Judge: Lee W. Tsao, Case: 21STCV23428, Date: 2023-08-10 Tentative Ruling

Case Number: 21STCV23428    Hearing Date: February 1, 2024    Dept: C

ESPINOZA v. LAKEWOOD REGIONAL MEDICAL CENTER, INC.

CASE NO.:  21STCV23428

HEARING:  02/01/24

#3

Defendant/Cross-Defendant BHAVIK THAKKAR, M.D.’s Demurrer to Plaintiffs’ Complaint is SUSTAINED with 30 days leave to amend.

Moving Party to give notice.

This medical malpractice action was filed by Plaintiffs DOLORES ESPINOZA and AGUSTIN ESPINOZA (collectively “Plaintiffs”) against Defendants LAKEWOOD REGIONAL MEDICAL CENTER, INC. and RADOSLAV RAYCHEV, I, M.D. and Does 1 to 100 on June 24, 2021. On June 17, 2022, Lakewood Regional Medical Center, Inc. filed a Cross-Complaint against various cross-defendants, including Moving Party Defendant/Cross-Defendant BHAVIK THAKKAR, M.D. (“Dr. Thakkar” or “Defendant”). On July 24, 2023, Plaintiffs filed a Doe Amendment naming Dr. Thakkar as a defendant in the Complaint.

Plaintiffs’ allege that Defendants breached their duty of care by negligently treating Plaintiff Dolores Espinoza’s medical condition while she was a patient at Lakewood Regional Medical Center.

Plaintiffs’ Form Complaint asserts claims for Negligence and Loss of Consortium.

Dr. Thakkar specially and generally demurs to Plaintiffs’ Complaint.

Uncertainty – Negligence and Loss of Consortium

Dr. Thakkar argues that Plaintiffs’ claims for medical negligence and loss of consortium are uncertain and do not state facts sufficient to constitute causes of action because Plaintiffs’ Complaint does not specifically mention him, except for alleging the negligence cause of action against all Doe defendants.

The elements of a claim for professional negligence are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.)

A married person may recover for loss of consortium when his or her spouse has been injured by the negligence of a third party. (See Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, 31.) The elements for a loss of consortium cause of action are: (1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant’s act. (See Vanhouser v. Sup. Ct. (2021) 206 Cal.App.4th 921, 927.)

Plaintiffs allege “that defendants, Lakewood Regional Medical Center, Inc. Radoslav Raychev, I, M.D. and Does 1 to 100… owed plaintiff a duty of care to provide her with competent and adequate medical care and services. [¶] Plaintiff further alleges that during said period of time, said Defendants, and each of them, breached said duty of care by negligently treating plaintiff’s medical condition.” (Complaint, p. 4.)

In ruling on demurrers, courts must treat “the demurrer as admitting all material facts properly pleaded,” but  do not “assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 5 Cal.4th 962, 967.)

The Court finds both claims are uncertain as to Dr. Thakkar. Plaintiffs do not mention Dr. Thakkar specifically in the Complaint, except as a Doe Defendant. No facts are alleged pertaining to Dr. Thakkar’s alleged role in Plaintiff Dolores Espinoza’s care, or what Dr. Thakkar’s purported negligence was during Plaintiff’s hospital stay. Plaintiffs fail to adequately allege how Dr. Thakkar breached his duty and was the proximate cause of Plaintiff’s injuries and damages.

The demurrer is SUSTAINED with 30 days leave to amend.  

Relation- Back Doctrine

Dr. Thakkar also argues that Plaintiffs’ claim against Dr. Thakkar is time-barred because Plaintiffs did not file a Doe amendment naming Dr. Thakkar until July 24, 2023—which is more than two years after this action was filed, and about 2 years after the Subject Incident occurred.

Under the relation-back doctrine, an amendment relates back to the original complaint if the amendment (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276.) Doe amendments are governed by the relation-back doctrine. “The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. [Citation.] A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. [Citation.] If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo v. Sup. Ct. (1999) 75 Cal.App.4th 169, 176.)

In Opposition, Plaintiffs argue that the issue of whether Plaintiffs’ claims for medical negligence and loss of consortium are time-barred is inappropriately resolved at the demurrer stage.

The four walls of Plaintiffs’ operative pleading do not conclusively establish that Plaintiffs were aware of Dr. Thakkar’s identity and role in Plaintiff Dolores Espinoza’s alleged injuries at the time the initial Complaint was filed. Because this element of knowledge is required to bar the application of the relation-back doctrine, the Court cannot grant sustain the demurrer on this basis. (See Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.) The Court cannot sustain a demurrer based on a statute of limitations defense unless the allegations of the Complaint demonstrate that the claims are necessarily time-barred. The Demurrer is not sustained on this basis.