Judge: Michael Shultz, Case: 23CMCV00276, Date: 2023-08-15 Tentative Ruling
Case Number: 23CMCV00276 Hearing Date: August 15, 2023 Dept: A
[TENTATIVE]
ORDER SUSTAINING DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT WITH LEAVE TO
AMEND
I.
BACKGROUND
The
complaint alleges that Defendants were negligent in performing arthroscopy on
Plaintiff’s left knee, performed a debridement of the anterior cruciate
ligament without Plaintiff’s consent, and left a needle in Plaintiff’s knee. Plaintiff alleges claims for (1) medical
malpractice, (2) medical battery, and (3) failure to obtain informed consent.
II. ARGUMENTS
Defendants
argue that the second cause of action for medical battery and the third cause
of action for failure to obtain informed consent are barred for Plaintiff’s
failure to present a timely government claim prior to commencing suit. The battery
claim is barred by the two-year statute of limitations and otherwise fails to
state a claim. The third cause of action is barred by the one-year statute of
limitations for medical negligence and is also not well pled.
Plaintiff
argues the claims are not barred by the statute of limitations since
Plaintiff’s claims accrued from the date of discovery, not from the date of
surgery. Based on the date of discovery, Plaintiff’s government claim was
timely presented. Additionally, the claims are sufficiently alleged.
In
reply, Defendants contend that the delayed discovery applies to the first cause
of action for negligence which is not at issue. Plaintiff must allege when he
discovered that the debridement procedure took place and when he discovered
that the lack of informed consent caused injury.
III. LEGAL STANDARDS
The
bases for demurrer are limited by statute and may be sustained for failure to
state facts sufficient to state a cause of action. (Code Civ. Proc., § 430.10.) A demurrer
“tests the sufficiency of a complaint as a matter of law and raises only
questions of law.” (Schmidt v. Foundation Health
(1995) 35 Cal.App.4th 1702, 1706.) The court must assume the truth of (1) the
properly pleaded factual allegations; (2) facts that can be reasonably inferred
from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318). The court may not consider contentions, deductions, or
conclusions of fact or law. (Moore v. Conliffe (1994) 7
Cal.4th 634, 638.)
For
the court to sustain demurrer to the complaint based on the statute of
limitations, “the defect must clearly and affirmatively appear on the face of
the complaint… . A demurrer will not lie where the action may be but is not
necessarily barred.” (Citizens for a Responsible Caltrans Decision v. Department of
Transportation (2020) 46 Cal.App.5th 1103, 1117.)
IV. DISCUSSION
A. Second Cause of Action for Medical Battery
In
the medical context, battery occurs when a patient gives permission to a doctor
to perform one type of procedure, but the doctor performs a substantially
different procedure to which the patient did not consent. (Perry
v. Shaw (2001) 88 Cal.App.4th 658, 660.)
It is distinct from negligence, which involves whether the doctor complied with
good professional practice. (Id.) A battery is an intentional and offensive
touching of a person who has not consented to the touching. (Conte
v. Girard Orthopaedic Surgeons Medical Group, Inc.
(2003) 107 Cal.App.4th 1260, 1266.) Lack of consent is a
necessary element. (Id.)
Plaintiff consented
to the arthroscopic procedure performed by Defendant, Eleby Washington, M.D.
(Complaint, ¶ 28.) However, Defendant, Darryl Willoughby, M.D., performed the surgery
and performed an ACL debridement to which Plaintiff did not consent.
(Complaint, ¶ 29.) In essence, Plaintiff did not consent to Dr. Willoughby
performing the procedure nor did Plaintiff consent to the debridement. The
claim is adequately alleged.
A battery
claim is subject to the two-year statute of limitations. (Code
Civ. Proc., § 335.1.) The tort is complete upon physical
contact. (Sonbergh
v. MacQuarrie (1952) 112 Cal.App.2d 771, 774.) Plaintiff underwent
surgery on October 7, 2020, and filed this action on February 22, 2023, which
is beyond the two-year statute of limitations.
However,
delayed discovery applies to medical battery claims under circumstances where “aggrieved
patients may be unconscious at the time of the surgery and unable to realize
what occurred, especially if the evidence is sealed within their body. …[T]he
discovery rule avoids this peril by delaying accrual of the cause of action
only until the patient has knowledge of facts that place the patient on inquiry
that the injury was caused by wrongdoing.” (Daley
v. Regents of University of California (2019) 39 Cal.App.5th 595,
604-605.)
To
raise the issue of delayed discovery, Plaintiff must allege "when the
discovery was made, the circumstances behind the discovery, and plead facts
showing that the failure to discover was reasonable, justifiable and not the
result of a failure to investigate or act. (Dujardin v. Ventura
County General Hosp., supra, 69 Cal.App.3d at p. 356.) Once belated
discovery is pleaded, the issue of whether plaintiff exercised reasonable
diligence in discovering the negligent cause of the injury is a question of
fact.” (Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 527.)
The
complaint does not allege facts showing when Plaintiff discovered that Dr.
Willoughby performed the procedure or when Plaintiff discovered that he had
undergone debridement. Plaintiff alleges only that the accrual of his cause of
action did not begin on the date of surgery, but later. (Complaint ¶ 22.) This
allegation is conclusory and does not include facts required by Bastian.
Accordingly, demurrer is SUSTAINED for failure to allege facts supporting
delayed discovery.
B. Third Cause of Action for Lack of Informed Consent
A
claim based on lack of informed consent arises when the doctor performs a
procedure without first adequately disclosing the risks and alternatives. (Saxena v. Goffney (2008) 159
Cal.App.4th 316, 324.) The physician’s duty is to
disclose all material information to enable the patient to make an informed
decision regarding the surgery. Information is material if the physician knows
or should know that a reasonable person would regard that information as
significant when deciding to accept or reject the recommended procedure. (Davis v. Physician Assistant Bd.
(2021) 66 Cal.App.5th 227, 277.) The claim
is a form of professional negligence. (Id.) It is distinguished from a
medical battery. (Saxena at 324.)
The
complaint alleges that Defendants did not disclose the important potential
results and risks of the procedure including that Dr. Eleby’s was not fit or
may not be able to complete the procedure. (Complaint, ¶ 35.) Broadly
construed, Plaintiff is alleging that he was not informed that Dr. Willoughby
might have to perform the surgery which Plaintiff contends is material to his
decision to undergo the surgery. Plaintiff also alleges that Defendants failed
to disclose the results and risks of ACL debridement. (Complaint, ¶ 36.) The
debridement is the subject of the battery claim since Plaintiff allegedly did
not give any consent. The alleged presence of the needle is the subject of the
negligence claim.
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 plaintiff's suspicion of negligence 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.)
The
surgery occurred on October 7, 2020. Plaintiff does not allege facts to
demonstrate when he discovered that he suffered an injury resulting from
Defendants’ failure to inform him of the material risks attendant to the
arthroscopy. Arguably, Plaintiff was on inquiry notice on January 27, 2022,
when Plaintiff felt two pops in his knee and was unable to bear weight on that
knee. (Complaint, ¶ 14.) However, that was when Plaintiff discovered the needle
which implies that the needle caused his injury.
The claim
is uncertain as to when Plaintiff discovered facts that his injury arose from
the lack of informed consent. As
previously stated, Plaintiff must allege when the discovery was made, the
circumstances behind the discovery, and plead facts showing that the failure to
discover was reasonable, justifiable, and not the result of a failure to
investigate or act. (Bastian, supra). Therefore,
demurrer is SUSTAINED.
C. Whether Plaintiff Timely Presented a Government Claim Cannot be
Determined.
Since Plaintiff brings these claims
against the County of Los Angeles, a government entity, Plaintiff must present
her personal injury claim to the entity within six months after accrual of the
cause of action. (Gov. Code, § 911.2.) Plaintiff
alleges he presented his government claim to the Los Angeles Board of
Supervisors on June 2, 2022. (Complaint, ¶ 21.)
The Court cannot determine whether Plaintiff’s government claim
was timely presented without any facts to support when either the third of
fourth cause of action accrued. Accordingly, demurrer is SUSTAINED as to this
cause of action.
V.
CONCLUSION
Even where the defect is one of substance,
a demurrer should not be sustained without leave to amend if there is a reasonable
possibility that subsequent amendments will supply the omitted allegations, and
the plaintiff has not had a fair opportunity to so amend. (Colvig v. RKO General, Inc. (1965) 232
Cal.App.2d 56, 69–70.) Therefore, demurrer is
SUSTAINED with 10 days leave to amend.