Johnson v. United States

Background

Florie Johnson alleged that she went to the University of California, San Francisco Medical Center for a planned bone biopsy and invasive podiatry procedure. She alleged that Sean Kennedy, M.D., a podiatrist employed by the United States Department of Veterans Affairs, performed the foot procedure while she was awake and without anesthesia, although she experienced severe pain and asked him to stop. She further alleged that Kennedy’s conduct was motivated by racism and sexism. Johnson asserted that she was traumatized and became distrustful of medical professionals.

Johnson initially sued the United States, the Regents of the University of California, and Kennedy. She later voluntarily dismissed the claims against the Regents and Kennedy, leaving the United States as the only defendant. Her complaint asserted negligence against the United States, negligence against the Regents, negligent hiring and supervision against the United States and the Regents, medical battery against Kennedy, intentional infliction of emotional distress against Kennedy, and an alleged violation of California’s Unruh Act against Kennedy and the Regents.

Motion and parties’ positions

The United States moved under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns the court’s subject-matter jurisdiction, while Rule 12(b)(6) tests whether a complaint states a legally sufficient claim. The United States asked to be substituted for Kennedy on claims 4, 5, and 6. It also sought dismissal of claim 3 for lack of jurisdiction and failure to state a claim, dismissal of claims 3, 4, and 6 for failure to state a claim, and dismissal of Johnson’s requests for attorney fees and punitive damages.

Johnson did not oppose substitution of the United States for Kennedy. She also did not oppose dismissal of claim 3 or her requests for attorney fees and punitive damages. The remaining disputes concerned whether the complaint adequately pleaded medical battery and an Unruh Act claim against the United States. The United States did not challenge the negligence and intentional infliction of emotional distress claims at this stage.

Medical battery

The court explained that medical battery generally involves intentional and offensive touching without consent. A patient may also state a battery claim when consent was limited by conditions and the doctor intentionally exceeded those conditions. Johnson’s complaint alleged that she did not consent to being cut while awake and without anesthesia.

The court held that the complaint did not adequately plead a medical-battery claim based on conditional consent. It did not identify the particular procedure that had been scheduled, allege that Johnson expressly made her consent conditional on anesthesia, or allege facts supporting a reasonable inference that Kennedy intentionally violated that condition. The court found that amendment might not be futile, so it dismissed the medical-battery claim with leave to amend. Any amended claim must identify the procedure, the condition placed on Johnson’s consent, and facts supporting an inference that Kennedy intentionally violated that condition.

Unruh Act claim

California’s Unruh Act prohibits covered business establishments from discriminating based on protected characteristics, including race and sex. Johnson alleged that Kennedy denied her full and equal services because she is African American and a woman.

The court found those allegations conclusory. The complaint did not provide facts such as comments, conduct, or examples of others being treated differently that would support a reasonable inference that race or sex motivated the alleged misconduct. The court therefore dismissed the Unruh Act claim with leave to amend.

Disposition

Judge Donna Ryu granted the United States’ motion to dismiss. The United States was substituted for Kennedy as the defendant on claims 4, 5, and 6. Claim 3, for negligent hiring and supervision, and Johnson’s claims for attorney fees and punitive damages were dismissed with prejudice. Johnson’s medical-battery and Unruh Act claims were dismissed with leave to amend, and any amended complaint had to be filed within 21 days. The court did not dismiss the negligence or intentional infliction of emotional distress claims in this order. The initial case-management conference was vacated and continued to March 20, 2024.