Filed 1/5/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
KIRK KING et al.,
Plaintiffs and Appellants, E063527
v. (Super.Ct.No. RIC1409797)
COMPPARTNERS, INC. et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge.
Affirmed in part; reversed in part.
Law Offices of Patricia A. Law, Patricia A. Law and Jonathan A. Falcioni for
Plaintiffs and Appellants.
Murchison & Cumming, William D. Naeve, Ellen M. Tipping and Terry L.
Kesinger for Defendants and Respondent.
1 Kirk King (Kirk)1 sued CompPartners, Inc. (CompPartners) and Naresh Sharma,
M.D. (Sharma), for (1) professional negligence; (2) negligence; (3) intentional infliction
of emotional distress; and (4) negligent infliction of emotional distress. Kirk’s wife,
Sara King (Sara), sued CompPartners and Sharma (collectively, “defendants”) for loss
of consortium. Kirk and Sara (collectively, “the Kings”) sought general, special,
exemplary, and punitive damages.2 The trial court sustained defendants’ demurrer
without leave to amend.
The Kings raise three issues on appeal. First, the Kings contend their claims are
not preempted by the Workers’ Compensation Act (WCA). Second, the Kings assert
defendants owed them a duty of care. Third, the Kings contend the trial court erred by
denying them leave to amend. We affirm the sustaining of the demurrer but reverse the
denial of leave to amend.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
The facts in this section are taken from the allegations in the Kings’ complaint.
On February 15, 2008, Kirk sustained a back injury while at work. In July 2011, Kirk
suffered anxiety and depression due to chronic back pain resulting from the back injury.
In 2011, Kirk was prescribed a psychotropic medication known as Klonopin.
1 We use first names for the sake of clarity. No disrespect is intended.
2 The Kings also sued Mohammed Ashraf Ali, M.D. (Ali); Whittier Drugs; and Does 1 through 100. The forgoing three defendants are not respondents in this appeal. At the time of the hearing on the demurrer, Ali had not been served with the complaint.
2 The Klonopin was provided to Kirk through Workers’ Compensation. In July
2013, a Workers’ Compensation utilization review was conducted to determine if the
Klonopin was medically necessary.3 (Labor Code, § 4610, subd. (a).)4 Sharma, an
anesthesiologist, conducted the utilization review. Sharma determined the drug was
unnecessary and decertified it. As a result, Kirk was required to immediately cease
taking the Klonopin. Typically, a person withdraws from Klonopin gradually by slowly
reducing the dosage. Due to the sudden cessation of Klonopin, Kirk suffered four
seizures, resulting in additional physical injuries.
In September 2013, someone requested Kirk again be permitted to take
Klonopin. In October 2013, Ali, a psychiatrist, conducted a second utilization review.
Ali also determined Klonopin was medically unnecessary. Neither Sharma nor Ali
examined Kirk in-person, and neither warned Kirk of the dangers of an abrupt
withdrawal from Klonopin. Sharma and Ali were employees of CompPartners.
CompPartners was a Workers’ Compensation utilization review company.
B. DEMURRER
Defendants demurred to the complaint. Defendants asserted the Kings’ claims
were preempted by the WCA because they arose out of a utilization review. Defendants
interpreted the complaint as objecting to the decision to decertify Klonopin. Defendants
3“Utilization review” is the process by which employers “review and approve, modify, delay, or deny” employees’ medical treatment requests within the Workers’ Compensation system. (Labor Code, § 4610, subd. (a); State Compensation Ins. Fund v. Workers’ Comp Appeals Bd. (2008) 44 Cal.4th 230, 234, fn. 3 (State Fund).)
4 All subsequent statutory references will be to the Labor Code unless indicated.
3 asserted the utilization review was performed at the behest of Kirk’s employer and was
conducted in connection with the payment of benefits for Kirk’s workplace back injury.
Defendants contended the Labor Code set forth a procedure for objecting to a utilization
review decision, and that procedure preempted the Kings’ complaint.
Alternatively, defendants asserted they did not owe Kirk a duty of care.
Defendants argued there was no doctor-patient relationship because they never
personally examined Kirk and did not treat him. Defendants reasoned that because
there was no relationship, there was no duty of care.
Defendants further asserted the Kings had improperly split a medical malpractice
cause of action into two negligence causes of action. Defendants contended the
emotional distress causes of action were subsumed by what should have been a single
medical malpractice claim, and that Sara’s loss of consortium claim failed because there
was no underlying tort cause of action to support it.
C. OPPOSITION
The Kings opposed the demurrer. First, the Kings asserted their claims were not
preempted by the WCA. The Kings asserted their claims concerned the failure to
provide Kirk with a Klonopin-weaning regimen; they were not disputing the decision to
decertify the Klonopin. The Kings contended this claim fell within the ambit of a
negligence cause of action—it did not fall within the procedures set forth in the Labor
Code/WCA for disputing a utilization review decision.
Second, the Kings asserted defendants owed Kirk a duty of care because Kirk’s
medical treatment was effectively being determined by defendants’ decisions at the
4 utilization reviews. Third, the Kings asserted they did not improperly split a medical
malpractice cause of action because their cause of action for general negligence was
brought in the alternative, in case the court determined the defendants were not
healthcare providers for purposes of the professional negligence cause of action.
Fourth, the Kings asserted Kirk’s cause of action for intentional infliction of emotional
distress set forth sufficient facts to support an independent cause of action; however, the
Kings also referenced a proposed First Amended Complaint filed concurrently with the
opposition that alleged additional facts to support the cause of action for intentional
infliction of emotional distress.5 Fifth, the Kings asserted there were sufficient facts
alleged to support the loss of consortium cause of action.
D. HEARING
The trial court issued a tentative opinion sustaining the demurrer due to the
lawsuit being preempted by the WCA. At the hearing on the demurrer, the Kings
explained they were not disputing the decision to decertify Klonopin; rather, they were
focused on the manner in which the decision was carried out—the decision to abruptly
halt the medication rather than gradually reduce the dosage. The Kings asserted there
were two requirements that triggered Workers’ Compensation—(1) the employee was
working at the time of the injury, and (2) the injury was proximately caused by the
employee’s job. The Kings asserted Kirk’s seizures did not meet these two
5The Kings did not file the Proposed First Amended Complaint. The proposed First Amended Complaint is not included with the Opposition in the Appellant’s Appendix.
5 requirements and, thus, fell outside the ambit of the WCA. Further, to the extent the
WCA encompasses derivative or collateral claims, the seizures were “a wholly separate
injury.”
The trial court said, “So if I’m wrong on the exclusivity, you trip over another
issue which is duty.” The Kings explained that a doctor-patient relationship was not
needed for a duty to be created. Rather, a duty is owed when a doctor’s decision affects
the patient’s treatment. The Kings asserted Sharma’s decision affected Kirk’s treatment
by effectively dictating the treatment. No other doctor was involved in the decision to
terminate the Klonopin; the insurance company asked Sharma if the Klonopin was
medically necessary, and based upon Sharma’s answer, the Klonopin was discontinued.
The Kings asserted Sharma’s decision was negligent because no weaning schedule or
warnings about seizures were given.
Defendants asserted the Kings were “obviously” contesting the utilization review
decision, and a challenge to the utilization review falls within the ambit of the WCA.
Next, defendants asserted they owed no duty to Kirk because Kirk did not hire
defendants and defendants did not meet Kirk when performing the utilization review.
The Kings again explained that they were not contesting the utilization review
decision. The Kings said they did not want Klonopin to be prescribed again; rather,
they were complaining about Sharma’s decision to abruptly stop the Klonopin rather
than gradually stop the Klonopin.
The trial court said, “You may have convinced me that, you know, maybe
Worker’s Comp exclusivity may or may not apply; because you are correct, he’s not
6 actually trying to challenge the decision directly.” However, the trial court also said, “I
don’t think there is a duty.” The trial court explained Sharma did not prescribe the
Klonopin; rather, “[h]e made a recommendation under the utilization review that it be
withdrawn.” The court said, “Somebody else prescribed this medication. Somebody
else took it off—took him off it immediately without any slow withdrawal. That’s the
person who made the medical decision for your client, not the doctor who was simply
reviewing the procedure.”
The Kings asserted “it wasn’t anybody else’s decision other than Dr. Sharma’s to
discontinue [the Klonopin]. [¶] It wasn’t merely a recommendation. It was Dr.
Sharma—is this patient—essentially, the question was: Is this patient going to continue
receiving this medication or not, put your stamp on it. He says, No. It ceases.”
The trial court asked the Kings what facts they could add if they were granted leave to
amend their complaint. The Kings said they would add facts about “the patient-client
relationship, that CompPartners hired this doctor to make treatment decisions. Based
off of a review of the patient’s chart, the doctor made treatment decisions.”
CompPartners responded with two points. First, CompPartners said that if the
Kings were suing due to a discreet injury then Kirk could “directly amend his
application for adjudication of claim in the Workers’ Compensation Appeals Board and
seek retribution or damages for whatever treatment decisions were made during the
process.” Second, CompPartners argued, “Just think about the duty implications if this
Court ruled that someone who reviewed medical records and made a recommendation
could be held liable for whatever ultimate decision. Because it’s not his decision to
7 make. He’s making a review and making a recommendation. They don’t have to agree
with [the] utilization review. The statute doesn’t require it. It just says they will review
it and make recommendations, and then it’s out of his hands.” The Kings again
explained that their claim involved a third party physician—not Kirk’s employer—and
therefore, the claim did not come within the WCA.
The trial court said, “My ruling stands. I’m sustaining the demurrer without
leave to amend.” The trial court added, “[T]his needs to go up to the Court of Appeals.
There is really no good law, any much law under the utilization.” The trial court
explained that it sustained the demurrer due to both the exclusivity and duty issues.
DISCUSSION
A. OVERVIEW OF THE WORKERS’ COMPENSATION UTILIZATION
REVIEW PROCESS
“The workers’ compensation scheme makes the employer of an injured worker
responsible for all medical treatment reasonably necessary to cure or relieve the worker
from the effects of the injury. [Citation.] When a worker suffers an industrial injury,
the worker reports the injury to his or her employer and then seeks medical care from
his or her treating physician. After examining the worker, the treating physician
recommends any medical treatment he or she believes is necessary and the employer is
given a treatment request to approve or deny.” (State Fund, supra, 44 Cal.4th at pp.
237-238.)
Disputes about treatment requests are resolved via the utilization review process,
in which “employers can have their utilization review doctors review treatment
8 requests.” (State Fund, supra, 44 Cal.4th at pp. 243-244.) After a utilization review is
conducted, a treatment request may be approved, modified, delayed or denied. (§ 4610,
subd. (a).) “[U]nder the statutory scheme, only an employer’s utilization review
physician applying approved criteria can modify, delay, or deny treatment requests—an
employer may not, on its own, object to a treatment request. (§ 4610, subds. (e) & (f).)”
(Smith v. Workers’ Comp Appeals Bd. (2009) 46 Cal.4th 272, 279 (Smith).)
“Further, the utilization review scheme contains a procedure for resolving
disputes over treatment requests that uses doctors, rather than judges, as the
adjudicators. [Citations.] If an employee disagrees with the utilization review
physician’s decision to modify, delay, or deny treatment, the employee can request
review by an independent medical evaluator who, after evaluating the evidence, decides
whether the sought treatment is necessary.” (Smith, supra, 46 Cal.4th at pp. 279-280;
see also § 4610.6.)
B. PREEMPTION
1. CONTENTION
The Kings contend the trial court erred in sustaining the demurrer because their
causes of action are not preempted by the WCA.
2. STANDARD OF REVIEW
“We independently review the construction of workers’ compensation statutes.”
(Smith, supra, 46 Cal.4th at p. 277.) We also apply the independent standard of review
to rulings on demurrers (McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412,
9 415) and rulings on issues of preemption (Cellphone Termination Fee Cases (2011) 193
Cal.App.4th 298, 311). Thus, we apply the independent standard of review.
3. PREEMPTION
The Workers’ Compensation exclusivity provision provides, in relevant part:
“Liability for the compensation provided by this division, in lieu of any other liability
whatsoever to any person . . . shall, without regard to negligence, exist against an
employer for any injury sustained by his or her employees arising out of and in the
course of the employment . . . in those cases where the following conditions of
compensation concur: . . . [¶] . . . [¶] (2) Where, at the time of the injury, the employee
is performing service growing out of and incidental to his or her employment and is
acting within the course of his or her employment. [¶] (3) Where the injury is
proximately caused by the employment, either with or without negligence.” (Former
§ 3600, subd. (a) [eff. Jan. 2010].) In some portions of the Labor Code, the term
“employer” includes a utilization review organization. (§ 4610.5, subd. (c)(4).)
“Based on the [foregoing] statutory language, California courts have held
workers’ compensation proceedings to be the exclusive remedy for certain . . . claims
deemed collateral to or derivative of the employee’s injury.” (Snyder v. Michael’s
Stores, Inc. (1997) 16 Cal.4th 991, 997.) Derivative or collateral claims must still meet
the conditions of compensation set forth ante: (1) that the injury occur within the
course of the employee’s job; and (2) the injury is proximately caused by the
employee’s job. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24
Cal. 4th 800 813-814 (Vacanti).) If the collateral or derivative claim does not meet the
10 conditions of compensation, then it is not subject to exclusivity. In other words, “a
cause of action predicated on an injury where ‘the basic conditions of compensation’ are
absent is not preempted. [Citation.] For example, courts have allowed tort claims in
cases where the alleged injury—the aggravation of an existing workplace injury—did
not occur in the course of an employment relationship.” (Ibid.)
In the Kings’ complaint, they allege Kirk suffered a back injury at work in 2008.
Then, in 2013, “Sharma failed to provide any warnings concerning a gradual reduction
of the dosage or continue Mr. King on the Klonopin until the step-down process of such
medication was completed.” This failure on Sharma’s part caused Kirk to suffer
seizures. The seizure injury did not occur in the course of Kirk’s job because there are
no allegations Kirk was working at the time of the seizures. The seizure injury was not
proximately caused by Kirk’s job because the cause of the seizures is alleged to be
Sharma’s failure to provide appropriate information or a weaning regime—nothing
about Kirk’s job is alleged to be the cause of the seizures. As a result, based upon the
Kings’ complaint, the conditions of compensation have not been met.
We note, however, the Vacanti opinion further provides, “Courts have also
consistently held that injuries arising out of and in the course of the workers’
compensation claims process fall within the scope of the exclusive remedy provisions
because this process is tethered to a compensable injury.” (Vacanti, supra, 24 Cal.4th at
p. 815.) For example, where a person’s business is damaged due to “the failure to
receive full and timely payment on their lien claims before the [Workers’ Compensation
Appeals Board],” those “causes of action [are] collateral to or derivative of a
11 compensable workplace injury and fall[] within the scope of the exclusivity provisions.”
(Ibid.)
When this portion of the Vacanti opinion is read in context with the portion
discussed ante, which requires the conditions of compensation to be met, we interpret
Vacanti to mean that if something goes wrong in the claims process for the work place
injury, such as collecting the money for the workplace injury, then that collateral claim
must stay within the exclusive province of workers’ compensation. However, if a new
injury arises or the prior workplace injury is aggravated, then the exclusivity provisions
do not necessarily apply. (Vacanti, supra, 24 Cal.4th at pp. 813-814.)
The Kings’ complaint presents an interesting issue on this point. The Kings
complaint reads, “Dr. Sharma failed to provide any warnings concerning a gradual
reduction of the dosage or continue Mr. King on the Klonopin until the step-down
process of such medication was completed. Due to the improper withdrawal of the
medication, Mr. King sustained a series of four seizures resulting in additional physical
injury. In September of 2013, there was a request to return Mr. King to the Klonopin
due to the continuation of seizures. In October of 2013, another utilization review was
performed by Mohammed Ashraf Ali, M.D., a Psychiatrist. Once again, Mr. King was
denied the use of the Klonopin. Dr. Ali failed to authorize the use of the Klonopin until
a gradual reduction in dosage was achieved or warn of the abrupt withdrawal of the
medication.” (Italics added.)
The Kings have alleged two options for how Sharma allegedly harmed Kirk. The
first option is that Sharma harmed Kirk by not informing Kirk of the possible
12 consequences of abruptly ceasing Klonopin. This option involves a second step in the
utilization review process: Sharma determines the drug is medically unnecessary and
then must warn Kirk of the possible consequences of that decision. The second option
is that Sharma harmed Kirk by incorrectly determining Klonopin was medically
unnecessary, because the drug was medically necessary until Kirk was properly weaned
from it. In this second option, the “medically necessary” decision was alleged to have
been incorrectly determined, and thus, part of the claims process is alleged to have gone
wrong. The “medically necessary” question is directly part of the claims process.
(§ 4610, subd. (c).)
To the extent the Kings are faulting Sharma for not communicating a warning to
Kirk, their claims are not preempted by the WCA because that warning would be
beyond the “medical necessity” determination made by Sharma. To the extent the
Kings are faulting Sharma for incorrectly deciding the medical necessity decision
because Klonopin was medically necessary until Kirk was weaned, and thus a particular
number of pills, e.g., 10, 20, should have been authorized for weaning, the Kings’
claims are preempted by the WCA because the Kings are directly challenging Sharma’s
medical necessity determination.
Due to the uncertainty of the allegations in the complaint, the trial court properly
sustained the demurrer. (Code, Civ. Proc., § 430.10, subd. (f) [pleading is uncertain].)
However, because there is a possibility the causes of action are not preempted, the trial
court erred by denying the Kings leave to amend. (See Nolte v. Cedars Sinai Medical
Center (2015) 236 Cal.App.4th 1401, 1406 [“‘If it is reasonably possible the pleading
13 can be cured by amendment, the trial court abuses its discretion by not granting leave to
amend’”].)
C. DUTY
The Kings contend the trial court erred by concluding defendants did not owe
Kirk a duty of care.
“It long has been held that an essential element of a cause of action for medical
malpractice is a physician-patient relationship giving rise to a duty of care.” (Mero v.
Sadoff (1995) 31 Cal.App.4th 1466, 1471.) “When the physician-patient relationship
exists, either expressed or implied, the patient has a right to expect the physician will
care for and treat him with proper professional skills and will exercise reasonable and
ordinary care and diligence toward the patient.” (Keene v. Wiggins (1977) 69
Cal.App.3d 308, 313 (Keene).)
Case law provides a utilization review doctor has a doctor-patient relationship
with the person whose medical records are being reviewed. In Palmer v. Superior
Court (2002) 103 Cal.App.4th 953 (Palmer), the plaintiff sued his insurance carrier (the
HMO) and his primary healthcare provider (the hospital). The trial court struck the
plaintiff’s allegations claiming entitlement to punitive damages against the hospital
under Civil Code of Procedure section 425.13, which reflects punitive damages cannot
be included in a complaint for damages arising out of the professional negligence of a
healthcare provider. The plaintiff sought a writ of mandate setting aside that order.
(Palmer, at p. 957.)
14 The plaintiff had lost both legs below his knees due to a bacterial infection, and
needed leg prostheses to walk. (Palmer, supra, 103 Cal.App.4th at p. 958.) In 2000,
the plaintiff’s prosthetist (Norton) concluded the plaintiff’s prostheses needed to be
replaced. Norton sent a letter to the plaintiff’s primary care physician (Rivkin), a doctor
at the hospital, recommending the use of ultra light prostheses. At Rivkin’s request,
Norton prepared a cost estimate for the prostheses. A hospital employee from Rivkin’s
office called Norton to inform him the prostheses request had been approved as
medically necessary, and the request was being forwarded to the hospital’s utilization
review department. The plaintiff received a letter from the hospital reflecting the
request had been denied because the hospital’s medical director determined the
prostheses were not medically necessary. (Id. at pp. 958-959.)
Rivkin informed the plaintiff that he was being pressured by the HMO to deny
the new prostheses. However, Rivkin drafted a letter asserting the prostheses were
medically necessary. The HMO sent the plaintiff a letter reflecting it upheld the denial
of the prostheses, and the plaintiff had the right to have the decision reviewed by the
HMO’s appeals and grievance review committee. The plaintiff initiated the review
process, but a prompt decision was not issued. (Palmer, supra, 103 Cal.App.4th at pp.
959-960.)
The plaintiff filed a lawsuit against the HMO, the hospital and Rivkin, which
included causes of action for intentional and negligent infliction of emotional distress.
(Palmer, supra, 103 Cal.App.4th at p. 960.) The plaintiff alleged the hospital provided
a utilization review to the HMO, which determined whether requested medical services
15 were medically necessary. (Id. at p. 958.) The hospital sought to strike the punitive
damages allegations because the cause of action arose out of the professional negligence
of a healthcare provider. (Code Civ. Proc., § 425.13.) The trial court found the
plaintiff’s claims were “directly related to the manner in which [the hospital] provided
professional health care services, whether through Dr. Rivkin or [the hospital’s]
utilization review.” (Palmer, at p. 961.)
The appellate court explained, “‘The test of whether a health care provider’s
negligence constitutes professional negligence is whether the negligence occurred in
rendering services for which the health care provider is licensed.’” (Palmer, supra, 103
Cal.App.4th at p. 962.) The appellate court examined whether the unfavorable
utilization review services conducted by the hospital amounted to allegations of medical
negligence. (Ibid.) The plaintiff argued the utilization review did not amount to
healthcare services, and thus, he could sue for punitive damages. The plaintiff asserted
the utilization review was purely administrative. (Id. at p. 968.) The appellate court
concluded that the hospital’s medical director, who concluded the prostheses were not
medically necessary, “was acting as a health care provider as to the medical aspects of
that decision.” (Id. at p. 969.) The appellate court explained that the medical director’s
utilization review decision amounted to medical care, and was not purely
administrative, because the utilization review had to “be conducted by medical
professionals, and they must carry out these functions by exercising medical judgment
and applying clinical standards.” (Id. at p. 972.) The appellate court concluded the trial
court properly struck the punitive damages allegations because the damages arose out of
16 the professional negligence of a health care provider (Code Civ. Proc., § 425.13, subd.
(a)). (Palmer, at p. 973.)
Thus, under Palmer, there is a doctor-patient relationship between Kirk and
Sharma. Because there is a doctor-patient relationship, Sharma owed Kirk a duty of
care. As quoted ante, “When the physician-patient relationship exists, either expressed
or implied, the patient has a right to expect the physician will care for and treat him with
proper professional skills and will exercise reasonable and ordinary care and diligence
toward the patient.” (Keene, supra, 69 Cal.App.3d at p. 313.)
However, the existence of a duty does not mean “a doctor is required to exercise
the same degree of skill toward every person he sees. The duty he owes to each varies
with the relationship of the parties, the foreseeability of injury or harm that may be
expected to flow from his conduct and the reliance which the person may reasonably be
expected to place on the opinion received. A case-by-case approach is required.”
(Keene, supra, 69 Cal.App.3d at p. 313.) In other words, determining the scope of the
duty owed depends upon the facts of the case.
In Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, our
Supreme Court examined whether a murderer’s therapist had a duty to warn the victim
of the murderer’s intention to kill the victim, even though the victim was not the
therapist’s patient. (Id. at pp. 430-431.) Our Supreme Court concluded, “[O]nce a
therapist does in fact determine, or under applicable professional standards reasonably
should have determined, that a patient poses a serious danger of violence to others, he
bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.
17 While the discharge of this duty of due care will necessarily vary with the facts of each
case, in each instance the adequacy of the therapist’s conduct must be measured against
the traditional negligence standard of the rendition of reasonable care under the
circumstances.” (Id. at p. 439, fn. omitted.)
Thus, while there is a duty owed by Sharma to Kirk, the scope or discharge of
that duty will depend upon the facts/circumstances of this particular case. The Kings’
complaint includes few factual details. For example, it is unclear how Kirk came to
learn that the Klonopin had been decertified—did he receive a letter, a phone call, a
denial at the pharmacy widow? The complaint reflects Sharma was the only doctor
involved in the decision to decertify the Klonopin, until Ali reviewed that decision and
affirmed it, but it is unclear what input, if any, the prescribing doctor may have had
following Sharma’s decision. Given the lack of factual allegations related to duty, the
scope of the duty owed cannot be determined from the complaint. Accordingly, we
conclude the trial court properly sustained the demurrer. (Code Civ. Proc., § 430.10,
subd. (e) [failure to plead sufficient facts].)
Nevertheless, the trial court should have granted the Kings leave to amend
because it is possible, given the allegation that Sharma was the only doctor involved in
the decision, that, when more details are provided they could support a conclusion that,
under the circumstances, the scope of Sharma’s duty included some form of warning
Kirk of or protecting Kirk from the risk of seizures. The Kings have explained they do
have further facts to add to a potential First Amended Complaint. For example, they
could offer an additional fact such as seizures being a known consequence of abruptly
18 ceasing Klonopin, and Sharma knowing that his decision to decertify the Klonopin
would lead to the immediate denial of more Klonopin without any review by Kirk’s
prescribing doctor. (See Nolte v. Cedars Sinai Medical Center, supra, 236 Cal.App.4th
1401, 1406 [“‘If it is reasonably possible the pleading can be cured by amendment, the
trial court abuses its discretion by not granting leave to amend’”].) In sum, additional
facts could cure the problems presented by the complaint and the Kings have additional
facts to plead; therefore, the trial court erred by denying the Kings leave to amend.
DISPOSITION
The order sustaining the demurrer is affirmed. The denial of leave to amend is
reversed, and the case remanded for the Kings to file an amended complaint. The
parties are to bear their own costs on appeal.
MILLER J.
We concur:
McKINSTER Acting P. J.
KING J.