Case Number: BC649829 Hearing Date: June 04, 2018 Dept: 2

The unopposed Motion for Summary Judgment, by Defendant, Bradley Thomas, M.D., filed on 3/20/18, is GRANTED. Defendant has met his burden of establishing that he is entitled to judgment in his favor based on the undisputed material facts proffered. Cal Code Civ Procedure 437c(p)(2).

There is no dispute that the claim is barred by the 1-year statute of limitations.

In a medical malpractice action, the statute of limitations expires one year after the date of injury or the date when Plaintiff discovered or should have discovered the injury, whichever occurs first and no more than three years from the date of injury. Cal Code Civ Proc § 340.5. Plaintiff’s suspicion of negligence would commence the running of the statute of limitations. Knowles v. Superior Court (2004) 118 Cal. App. 4th 1290, 1300.

The statute begins to run if 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.” Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101.

There is no dispute that on 12/29/14, Dr. Thomas performed a surgical procedure on Plaintiff’s right AC joint. UF 4. Plaintiff presented for a follow up post-arthroplasty visit on 1/5/15 and 2/19/15. UF 5. Ultimately, Dr. Thomas performed a total, right shoulder replacement on 11/12/15. UF 8.

On a follow-up appointment on 11/16/15, Defendant examined Plaintiff. Plaintiff could not extend his finger or wrist and had a negative finding in his triceps. Defendant discussed recovery from the nerve injury and ordered physical therapy. UF 17. Plaintiff had a discussion with Dr. Thomas during this visit that a nerve block was the potential cause of the injury. UF 18.

On 11/24/15, Plaintiff was evaluated by a neurologist, Dr. Lawrence Kneisley, who informed Plaintiff he was experiencing weakness related to the surgery. Dr. Kneisley opined that Plaintiff had a brachial plexus injury related to his 11/12/15 surgery. UF 21.

At the earliest, Plaintiff had sufficient “notice or information of circumstances to put a reasonable person on inquiry,” of the cause of his nerve injury on 11/16/15, when Dr. Thomas told Plaintiff that a nerve block was the potential cause of his injury. UF 18; Sanchez at 101.

At the latest, the statute began to run on 11/24/15 when a neurologist confirmed that Plaintiff’s injury was related to the 11/12/15 surgery. UF 21. Plaintiff filed his complaint on 2/8/17, more than one year after both dates. UF 32.

The statute of limitations is extended if the Plaintiff served a notice of intent to commence an action within 90 days of the expiration of the applicable statute of limitations. In that case, the statute of limitations is extended 90 days from service of the notice. Cal Code Civ Proc § 364.

Here, the complaint is silent as to whether Plaintiff served a Notice of Intent on Dr. Thomas. UF 33. The complaint alleges that Plaintiff served Notices of Intent on Dr. Aaron Hong. UF 33.

Defendant received a Notice of Intent on 6/7/17, after the complaint was served on 6/2/17. UF 34 and 35. This is well after the 90-day period preceding the 1-year statute of limitations date of either 11/16/15 or 11/24/15.

The motion is also GRANTED because there is no dispute that Defendant complied with the appropriate standard of care in treating Plaintiff.

Proof of the standard of care depends on expert testimony. Landeros v. Flood (1976) 17 Cal.3d 399, 410. There is no competing declaration provided by Plaintiff to dispute that Defendant complied with the standard of care and did not cause injury.

The course of care provided by Defendant and others is not disputed. UF 1-31. There is no dispute that the care provided by Defendant complied with the standard of care. UF 36, 37.

Proof of causation also requires competent expert testimony. Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402. There is no dispute that the care and treatment provided to Plaintiff by Dr. Thomas did not cause or contribute to the Plaintiff’s claimed injuries or damages. UF 38, 39.

Moving party is ordered to give notice.