Judge: Lee W. Tsao, Case: 23NWCV00035, Date: 2024-10-15 Tentative Ruling
Case Number: 23NWCV00035 Hearing Date: October 15, 2024 Dept: C
Jamie Johnsrud vs Eduardo
Guzman, M.D., et al.
Case No.: 23NWCV00035
Hearing Date: October 15, 2024 @ 9:30 a.m.
#3
Tentative Ruling
Defendant AHMC Whittier Hospital Medical Center
LP’s Demurrer is SUSTAINED without leave to amend.
Defendant to give notice.
Background
This medical malpractice action was initiated on January 5,
2023. In the operative First Amended
Complaint (“FAC”) filed on January 31, 2023, Plaintiff Jamie Johnsrud
(“Plaintiff”) alleges that on November 18, 2021, at Whittier Hospital Medical
Center, “Defendants EDUARD GUZMAN, M.D.; SANDRA NIETO, M.D.; KENNETH R. PURDOM,
M.D. and Does 1-20 negligently perforated Plaintiff Jamie Johnsrud's bowel
while performing a hysterectomy and failed to recognize the performation [sic] prior
to closing up the surgical site, causing Plaintiff serve [sic] injuries and
emotional distress.” (Complaint, p. 4.) On September 27, 2023, Plaintiff filed
an amendment to replace Doe 1 with AHMC Whitter
Hospital Medical Center, LP (“Defendant”).
The first and only cause of action is for negligence.
Defendant AHMC Whittier Hospital Medical Center LP demurs
to the first cause of action on the grounds that the claim is time barred.
Legal Standard
A
demurrer for sufficiency tests whether the complaint states a cause of
action.¿¿(Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747 (Hahn).)¿¿When
considering demurrers, courts read the allegations liberally and in context.¿¿(Taylor
v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th
1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the
face of the pleading or via proper judicial notice.¿¿(Donabedian v. Mercury
Ins. Co.¿(2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings
alone and not the¿evidence or other extrinsic matters.¿ Therefore, it lies only
where the defects appear on the face of the pleading or are judicially
noticed.”¿¿(SKF Farms v. Superior Court¿(1984) 153 Cal.App.3d 902,
905.)¿ “The only issue involved in a demurrer hearing is whether the complaint,
as it stands, unconnected with extraneous matters, states a cause of
action.”¿¿(Hahn, supra, 147 Cal.App.4th at p. 747.)¿
Discussion
Defendant
argues that the first cause of action for general negligence is actually a
claim based on alleged professional negligence against a health care provider
and, as such, is time barred by the application of CCP § 340.5. Code of Civil Procedure section 340.5 states in
relevant part:
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.
For
the purposes of this statute, “injury” means both the harm suffered and its
wrongful cause. (See Larcher v. Wanless (1976) 18 Cal.3d 656, 657-58
[interpreting statute as to wrongful death claims].) “Professional negligence”
is “[a] negligent act or omission to act by a healthcare provider in the
rendering of professional services, which act or omission is the proximate
cause of a personal injury.” (Id.) When a plaintiff asserts a claim
against a healthcare provider on a legal theory other than professional
negligence, the Court must determine whether the claim “is nonetheless based on
the health care provider’s professional negligence,” (Larson v. UHS of
Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347.) “[T]he test is
whether [the action] flows or originates from a healthcare provider’s negligent
act or omission.” (Preferred Risk Mutual Ins. Co. v Reiswig (1999)
21 Cal.4th 208. 217.)
The patient is charged with presumptive
knowledge of the injury, and the statute commences to run, once he or she has
notice or information of circumstances to put a reasonable person on inquiry,
or had the opportunity to obtain knowledge from sources open to his or her
investigation. Thus, when the patient’s reasonably found suspicions have been
aroused, and he or she has actually become alerted to the necessity for
investigation and pursuit of his or her remedies, the one-year period begins. (Warran
v. Schecter (1997) 57 Cal. App. 4th 1189, 1201.)
Here, Plaintiff alleges that she suffered severe injuries
and emotional distress as a result of the November 18, 2021 hysterectomy. As such, it appears on the face of the FAC
that that the cause of action accrued on November 18, 2021, because Plaintiff
had actually become alerted to the necessity for investigation. Thus, the one-year period under CCP § 340.5 began
to run on that date. The Complaint was
filed on January 5, 2023, more than one year after the date Plaintiff was injured
and the cause of action accrued. Thus,
the FAC as to AHMC Whitter Hospital Medical Center, LP is time-barred.
Plaintiff argues that the amendment adding AHMC Whittier
Hospital Medical Center, LLP “relates back” to the date the Complaint was
filed. This argument is unavailing
because the Complaint was already time-barred when it was filed.
Leave to Amend
Plaintiff requests leave to amend to allege facts
“surrounding Plaintiff’s belated discovery of the basis for liability on the
part of Whitter.” However, the issue
here is not when Plaintiff discovered Whittier’s liability. Rather, the issue is when Plaintiff
discovered she had been injured, or when the cause of action accrued. To rely on the discovery rule for delayed
accrual of a cause of action, a plaintiff whose complaint shows on its face
that the plaintiff’s claim would be barred without the benefit of this rule
must specifically plead facts showing (1) the time and manner of discovery, and
(2) the inability to have made earlier discovery despite reasonable diligence.
(Holman v. County of Butte (2021) 68 Cal.App.5th 189,
197-98.) Plaintiff has not explained how leave to amend could result in a
timely claim.
Accordingly, the demurrer is SUSTAINED without leave to
amend.