Judge Colin Leis, Case 20STCV23324 2022-08-17 Tentative Ruling

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

Plaintiffs Hilary Trang (“Trang”) and Hing Ang filed this action on June 19, 2020, asserting two causes of action: (1) medical malpractice and (2) loss of consortium. The operative First Amended Complaint (“FAC”) was filed on June 13, 2022.

This action arises out of injuries sustained by Trang following a hysterectomy performed by Defendant Eric S. Chan, M.D. (“Dr. Chan”).

Dr. Chan now demurs to the FAC on the basis that Plaintiffs’ claims are barred by the applicable statute of limitations.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

On June 8, 2016, Trang underwent a hysterectomy. (FAC, ¶ 8.) Thereafter, for a period of three years, she continually presented to Dr. Chan, among others, with lower abdominal pain and a Grade II (abnormal) Estimated Glomerular Filtration Rate Test (an “eGFR”). (FAC, ¶ 8.) This eventually resulted in Trang losing the function of her right kidney and an atrophic ureter. (FAC, ¶ 8.) The ureter injury was diagnosed on July 7, 2019, and the kidney injury was diagnosed on August 1, 2019. (FAC, ¶ 9.) Plaintiffs allege that her doctors failed to realize, based on her complaints of lower right abdominal pain and right flank pain and her abnormal eGFR results, that there was a possible complication, blockage and stricture of her right ureter, thereby preventing loss of kidney function. (FAC, ¶¶ 10-12.)

Dr. Chan contends that Plaintiffs’ claims are without merit because they are barred by the three-year statute of limitations that applies to medical malpractice claims.[1] (Code Civ. Proc., § 340.5 [“In an action for injury … against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of 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.”].)

“The three-year period begins to run when the plaintiff discovers the harmful effect, i.e., the physical manifestation of the wrongful act.” (Rose v. Fife (1989) 207 Cal.App.3d 760, 768.) “The negligent cause of that effect is not a concern for the three-year period.” (Ibid.) But there need not be a “correlation between manifestation of damage and the plaintiff’s ‘discovery’ of the damage.” (Marriage & Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1654.) “[D]amage is ‘manifested’ for purposes of commencing the three-year period when it has become evidenced in some significant fashion, whether or not the patient/plaintiff actually becomes aware of the injury.” (Ibid.) In other words, damage which has “clearly surfaced and is noticeable” constitutes an “injury” for the purposes of the three-year statute of limitations regardless of whether the plaintiff or his or her physician recognizes it as such. (Ibid.)

Dr. Chan argues that the physical manifestation of the allegedly wrongful act (of failing to diagnose the injury to the ureter) occurred on June 9, 2016. On that day, as alleged in the FAC, Dr. Chan ordered kidney function tests, and those tests showed an approximate 50% decrease in kidney function. (FAC, ¶¶ 11, 20.) Plaintiffs allege that despite the results of the kidney function tests and despite Trang’s complaints of severe back pain, Dr. Chan chose not to perform any follow-up evaluation. (FAC, ¶ 20.) Although Plaintiffs do not specifically allege when Trang began to complain of severe back pain, it can be inferred that it was on June 9, 2016 (or sometime soon thereafter) because Plaintiffs allege that Dr. Chan should have suspected a right uretral injury “that would have been addressed in the immediate post-op period.” (FAC, ¶ 13.)

By Plaintiffs’ own allegations, severe back pain in the immediate post-operative period coupled with test results indicating abnormal kidney function on the day after a hysterectomy are noticeable and clear indications of injury, so the three-year statute of limitations began to run on or about June 9, 2016. In any event, the three-year statute of limitations certainly had expired by June 19, 2020, when Plaintiffs filed the instant case.

But the inquiry does not end there because the three-year period is tolled upon proof of fraud or intentional concealment. (Code Civ. Proc., § 340.5.) Plaintiffs allege in their complaint that Dr. Chan intentionally concealed Trang’s possible injury by refusing to order further testing. (FAC, ¶ 24.) Dr. Chan contends that this allegation is insufficient to toll the limitations period because intentional concealment requires “affirmative acts by the health care provider rather than mere omission or exercise of poor judgment.” (McNall v. Summers (1994) 25 Cal.App.4th 1300, 1311-1312.) But it is not clear to the court that Dr. Chan’s allegedly purposeful choosing not to order further testing is not an affirmative act.

[1] There is no dispute that the loss of consortium rises and falls with the medical malpractice claim. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746.)

HILARY TRANG , et al.; Plaintiffs, vs. ERIC S. CHAN, M.D. , et al., Defendants.	Case No.:	20STCV23324

	Hearing Date:	August 17, 2022

	Time:	8:30 a.m.

	[TENTATIVE] ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT