Nov 20, 2008 Cynthia E. Tobisman
Court of Appeal rejects claim for wrongful death or battery based on substitution of doctor not approved by patient

Secarea v. Regents, et al. (2008) 2008 Cal.App. Unpub. LEXIS 9217 (California Court of Appeal, Fourth Appellate District, Division Three) [unpublished], modified without change in judgment, 2008 Cal.App. Unpub. LEXIS 10325. After plaintiff’s wife died following heart surgery, he sued GMSR’s clients, two doctors and their employer. In addition to alleging a claim for wrongful death, plaintiff alleged that defendants had committed a battery because a different doctor than the one his wife had expressly approved performed the surgery. The trial court sustained without leave to amend the demurrers of GMSR’s clients as to some causes of action (including the cause of action for battery), and granted summary adjudication of the remaining causes of action (including the cause of action for wrongful death). The Court of Appeal affirmed the judgment in favor of GMSR’s clients as to all but one causes of action. In affirming, the court adopted GMSR’s argument that in light of the uncontradicted expert evidence establishing that the surgery had met the standard of care, plaintiff would never be able to prove damages stemming from any of the causes of action dismissed on demurrer, including the claim for battery. Accordingly, any possible error in sustaining the demurrers without leave to amend was not prejudicial.