Judge: Martha K. Gooding, Case: 20-01174475, Date: 2023-05-15 Tentative Ruling
1) Motion for Summary Judgment and/or Adjudication
2) Motion to Compel Production
Before the Court is a Motion by Defendant Kenneth Lynn M.D. (“Dr. Lynn”) for summary judgment on that First Amended Complaint (“FAC”) filed by Plaintiffs Deborah Quintero (“Deborah”) and Edward Quintero (“Edward”) (collectively, “Plaintiffs”). Dr. Lynn seeks summary judgment on the ground that undisputed facts show that Plaintiffs’ claims against im are barred by the statute of limitations.
For the reasons set forth below, the Motion is GRANTED.
This is a medical malpractice action, in which Deborah asserts a claim for medical malpractice and Edward asserts a claim for loss of consortium. (ROA # 176) The Complaint was timely filed on 12/14/22, within the statute of limitations. (ROA # 2).
Dr. Lynn was not named as a defendant in Plaintiffs’ original Complaint. Rather, Plaintiffs named Defendant Dr. Lynn as Doe Defendant 2 on 4/13/22, well after the statute of limitations had run. (ROA 101). Plaintiffs thereafter filed their FAC, the operative pleading, on 9/19/22. (ROA 176).
The issue raised by Dr. Lynn’s Motion is whether Plaintiffs’ claims against Dr. Lynn “relate back” to the date of the filing of the Complaint, so as to make them timely asserted under the applicable statute of limitations.
Evidentiary Objections
The Court overrules Defendant’s evidentiary objections nos. 1 and 2 to opposition evidence.
Legal Standard for Doe Amendment
When a defendant is improperly named by a fictitious name (e.g., defendant can show plaintiff knew defendant's name and the facts supporting the cause of action against them), the affirmative defense that the statute of limitations had run when defendant was named may raise a fact issue. The affirmative defense should be pleaded and can be asserted during the trial or by summary judgment motion. [See Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 900-901—reversing summary judgment as defendant did not carry its burden to show “plaintiffs actually knew facts giving them cause of action”; McOwen v. Grossman (2007) 153 Cal.App.4th 937, 944-948—finding triable issue of fact in a medical malpractice action as to whether plaintiff knew of the theory under which defendant could be liable]
Upon compliance with the procedural requirements discussed below, a CCP section 474 amendment identifying a person or entity as a “Doe” defendant “relates back” to the commencement of the action for statute of limitations purposes. [See Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 935; Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 897-898; McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371]
The amended complaint will be given relation back effect, so as to avoid the statute of limitations, provided all of the following are true:
(Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600-601; San Diego Navy Broadway Complex Coalition v. California Coastal Comm'n (2019) 40 Cal.App.5th 563, 579.)
Designating a defendant by a fictitious name is proper only if plaintiff alleges in the complaint that plaintiff is “ignorant of the name of a defendant.” [CCP § 474]
Plaintiff's requisite “ignorance” of defendant's name has been expansively interpreted to mean either:
● plaintiff was unaware of defendant's identity;
● plaintiff was unaware of defendant's culpability (facts giving rise to a cause of action against the defendant); or
● the law did not give plaintiff a right of action until after commencement of the action.
[See Marasco v. Wadsworth (1978) 21 C3d 82, 88; Snoke v. Bolen (1991) 235 CA3d 1427, 1431].
“[A] plaintiff will not be refused the right to use a Doe pleading even where the plaintiff's lack of actual knowledge is attributable to plaintiff's own negligence.” [Grinnell Fire Protection System Co. v. American Sav. & Loan Ass'n (1986) 183 Cal.App.3d 352, 359; see Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.] As our Supreme Court has stated: “[W]hether [the plaintiff's] ignorance is from misfortune or negligence, he is alike ignorant, and this is all the statute requires.” [Irving v. Carpentier (1886) 70 Cal. 23, 26; Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 900—the California Supreme Court has “blessed negligent ignorance”].
The CCP section 474 procedure may be used when the plaintiff knew the defendant's identity but did not know the facts indicating the defendant's culpability at the time the action was filed: “[E]ven though the identity of a defendant be known, if the plaintiff is ignorant of the basis of liability against such a defendant, the defendant may be held as a party defendant under section 474 of the Code of Civil Procedure.” [Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 253; see San Diego Navy Broadway Complex Coalition v. California Coastal Comm'n (2019) 40 Cal.App.5th 563, 579.)
Section 474 allows delay in naming particular persons as defendants where plaintiff lacks knowledge of sufficient facts to cause a reasonable person to believe liability is probable: “The distinction between a suspicion that some cause could exist and a factual basis to believe a cause exists is critical in the operation of § 474.” [General Motors Corp. v. Sup.Ct. (Jeffrey) (1996) 48 Cal.App.4th 580, 595 (original emphasis omitted); Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 899-900—“plaintiff is not barred from invoking section 474 merely because she suspected the person of wrongdoing based on an incomplete set of facts”].
“The fact that the plaintiff had the means to obtain knowledge is irrelevant.” (General Motors Corp. v. Superior Court, supra, 48 Cal.App.4th at p. 594.) “In short, section 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading.” (Id. at p. 596.)
Merits
As noted above, Dr. Lynn was not originally named in the Complaint; instead, Plaintiff added him as Doe Defendant 2 on 4/13/22, well after the statute of limitations had run. (ROA 101). Plaintiffs thereafter filed their FAC. (ROA 176).
Dr. Lynn argues the Doe amendment that brought him into the case does not relate back to the timely-filed Complaint because Plaintiffs were not actually unaware of Defendant’s alleged culpability and identity.
As explained below, the Court agrees the evidence shows Plaintiffs’ knowledge of facts indicating Defendant’s identity and culpability at the time they filed their Complaint.
Plaintiffs allege the events giving rise to their claims stem from medical treatment Ms. Quintero received in December 2019, which included the named defendants’ failure to timely diagnose compartment syndrome and atrial compromise, which resulted in the amputation of the lower portion of Deborah’s right leg. (ROA 176, FAC, ¶4; SSUF 2.)
Deborah presented to the emergency room (“ER”) at Memorial Care Saddleback Medical Center (the “Medical Center”) on December 1, 2019 with severe pain and cramps in her right leg. (SSUF 3.) She was seen in the emergency room (“ER”) by Dr. Lynn. (SSUF 6.) Deborah was then admitted to the Medical Center and underwent back surgery with Jason Liauw, M.D. (SSUF 7.)
During her admission at the Medical Center, Dr. Lynn saw Deborah and considered an orthopedic specialist referral to assess potential compartment syndrome in her right leg. (SSUF 8.)
Deborah testifies that, during her first visit to the ER in December of 2019, Dr. Lynn told her she had a dropped foot and everything would work out. (Deposition of Deborah Quintero (“Deborah Depo.”) p. 96.)
Edward (Deborah’s husband) testifies that he and his wife were very concerned about the discoloration of her leg during that first ER admission. Dr. Lynn mentioned they wanted to bring in someone to determine if there was blood compartmentalization. (Deposition of Edward Quintero (“Edward Depo.”) pp. 35-36.)
On or about December 9, 2019, after her back surgery, Deborah was transferred to Covington Manor Health and Rehabilitation Center (“Covington”) for rehabilitation, where she was seen on multiple occasions by both Dr. Lynn and Defendant Dr. Tabatabai. (SSUF 9.)
While she was at Covington, Deborah continued to experience problems with her right leg, and Edward expressed concern to both Dr. Lynn and Dr. Tabatabai regarding those problems, including discoloration, swelling and coldness. (SSUF 10.)
Edward recalls 3 to 4 visits from Dr. Lynn while his wife was at Covington after the back surgery. (Deborah Depo. II, pp. 27-29.) Edward told Dr. Lynn that his wife’s leg was cold to the touch, was discolored and turning black, and was swelling. Both Dr. Lynn and Dr. Tabatabai told Edward that it was blood pooling from her surgery and that it would resolve on its own. (Edward 9/15/2021 Depo., pp. 29, 36-37.) When these symptoms were reported to him, Dr. Lynn did nothing differently than Dr. Tabatabai. (Edward 9/15/2021 Depo., p. 37.)
Defendant Dr. Lynn provides medical records to confirm his treatment of Deborah while she was at the hospital and the during her stay at Covington. Dr. Lynn is a physical medicine and rehabilitation specialist. Dr. Tabatabai was the attending physician at Covington.
On or about December 21, 2019, Deborah was taken back to the ER at the Medical Center with ongoing right leg complaints. (SSUF 12.)
Following Deborah’s second ER presentation, it was determined that her lower right leg (below the knee) required amputation and she underwent surgery for same. (SSUF 13.)
At or about the time of Deborah’s presentation to the ER on or about December 21, 2019, Deborah was told by two doctors – Dr. Dearing and Dr. Wallace – that she had a blood clot in her femoral artery that caused blockage of blood circulation in her right leg that led to necrosis/gangrene and necessitated the amputation of the lower portion of Deborah’s right leg. (SSUF 14.)
The Court finds that Defendant has met its burden to show that, at the time the Complaint was filed, Plaintiff had actual knowledge of Dr. Lynn’s identity and actual knowledge of facts concerning Dr. Lynn’s culpability as to the misdiagnosis of the cause of Deborah’s severe leg pain, discoloration, swelling, and temperature change. The evidence shows that Plaintiffs knew Dr. Lynn and Dr. Tabatabai had misdiagnosed Plaintiff’s leg symptoms as side-effects of her recent back surgery – instead of correctly diagnosing compartment syndrome and arterial compromise, i.e., a blood clot caused a blockage. (FAC, ¶4.) Had Defendants made the correct diagnosis, Plaintiffs allege Deborah would not have suffered the below-the-knee amputation of her right leg. (FAC, ¶4.)
“[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” [General Motors Corp. v. Sup.Ct. (Jeffrey) (1996) 48 Cal.App.4th 580, 588 (emphasis in original)]
“The focus is on the facts that the plaintiff knew, not on whether the plaintiff subjectively knew she had a cause of action based on those facts.” [Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 899 (emphasis in original).)] Whether plaintiff was genuinely “ignorant” or had “actual knowledge” of the “Doe” defendant's identity or liability when the complaint was filed is determined by a good faith test. [Woo v. Sup.Ct. (Zarabi) (1999) 75 Cal.App.4th 169, 177—genuine ignorance required; Munoz v. Purdy (1979) 91 Cal.App.3d 942, 947.]
In Opposition, Plaintiffs include declarations of their counsel and a medical-legal expert, John P. Blumberg and Fred Bongard, respectively. Knowledge of plaintiff’s attorney can be imputed to the plaintiff for statute of limitations and Doe purposes. [See Miller v. Thomas (1981) 121 CA3d 440, 445.] So, their knowledge as Plaintiffs’ consultants can be relevant, but it must be read in conjunction with Plaintiffs’ own testimony.
Plaintiffs argue that a large number of doctors treated Plaintiff during her stay at the hospital and then at Covington. (Additional Fact Nos. 1.) They argue the role Dr. Lynn played at Covington from December 9, 2019 to December 21, 2019 was unclear until his deposition was taken as a third-party witness on March 17, 2022.
Dr. Ali Tabatabai was the attending physician and Dr. Lynn was a rehabilitation consultant who had written progress notes reporting Deborah’s condition to Dr. Tabatabai. But Plaintiff contends it was unknown if Dr. Lynn had the right to make orders for tests or consultations. (Additional Fact no. 3.)
Plaintiff’s medical/legal expert Fred Bongard, a former board-certified vascular surgeon, testifies that when he reviewed the Quintero medical records, it was not clear to him whether any of the doctors at the Medical Center had been negligent, partly because the records received were incomplete, and also because of evidence that Deborah’s leg pain was neurologic rather than vascular. (Bongard Decl., ¶3.) But Plaintiff’s Opposition fails to identify any new facts learned after the running of the statute of limitations. Plaintiffs allude to missing records, but give the Court no information as to what records were later acquired and what those records divulged.
Plaintiffs argue that the role of Dr. Lynn at Covington was unclear and it was not known if he had the right or ability to make orders for tests or consultations. (Bongard Decl., ¶6; Blumberg Decl., ¶ 6.) But Edward testified that Dr. Lynn treated his wife 3 to 4 times while she was at Covington, and each time Edward told Dr. Lynn about Deborah’s leg condition – the discoloration and swelling, and that his wife’s leg was cold to the touch. (Edward 9/15/2021 Depo, pp. 28-29, 37, 42-44.) According to Dr. Bongard, the signs and symptoms Deborah was exhibiting in her leg were so clearly indicative of vascular compromise that even the nurses caring for Deborah should have recognized them as such and reported their concerns to treating physicians. (Dr. Bongard Decl., ¶4.)
Plaintiffs cite McOwen v Grossman (2007) 153 Cal.App.4th 937 to support their position that they lacked actual knowledge until their counsel (Blumberg) and expert (Bongard) made the determination to add Dr. Lynn. In McOwen, the plaintiff timely filed the complaint for medical malpractice, and a year later, the defendant’s expert informed plaintiff’s attorney that the negligence of another doctor (Dr. Grossman) was the cause of plaintiff’s harm and explained the specific reasons for his opinion. Although plaintiff (and his attorney) knew that Dr. Grossman had been involved in plaintiff’s care, until learning the defendant’s expert’s opinion, plaintiff’s attorney had not considered his probable liability.
The Court finds McOwen factually distinguishable. There the question was whether the doctor ordered the right test – or the wrong test – to determine if the plaintiff’s reconstructable at the time. Moreover, plaintiff offered testimony that he had no suspicion of wrongdoing when the complaint was filed. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943–945.)
But here, the alleged malpractice is the misdiagnosis of what was causing the pain, discoloration, and temperature change in Deborah’s leg that had repeatedly been brought to Dr. Lynn’s attention. (FAC ¶4.) Plaintiffs knew when they filed the Complaint that Dr. Lynn had incorrectly diagnosed Deborah’s leg symptoms as side-effects of a back surgery, as opposed to the correct diagnosis of compartment syndrome and arterial compromise. The misdiagnosis was clear to Plaintiffs when they learned that Deborah’s leg had to be amputated because gangrene had set in. (Edward 9/15/2021 Depo., pp. 44, 46, 54.)
And Dr. Lynn made the same misdiagnosis as Dr. Tabatabai, who Plaintiff did name in the original Complaint. (Edward 9/15/2021 Depo., pp 28-29, 37, 42-44; see also ROA 2.)
To summarize, the undisputed facts show:
(1) Deborah went to the ER on December 1, 2019, complaining of severe cramps and pain in her right leg. Deborah was seen by Dr. Lynn in the ER that day.
(2) Deborah was admitted to the hospital and had back surgery.
(3) While Deborah was in the hospital recovering from back surgery, Dr. Lynn continued to see her and evaluate her leg.
(4) On December 9, 2019, Deborah was transferred to Covington for rehabilitation from the back surgery. Dr. Lynn continued to see her there.
(5) While Deborah was at Covington, she continued to have serious leg symptoms; Edward repeatedly expressed concerns to Dr. Lynn that Deborah’s leg was discolored, swelling and cold to the touch.
(6) Dr. Lynn said Deborah was just experiencing pooling of blood following the back surgery.
(7) On December 21, 2019, Deborah was taken back to the ER with more right leg complaints.
(8) At that point, Deborah’s lower leg was in such serious condition – from necrosis and gangrene – that it had to be amputated.
(9) Around the time Deborah went back to the ER on 12/21/2019, Drs. Dearing and Wallace told Edward that Deborah had a blood clot in her femoral artery that blocked circulation in her right leg and led to the gangrene/necrosis.
Actual knowledge does not require that plaintiff have known each and every detail of the defendant's involvement. (Dover v. Sadowinski (1983) 147 Cal.App.3d 113.)
Based on the undisputed facts here, the Court concludes Plaintiffs were not genuinely ignorant, at the time the Complaint was filed, of Dr. Lynn’s identity or of the fact that Dr. Lynn misdiagnosed Plaintiff’s leg pain, discoloration, and temperature change in the few days that preceded the amputation. (See e.g. Mishalow v. Horwald (1964) 231 Cal.App.2d 517, 520, plaintiff consulted his own anesthesiologist and learned from him certain facts of a technical nature known only to medical experts and not appearing in the depositions or medical records and charts.)
Finally, in California, “each spouse has a cause of action for loss of consortium . . . caused by a negligent act or intentional injury to the other spouse by a third party.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d. 382, 408.) However, if the injured spouse has no cause of action in tort, then his or her spouse can have no cause of action for loss of consortium. (Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1067.) Here, Edward Quintero cannot, as a matter of law, recover on his loss of consortium claim because its validity rests entirely upon Deborah Quintero’s medical malpractice claim against Dr. Lynn, and her claim is time-barred.
Thus, the Motion is GRANTED.
Defendant is ordered to give notice.