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 530 [state prisoners have statutory right to refuse long-term treatment with psychotropic drugs absent a showing of incompetence]; Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 1010–1011 [physicians who, at family‘s direction, withheld life-sustaining treatment from comatose patient unlikely to recover not liable for murder]; Foy v. Greenblott (1983) 141 Cal.App.3d 1, 5, 11–12 [incompetent conservatee held in locked facility may still retain fundamental right to decide whether to bear a child].)
We also point out that In re A.C. (D.C.Ct.App. 1990) 573 A.2d 1235, on which the Does also rely, did not hold that a woman‘s choice of, or refusal of, obstetric care is controlling in all circumstances. In that case, a pregnant woman with a history of cancer had a checkup when she was 25 weeks pregnant, at which point the viability of the fetus was unclear. (Id. at p. 1238.) After doctors discovered an inoperable tumor and informed the woman her illness was terminal, she was admitted to the hospital for palliative treatment designed to extend her life so her pregnancy could advance another two weeks and the baby could be delivered before she died. (Id. at pp. 1238–1239.) Thereafter, she became equivocal as to whether she wanted to proceed with the pregnancy. (Id. at p. 1239.) When her condition began to deteriorate rapidly, a dispute arose about whether to immediately deliver the baby through a C-section. (Ibid.) While the woman was unconscious and believed to have only 24 hours to live, a trial court ordered that a C-section be performed to deliver the child. (Id. at p. 1240.) But then, the
must determine the patient‘s wishes by any means available, and must abide by those wishes unless there are truly extraordinary or compelling reasons to override them.” (Id. at p. 1247.)
Beyond the fact that we are here addressing a medical battery claim and the issues such a claim presents—including the scope of Jane‘s authorization for obstetric services at the time of her admission to the hospital, whether a vacuum-assisted vaginal delivery is “substantially different” from those services, and whether there was a medical emergency necessitating a vacuum-assisted delivery—the D.C. court did not hold that a woman‘s belated indication that she does not want to bear the child she is carrying controls the outcome in every case. While a woman‘s refusal of a C-section may in most instances control, it was not, said the court, deciding “whether, or in what circumstances, the state‘s interests can ever prevail over the interests of a pregnant patient.” (In re A.C., supra, 573 A.2d at p. 1252.)
Thus, the same court, in Khiem v. United States (D.C.Ct.App. 1992) 612 A.2d 160, 164, subsequently distinguished In re A.C., describing the question it had considered in that case as “whether the uncertain prospects of saving the life of the fetus warranted compelling the patient to undergo major surgery without her consent.” (Id. at p. 164, fn. 7.) On the “quite different” facts of Khiem, the D.C. court held “the government‘s interest in bringing to trial a case involving two alleged murders” was sufficient to outweigh the defendant‘s “right to refuse the closely monitored administration to him, over a comparatively short period, of psychotropic drugs.” (Ibid.)
Here, the Does also alleged “quite different” facts—indeed significantly different facts—from those in In re A.C. Jane did not allege that she was subjected to C-section, which the D.C. court called “a massive intrusion into a person‘s body.” (In re A.C., supra, 573 A.2d at p. 1252.) She alleged she went into labor at 39 weeks (full term). She alleged she labored for nearly two days to give birth vaginally. She did not allege there was any question as to the viability of the baby. And she did not allege that she did not want to give birth. Further, she alleged the vacuum-assisted vaginal delivery was performed after an ultrasound and after she had started to develop a fever and the baby‘s heart rate became elevated. In sum, In re A.C. does not support the
We therefore conclude Jane alleged a medical battery claim against Dr. Kachru in one respect—the performance of the vacuum-assisted vaginal delivery over her express objection to that procedure.
B. Gender Violence
Relying on their medical battery claim against Dr. Kachru, which we have concluded is limited to the vacuum-assisted vaginal delivery Kachru performed over Jane‘s objection, the Does maintain Jane also stated a “gender violence” claim against Kachru under
The Does cite no case that considers the applicability of
As has been frequently stated, ” ’ ” ’ ” ’ “our fundamental task . . . is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute‘s purpose, legislative history, and public policy.” [Citation.] “Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.” ’ ” ’ ” ’ ” (Rogers v. City of Redlands (2025) 112 Cal.App.5th 667, 673
The Statutory Language
The statute commences with several uncodified findings, one of which states: “It is the purpose of this act to protect the civil rights of victims of gender-motivated violence and thereby to promote the public safety, health, and well-being of all persons within California.” (Stats. 2002, ch. 842, § 1; see Doe v. Superior Court (2023) 15 Cal.5th 40, 69 [” ‘An uncodified section is part of the statutory law. [Citation.] “In considering the purpose of legislation, statements of the intent of the enacting body contained in a preamble, while not conclusive, are entitled to consideration. [Citations.] Although such statements in an uncodified section do not confer power, determine rights, or enlarge the scope of a measure, they properly may be utilized as an aid in construing a statute.” ’ “].)
The statute‘s codified provisions state in relevant part:
“(a) Any person who has been subjected to gender violence may bring a civil action for damages against any responsible party. . . . [¶] . . . [¶]
“(c) For purposes of this section, ‘gender violence’ is a form of sex discrimination and means either of the following:
“(1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction. [¶] . . . [¶]
“(d) For purposes of this section, ‘gender’ has the meaning set forth in Section 51.” (
Civ. Code, § 52.4, subds. (a), (c)(1), (d) .)
The plain language of
The Does urge us to conclude otherwise reasoning that Dr. Kachru‘s alleged medical battery occurred while Jane was in “childbirth.” Because “childbirth” is a protected characteristic under the Unruh Act‘s definition of “Sex” and thus assertedly comes within that Act‘s imbedded definition of “Gender,” the Does maintain the medical battery allegedly perpetrated by Kachru was thus “based on” Jane‘s gender and therefore actionable gender violence under
To begin with, we strongly doubt the definition of “Gender” imbedded in
The first two sentences of
It makes no sense, however, for the definition of “Sex” to separately include “gender” if the reference to “sex” in the definition of “gender” means “gender” embraces the entirety of the immediately preceding definitional provisions pertaining to “Sex.” Indeed, the Does’ reading effectively obliterates the explicit distinction made in the definitional language of “Sex” between “pregnancy, childbirth, or medical conditions related” thereto, and “gender.” Furthermore, both sentences defining the term “Sex” include the phrase “includes, but is not limited to,” a phrase “of enlargement” meaning the specific examples that follow are illustrative, not exhaustive. (See People v. Arias (2008) 45 Cal.4th 169, 181 [“[T]he proviso ‘including, but not limited to’ ‘connotes an illustrative listing, one purposefully capable of enlargement.’ “]. ) The inclusion of “pregnancy” and “childbirth” are therefore illustrative examples of characteristics that may bring persons within the definition of “Sex.” The same is true of that definition‘s separate inclusion of “gender“—it is a different, and distinct, illustrative example of another characteristic that may bring a person within the definition of “Sex.”
No such language of enlargement is included in the imbedded definition of “gender.” Rather, the definitional language pertaining to “gender” is focused and fixed, and states: ” ‘Gender’ means sex, and includes a person‘s gender
Accordingly, in our view, the only reasonable reading of the phrase ” ‘Gender’ means sex” (
This reading is further bolstered by the remainder of the definitional language pertaining to “gender“—that gender “includes a person‘s gender identity or gender expression” and ” ‘Gender expression’ means a person‘s gender-related appearance and behavior whether or not stereotypically associated with the person‘s assigned sex at birth.” (
But even assuming, as do the Does, that “gender” includes the transitory state of “childbirth,” the language of
As we have recited, the statute commences with an uncodified finding that “It is the purpose of this act to protect the civil rights of victims of gender-motivated violence and thereby to promote the public safety, health, and well-being of all persons within California.” (Stats. 2002, ch. 842, § 1, italics added.) The statute also expressly states that ” ‘gender violence’ is a form of sex discrimination.” (
In discerning the Legislature‘s intent from the language it employed, we are guided by the then-existing state of the law, including decisional law by our courts. (See People v. Terwilligar (2025) 109 Cal.App.5th 585, 596 [” ‘We presume that when enacting a statute, the Legislature was aware of existing laws and judicial decisions in effect at the time and intended to maintain a consistent body of rules.’ ” (Quoting Kalpoe v. Superior Court (2013) 222 Cal.App.4th 206, 211).].)
In the instant case, we find our Supreme Court‘s opinion in In re M.S. (1995) 10 Cal.4th 698, of particular assistance. In that case, the high court addressed the meaning of the phrase
“The statutes require proof, inter alia, that the offense was committed because of the perpetrator‘s racial, religious or other specified bias. As used in [Penal Code] sections 422.6 and 422.7, and as a matter of common usage, ‘because of’ means the conduct must have been caused by the prohibited bias. A cause is a condition that logically must exist for a given result or consequence to occur. (American Heritage Dict. (2d ed. 1982) p. 249.)
“One can articulate, then, the parameters of the expressed bias [Penal Code] sections 422.6 and 422.7 target. On one hand, the Legislature has not sought to punish offenses committed by a person who entertains in some degree racial, religious or other bias, but whose bias is not what motivated the offense; in that situation, it cannot be said the offense was committed because of the bias. On the other hand, nothing in the text of the statute suggests the Legislature intended to limit punishment to offenses committed exclusively or even mainly because of the prohibited bias. A number of causes may operate concurrently to produce a given result, none necessarily predominating over the others. By employing the phrase ‘because of’ in sections 422.6 and 422.7, the Legislature has simply dictated the bias motivation must be a cause in fact of the offense, whether or not other causes also exist.” (In re M.S., supra, 10 Cal.4th at p. 719, italics & fn. omitted, second italics added.)
Thus, the court rejected the appellant‘s argument that the phrase “because of” in the state hate crimes statute did not provide “adequate notice of the nature of the prohibited motive.” (In re M.S., supra, 10 Cal.4th at p. 716, italics added.) In doing so, the court cited to a number of “other” civil rights and anti-discrimination statutes which variously used not only that same phrase, “because of,” but also “on account of” and “by reason of.” (Id. at p. 717, italics omitted.) The court “found no authority holding any of these similar formulations unconstitutionally vague.” (Ibid.) Rather, the conduct prohibited by these statutes “is objectively clear, and its discriminatory motivation is an element that must be proved beyond a reasonable doubt.” (Id. at p. 718, italics added.)
Given that
At the very least, our conclusion that some discriminatory motivation is a requisite element of a civil rights claim under
The Legislative History
In our view, the legislative history of
As the proposed legislation moved through the Assembly and Senate, committee reports consistently described it as aimed at preventing “gender-motivated violence.” (E.g., Assem. Com. on Judiciary, Rep. on Assem. Bill
The statements in support of the legislation likewise described it as a civil rights measure aimed at violence motivated by discriminatory bias. The Assembly Judiciary Report, for example, summarized the author‘s argument in support of the legislation as follows:
“A woman is raped every 46 seconds in the United States. Approximately two million women are sexually assaulted each year. . . . [U]p to four million women experience serious assault by an intimate partner each year and nearly one-third of adult women report having been assaulted by a partner. . . . In addition to the devastating effects on the victims, the current epidemic of violence against women is costly to society. . . . AB 1928 would help to address the widespread problem of gender-motivated violence by enabling victims to hold their attackers financially responsible for their crimes.” (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 1928 (2001–2002 Reg. Sess.) as amended Apr. 4, 2002, at p. 8, italics added; see Governor‘s Off. of Planning & Research, Enrolled Bill Rep. on Assem. Bill No. 1928 (2001–2002 Reg. Sess.) Sept. 10, 2002, p. 1 [reciting, as the purpose of bill, the author‘s statement that ” ‘Violence against women has reached epidemic proportions in this country. Women share the common experience of knowing the fear of walking alone on the street at night—the statistics shared during our hearings are startling . . . I introduced this measure to ensure that women in California have civil rights protections that recognize and address the prevalence and enormous costs associated with attacks based on the gender of the victim’ ” (italics added)].)
“The epidemic of violence against women in our society is massive, as are the costs associated with this violence. It is estimated that we spend $5–10 billion a year on health care, criminal justice and other social costs of domestic violence. At least one study indicates that 50% of women who have been sexually assaulted lost the job they had at the time of the assault due to issues related to the assault. In a country where as many as 6 million women are victims of domestic violence each year and as many as 1.9 million women are sexually assaulted each year, we must continue to take steps to send the message that there is no place in our society for this criminal behavior.
“This bill will provide women and men who have been the victims of gender-motivated violence with a powerful tool that will enable them to hold their attackers financially responsible for their crimes.” (Sen. Rules Com., Rep. on Assem. Bill No. 1928 (2001–2002 Reg. Sess.) as amended June 29, 2002, p. 4, italics added.)
Jane‘s medical battery allegations as to Dr. Kachru simply do not align with this legislative history. To recap, Jane alleged that following an ultrasound and vaginal examination, Kachru told her the baby needed to be delivered by C-section “now,” Jane objected to a C-section, Kachru told her the only alternative was a vacuum-assisted vaginal delivery, Jane also objected to that procedure, but Kachru nevertheless performed it. While the Does plainly disagree with Kachru‘s assessment of the situation and opinion Jane‘s baby needed to be delivered immediately, this is not a scenario remotely like those described in the legislative history. There is, in short, no allegation that Kachru performed a vacuum-assisted vaginal delivery because she was motivated by discriminatory bias or animus against Jane because Jane was giving birth to a child.
The legislative history also reflects that subdivision (c)(1) of
As introduced, the relevant language defined gender violence as, “One or more acts of violence or physical aggression committed at least in part on the basis of sex, gender, or sexuality, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.” (Assem. Bill
Thus, the first amendment to the pertinent language—which modified the definition of gender violence to state, “One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part on an animus based on the victim‘s sex, gender, or sexuality, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.” (Assem. Bill No. 1928 (2001–2002 Reg. Sess.) as amended Apr. 15, 2002.) This new proposed language, which added the criminal conduct requirement that had been in the invalidated federal legislation and borrowed that legislation‘s “animus” terminology, received extensive discussion in the subsequently prepared Senate Judiciary Committee Report. (Sen. Judiciary Com., Rep. on Assem. Bill No. 1928 (2001–2002 Reg. Sess.) as amended Apr. 15, 2002, pp. 6–10.)
Among other things, the committee report stated there had been considerable debate in Congress over the scope of the federal legislation, and its proponents had ultimately taken the position that determining whether some degree of “gender motivation” underlay violence or threats of violence would be based on “the ‘totality of the circumstances’ surrounding the act (e.g., statements by the defendant that he is targeting women, use of epithets derogatory to women, or a history of attacks on women).” (Sen. Judiciary Com., Rep. on Assem. Bill No. 1928 (2001–2002 Reg. Sess.) as amended Apr. 15, 2002, at p. 7, italics added.) “Proponents noted that such factors are commonly used to determine racial or religious bias in hate crime prosecutions, and should be easily adapted to cases of gender bias.” (
The Senate Judiciary Committee Report went on to say the ” ‘hate crime’ ” model, referenced by the proponents of the federal legislation and which uses a “case-by-case analysis,” could “provide a useful model for a different approach,” namely making gender violence “a tort” (in addition to the requisite crime that was committed) as the legislation proposed. (Sen. Judiciary Com., Rep. on Assem. Bill No. 1928 (2001–2002 Reg. Sess.) as amended Apr. 15, 2002, p. 9.) The report further observed the term ” ‘motivation’ ” “does not require proof of hostility,” although most hate crime prosecutions “occur in cases involving hostility.” (
The committee report ultimately suggested that the proposed legislation be styled as a “tort for violence motivated by gender” and also expanded to embrace violence motivated by other characteristics including race, color, religion, ancestry, national origin, disability, and sexual orientation (Sen. Judiciary Com., Rep. on Assem. Bill No. 1928 (2001–2002 Reg. Sess.) as amended Apr. 15, 2002, at p. 10, italics added), as an adjunct to “a parallel hate crimes statute.” (
The pertinent language was amended once more to read as it currently does, defining gender violence as, “One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.” (Assem. Bill No. 1928 (2001–2002 Reg. Sess.) as amended June
The report also discussed our Supreme Court‘s holding in In re M.S., supra, 10 Cal.4th 698, which addressed the extent to which discriminatory motivation must trigger the violence prohibited by our state‘s hate crime laws. As we have discussed, the court concluded use of the phrase “because of” provided “adequate notice of the nature of the prohibited motive.” (Id. at p. 716, italics added.) Such phraseology “dictated that the bias motivation must be a cause in fact of the offense, whether or not other causes exist” and “[w]hen multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the crime.” (Id. at p. 719, italics added.)
The report went on to observe that in light of In re M.S. the state‘s civil rights laws “already appear to provide for a cause of action for violence that race was a motivating factor in Defendants’ conduct“]; Black Lives Matter-Stockton Chapter v. San Joaquin County Sheriff‘s Office (E.D.Cal. 2019) 398 F.Supp.3d 660, 678–679 [“The elements of a Ralph Act claim for threatened violence under California law are: (1) The defendant intentionally threatened violence against the plaintiff or her property, whether or not defendant actually intended to carry out the threat; (2) A substantial motivating reason for the defendant‘s conduct was her perception of the plaintiff‘s protected characteristic as defined by the statute (including race and political affiliation); (3) A reasonable person in plaintiff‘s position would have believed that defendant would carry out the threat; (4) A reasonable person in plaintiff‘s position would have been intimidated by defendant‘s conduct; (5) Plaintiff was harmed; and (6) Defendant‘s conduct was a substantial factor in causing the plaintiff‘s harm.” (Citing Judicial Council of California Civil Jury Instruction 3064 (2019).)].)
motivated ‘at least in part’ by gender.” (Sen. Judiciary Com., Rep. on Assem. Bill No. 1928 (2001–2002 Reg. Sess.) as amended June 24, 2002, p. 8, italics added.) It added that “[t]o the extent the bill would propose a cause of action when gender bias is a less-than-substantial motivating factor, the In re M.S. analysis appears to imply that such circumstances would provide an insufficient causal nexus to the act to allow for recovery.” (Ibid., italics added.) The report therefore suggested, among other things, the author might consider amending the Ralph Act in lieu of moving forward with the proposed legislation. (Ibid.) Alternatively, it suggested the pertinent definitional language could be “clarify[ied]” by amending it to read “where bias toward the victim‘s gender was a substantial factor motivating that act,” commenting such language would better reflect “the state of the law as set forth by the Supreme Court in In re M.S.” (Id., at pp. 9–11, italics added.)
While no further changes were made to the pertinent definitional language, subsequent reports continued to describe the legislation as “modeled after” the invalidated federal statute and prohibiting “gender-motivated” violence or threats of violence. (E.g., Conc. in Sen. Amend., Assem. Bill No. 1928 (2001–2002 Reg. Sess.) as amended June 29, 2002, p. 3, italics added.) Although these reports also continued to point out the legislation was
As enacted,
The legislative history of this amendment to
The report also included a statement by the National Center for Lesbian Rights, a proponent of the amendment, stating:
“Approximately 1 in 8 lesbian women and nearly half of bisexual women experience rape in their lifetime, and statistics likely increase when a broader definition of sexual assault is used. Nearly half of bisexual men and four in ten gay men have experienced sexual violence other than rape in their lifetime. . . . As with most hate-based violence, transgender individuals are the most likely to be affected in the LGBT community. A staggering 64% of transgender people have experienced sexual assault in their lifetime. “Though the Violence Against Women Act of 2013 (VAWA) recently extended LGBT nondiscrimination protections in resources for domestic and sexual violence, service providers across the country still lack the cultural
competency needed to serve the LGBT community. . . LGBT people must also face the specter of hate violence in the form of sexual assault.” (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 830 (2015–2016 Reg. Sess.) as introduced Feb. 26, 2015, p. 4, italics added; see ibid. [statement by the Conference of California Bar Associations, a sponsor of the bill, that the ” ‘level of violence targeting transgender people, particularly transgender women of color, is a national crisis. . . .’ [¶] . . . [The proposed amendment] will clarify that the act‘s provisions and remedies extend to transgender victims of gender-motivated violence” (italics added)]; Sen. Com. on Judiciary, Assem. Bill No. 830 (2015–2016 Reg. Sess.) as amended May 7, 2015, p. 5 [“According to the author: [¶] Civil Code [section] 52.4 [as enacted] . . . defines gender violence for this purpose as a crime of violence motivated by the gender of the victim. . . .” (Italics added.)]; id., p. 9 [referencing “other anti-discrimination” and “anti-hate crime civil rights based statutes” (italics added)]; ibid. [Equality California, another proponent of the legislation, “not[ed] that by conforming the definition of gender to Unruh, this bill ‘will make clear that Civil Code [section] 52.4‘s provisions and remedies extend to transgender victims of bias-motivated violence’ as well as to victims of violence that was based upon their sexual orientation” (italics added)]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 830 (2015–2016 Reg. Sess.) as amended June 23, 2015, p. 5 [“Generally, [Civil Code] [s]ection 52.4 permits a person injured by a crime of violence motivated by gender to bring a civil action for various types of relief. . . .” (Italics added.)]; id., p. 7 [amendment “will clarify that the act‘s provisions and remedies extend to transgender victims of gender-motivated violence” (italics added)].)
In sum, we do not see how the legislative history of
Finally, even if the “plain language” of
In short, we cannot endorse a reading of
The dissent asserts we are overstating the ramifications of adopting the Does’ reasoning. But as far as we can discern, the dissent draws no distinction between a medical battery claim based on an allegedly unauthorized sex or gender-specific (or biologically appropriate) procedure and a gender violence civil rights claim under
Rather, the dissent observes medical providers have defenses to a medical battery claim—that the treatment given, or procedure performed, was not “substantially different” than that for which informed consent was given or that the provider acted in the face of a medical emergency. (See Conte, supra, 107 Cal.App.4th at p. 1268 [medical provider may act beyond patient‘s authorization in “life-or health-threatening situations“]; see CACI No. 554 [“Affirmative Defense—Emergency“].) However, that a provider may have a defense does not alter the fact that under the Does,’ and the dissent‘s, reasoning, any medical battery claim based on an allegedly unauthorized sex or gender-specific (or biologically appropriate) procedure will suffice to also allege a gender violence civil rights claim under
In sum, the dissent‘s reading of the statute—that
We have no quarrel with the proposition that an obstetric provider (or any other provider of sex or gender-specific (or biologically appropriate treatment)) can commit gender violence actionable under
C. Elder Abuse
Relying again on their medical battery allegations, the Does additionally maintain Jane was a “dependent” adult while she was at the hospital and therefor also pleaded a claim under the Elder Abuse Act (
The Elder Abuse Act “affords certain protections to elders and dependent adults.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152 (Winn).) A “dependent adult” includes “any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility.” (
In their complaint, the Does parroted the language of the statute, alleging that Dr. Kachru‘s “behavior was intentional, malicious, wanton, oppressive[], fraudulent, and/or reckless.” They did not, however, allege any facts in support of these generic assertions. (See Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 410 (Carter) [allegations that hospital “acted ‘recklessly’ or ‘fraudulently’ ” not sufficient to state elder abuse claim; court did not, in reviewing judgment of dismissal following the sustaining of a demurrer, “assume the truth of contentions or conclusions of fact or law, such as those contained in [the] plaintiffs’ pleadings“].)
In their briefing, the Does argue that, by its very nature, a vacuum-assisted delivery “poses significant risks to the health of the birthing woman and the fetus.” And because Jane did not consent to such a delivery, they sufficiently alleged that Dr. Kachru engaged in recklessness, oppression, fraud, or malice for purposes of the statute. However, the Does, themselves, go on to acknowledge that a vacuum-assisted vaginal delivery “is not an evil in itself and can provide significant benefits in certain clinical circumstances.”
The degree of opprobrium required for liability under the Elder Abuse Act is substantial. “[A] plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature. [Citations.] [¶] ‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur [citations]. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action . . . with knowledge of the serious
Jane‘s allegations that she objected to a vacuum-assisted delivery, but Dr. Kachru nevertheless performed one, may be sufficient to plead an arguably unauthorized touching and, thus, a medical battery, but they are insufficient to meet the significantly heightened degree of culpability required by the Elder Abuse Act. (See Carter, supra, 198 Cal.App.4th at p. 405 [“a plaintiff must prove more than simple or even gross negligence in the provider‘s care“].) Indeed, were we to accept the Does’ reasoning, “recklessness, oppression, fraud, or malice” (
D. False Imprisonment
Pointing to their allegations that Dr. Kachru pressured Jane to have a C-section or vacuum-assisted vaginal delivery without sufficient explanation as to why Kachru felt one or the other procedure was necessary, the Does claim the emotional pressure Jane felt to undergo one of these procedures amounted to Kachru restraining her and therefore Jane additionally stated a claim of false imprisonment. They also point to their allegations that Jane‘s ankles were placed in stirrups (but not by Kachru, rather by two unnamed defendants), and maintain Jane was also physically restrained. We conclude these allegations do not suffice to state a cause of action for false imprisonment.
“A person is falsely imprisoned if he [or she] is wrongfully deprived of his [or her] freedom to leave a particular place by the conduct of another.” (Schanafelt v. Seaboard Finance Co. (1951) 108 Cal.App.2d 420, 422–423.) “The crime of false imprisonment is defined by
What the Does’ allegations fail to account for with respect to false imprisonment is that Jane was “confined” to her delivery room regardless of whether her vaginal delivery was unaided or aided through vacuum-assist. In other words, we again agree with the trial court that the confinement about which Jane complains was within the scope of her authorization for obstetric care given on admission to the hospital.
The Does cite no authority, and we are aware of none, that remotely suggests allegations that Dr. Kachru told her she had to have an immediate vacuum-assisted delivery and her feet were placed in stirrups by attending medical staff, support a claim for false imprisonment. Rather, the substance of the Does’ allegations is that Kachru was wrong in her assessment that an immediate delivery was necessary, which precipitated the vacuum-assisted delivery and the medical staff‘s placing her feet in stirrups. While Jane was free to allege Kachru‘s medical judgment fell below the standard of care, the Does never advanced such a cause of action.
The cases on which the Does rely are readily distinguishable—in none of them did the plaintiff voluntarily authorize any touching and confinement, as Jane did here on admission for obstetric care. Fermino v. Fedco, Inc., supra, 7 Cal.4th 701, for example, involved allegations a personnel manager, loss-prevention manager, and two security agents “physically compelled” an employee to stay in a room for an hour while she was interrogated about theft allegations and told (falsely) that two witnesses had seen the theft. (Id. at pp. 706–707.) The employee repeatedly asked to leave the room and to call her mother, but her requests were denied, and one of the security guards “threw up a hand and gestured [the employee] to stop” when she tried to walk toward the door. (Id. at p. 707.) Unlike here, in Fermino there was no allegation any interaction with these individuals was voluntary. The other cases on which the Does rely likewise involved interactions that were wholly nonconsensual. (E.g., Maben v. Rankin (1961) 55 Cal.2d 139, 141 [husband had wife involuntarily committed to psychiatric ward for two weeks where she was given electroshock treatments]; Wilson v. Houston Funeral Home (1996) 42 Cal.App.4th 1124, 1130, 1135 [grieving family got into limousine believing they were being taken to a cemetery for burial services but were instead driven to a bank “against their will and over their protests” where they were kept for 45 minutes while director of funeral home insisted on cash payment]; Schanafelt v. Seaboard Finance Co., supra, 108 Cal.App.2d at pp. 422–423 [store manager seeking to collect debt blocked driveway of debtor who was pregnant, told her she could not leave or get food until after furniture was repossessed, and debtor was forced to remain in her house for about three hours waiting for the store‘s van to collect the furniture].)
E. Intentional Infliction of Emotional Distress
The Does further claim their allegations support an intentional infliction of emotional distress claim against Dr. Kachru. Again, we do not agree.
The tort of intentional infliction of emotional distress has three elements: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff‘s injuries were actually and proximately caused by the defendant‘s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) ” ’ “Conduct, to be ’ “outrageous” ’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” ’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great[] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832 (Vasquez).) Stated differently, ” ‘Generally, conduct will be found to be actionable where the “recitation of the facts to an average member of the community would arouse his [or her] resentment against the actor, and lead him [or her] to exclaim, ‘Outrageous!’ ” ’ ” (Cochran, at p. 494.)
While the Does enhanced their factual allegations with much emotionally laden and accusatory language, they did not allege acts by Dr. Kachru meeting the heightened standard required to state a claim for intentional infliction of emotional distress. Specifically, they alleged Kachru examined Jane vaginally, told Jane her baby needed to be delivered “now” by C-section or thru a vacuum-assisted vaginal delivery, despite Jane‘s objection to both procedures delivered the baby by vacuum assist, performed an episiotomy during the birth, pressed on Jane‘s abdomen after the birth to expel the placenta, inserted a catheter to drain urine, gave her an injection, and sutured in the vaginal area. These alleged acts, even collectively, fall short of conduct ” ’ “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” ’ ” (Vasquez, supra, 222 Cal.App.4th at p. 832.)
F. Invasion of Privacy
Finally, the Does maintain their allegations against Dr. Kachru state invasion of privacy claims, both under our state constitution and the common law. As we explain, they do not.
California‘s Constitutional Right of Privacy
“[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39–40 (Hill).)
Whether the first element has been alleged may not be so easily determined. As the high court explained, the first element requires “the identification of a specific, legally protected privacy interest. Whatever their common denominator, privacy interests are best assessed separately and in context. Just as the right to privacy is not absolute, privacy interests do not encompass all conceivable assertions of individual rights. Legally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy‘); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy‘).” (Hill, supra, 7 Cal.4th at p. 35.) As to the latter, the court stated, “The ballot arguments [in favor of adding privacy to the rights protected by Article 1, section 1 of the state constitution] refer to the federal constitutional tradition of safeguarding certain intimate and personal decisions from government interference in the form of penal and regulatory laws. [Citation.] But they do not purport to create any unbridled right of personal freedom of action that may be vindicated in lawsuits against either government agencies or private persons or entities.” (Hill, at p. 36 intervention is to be determined from the usual sources of positive law governing the right to privacy—common law development, constitutional development, statutory enactment, and the ballot arguments accompanying the Privacy Initiative.” (Ibid.)
Whether the second element—“a reasonable expectation of privacy on plaintiff‘s part“—has been alleged is, likewise, a multi-faceted inquiry. “Even when a legally cognizable privacy interest is present, other factors may affect a person‘s reasonable expectation of privacy. For example, advance notice” of an intrusion may limit an expectation of privacy. (Hill, supra, 7 Cal.4th at p. 36Ibid.) “A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” (Id. at p. 37Ibid.)
As to the third element—a “serious” invasion of privacy— an invasion of privacy “must be sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Hill, supra, 7 Cal.4th at p. 37.)
We bypass an examination of whether the Does alleged “a specific, legally protected privacy interest” and a “reasonable” expectation of privacy under the circumstances alleged, as they did not allege, by any measure, an invasion of Jane‘s privacy so serious it constituted “an egregious breach of the social norms” (Hill, supra, 7 Cal.4th at p. 37) underlying her asserted autonomy privacy right. As we have summarized, as to Dr. Kachru, the Does alleged she examined Jane vaginally, told Jane her baby needed to be delivered “now” by C-section or a vacuum-assisted vaginal delivery, despite Jane‘s objection to both procedures Kachru delivered the baby by vacuum assist, performed an episiotomy during the birth, and thereafter pressed on Jane‘s abdomen after the birth to expel the placenta, inserted a catheter to drain urine, gave her an injection, and sutured in the vaginal area. These alleged acts, even collectively, do not rise to the level of “an egregious breach of [] social norms,” (ibid.) particularly given the fact that by voluntarily being admitted to the hospital Jane impliedly authorized obstetric care.
None of the cases on which the Does rely suggests the kind of allegations they have made as to Dr. Kachru alleging a state constitutional claim for violation of Jane‘s autonomy privacy. Indeed, none even involved a cause of action for the invasion of privacy, and each referred to an individual‘s right to make medical decisions in a significantly different context. (See Conservatorship of Wendland (2001) 26 Cal.4th 519, 530–532 [in determining whether conservator had authority to withhold life-sustaining nutrition from conservatee under
Common Law Right of Privacy
The common law tort of intrusion “has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.” (Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907, 914 (Sanders).) As proof satisfying the second element, “[p]laintiffs must show more than an intrusion upon reasonable privacy expectations. Actionable invasions of privacy also must be ‘highly offensive’ . . . , and ‘sufficiently serious’ and unwarranted as to constitute an ‘egregious breach of the social norms.’ ” (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 295.) Relevant factors include ” ‘the degree and setting’ of the intrusion, and ‘the intruder‘s motives and objectives.’ ” (Ibid.)
For much the same reasons that we have rejected Jane‘s constitutional privacy claim and her emotional distress claim, we also reject her common law intrusion claim. Entering a birthing suite as part of the delivery team, making an assessment as to the state of labor and the condition of both the woman and baby, concluding immediate delivery is necessary and either a C-section or vacuum-assisted delivery is required, performing a vacuum-assisted vaginal delivery instead of a C-section after the mother objects to either, and performing immediate post-delivery procedures without asking Jane‘s consent, is not conduct that would be “highly offensive to a reasonable person.” (Sanders, supra, 20 Cal.4th at p. 914, italics added.)
While Jane was offended by Dr. Kachru‘s alleged brusqueness on entering her room, her alleged failure to provide a full explanation of why she concluded Jane‘s baby needed to be delivered “now” by way of a C-section or vacuum-assisted vaginal birth, and her alleged lack of response to Jane‘s articulated pain during post-delivery procedures, these are complaints about Kachru‘s bedside manner and professional judgment, not a claim that Kachru committed the common law tort of intrusion.
G. Leave to Amend
As to leave to amend, the Does do no more than generically assert that when a demurrer is sustained leave to amend should be liberally granted. But, as we have noted, that is not the entirety of the governing standard. Both in the trial and on appeal, a party seeking leave to amend must demonstrate “a reasonable possibility” they can “cure the defect[s]” of their pleading “with an amendment.” (Schifando, supra, 31 Cal.4th at p. 1081; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [” ‘The burden of proving such reasonable possibility is squarely on the plaintiff.’ “].) The Does made no attempt in the trial court to carry their burden. Nor have they done so in this court.
The Does cite City of Stockton v. Superior Court (2007) 42 Cal.4th 730, in support their assertion they should have been granted leave to amend simply because they had not previously amended their complaint with respect to Dr. Kachru. But Stockton involved “the unusual path of a writ petition challenging an order overruling a demurrer.” (Id. at pp. 746–747, italics added.) Because the trial court‘s erroneous ruling on a legal issue did not foreclose the possibility that the plaintiff could amend the complaint to provide additional factual allegations, the court directed the trial court to grant the plaintiff leave to amend since it had not previously had the opportunity to do so. (Id. at p. 747.) The case does not, as the Does suggest, stand for the broad proposition that leave to amend must be liberally granted simply because a plaintiff has not previously filed an amended pleading, in the absence of any showing that there is “a reasonable possibility” they can “cure the defect[s]” of their complaint “with an amendment.” (Schifando, supra, 31 Cal.4th at p. 1081.)
As the Does have not made any showing as to additional facts they could allege to cure the deficiencies in the causes of action they have pursued on appeal, they have not demonstrated that the trial court abused its discretion in sustaining Dr. Kachru‘s demurrer without leave to amend.
IV. DISPOSITION
The judgment of dismissal as to Jane‘s cause of action for medical battery against Dr. Kachru is reversed to the extent it is based on Kachru‘s performance of a vacuum-assisted vaginal delivery over Jane‘s express objection. In all other respects, the judgment is affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion. Each side shall bear their appellate costs.
Banke, Acting P.J.
I concur:
Smiley, J.
A168669, Doe v. Kachru
DISSENTING OPINION OF HUMES, P.J.
My only disagreement with the majority is with its affirmance of the dismissal of Jane’s claim for gender violence under
The statutory language is clear. Under
As I see it, the complaint’s allegations satisfy both requirements for stating a claim under
This matters because I don’t accept the majority’s conclusion that the scope of the statute must be judicially constrained to protect medical providers from “be[ing] automatically subject to a civil rights claim under section 52.4 if they are sued for medical battery for performing a procedure that allegedly exceeded the scope of the patient’s authorization for obstetric care.” I agree that had the complaint here failed to state a claim for a medical battery, it would have necessarily failed to state a claim under the gender-violence statute. But I’m not convinced that just because a complaint alleges an unauthorized touching in the context of obstetric care, it necessarily alleges a criminal medical battery as required for a gender-violence claim. Touchings that are part of medical care—where considerations of implied consent and the need to protect patient health and welfare apply—might be entirely appropriate even if they would not be in other contexts. Thus, I don’t believe that medical providers would be “automatically subject” to a claim under
But even assuming a claim under
Because
The definition of “gender” under
Although
In fact, the circumstances of pregnancy and childbirth are far more closely connected to constructs of gender than is sexual orientation, even if they are not typically used to define the term. True enough, the legislative history is silent about the inclusion of pregnancy and childbirth into the definition of gender for purposes of
The majority finds ambiguity in
The majority points to extensive legislative history showing that
“Obstetric violence” is a term describing the mistreatment of pregnant and birthing women, and it recognizes that “individual instances of obstetric abuse are part of the broader problem of gender-based violence because they ‘bring[] with [them] loss of autonomy and the ability to decide freely about [women’s own] bodies and sexuality.’ . . . [A]buse in obstetric and gynecological care is a type of violence often left out of the conversation about violence against women. Moreover, the definition of obstetric violence as a subset of gendered violence highlights that it is also a type of structural violence and, therefore, needs to be addressed systemically.” (Maria T.R. Borges, A Violent Birth: Reframing Coerced Procedures During Childbirth As Obstetric Violence (2018) 67 Duke L.J. 827, 830, fns. omitted; see, e.g., Elizabeth Kukura, Obstetric Violence (2018) 106 Geo. L.J. 721, 725; Alexa Richardson, The Case for Affirmative Consent in Childbirth (2022) 37 Berkeley J. Gender L. & Just. 1, 7–8.) I find it unsurprising, and eminently reasonable, for the Legislature to have amended
In short, I would apply the plain language of
Dissenting:
Humes, P.J.
Trial Court: City and County of San Francisco Superior Court
Trial Judge: Hon. Richard B. Ulmer Jr.
Counsel:
J. Cantor Law, Julie D. Cantor; Perkowski Law Office, Jean Leora Perkowski, for Plaintiff and Appellant.
Cole Pedroza LLP, Amy Elizabeth Rankin and Kenneth Robert Pedroza; Schuering, Zimmerman and Doyle, Sarah C. Gosling and Thomas Jospeh Doyle, for Defendant and Respondent.