Judge: Joseph Lipner, Case: 22STCV01666, Date: 2024-02-13 Tentative Ruling

Case Number: 22STCV01666    Hearing Date: February 13, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants Richard Paulson, M.D. (“Dr. Paulson”), University of Southern California (“USC”), and Keck School of Medicine of USC (“Keck”) (collectively, “Defendants”) move for summary judgment against Plaintiffs Tamara Khachatryan and Edik Marcarian (collectively, “Plaintiffs”). In the alternative, Defendants move for summary adjudication of each of Plaintiff’s remaining causes of action.

The Court GRANTS Defendant’s motion.

Background

This is a medical malpractice action.

Plaintiff Khachatryan has a congenital condition called Congenital Adrenal Hyperplasia (“CAH”) that causes high levels of progesterone production and is known to prevent pregnancies. This condition was undiagnosed for years, including most of the relevant time period in this case.

After years of attempting to conceive a child, Plaintiffs went to Defendants to seek treatment on June 13, 2018.

During their first visit with Dr. Paulson, Plaintiffs informed him that Khachatryan had a family history of CAH and asked him to test Khachatryan for CAH. Unbeknownst to Plaintiffs, Dr. Paulson conducted a test that indicated 17-OHP levels indicative of excessive adrenal progesterone production and the CAH condition. Dr. Paulson did not inform Plaintiffs of the test or diagnose Plaintiff with CAH. (See generally Responses to Undisputed Material Facts (“RUMF”) 1-14.)

Plaintiffs repeatedly asked Dr. Paulson to test for CAH, but he did not conduct subsequent tests or inform them of the initial test results. (RUMF 6, 8, 10, 13, 14.)

Without being aware of the 17-OHP test results, Plaintiffs underwent IVF treatment, which did not successfully produce a pregnancy. On July 27, 2019, Khachatrya’s elevated progesterone levels resulted in the cancellation of an embryo transfer. Dr. Paulson noted in the medical records his confusion about what could be causing Khachatryan’s elevated progesterone levels. Plaintiffs continued to ask Dr. Paulson for CAH testing, but he did not conduct additional tests for CAH. (Opposition at p. 9:15-17.)

On May 26, 2020, Khachatryan’s progesterone levels continued to be elevated. On July 11, 2020, Dr. Paulson ordered CAH testing. On July 27, 2020, Dr. Paulson informed Plaintiffs that he had diagnosed Khachatryan with CAH. (Martin Decl. Exh. 7.)

Plaintiffs filed this action on January 14, 2022. The operative complaint is now the Second Amended Complaint, which alleges, inter alia, medical malpractice and lack of informed consent. The other causes of action were dismissed following Defendants’ demurrer.

Defendants filed this motion on November 17, 2023. Plaintiffs filed an opposition and Defendants filed a reply.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) 

“In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar, supra, at pp. 844-845 [quotation marks omitted].) 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Discussion

The Code of Civil Procedure lays out the time that a plaintiff has to file a professional negligence action. “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. (Code Civ. Proc., § 340.5.) But, if Notice of Intention is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice. (Code Civ. Proc., § 364, subd. (d).)

The statute of limitations for the filing of a professional negligence action begins to run when the plaintiff has a suspicion that someone has done something wrong, even if the plaintiff is not aware of the specific facts that establish the claim. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d. 1103, 1110.)  But “wrong” should not be construed in a technical sense, rather in accordance with “lay understanding.”  (Id. at fn. 7.)

California Rules of Court, Appx. Emergency Rule 9, provides that the statutes of limitations for causes of action that exceed 180 days were tolled for 180 days from April 6, 2020 to October 1, 2020.

Here, Defendants have submitted evidence that shows that Plaintiff filed after the statute of limitations ran.  (See Defendants’ Undisputed Material Facts 1-12.)   The burden thus shifts to Plaintiff to demonstrate triable issues of material fact on the limitations issue.  Plaintiff, however, makes admissions in her briefing that make it clear that the statute of limitations has run. 

Plaintiff argues that she first became aware of her injury on July 27, 2020, when Dr. Paulson informed her of her CAH diagnosis. Emergency Rule 9 would have then tolled the statute of limitations until October 1, 2020. Plaintiff then had one year within which to file this action – until October 1, 2021. Plaintiff alleges that she served a 90-day notice to Defendants on September 29, 2021 (although Plaintiff did not submit evidence for this assertion until her untimely filing on February 9, 2024, the last court day before the hearing). Taking it as a given that this notice was served, the statute of limitations would be extended 90 days from service, to December 28, 2021. Even if the 90 days were added onto the end of the statute of limitations period instead, it would still only be extended to December 30, 2021. Plaintiff filed this action on January 14, 2022.

Further, there is reason to conclude that Plaintiffs had inquiry notice based on a suspicion that someone had done something wrong much sooner. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d. at p. 1110.) Khachatryan requested a CAH test at her very first visitation with Defendants on June 13, 2018. Plaintiffs repeatedly asked for CAH tests during their subsequent interactions with Dr. Paulson, by their own allegations. Asking repeatedly for a medical test demonstrates a knowledge that there is some necessity for one. Thus, it is probable that the one-year notice statute of limitations began running substantially sooner than the date that Dr. Paulson actually informed Khachatryan of her CAH diagnosis.

The Court therefore GRANTS summary judgment.