Judge: Michael Shultz, Case: 20STCV14919, Date: 2024-05-02 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
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If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 20STCV14919 Hearing Date: May 2, 2024 Dept: A
20STCV14919
Carlos Perez v. Asongo Ncho, M.D.
[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT BY
DEFENDANT, JACK GEOULA, M.D.
Defendant, Jack Geoula, M.D. (“Defendant”), argues that
the undisputed material facts establish that no act or omission by Defendant
caused Plaintiff’s injuries as established by Defendant’s expert. Additionally,
the claim is barred by the one-year statute of limitations which accrued in May
of 2018, when Plaintiff testified, he was that he was aware that something went
wrong during surgery that caused his paralysis, placing Plaintiff on inquiry
notice. The statute of limitations expired in July 2019, at a minimum.
In opposition, Plaintiff argues that his suspicion that
“something went wrong” did not trigger the statute of limitations. Defendant’s
expert fails to discuss the applicable standard of care as it applies to this
case. Plaintiff did not discover the misdiagnosis until 2019 when Plaintiff
took the deposition of an expert in Plaintiff’s worker's compensation case.
Plaintiff’s expert controverts Defendant’s expert’s conclusions.
In reply, Defendant argues that Plaintiff admitted he was
suspicious of wrongdoing in May 2018. Plaintiff’s expert prepared a report to
counsel on December 17, 2018, and January 21, 2019. Plaintiff commenced this
action more than one year after those dates.
Summary
judgment is proper “if all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” (Code
Civ. Proc. §437c subd. (c).) Where a defendant seeks summary
judgment or adjudication, defendant must show that either “one or more elements
of the cause of action, even if not separately pleaded, cannot be established,
or that there is a complete defense to that cause of action.” (Id. at
§437c subd. (p)(2).) A defendant may satisfy this burden by
showing that the claim “cannot be established” because of the lack of evidence
on some essential element of the claim. (Union
Bank v. Superior Court (1995) 31 Cal.App.4th 574, 583.) Once the defendant meets this threshold burden,
the burden shifts to the plaintiff to show that a “triable issue of one or more
material facts exists as to that cause of action or defense thereto.” (Id.)
The moving
party bears the initial burden of production to establish a prima facie case
that there are no triable issues of material fact. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
Thus, rather than affirmatively disproving or negating an element (e.g.,
causation), a defendant has the option of presenting evidence reflecting the
plaintiff does not possess evidence to prove that element “as through
admissions by the plaintiff following extensive discovery to the effect that he
has discovered nothing” to support an essential element of his case. Aguilar,
supra, at p. 855. Under the latter approach, a defendant's initial evidentiary
showing may “consist of the deposition testimony of the plaintiff's witnesses,
the plaintiff's factually devoid discovery responses, or admissions by the
plaintiff in deposition or in response to requests for admission that he or she
has not discovered anything that supports an essential element of the cause of
action.” (Lona
v. Citibank, N.A., (2011) 202 Cal.App.4th 89, 110.)
The court
strictly construes the moving party's supporting evidence while the opposing
party’s evidence is liberally construed. Doubts as to the propriety of the
motion should be resolved against granting the motion. (D’Amico
v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20.)
The court does not evaluate the credibility of testimony. (Binder
v. Aetna Life Ins. Co. (1999) 75 Cal. App. 4th 832, 840.)
The court
applies the three-step analysis to motions for summary judgment or
adjudication: (1) identify the issues framed by the pleading, (2) determine
whether the moving party established facts which negate the opponents’ claim,
(3) if a defendant meets its threshold burden of persuasion and the burden
shifts, determine whether the opposing party has controverted those facts with
admissible evidence. (Torres
v. Reardon (1992) 3 Cal.App.4th 831, 836.)
A. Undisputed
facts.
The parties
do not dispute Plaintiff’s allegations that Defendant’s treatment of Plaintiff’s
conditions while he was admitted from March 6 through March 10, 2018, resulted
in paralysis on May 17, 2018 (UF 1.) Plaintiff filed the complaint on April 17,
2020 (UF 2.)
Plaintiff
presented to the emergency department at Martin Luther King Jr. Hospital where
he was admitted by Asongu Ncho, M.D. (UF 4.) Defendant evaluated Plaintiff on
March 7, 2018, regarding abdominal pain (UF 5.) Plaintiff was later transferred
to Harbor UCLA Medical Center (“Harbor”) on March 11, 2018, and discharged the
next day with a diagnosis of vertebral column fracture and abdominal, epigastric,
and chronic back pain. (UF 8.)
Plaintiff
returned to the emergency department at Harbor with severe back pain, which had
worsened in the preceding five days (UF 8.) Plaintiff lost sensation on May 17,
2018, and was unable to move his legs (UF 9.) Another physician performed a
laminectomy for cord decompression. (Id.) On
May 18, 2018, Plaintiff had lower extremity paresis and loss of sensation below
T6 (UF 10.)
B. Defendant’s
objections to evidence.
#1-2. Plaintiff’s declaration. Overruled
as to when Plaintiff purportedly learned of the negligent cause of his injury.
#1. Declaration of Plaintiff’s counsel,
Jorge Ledezma. Sustain. Legal conclusion with respect to inquiry notice.
C.
The
undisputed facts establish that this action commenced more than one year after
Plaintiff was on inquiry notice.
The time to commence an action for
negligence by a health care provider is 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. … .” (Code Civ. Proc., § 340.5.) However, the one-year limitations period “does
not begin to run until the plaintiff discovers both his or her injury and its
negligent cause." (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189.) “Injury” in this context “refer[s] to the
damaging effect of the alleged wrongful act and not to the act itself.” (Id. at 1190.) “Injury” is not necessarily the ultimate
harm suffered, “but instead occurs at ‘the point at which appreciable harm is
first manifested.’” Id. at 1189.
In Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, the court determined that "[i]t is a
plaintiff's suspicion of negligence, rather than an expert's opinion, that
triggers the limitation period." (Knowles at 1300.) The possession of “presumptive” as well
as “actual” knowledge commences the running of the statute. The principle has
been expressed as follows: “’when the plaintiff has notice or information of
circumstances to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his
investigation . . . the statute commences to run.’ [Citations]. This ‘inquiry’
rule applies in the area of medical malpractice." (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101; Daley v. Regents of University of
California (2019) 39 Cal.App.5th
595, 603 ["Under
this standard, accrual does not wait until the plaintiff knows facts supporting
each specific legal element of the cause of action; it occurs when the
plaintiff has ‘reason to at least suspect that a type of wrongdoing has
injured them.’ (Ibid., italics added.) ‘In other words, plaintiffs
are required to conduct a reasonable investigation after becoming aware of an injury
and are charged with knowledge of the information that would have been revealed
by such an investigation."].)
Defendant
cites portions of Plaintiff’s deposition wherein Plaintiff testified he was
told that he had an infection in his spinal cord and that he suddenly could not
move his legs. (Def.’s Ex. O, 42:21-23, 43:11-20; 46:17-23.) The infection in
his spine and surgery was the reason he would not be able to walk again. (Def’s
Ex. O, 69:1-9.)
Plaintiff
testified that he believed something had gone wrong to cause his paralysis.
(Def.’s Ex. P, 47:20-25.) He thought something went wrong with the medical care
he had at that time. (Id. 48:1-6.) He
questioned how his paralysis could have happened. (Id. 49:1-4.)
To controvert
these facts, Plaintiff asserts he was not aware of the negligent cause of his
injury until June 25, 2019, when his expert testified in his worker's compensation
action. Plaintiff filed the complaint less than one year later on April 17,
2020. (See Plaintiff’s evidence in opposition to UF 11.) This evidence
is insufficient to controvert the evidence that Plaintiff was on inquiry notice,
at a minimum, by May 25, 2018, one week after surgery based on Plaintiff’s
deposition testimony. (UF 11.) Accordingly, the one-year limitations period
expired by May 25, 2019, at the latest. Plaintiff did not commence this action
until April of 2020.
D. The material facts are controverted with respect to whether Defendant
breached the applicable standard of care or caused Plaintiff’s injuries.
To support a claim for medical
negligence, Plaintiff must establish “(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.'” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)
The standard of care against which a
physician’s acts are measured “is a matter peculiarly within the knowledge of
experts; it presents the basic issue in a malpractice action and can only be
proved by their testimony [citations], unless the conduct required by the
particular circumstances is within the common knowledge of the layman.” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) Whether the alleged negligence caused
Plaintiff’s injury “must be proven within a reasonable medical probability
based upon competent expert testimony. Mere possibility alone is insufficient
to establish a prima facie case.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) A “possible cause” only becomes “probable” when,
“in the absence of other reasonable causal explanations, it becomes more likely
than not that the injury was a result of its action. This is the outer limit of
inference upon which an issue may be submitted to the jury. " (Jones at 403.)
Plaintiff’s
expert opinion controverts those expressed by Defendant’s expert (Disputed Facts
15, 16, 17, 18, 19, 20.) However, the dispositive issue is the one-year statute
of limitations which bars Plaintiff’s claim.
Based on the foregoing, Defendant
has established he is entitled to judgment in his favor as Plaintiff’s
negligence claim is barred by the one-year statute of limitations based on the
undisputed facts. Accordingly, Defendant’s Motion for Summary Judgment is
GRANTED.