Judge: Stephen P. Pfahler, Case: 21STCV17384, Date: 2023-10-02 Tentative Ruling

Case Number: 21STCV17384    Hearing Date: November 15, 2023    Dept: F49

SUMMARY JUDGMENT

MOVING PARTY: Defendant, Darrin Privett, M.D.

RESPONDING PARTY: Plaintiff, Ronald Nevarez, et al.

RELIEF REQUESTED

Motion for Summary Judgment on the First Amended Complaint for Wrongful Death and Negligence

SUMMARY OF ACTION

On December 26, 2018, 68 year-old Sylvia Nevarez presented to the emergency room at Henry Mayo Newhall Memorial Hospital with nausea, vomiting, and diarrhea. Sylvia also indicated “chest discomfort” three weeks earlier. After an examination and tests, Hospital offered admission, but Sylvia elected to leave and return home. 

Sometime after discharge, the cardiology tests were apparently reviewed. Sylvia was apparently still on the premises however, and placed in the “cardiac catheritization lab” by cardiologist James Lee. Sylvia subsequently became unresponsive, and was not successful resuscitated that evening. Plaintiffs contend the death was the result of the delayed diagnosis and treatment.

On May 10, 2021, Plaintiffs filed their complaint for Negligence. On March 2, 2022, Plaintiffs dismissed James Lee, M.D. On October 3, 2022, the parties stipulated to the filing of a first amended complaint. On October 31, 2022, Plaintiffs filed their first amended complaint for Wrongful Death and Negligence. On February 28, 2022, the court overruled the demurrer of Darrin Privett, M.D.

On April 7, 2023, the case was transferred from Department 27 (Personal Injury) to Department 49. On October 2, 2023, the court granted the motion of Henry Mayo Newhall Memorial Hospital. The court entered judgment in favor of Henry Mayo Newhall Memorial Hospital on October 24, 2023.

RULING: Granted.

Defendant Darrin Privett, M.D. moves for summary judgment on grounds that the complaint is barred by the statute of limitations. Plaintiffs in opposition challenges any bar under the statute of limitations. Privett in reply reiterates the bar under the statute of limitations, the lack of any triable issues raised in opposition, and failure to address the the three year statute of limitations argument. Privett also disregards the arguments regarding the standard of care as not pertinent to determining any statute of limitations bar.

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)”  (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.”  (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence.  It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

Statute of Limitations

Privett contends the complaint is barred by the one-year statute of limitations. Sylvia passed away on December 26, 2018, and the complaint was not filed until May 10, 2021. Privett specifically challenges the delay between the death and second review by Dr. Eckstein “nearly two years” after the death. Plaintiffs were aware of the identity of Privett from the produced medical records. Deposition testimony from widower, Ronald Nevarez, admitted suspicion no later than March 2019, following a review of the produced medical records.

Even if the complaint is valid under the one year statute of limitations, Privett alternatively argues for a bar under the three year statute of limitations. Plaintiffs may not allege any delayed discovery under this standard. The notice of intent to sue letter was not served on Privett until March 9, 2022—more than three months following the three year statute of limitations on December 26, 2021.

Plaintiffs in opposition contend that the identity of Privett was unclear given multiple doctors involvement, thereby constituting a valid basis of “ignorance” as to potential malpractice. It was not until December 12, 2020, when a second review of the autopsy report was completed that Plaintiffs confirmed medical malpractice. Plaintiffs offer no opposition to the March 9, 2022 timing of the notice of intent to sue as to Privett.

Generally, a statute of limitations begins to run “when the cause of action is complete with all of its elements”—namely, wrongdoing, causation, and resulting harm. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397; Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797 [“A cause of action accrues ‘when [it] is complete with all of its elements’—those elements being wrongdoing, harm, and causation”].) An exception to the general rule on accrual is identified as the “discovery rule.” (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 397; Pooshs v. Philip Morris USA, Inc., supra, 51 Cal.4th at p. 797.) “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her [him].” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110 (“Jolly”).)

Plaintiffs maintain the “confusion” in the medical records caused by “errors found in the medical records” added to the delayed discovery. Plaintiffs also emphasize the declaration of Marc Eckstein, M.D., who reviewed the January 17, 2019, autopsy report on December 12, 2020, and concluded the delayed diagnosis and treatment caused the death. [First Amend. Comp., ¶ 15.] The court assumes the subject allegation effectively constitutes the pled accrual date for realization of medical malpractice. Again, service of the notice of intent to sue remains undisputed as March 9, 2022, with the complaint previously filed on May 10, 2021. Plaintiffs lack any argument regarding relation back to the complaint upon the discovery of facts regarding Dr. Privett, well after the December 12, 2020 review of the records by Dr. Eckstein.

The court considers the challenged factual basis of accrual presented as either around the January 17, 2019, autopsy report, which overlaps with the January 2019 time period presented in the deposition of Ronald Nevarez, or the moment of the second review and report completed by Dr. Eckstein in December 2020. “Possession of ‘presumptive’ as well as ‘actual’ knowledge will commence the running of the statute. The applicable 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.’ (Citation.) This “inquiry” rule has been previously applied in the area of medical malpractice. (Citations.)” (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101; see Gutierrez v. Mofid (1985) 39 Cal.3d 896-899.) The Jolly case clarified the standard as a matter of factual suspicion triggering the requirement to proceed with investigation, rather than wait for conclusive facts to appear. (Jolly, supra, 44 Cal.3d at pp. 1110-1111; Kleefeld v. Superior Court (1994) 25 Cal.App.4th 1680, 1683-1684.) “[I]t is the discovery of facts, not their legal significance, that starts the statute.” (Jolly, supra, 44 Cal.3d at p. 1113.)

The standard specifically rejects categorical certainty as a basis of accrual. Plaintiffs’ argument in opposition regarding Plaintiffs’ unawareness and confusion as to the responsible treating physician and therefore implicit lack of exact understanding of the cause of Sylvias death until the Dr. Eckstein report in no way establishes a delayed accrual of the statute of limitations. A standard requiring medically verified understanding was specifically overruled. (Jolly, supra, 44 Cal.3d at p. 1110-1111; Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1300.)

A more recent case relied upon by Plaintiff further clarifies the distinctions triggering suspicion based on the definition of “injury” in Code of Civil Procedure section 340.5. “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be 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.) “The word ‘injury’ for purposes of section 340.5 is a term of art that “refer[s] to the damaging effect of the alleged wrongful act and not to the act itself.” (Brewer v. Remington (2020) 46 Cal.App.5th 14, 24.) Under this standard, the death of Sylvia constituted injury itself. The death occurred while at the hospital and under the treatment of Privett, and therefore any claimed manifestation of harm was concurrent. (Id. at pp. 28-31.)

The standard still requires awareness of the potential cause for harm. (Id. at pp. 26-27.) In deposition, Ronald Nevarez admits to requesting medical records in January 2019, and disappointment with the quality of care the date after Christmas. [Declaration Marissa Feinstein, Ex. G: Deposition of Ronald Nevarez, 28:15-30:24.] Ronald admitted that upon learning of Sylvia’s death, to suspecting wrongdoing. Ronald ordered the autopsy upon the advice of others, who also told him to consult a lawyer. The time frame was within a one-and-one half month time frame from the date of death. [Id., 31:3-24-32:18.] Ronald also testifies to the opinions of his children regarding noted deficiencies upon reviewing the medical records. [38:2-40:25.] Plaintiff subsequently contacted a lawyer in March 2019. [41:9-23.] The children confirm this account, including review of records, recommendation for an attorney consultation, and the autopsy. [Feinstein Decl., Ex. H: Deposition of Ronnie Nevarez, 12:10-13:25.]

“While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.” (Jolly, supra, 44 Cal.3d at p. 1112.) The time frame of the review of the medical records, ordered autopsy, and consultation with counsel occurred no later than March 2019. The section 364 letter to Privett went out on March 9, 2022, and Privett was not substituted into the actin until June 13, 2022—

96 days later. [Feinstein Decl., Ex. C, D.]

The court finds the complaint against Dr. Privett is barred by the one year statute of limitations. Plaintiffs were aware of facts supporting a potential negligence claim, admitted to suspicion, and even consulted an attorney in March 2019. The approximate three year delay from the time of the first attorney consultation and service of the intent to sue letter in no way renders the action subject to the three year statute of limitations. (Brewer v. Remington, supra, 46 Cal.App.5th 24.) The plain language of the statute requires the determination of the statute of limitations on the earlier of the two items—one year upon the discovery of facts, or no more than three years. (Code Civ. Proc., § 340.5.)

The motion for summary judgment is granted.

Trial remains set for April 15, 2024.

Privett to give notice to all parties.