Judge: Michael Shultz, Case: BC724114, Date: 2022-10-06 Tentative Ruling
Case Number: BC724114 Hearing Date: October 6, 2022 Dept: A
BC724114
Tammy Sprownson v. Nnaemeka Udoh, et al.
[TENTATIVE] ORDER
I.
BACKGROUND
The First Amended Complaint
(“FAC”) filed on April 4, 2019, alleges that Defendant, Nnaemeka Udoh, M.D.
(“Dr. Udo”) negligently performed a surgical procedure on Plaintiff at St.
Francis Medical Hospital (“St. Francis”). Dr. Udo allegedly removed Plaintiff’s
bile duct without her consent, requiring Plaintiff to wear a colostomy bag.
Plaintiff alleges claims for negligence, battery, negligent infliction of
emotional distress, and intentional infliction of emotional distress against
Defendant Dr. Udo (first through third causes of action). The fourth cause of
action for corporate liability is alleged only against St. Francis who filed a
Notice of Settlement on June 13, 2022.
II.
ARGUMENTS
A.
Motion filed July 14, 2022
Dr. Udoh argues he is entitled to
judgment or adjudication of issues on grounds Plaintiff’s claims for negligence
and battery are barred by the one-year statute of limitations. Plaintiff
testified that she became aware of the facts to support her claims in June 2016
but commenced this action on October 3, 2018. Plaintiff gave consent for
removal of her bile duct which undermines the claim for battery. Additionally, Dr.
Udoh complied with the standard of care of surgeons in the community based on
his expert’s declaration.
B.
Opposition filed September 26,
2022
Plaintiff argues that the battery
and negligence claims are timely since her claims did not accrue on the date of
the surgery. The extension of Plaintiff’s hospital stay after the surgery does
not establish that she had knowledge of the negligent cause of her injury.
Defendant did not raise material
facts concerning his post-surgery treatment of Plaintiff, wherein Defendant
failed to provide care for Plaintiff’s bile leakage which caused worsening
symptoms. Plaintiff did not become aware of injury to the bile duct until after
the surgery, although Defendant did not establish that date. Plaintiff timely
commenced this action within three years.
Plaintiff submits the declaration
of her expert which disputes Defendant’s expert’s findings and creates a
triable issue of fact with respect to the negligence claim.
C.
Reply filed September 30, 2022
Defendant argues that the
opposition is untimely filed. There is no evidence that Defendant removed the
bile duct. Additionally, Defendant did not require consent to remove the bile
duct since bile duct injury is a common complication of the procedure.
Plaintiff’s expert, Dr. Sarela, is not competent to opine on the issue since Dr.
Sarela is not a general surgeon like Defendant’s expert. Dr. Sarela is an
internal medicine “hospitalist.” Dr. Sarela’s declaration is not supported by
reasoned explanation. Defendant’s
evidentiary objections should be sustained.
III.
LEGAL STANDARDS
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).
In pertinent part, a party may move for summary adjudication as to one or more
claims for damage if that party contends that there is no merit to the claim as
specified in Section 3294 of the Civil Code governing imposition of punitive
damages. A motion for summary adjudication shall be granted only if it
completely disposes of a cause of action, an affirmative defense, a claim for
damages, or an issue of duty.” Code Civ. Proc., § 437c subd. (c).
Where a defendant seeks summary
judgment or adjudication, they 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 Cross-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
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.
Until the moving cross-defendant has
discharged its burden of proof, the opposing Cross-Complainant has no burden to
come forward with any evidence. Once the moving party has discharged its burden
as to a particular claim, however, the Cross-Complainant may defeat the motion
by producing evidence showing that a triable issue of one or more material
facts exists as to that cause of action.
Code Civ. Proc., §437c(p)(2).
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.
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 medical malpractice." Sanchez v. South Hoover
Hospital (1976) 18 Cal.3d 93, 101 (italics in original); 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."].
The
undisputed facts establish the following: Plaintiff presented to the emergency
department of St. Francis on June 16, 2016, with complaints of pain, present
for three days. (UF 1). Plaintiff’s final diagnosis was for cholecystitis and
hypertension. (UF 5). Dr. Udo ordered an acid scan which came back positive for
a cystic obstruction. (UF 7-9). Plaintiff was scheduled for surgery on the same
day, wherein Dr. Udoh removed Plaintiff’s gall bladder. (UF 10, 16). The
surgical pathology specimen did not include pieces of common bile duct. (UF
17).
Plaintiff
underwent a second procedure on June 24, 2016, (UF 20) because Dr. Udoh
suspected there might be some leakage and recommended placing a stent. (UF 19).
However, the attempt was unsuccessful. (UF 21). On July 6, 2016, Plaintiff was
admitted to Harbor-UCLA (UF 24) where physicians performed another procedure on
July 11, 2016. (UF 25). That procedure revealed a transected common bile duct with
numerous surgical clips in the operative field. (UF 26). Plaintiff had multiple
follow-up visits and admissions to Harbor-UCLA to treat complications arising
from the common bile duct injury. (UF 29).
Based
on Plaintiff’s deposition testimony, there is no dispute that during her
admission at Harbor-UCLA (established as July 6, 2016 pursuant to UF 24) she
was told that the doctor (Dr. Udoh) had nicked her common bile duct and that
there was trauma from the surgery. She was told that her bile duct had been
removed at St. Francis, which made it very difficult for Harbor-UCLA to try to
repair her stomach. (UF 38). That was why
her condition was an “on-going situation.” Declaration of Herjit K. Rubio ISO
Mot., Ex. C, 48:23 – 49:18.
Plaintiff
concedes in her opposition that she testified that sometime after she was
transferred to Harbor-UCLA, she became aware that Defendant had injured her and
removed her bile duct. Opp. .pdf page 11, lines 6-7. Plaintiff argues that
Defendant failed to proffer evidence of a specific date that Plaintiff
purportedly became aware. Id., lines 8-11. As noted previously,
Plaintiff’s deposition testimony affirmed that she became aware on July 6, 2016
(UF 24), which is the date of her admission to Harbor-UCLA (UF 38).
These
undisputed material facts demonstrate that the negligence claim accrued on July
6, 2016, at which time Plaintiff was on inquiry notice of the facts supporting
her claims that the bile duct injury stemmed from the original surgery
performed by Dr. Udoh at St. Francis, and that her bile duct had been removed,
which is the basis for the battery claim. Therefore, the limitations period
expired on July 6, 2017. Plaintiff untimely commenced this action on October 3,
2018.
B. Code of Civil Procedure § 364 Notice of
Intent does not apply to extend the statute of limitations for 90 days.
Section
364 expressly states if a plaintiff serves a notice of intent within the last
days 90 days before the 1-year statute of limitations expires, then the
one-year statute is tolled by 90 days. Woods v. Young (1991) 53 Cal.3d
315, 328 [“For the reasons given above, we hold that when a plaintiff gives the
90–day notice of intent to sue required by section 364(a) in the last 90 days
of the one–year statute of limitations that statute is tolled for 90 days.”]. Accordingly,
if the one-year statute expired on July 6, 2017 and Plaintiff served the
Section 364 Notice within the 90-day period before the one-year statute expired,
the limitations period is extended by 90 days. Hazel v. Hewlett (1988)
201 Cal.App.3d 1458, 1463 ["These 90 days are added to the one-year
statutory time."].
However,
there is no dispute that Plaintiff served her Section 364 Notice on June 16,
2018, well after the one-year statute expired. (UF 32). Accordingly, the
limitations period was not tolled by the Section 364 Notice.
C. Defendant has established that the
second cause of action for battery is barred by the two-year statute of
limitations.
The FAC
alleges that Plaintiff did not consent to the removal of her bile duct, which
is the basis for the second cause of action for battery. FAC ¶ 33. A battery in
the medical context “is an intentional tort that occurs when a doctor performs
a procedure without obtaining any consent.” Saxena v. Goffney (2008) 159
Cal.App.4th 316, 324.
The
limitations period for a battery claim, including a medical battery claim is
governed by Code of Civil Procedure section 335.1 which is two years from the date of discovery. Daley v. Regents of University of
California (2019) 39 Cal.App.5th 595, 606 [“The trial court erred in concluding
that the discovery rule did not pertain to the limitations period of section 335.1 for the medical battery claims”]. Here the claim
accrued on the date of Plaintiff’s discovery that the bile duct had been
removed, namely July 6, 2016. Therefore, the battery claim expired on July 6,
2018.
Since
Plaintiff served her Section 364 Notice of Intent on June 16, 2018 (UF 32)
before the statute expired, the limitations period is extended by 90 days to
September 14, 2018 (Friday). As Plaintiff commenced this action on October 3,
2018, the second cause of action is also barred.
The
motion does not seek adjudication of the third and fourth causes of action for
negligent infliction and intentional infliction of emotional distress,
respectively. As a practical matter, both causes of action are based on
Defendant’s alleged negligence in performing surgical procedures and performing
procedures without Plaintiff’s permission or consent and are equally barred.
FAC ¶¶ 38, 46. However, since these causes of action are not expressly raised
in the motion, the court cannot grant adjudication of the third and fourth
causes of action.
Defendant
objected to the Declaration of Shahruq Sarela, M.D., Plaintiff’s expert who
declares that Defendant’s conduct did not meet the standard of care and
Defendant caused Plaintiff’s injury. However, Defendant has established without
dispute that the negligence and battery claims are barred in the first instance.
Accordingly, the Sarela declaration was not material to the statute of
limitations issue. In granting or denying a motion for summary judgment or adjudication,
“the court need rule only on those objections to evidence that it deems
material to its disposition of the motion." Code Civ. Proc., § 437c(q).
V.
CONCLUSION
Based on the foregoing, the Motion
for Summary Judgment is DENIED. The court GRANTS the alternative motion for
adjudication of the first cause of action for negligence and the second cause
of action for battery in Defendant’s favor. Plaintiff did not meet her burden
of establishing triable issues of fact with respect to the date of discovery of
her causes of action. Code Civ. Proc., § 437c(p)(2).