Judge Bruce G. Iwasaki, Case Number: 24STCV08766, Date: 2024-08-28 Tentative Ruling

Tentative Ruling: The demurrer is sustained in its entirety without leave to amend. The motion to strike is moot. Plaintiff’s first amended complaint is dismissed with prejudice.

Plaintiff Lekeisha Thompson (Plaintiff or Ms. Thompson) sues Defendant Lakewood Regional Medical Center, Inc. (Defendant)[1] for medical malpractice and “mental and emotional distress” for events involving the death of her brother, Dajuan Michael Thompson (decedent) while being treated by Defendant. Defendant demurs to both causes of action and moves to strike allegations seeking punitive damages.

The First Amended Complaint (FAC) alleges that the decedent was admitted to Defendant’s facility in March 2022. On April 4, 2022, decedent underwent an esophagogastroduodenoscopy. The FAC asserts that on April 4, 2022 defendant “connected the ‘g-tube’ [but] failed to follow protocol and procedures.” (Compl. ¶ 6.) Later that day Plaintiff alleges she noticed her brother’s discomfort. He died on April 8, 2022. Plaintiff alleges suffering emotional distress as a result.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

A motion to strike portions of a pleading is authorized by Code of Civil Procedure section 436:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

Defendant argues that the first cause of action fails because it is barred by the statute of limitations, and because Plaintiff lacks standing to assert this claim. The Court agrees that Plaintiff has filed this action too late.

Plaintiff’s first cause of action alleges acts or omissions by a health care provider in rendering professional services that caused wrongful death. Accordingly, the claim falls within the definition of “professional negligence” set forth in Code of Civil Procedure section 340.5, subdivision (2). Section 340.5 also sets forth the limitations period for an action for injury or death against a health care provider based upon alleged professional negligence: The “time for the commencement of the action shall be 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.”

Based on the FAC, as of April 7, 2022, Plaintiff “contends the ‘g-tube’ procedure was inserted incorrectly or possibly not required at all.” Plaintiff’s brother died the next day. Based on the FAC, the latest Plaintiff discovered the injury was April 8, 2022, the day her brother died. (Defendant contends the discovery date was April 4 or 5, 2022, based on when the esophagogastroduodenoscopy was performed and when Plaintiff pleaded she “knew something went wrong.” (FAC. ¶ 6-7.)) Based on section 340.5, Plaintiff had to file suit no later than April 8, 2023. Suit was filed one year later, however, on April 8, 2024. This cause of action was not filed within the required time limit.

The Court concludes that Plaintiff is unable to show how she can cure this defect by amendment. Accordingly, the Court sustains the demurrer to the first cause of action without leave to amend.

Defendant also asserts that Plaintiff lacks standing to bring this action. Without ruling on the matter, the Court concludes that even if that were so, the Court would permit Plaintiff leave to amend for such a defect.

The FAC avers that “defendants caused mental and emotional distress when they inserted the wrong gastric tube into Plaintiff’s brother.” (FAC ¶ 25.) Plaintiff alleges that the procedure was performed on decedent on April 4, 2022, and following the procedure, Plaintiff “arrived to medical center around 4:30 p.m.,” and “waited for him to awake from the sedation of the surgery.” (FAC ¶ 6.)

Defendant contends that Plaintiff fails to allege the necessary circumstances under which bystanders to an event injuring a third party may sue the allegedly negligent actor for emotional distress. In Bird v. Saenz (2002) 28 Cal.4^th 910, our Supreme Court explained that in the context of a claim for negligent infliction of emotional distress such as alleged in the second cause of action, “ ‘a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress – a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.’ ” (Bird v. Saenz (2002) 28 Cal.4th 910, 915 (original italics).) In Bird, relatives of the patient were present in the hospital, but not in the operating room. Shortly after the patient’s operation, plaintiffs learned that the procedure “nicked an artery or a vein,” and the medical staff are “going to have to insert a drainage tube into her chest to drain out the fluid…to keep her alive.” Several of the plaintiffs saw the patient “being rushed down the hallway…she was bright blue. …Her feet were way up in the air, her head was almost touching the ground, there was all these doctors and nurses around there and they’re running down the hallway….” (Id. at p. 913.)

In Bird, the Supreme Court reiterated that a negligent actor is not liable to all persons who may have suffered emotional distress on viewing or learning about the consequences of his conduct rather than on viewing the injury-producing event itself. (Bird, supra, 28 Cal.4^th at p. 916.) The Court concluded that the plaintiffs “have not shown they were aware of the transection of [patient’s] artery at the time it occurred. Nor have they shown they were contemporaneously aware of any error in the subsequent diagnosis and treatment of that injury in the moments they saw their mother rolled through the hall by medical personnel.” (Id. at p. 921-922.) As a consequence, the plaintiffs “cannot show they were ‘present at the scene of the injury-producing event at the time it occur[ed] and [were] then aware that it [was] causing injury to the victim.’” (Id. at p. 922.) This reasoning applies to Ms. Thompson’s claim for emotional distress.

The Court accepts as true that Plaintiff was closely related to the decedent and suffered serious emotional distress at his illness and death. But she has not alleged the second element: her presence and observation when the allegedly “wrong gastric tube” was “inserted” into her brother and her awareness that it was causing injury. Rather, Plaintiff saw her brother after the operation.

Because damages are recoverable by a “bystander” for negligent infliction of emotional distress only from presence at and awareness of the injury-producing event, and Plaintiff has not, and cannot plead that she observed that event, the demurrer to the second cause of action must be sustained without leave to amend.

Defendant has also urged a statute of limitations defense to the claim for infliction of emotional distress. In light of the Court’s ruling on failing to allege a necessary element of bystander recovery, the Court does not address that argument.

Defendant moves to strike the FAC’s punitive damage allegations because Plaintiff has not sought, and the Court has not granted, an order that such allegations may be pleaded – as required by Code of Civil Procedure section 425.13. The Court finds that argument meritorious and would grant the motion. Because, however, the Court sustains the demurrer without leave to amend, the Court deems the motion to strike moot.

The demurrer is sustained without leave to amend. Plaintiff’s first amended complaint is dismissed with prejudice.

[1] Defendant UCI Health Physician Network, LLC was dismissed.

Judge Bruce G. Iwasaki

Department 58