Judge John J. Kralik, Case 20STCV31521 2022-09-16 Tentative Ruling

Plaintiff Jasper Rose (“Plaintiff”) alleges that in 2017 and sometime prior, he was being treated for back pain by Defendant Raymond G. Tatevossian, M.D., stemming from a degenerative compression of the thorax spinal discs in his back. Plaintiff alleges that Dr. Tatevossian prescribed opioids to lessen the pain and represented that Plaintiff could get off the pain medication if he utilized a neurostimulator, and that the neurostimulator from Defendant Nevro Corporation (“Nevro”) was safe and approved by the FDA. On September 17, 2017, based on the representations of Dr. Tatevossian and Defendant Greg Khouganian, M.D., Plaintiff went forward with surgery to surgically implant into his back the Nevro neurostimulator model NIPG1500 (serial no. 47909). From September 17, 2017 to December 21, 2018, Dr. Tatevossian and Dr. Khouganian stated that the intensity of the device signal had to be adjusted and that the reason the device did not work was because programming of the device had changed. Plaintiff alleges that unbeknownst to him, Defendants had negligently or wrongfully implanted the device in the thorax area of his back instead of the upper buttock and that Nevro was aware that the device was not giving the desired result.

The third amended complaint (“TAC”), filed July 6, 2022, alleges causes of action for: (1) medical malpractice (negligence) against the Doctor Defendants; (2) negligent misrepresentation against Nevro; and (3) failure to obtain informed consent against Dr. Khouganian.

Dr. Tatevossian requests judicial notice of special interrogatory (“SROG”) nos. 14 and 15 and Plaintiff’s responses, which have been verified by Plaintiff. (See Dem. at Ex. A [SROG Responses].)

· SROG No. 14 asks Plaintiff to state the date on which he first believed that Dr. Tatevossian had caused him harm. Plaintiff responded “September 17, 2017 through the present.”

· SROG No. 15 asks Plaintiff to state the date on which he first believed that Dr. Tatevossian had acted negligently with respect to your care and treatment. Plaintiff responded, “September 17, 2017 through May 2020.”

The request is granted. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604–605 [“The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.”].)

Dr. Tatevossian demurs to the 1^st cause of action alleged in the TAC on the ground that it is barred by the statute of limitations under CCP § 340.5.

In an action for injury or death 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. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. …

According to the TAC, in 2017 and sometime prior thereto, Plaintiff was being treated for back pain and had been told by Dr. Tatevossian that the device was safe and would be approved by the FDA soon and the Doctor Defendants and Nevro represented that the device would lessen Plaintiff’s pain. (TAC, ¶¶10-11.) On September 17, 2017, Plaintiff underwent the surgical implantation of the device. (Id., ¶9.) Plaintiff alleges that the implantation of the device caused additional pain and scraping of tissue in Plaintiff’s back and the battery pack was also painful. (Id., ¶13.) Plaintiff alleges that from September 17, 2017 to December 21, 2018, the Doctor Defendants stated that the reason the device did not work was because the programming of the device had to be changed. (Id., ¶14.) He alleges that he made the “Defendant Doctors and the NEVRO representative aware that the NEVRO neurotransmitter was not performing as designed, as represented, and expected nor in an acceptable manner; and that either the implanted neurostimulator was not affecting Plaintiff’s pain level or was actually increasing Plaintiff’s pain.” (Id.)

Dr. Tatevossian argues that the action is barred by the statute of limitations because the statute of limitations began running latest December 21, 2018, but the action was filed on August 18, 2020. Dr. Tatevossian cites to Plaintiff’s SROG responses, showing that Plaintiff was at least on inquiry and/or actual notice of issues with the device and Dr. Tatevossian’s alleged negligence as early as September 17, 2017.

An action for medical malpractice must be commenced the earlier of 3 years after the date of injury or 1 year after Plaintiff discovers (or through the use of reasonable diligence should have discovered) the injury. (CCP § 340.5.) Here, Plaintiff was aware of the injury sometime between September 17, 2017 and December 21, 2018 when he received the surgical implantation of the device and tests were being performed. Plaintiff alleged in the TAC that the device was not working properly at that time and that instead the device appeared to be increasing his pain level.[1]

Based on the allegations of the TAC taken together with the judicially noticeable SROG responses, the Court finds that the statute of limitations period began on September 17, 2017 (according to the SROG Responses) or by latest December 21, 2018 (according to the TAC). Taking the later date of December 21, 2018, the medical malpractice cause of action would be time-barred as against Dr. Tatevossian based on the one-year statute of limitations period pursuant to CCP § 340.5.

As such, the demurrer to the 1^st cause of action is sustained. The Court notes that the demurrer is unopposed and thus Plaintiff has not filed a response to the demurrer nor has he presented facts showing that he can amend the pleading. As such, the demurer is sustained without leave to amend.

Defendant Raymond G. Tatevossian, M.D.’s demurrer to the 1^st cause of action is sustained without leave to amend.

[1] Dr. Tatevossian argues that to the extent Plaintiff argues that he was unaware of the facts regarding his injury until July 22, 2020 when he got the device removed cannot be the date for the statute of limitations to begin since Plaintiff already had inquiry notice. The Court notes that Plaintiff’s allegation regarding the July 22, 2020 date is alleged in paragraph 51 in connection with the 2^nd cause of action for negligent misrepresentation against Nevro only. The allegations regarding the July 22, 2020 date is not made in the “Summary of the Action” (¶¶9-14) or in connection with the 1^st cause of action for medical malpractice (negligence) (¶¶15-22), nor were the later allegations of the TAC incorporated into the 1^st cause of action.

Superior Court of California

County of Los Angeles

Department B