“[S]ection 425.13 is a procedural rule for managing and directing pleadings: it does not create substantive limits on 23 the damages a plaintiff may seek.”
How later courts described this case
- “[S]ection 425.13 is a procedural rule for managing and directing pleadings: it does not create substantive limits on 23 the damages a plaintiff may seek.”
- “[S]ection 425.13 is a procedural rule for managing and directing pleadings: it does not create substantive limits 15 on the damages a plaintiff may seek.”
- In a medical malpractice case, the identification of the cause of action as an intentional tort as opposed to negligence is not controlling; rather, the allegations identifying the nature and cause of the plaintiff's injury must be examined.
- that all of Mrs. Hull’s causes of action against Dr. Irwin and the Laboratory alleged in Hull I and in the proposed amendment thereto arise out of the rendition of professional services and are thus subject to the requirements of section 425.13
Written by the judges who cited it.
The opinion
MOSK, J., Concurring and Dissenting.
I concur in the result. However, the majority paint with much too broad a brush in their apparent desire to eliminate any possibility of punitive damages against a medical provider, no matter how egregious the conduct.
The conclusion that section 425.13 of the Code of Civil Procedure applies to an action for battery “predicated on treatment exceeding or different from that to which a plaintiff consented” (maj. opn., ante, p. 192) cannot withstand scrutiny. For example, the majority would require a plaintiff to comply with the section if she consents to a mere exploratory procedure, but without her knowledge or consent and in the absence of an emergency the doctor performs a hysterectomy—thus permanently depriving her of reproductive ability. (See Hundley v. St. Francis Hospital (1958) 161 Cal.App.2d 800, 806 [ 327 P.2d 131 , 80 A.L.R.2d 360 ].) Such a legal result would be indefensible.
A medical provider’s right to examine, touch, palpate or excise any part of a person’s body depends entirely on the patient’s consent, with the exception of treatment required in an emergency. If a part of a patient’s body is removed without consent, there can be no question that a common law battery has been committed. A battery gives rise to an action for compensatory and possible punitive damages. A plaintiff should not be required to beg the court’s permission to seek any or all of those damages merely because the battery arises out of medical services provided by the defendant when the services were neither sought nor desired.
*194 The approach taken by the majority is legally restrictive and morally callous. However, since I agree with the result under the facts of this case, I concur.
The petition of real parties in interest for a rehearing was denied September 24, 1992. Mosk, J., was of the opinion that the petition should be granted.