Judge: Malcolm Mackey, Case: 22STCV19039, Date: 2022-12-05 Tentative Ruling

Case Number: 22STCV19039    Hearing Date: December 5, 2022    Dept: 55

BUTAKOV v. KECK MEDICAL CENTER OF USC                             22STCV19039

Hearing Date:  12/5/22,  Dept. 55

#4:   DEMURRER TO THE COMPLAINT.

Notice:  Okay

Opposition

MP:  Defendant ANDREAS MAUER, MD.

RP:  Plaintiff.

Summary

On 6/10/22, Plaintiff PAUL BUTAKOV, a self-represented litigant, filed a Complaint for Medical Negligence, alleging that, in June 2020, Plaintiff underwent vessel coronary artery bypass at HUNTINGTON HOSPITAL, and thereafter experienced a clicking noise in his chest, which thereafter was discovered to be an improperly closed chest plate by doctors at KECK MEDICAL CENTER OF USC.

MP Positions

Moving party requests an order sustaining the demurrer to the Complaint, on grounds including the following:

·         The applicable one-year Statute of Limitations expired.

·         Plaintiff’s Complaint states that plaintiff underwent a three-vessel coronary artery bypass graft surgery performed by DR. MAUER and Robin Cohen, MD., in June 2020.. (Compl. ¶ 25.)

·         With respect to the alleged treatment from DR. MAUER, plaintiff suspected wrongdoing in June 2020, and sought a second opinion. With that suspicion, plaintiff was required to “find the facts,” and file his Complaint against DR. MAUER within one-year. However, the Compliant was not filed until June 10, 2022, two years after the subject incident.

·         A C.C.P. 364 letter serves to toll the statute of limitations for 90 days only if served at the right office address, within 90 days of the expiration of the statute of limitations

RP Positions

Opposing party advocates overruling, or leave to amend, for reasons including the following:

·         This case was filed June 10, 2022, within one year of discovering the wrongful conduct of Defendants.

·         Plaintiff had three years to commence this action, or one year from the date of discovery of the injury, whichever was sooner.

·         Plaintiff discovered the injury in or about July or August 2021.

·         It was reasonable for Plaintiff to believe that the pain and suffering he was enduring was the result of his post-surgery. It was not until he visited Defendant, Keck Medical, that he was more clearly informed of the cause of his pain and resulting injuries.

Tentative Ruling

The demurrer is overruled.

Twenty days to answer.

The Complaint sufficiently alleges Plaintiff’s ongoing delays in learning any negligent cause of alleged injuries, due to several doctors either ignoring him, or stating other various causes not necessarily related to negligent medical treatment, such as other surgery would correct the condition but ultimately it did not, excessive dead tissue prevented his chest from being closed, a large growth that would self-reduce but did not, and ultimately refusal to advise or treat ongoing medical conditions  (e.g., Complaint, ¶¶ 26 - 32).

Modernly, a demurrer based upon a defense lies only where it was revealed on the face of the complaint or by judicial notice, and not based on uncertainty.  E.g.,  Union Carbide Corp. v. Sup. Ct. (1984) 36 Cal. 3d 15, 25 (rejecting motion to strike based on uncertainty as to whether Statute of Limitations applied).  

As to claims of injury or death against health care providers based upon professional negligence, actions shall be commenced three years after the injury, or one year after plaintiffs discover or through reasonable diligence should have discovered, both the physical injury and its negligent cause, whichever occurred first.  Kernan v. Regents of Univ. of Cal. (2022) 83 Cal. App. 5th 675, 680.  As to notices of intention to commence a medical negligence action served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action is extended 90 days from the service.    Ibid., at 681.

“ ‘When a plaintiff reasonably should have discovered facts for purposes of the accrual of a case of action or application of the delayed discovery rule is generally a question of fact, properly decided as a matter of law only if the evidence (or, … the allegations in the complaint and facts properly subject to judicial notice) can support only one reasonable conclusion.’ ”  Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1252   (court reversed as to sustaining a demurrer based upon determining the date of reasonable discovery as a matter of law).  Accord  E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1320.

“In professional malpractice cases, for example, delayed accrual is justified on the basis that the expertise expected of professionals is beyond the ability of laypersons to evaluate, and on the further basis that it may be impossible for a layperson even to observe the professional’s application of this expertise.”  Shively v. Bozanich (2003) 31 Cal. 4th 1230, 1248.  [Emphasis added.] “ ‘[W]hen personal injury is suffered [w]ithout perceptible trauma and by silent and insidious impregnation as a consequence of the act or omission of another, who knows, or is charged with the responsibility of knowing that such act or omission may result in personal injury, and the injured person is unaware of the cause of his injury, and as a reasonably prudent and intelligent person could not, without specialized knowledge, have been made aware of such cause, no action for a tort resulting from such cause begins to accrue until the injured person knows or by the exercise of reasonable diligence should have discovered the cause of such injury.’ ”   Frederick v. Calbio Pharmaceuticals (1979) 89 Cal.App.3d 49, 58-59  (“if plaintiffs have adequately alleged facts excusing their delayed discovery of the negligent cause of their decedent's death, their claim is not barred by the one-year period commencing with his death.”).  [Emphasis added.]