Note from Professor:

This is a motion to dismiss. As you review it, think about the reasons why the defendant is asking the court to dismiss the case. Don’t worry too much about any terms that may be unfamiliar to you. The idea is just to give you some exposure to a motion to dismiss. After your review, return to the exercise and answer a few questions about it. The questions are not graded and you can return to this document to help answer them if necessary.

POINTS AND AUTHORITIES

I. FACTS

Plaintiff filed a medical malpractice Complaint against Dr. Del Vecchio, alleging that he violated the standard of care in performing a lumbar puncture without medical justification. Plaintiff alleges she was seen and evaluated by Dr. Del Vecchio on December 2, 2010, with a chief complaint of chest pain and headache. Plaintiff alleges Dr. Del Vecchio performed a lumbar puncture, but did not explain the procedure to her, and she then suffered unspecified “medical problems” as a result of the lumbar puncture. …

Dr. Del Vecchio, however, maintains that the lumbar puncture was a medically necessary diagnostic tool, performed after carefully explaining the procedure and risks to Plaintiff.

II. ARGUMENT

 B.  This Court Should Dismiss Plaintiff’s Claims for Battery and Punitive Damages for Failure to State a Claim Upon Which Relief Can Be Granted Pursuant to N.R.C.P. 12(b)(5)
A complaint will not be dismissed for failure to state a claim unless it appears beyond a doubt that a plaintiff could prove no set of facts which, if accepted by the trier of fact, would entitle him to relief. …. Accepting the allegations of the Complaint against Dr. Del Vecchio as true, Plaintiff has not appropriately pled claims for battery and punitive damages, and thus Plaintiff failed to state a claim upon which relief can be granted on those claims.

1. Battery

Plaintiff’s battery cause of action is actually a medical negligence cause of action. The fact that Plaintiff alleges Dr. Del Vecchio performed the procedure “without informed consent” demonstrates as much. In Cobbs v. Grant, 8 Cal. 3d 229 (1972), the Court held the “battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.” The Court further reasoned that if a patient consents to treatment and an undisclosed inherent complication occurs, then the doctor “may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.” Id.

The Supreme Court of Arizona more succinctly summarizes the difference between medical negligence and battery in Duncan v. Scottsdale Med. Imaging. LTD., 205 Ariz. 306 (2003). Therein, the Court held, “the inconsistent use of terminology has blurred the distinction between ‘lack of informed consent,’ which should be pled in negligence, and ‘lack of consent,’ which should be pled in battery.” … Consequently, by stating that the procedure was performed without her “informed consent,” Plaintiff’s cause of action is one of negligence, not battery. As such, it is encompassed in Plaintiff’s claim for medical malpractice, and the claim for battery should be dismissed.

2. Punitive Damages

Neither Plaintiff’s Complaint nor Dr. Bronston’s Affidavit allege any facts that would support a claim for punitive damages. In order to maintain an action for punitive damages under Nevada law, a Plaintiff must allege facts demonstrating that the Defendants were guilty of oppression, fraud or malice: NRS 42.005S. Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship with conscious disregard of the rights of the person.” NRS 42.001(4). Fraud is defined as “an intentional misrepresentation, deception or concealment of a material fact known to the person with the intent to...otherwise injure another person.” NRS 42.001(2). Malice is defined as “conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights or safety of others. NRS 42.001(3). Conscious disregard means “knowledge of the probable harmful consequences of a wrongful act and a willful and deliberate failure to avoid those consequences.” NRS 42.001(1).Dr. Del Vecchio moves to dismiss the claim for punitive damages because it “fail[s] to state a cause of action upon which relief can be granted. …

 

“Punitive damages are designed to punish and deter a defendant’s culpable conduct and act as a means for the community to express outrage and distaste for such conduct. Before punitive damages may be recovered, N.R.S. 42.005(1) requires clear and convincing evidence of either implied malice or oppression.” Countrywide Home Loans Inc. v. Thitchener, 124 Nev. 725, 739-740, 192 P.3d 243, 252 (2008).

 

Plaintiff has pled no facts that rise to the level of malice, fraud or oppression. Plaintiff merely alleges that she presented to Spring Valley hospital, complaining of chest pain and a headache, Dr. Del Vecchio performed a diagnostic lumbar puncture, and Plaintiff has a resulting injury. Plaintiff makes no allegation that Dr. Del Vecchio acted with conscious disregard of her safety. Plaintiff makes no allegation that Dr. Del Vecchio intentionally concealed facts regarding the lumbar puncture specifically to cause injury. Indeed, Plaintiff’s Complaint and accompanying expert affidavit make no reference to any violation of the standard of care, aside from Dr. Del Vecchio’s alleged failure to document the lumbar puncture appropriately.

 

Surely the alleged failure to document a common procedure in a patient’s chart cannot rise to the level of “conscious disregard” or “implied malice or oppression.” As such, at a minimum, Plaintiff’s claim for punitive damages should be dismissed, as Plaintiff has not pled any facts to support a claim for punitive damages.

 III. CONCLUSION

Based on the foregoing, Defendant Dr. Del Vecchio respectfully requests this Court dismiss Plaintiff’s Complaint …  for battery and punitive damages pursuant to N.R.C.P. 12(b)(5), because, as a matter of law, Plaintiff’s battery claim is encompassed by her medical negligence claim, and she has not pled facts that rise to the level of implied malice or oppression.

 

 

 

 

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