Judge: Kevin C. Brazile, Case: 20STCV22215, Date: 2024-03-14 Tentative Ruling

Hearing Date: March 14, 2024

Case Name: Faal v. The Estate of Lawrence Dorr, MD, et al.

Case No.: 20STCV05619 

Matter: Motion for Summary Judgment

Moving Party: Defendant The Estate of Lawrence Dorr, MD

Responding Party: Plaintiff Sally Faal

Notice: OK

Ruling: The Motion for Summary Judgment is granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On February 9, 2023, Plaintiff Sally Faal filed the operative Fourth Amended Complaint against Defendants The Estate of Lawrence Dorr, MD and Keck Hospital of USC for medical negligence.  Plaintiff alleges that “Dr. DORR did not recommend physical therapy after the surgeries, breached the standard of care in performance of the 3 revision surgeries on the left hip by failing to ensure a stable left total hip replacement in addition to leaving plaintiff with a loose acetabular component of the left hip, which required revision to a custom acetabular component by Dr. Bhagia. Dr. DORR should have performed the initial revision total hip replacement on December 6, 2017 using a custom acetabular component to compensate for the severe acetabular bone loss and subsequent surgeries thereafter. This breach resulted in plaintiff having two further hip surgeries performed by Dr. DORR before she was eventually treated appropriately by Dr. Bhagia with placement of a custom acetabular component. [¶] Plaintiff further alleges that the surgical procedures performed by Dr. DORR left her with dysfunction of her left hip and interference with her activities of daily living requiring the ongoing use of crutches. This also led to having significant low back, right hip and left knee pain due to her favoring her left hip.”

Defendant now seeks summary judgment on the grounds that (a) this action is time-barred and (b) the treatment that was provided to Plaintiff met the applicable standard of care and there is no evidence of causation.  

The law of summary judgment provides courts “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. (2001) 25 Cal.4th 826, 843.)  In reviewing a motion for summary judgment or adjudication, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc. § 437c(p)(2).)  To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, at p. 849.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Defendant argues that “[t]he undisputed evidence could not be clearer that Plaintiff suspected something was wrong with the care and treatment provided by Dr. Dorr as early as December 28, 2017, but not later than May 10, 2018. (FACT 32.) Thus, the clock on the one-year statute of limitations began as early as December 28, 2017, but no later than May 10, 2018 and expired no later than May 10, 2019. (FACT 33.) Plaintiff’s claim is time-barred because she filed her Complaint on February 13, 2020, well over one year after she first formulated a suspicion of wrongdoing as defined by law.”

Code Civ. Proc. § 340.5 provides that “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.” 

Plaintiff contends that “for weeks after the purported ‘'I made a mistake’ statement by Dr. Dorr, Plaintiff continued to rely on Dr. Dorr's professional skill and judgment to perform two more revision total hip replacement surgeries, and continued under his care for another six months, well into May, 2018. . . . Until she received her X-Ray results on November 15, 2018, and discussed them with her doctors at the Moorpark Family Medical Clinic, Ms. Faal had no reason to ‘suspect’ Dr. Dorr of any wrongdoing, and no reason to ‘attribute’ her ongoing hip problems to any act or omission by Dr. Dorr.”  Plaintiff contends that this is especially so as she has had a history of hip problems for years. 

Plaintiff appeared in December 2017 before Dr. Dorr and inquired why she was experiencing pain after surgery.  Based on Plaintiff’s notes, Dr. Dorr stated that he “made a mistake” such that this is around the time that Plaintiff knew or should have known through diligence that Dr. Dorr was negligent.  The idea that a “mistake” does not necessarily equate to negligence is unsupported here.  There is no evidence that the standard of care for hip replacements includes an array of reasonable mistakes and that only some mistakes causing damage are negligent in nature.  Further, the mistake could be tied to Plaintiff’s damages because she was experiencing pain despite her hip replacement, had experienced improper hip rotations the day before seeing Dorr, and because soon thereafter she suffered hip dislocations.  The continued care of Plaintiff might have been relevant to tolling the statute of limitations, but in the face of the evidence that Plaintiff was already told a mistake had been made, there is no basis for tolling.  Plaintiff relies on the principle that “the statute d[oes] not run during the period the patient remain[s] in the physician's care.”  (Sanchez v. S. Hoover Hosp. (1976) 18 Cal.3d 93, 97.)  This, however, is tempered by “evidence of the patient's actual discovery of the injury or a failure to discover through lack of due diligence under the circumstances.”  (Ibid.)  This is the case here as, again, Plaintiff was told a mistake had been made after she had pain and unusual hip rotations following surgery.

One year from December 2017 is December 2018, such that the Complaint was filed late in February 2020.  (Code Civ. Proc. § 340.5.)  Thus, the Motion for Summary Judgment is granted.  The objections are overruled.  A proposed judgment is to be provided within 10 days.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.