1) Demurrer to Complaint - OVERRULED
2) Motion to Strike Complaint - MOOT
The Court overrules the Demurrer by Defendant Ebrahim Duel, MD to Plaintiff Mary Arias’ third cause of action for medical battery. Defendant is ordered to answer the Complaint within 10 days.
Defendant’s Motion to Strike attorney’s fees is moot in light of Plaintiff’s 6/5/18 Dismissal of Attorney’s Fees.
Defendant argues that Plaintiff’s battery claim is really one for Conditional Consent (akin to negligence) rather than battery (an intentional tort).
“Our high court has made it clear that battery and lack of informed consent are separate causes of action. A claim based on lack of informed consent—which sounds in negligence—arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.)
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Hearing Date
June 18, 2018
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1) Demurrer to Complaint - OVERRULED
2) Motion to Strike Complaint - MOOT
The Court overrules the Demurrer by Defendant Ebrahim Duel, MD to Plaintiff Mary Arias’ third cause of action for medical battery. Defendant is ordered to answer the Complaint within 10 days.
Defendant’s Motion to Strike attorney’s fees is moot in light of Plaintiff’s 6/5/18 Dismissal of Attorney’s Fees.
Defendant argues that Plaintiff’s battery claim is really one for Conditional Consent (akin to negligence) rather than battery (an intentional tort).
“Our high court has made it clear that battery and lack of informed consent are separate causes of action. A claim based on lack of informed consent—which sounds in negligence—arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.)
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