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The decision in Berkeley v. Dowds (June 22, 2007) 07 C.D.O.S. 7343,
is interesting for several reasons. First, there is good and useful
language about the sufficiency of pleadings and the limits to the
“generality” of plaintiff’s claims for purposes of surviving a
demurrer. Second, the decision holds that in order to state a claim
for punitive damages, there must be a viable claim for compensable
injury; here, there was not. Third, it discusses how professional
decisions by a physician and his communications with family members
about difficult issues like the cessation of life support do not in
and of themselves rise to the level of “outrageous” conduct absent
some clearly defined motive on the part of the physician.
In Berkeley, appellant’s decedent suffered severe brain damage
following an automobile accident. Appellant (decedent’s wife who
sued on her own behalf and on behalf of the estate and as guardian
ad litem for her daughter) was sued by the 22125 Roscoe Corporation
(not a party to the appeal) for sums owed for medical services
provided to decedent before his death. Appellant cross-complained
against 22125 Roscoe Corporation and others, including respondent
Gordon Dowds, M.D. (the physician who attended decedent before his
death) for negligence/willful misconduct, elder/dependent adult
abuse and intentional infliction of emotional distress upon decedent
and appellant. Respondent was dismissed after his demurrers to the
first and second amended cross-complaints were sustained without
leave to amend. Appellant appealed the dismissal.
The court of appeal affirmed the dismissal of Dr. Dowds. In so
holding it discussed at some length the factual and legal
insufficiencies of appellant’s cross-claims for negligence/willful
misconduct, elder abuse and IIED.
Initially, the parties argued about whether a tort for “willful
misconduct” is recognized in California; for the purposes of this
appeal, the court explained that it is an “aggravated from of
negligence, differing in quality rather than degree from ordinary
lack of care. (Cite omitted). Its pleading requirements are similar
to negligence but stricter.” Here, the court felt the plaintiff did
not adequately plead duty, nor did she allege any facts that could
be construed to support the remaining elements of negligence. While
the court acknowledged that pleading negligence in general terms is
typically sufficient in the state of California, “there are limits
to the generality with which a plaintiff is permitted to state his
cause of action, and …the plaintiff must indicate the acts or
omissions which are said to have been negligently performed. He may
not recover upon the bare statement that the defendant’s negligence
has caused him injury.” A plaintiff must allege a causal connection
between the negligence and the injury, and any act or omission by
defendant in an action for willful misconduct must be even more
specifically described. “No claim of willful misconduct can be
stated without alleging the specific act or omission that caused the
injury.” Because appellant did not contend that her complaint was
susceptible to amendment, the appellate court found no error by the
trial court in sustaining the demurrer to this cause of action
without leave to amend.
Appellant claimed the cause of action for elder/dependent adult
abuse could be upheld based on the facts alleged in support of the
negligence/willful misconduct cause of action, but the court
rejected her position given its findings that the negligence/willful
misconduct cause of action failed to show any harmful conduct by
respondent. Because she has not shown how she might amend the elder
abuse claim, “she has not shown the denial of leave to amend to have
been an abuse of discretion.”
The court then analyzed both the IIED claim on behalf of the
decedent, and by appellant, and found them both to be lacking. Since
CCP section 377.34 precludes an award of damages to a decedent for
pain, suffering or disfigurement, “the second cause of action does
not allege a wrong for which Herron suffered a compensable injury. A
wrong without damages is not actionable…unless damages are presumed
by law.” Additionally, the court rejected appellant’s contention
that the possibility that punitive damages will be recovered
supports the IIED cause of action by decedent. “There must be a
recovery of actual damages to support an award of punitive damages.”
Appellant argued that “actual damages are different from recoverable
damages, and that [the decedent’s] actual damages—emotional
distress—will support a punitive damage award, even if there can be
no award of compensatory damages.” The court disagreed and held that
“an award of compensatory damages in some amount is a prerequisite
to a punitive damage award,” whether in the form of nominal damages,
restitution, an offset or damages presumed by law.
As for appellant’s own IIED claim, the court found that the
cross-complaint contained no direct allegation that respondent
personally did anything as an individual, and that the only acts of
defendant were “those allegedly committed by all defendants.” Those
acts “consisted of ‘repeatedly’ stating that [decedent] would never
recover, be able to function, return home or live a normal life, and
‘arguing’ with appellant over her refusal to order the
discontinuation of [decedent’s] life-support systems.” So, the
court’s analysis was confined to those acts as they presumably
pertained to respondent.
The court explained that a decision about whether a defendant’s
conduct can “reasonably be found to be outrageous is a question of
law that must initially be determined by the court; if reasonable
persons may differ, it is for the jury to determine whether the
conduct was, in fact, outrageous.” Here, the court found there were
no acts alleged that suggested anything respondent said about
decedent’s condition or his inability to return home or function
normally was incorrect or that respondent believed it to be
incorrect. The court explained that once a physician makes a
determination that a patient is in a vegetative stated from which he
will not recover, it is incumbent on him to determine the wishes of
the patient, if expressed, and if not, to determine what is in the
best interest of the patient. This typically involves discussing the
issue with family members, and though the conversations the
physician has with the family may be difficult, or the fact the
physician repeats his opinions several times, does not make the
communication “outrageous,” particularly where it is not suggested
that respondent had any harmful motive. The court found the trial
court did not err by sustaining the demurrer on this IIED claim.
There are aspects of this decision which suggest that even
appellant’s counsel did not think there was a great case against Dr.
Dowds (such as admitting to the court that by his estimation Dr.
Dowds did not breach the standard of care in his treatment of
decedent.) Also, at several points in the decision, the court notes
that appellant did not suggest to the trial court that additional
facts could be plead against Dr. Dowds. However, there is good
language in this decision if you are challenging the sufficiency of
a pleading on the basis that a negligence or elder abuse allegation
is too general, or challenging the claim for punitive damages.
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