Judge: Armen Tamzarian, Case: 23STCV07245, Date: 2023-09-19 Tentative Ruling

Case Number: 23STCV07245    Hearing Date: September 19, 2023    Dept: 52

Defendants Zoya Preys, M.D. and Women Center LA OBGYN PC dba Women Center LA’s Demurrer

Demurrer

Defendants Zoya Preys, M.D. and Women Center LA OBGYN PC dba Women Center LA demur to the second and third causes of action alleged by plaintiffs Elijah Easton, Reena De Asis, and Robert Easton.  Plaintiffs did not oppose the demurrer to the third cause of action.  (Opp., p. 2.)

Second Cause of Action for Medical Negligence

            Defendants argue this cause of action is barred by the statute of limitations.  A demurrer should be sustained where “the complaint shows on its face that the statute [of limitations] bars the action.”  (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.)  In evaluating a demurrer based on untimeliness, the court must determine: (1) which statute of limitations applies; and (2) when the claim accrued.  (Id. at p. 1316.) 

The statute of limitations for a health care provider’s professional negligence is “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”  (CCP § 340.5.) 

The complaint alleges sufficient facts to invoke the discovery rule.  To rely on the discovery rule, the plaintiff “must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.”  (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808, internal quotes omitted.) 

The complaint’s second cause of action alleges defendants “were so negligent in their prenatal, labor and delivery and post-delivery care of Mrs. De Asis and her newborn, Elijah, that as a proximate result, Mrs. De Asis developed sepsis and was forced to undergo otherwise avoidable supracervical hysterectomy and bilateral salpingectomy.”  (Comp., p. 5, ¶ 1.)  It further alleges, “Mrs. De Asis did not know, nor in the exercise of reasonable diligence, could have discovered that the Defendants’ collective negligent acts and omissions caused her injuries until after she spoke with a knowledgeable attorney about the injuries that she suffered.  Plaintiff performed a reasonable investigation into the cause of her injuries, however, none of her medical providers could answer her question other than to say that ‘these things happen’.  …  Plaintiff could not have discovered all necessary facts essential to her claims until after first speaking with her attorney on or about 1/07/2023.”  (Id., ¶ 6.)

These allegations suffice on demurrer.  “When a plaintiff reasonably should have discovered facts for purposes of the accrual of a cause of action or application of the delayed discovery rule is generally a question of fact, properly decided as a matter of law only if the [allegations] can support only one reasonable conclusion.”  (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 193.)  Plaintiff alleges she investigated.  She asked other medical providers about her injuries.  None of them gave her any cause to suspect defendants were at fault.  Reasonable people could conclude plaintiff’s investigation was diligent enough.  It is therefore a question of fact whether she could have discovered defendants’ negligence earlier.    

Defendants argue, “There is no question but that a reasonably prudent person would have been suspicious when, after delivery of her child on July 6, 2020, she developed sepsis which required a hysterectomy.”  (Reply, p. 3.)  Pregnancy and childbirth are risky.  That a mother suffers serious complications does not necessarily mean her healthcare providers were negligent.  Plaintiff Reena De Asis alleges that is what her other medical providers told her: “These things happen.”

Defendants also contend plaintiff cannot invoke the discovery rule because she does not allege they prevented her from discovering their negligence.  (Reply, p. 4.)  Tolling under the discovery rule does not require that defendants concealed their wrongdoing or otherwise prevented plaintiff from discovering it.  Tolling based on concealment is a separate doctrine.  (See Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931 [fraudulent concealment is a “close cousin of the discovery rule”].)

Under the discovery rule, the complaint alleges sufficient facts to show the second cause of action accrued in January 2023.  Plaintiffs filed the complaint on April 3, 2023.  On demurrer, the statute of limitations does not bar the second cause of action.

Disposition

Defendants Zoya Preys, M.D. and Women Center LA OBGYN PC dba Women Center LA’s demurrer to the second cause of action is overruled.  Defendants’ demurrer to the third cause of action is sustained without leave to amend.  Defendants Zoya Preys, M.D. and Women Center LA OBGYN PC dba Women Center LA are ordered to answer within 20 days.