Key Decisions

February 2013 – Doctor’s Misconduct Not Necessarily Professional Services

(filed under: Key Decisions | February 22, 2013)

Doctor’s Misconduct Not Necessarily Professional Services

 So v. Shin
(Cal. Ct. of App., 2d Dist.), filed January 3, 2013 

KEY FACTS

On September 30, 2008, Yun Hee So underwent a dilation and curettage procedure following a miscarriage.  She claimed that she was administered inadequate anesthesia and awoke during the procedure.  When she later confronted the anesthesiologist, the anesthesiologist became angry and shoved a container filled with her blood and tissue at her.  The anesthesiologist then urged So not to report the incident.

In August 2010, So sued the anesthesiologist and her medical group, as well as the hospital, asserting that the anesthesiologist’s 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.

The trial court sustained the demurrers to the causes of action for assault and battery and intentional infliction of emotional distress.  It later granted motions for judgment on the pleadings as to the cause of action for negligence.

HOLDING & REASONING

The Court of Appeal reversed.

The issue as to So’s negligence claim was whether the one-year statute of limitations for professional negligence or the two-year statute of limitations for other negligence applied.

Courts have broadly interpreted the phrase “in the rendering of professional services.”  They have concluded that a negligent act that occurs in the rendering of services for which the health care provider is licensed is professional negligence.  Providing 24 hour inpatient care for a patient with shingles was clearly within the scope of services for which the hospital was licensed and was a “professional service.”  So, too, was driving an ambulance.  However, a physician’s sexual relationship with his patient did not come within the statutory language.

An anesthesiologist’s responsibility to a patient does not necessarily end when the patient leaves the operating room.  The anesthesiologist may have a continuing responsibility to monitor the anesthesia’s postoperative effects on the patient.  An anesthesiologist’s presence in the recovery room with a patient may be consistent with the role of an anesthesiologist in aiding the patient’s recovery from anesthesia.  However, while an anesthesiologist’s postsurgical contact with a patient may be for the purpose of rendering professional services, it is not necessarily professional services.  Given the allegation that the anesthesiologist’s conduct in putting the container of blood in front of So was to persuade So not to report to the hospital or medical group that she had awakened during surgery, that conduct was not in the scope of professional services.  Therefore, it was subject to the two-year statute of limitations.

Although the two-year statute of limitations applied to So’s claims against the anesthesiologist, her claims of direct negligence against the hospital were subject to the one-year statute of limitations.  The hospital’s direct negligence consisted of not adequately screening the anesthesiologist.  That was within the scope of “professional services.”

The court held that there were sufficient facts that, if true, would have supported causes of action for assault and battery, and intentional infliction of emotional distress.

ANALYSIS

The case demonstrates one of the downsides of challenging a complaint by way of demurrer or motion for judgment on the pleadings:  If the challenge fails, the court may give a very strong indication as to the defendant’s potential liability.  Here, in holding that So had stated viable claims, that is just what happened.  The question, of course, remains whether So can prove what she has alleged.