Case Number: BC673914 Hearing Date: August 31, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT; DEMURRER OVERRULED

I. BACKGROUND

On August 25, 2017, plaintiff Max Farago (“Plaintiff”) filed a complaint against defendants Laboratory Corporation of America dba LabCorp (“LabCorp”), Ruth F. Cousineau M.D. (“Cousineau”) and Does 1 to 50 alleging a cause of action for medical negligence. On June 25, 2018, Plaintiff filed a first amended complaint (“FAC”).

The FAC alleges that: (1) LabCorp is in the business of providing medical services and Cousineau is a licensed physician who provides medical services. (FAC ¶¶ 2-3); (2) On April 29, 2016, Plaintiff had blood drawn in Cousineau’s office for the purpose of testing for genetic inconsistencies. (Id. ¶ 8); (3) The blood draw was performed either by a member of Cousineau’s staff or by a technician employed by LabCorp. (Id. ¶ 9); (4) The defendants improperly and negligently performed the blood draw. (Id. ¶ 10); (5) When the needle was inserted into Plaintiff’s arm, Plaintiff immediately experienced extreme pain and then dull pain in his arm and hand thereafter. (Id.); (6) Plaintiff contacted Cousineau about this reaction, however, Cousineau was dismissive and told Plaintiff that it was not possible that a nerve had been hit during the blood draw. (Id. ¶ 10); and (7) Cousineau reassured Plaintiff that his symptoms would eventually disappear and because of these reassurances Plaintiff did not discover or even begin to suspect that the blood draw had been negligently performed until at least September 2016 when the pain in his hand persisted. (Id. ¶ 11.)

On July 23, 2018, LabCorp filed a demurrer. On August 9, 2018 and then again on August 13, 2018, Plaintiff filed an opposition. The Court notes that the oppositions seem to be identical. On August 16, 2018 LabCorp filed a reply.

II. REQUEST FOR JUDICIAL NOTICE

The Court grants LabCorp’s request for judicial notice of the original complaint pursuant to Evidence Code section 452(d).

III. LEGAL STANDARD

“A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment . . . .’” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325 (internal citations omitted).)

IV. DISCUSSION

a. Meet and Confer Requirement

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41 and 435.5.) The Court notes that LabCorp has complied with the meet and confer requirement. (See Decl. Mooradian.)

b. Sham Pleading

LabCorp contends that the FAC pleads facts contradictory to the facts alleged in the original complaint and thus the new allegations in the FAC should be disregarded as a sham. Specifically, LabCorp argues that the original complaint alleged that following the blood draw, Plaintiff “reached out to DR COUSINEAU on multiple subsequent occasions, but DR. COUSINEAU refused to substantively address the injury caused by her office and instead referred him to Defendants LABCORP. . . .” (Demurrer at 2:11-15 citing to Complaint ¶ 12.) LabCorp argues that this allegation is now omitted from the FAC and instead the FAC alleges that Cousineau reassured Plaintiff that her symptoms would eventually disappear and because of these reassurances, Plaintiff did not discover or begin to suspect that the blood draw had been negligently performed until September 2016.

Plaintiff opposes on the ground that the FAC clarifies and does not contradict the complaint and is thus not a sham pleading. Plaintiff argues that the allegation in the FAC that Cousineau reassured Plaintiff that his symptoms would eventually disappear clarifies and streamlines what was meant by the original allegation in the complaint that Plaintiff reached out to Cousteau on multiple subsequent occasions but Cousineau refused to substantively address the injury caused by her office. Plaintiff explains that this new allegation means that instead of substantively addressing the injury, Cousineau mollified Plaintiff with empty assurances that Plaintiff’s symptoms would disappear on their own. Plaintiff further explains that the FAC omits the allegation of “multiple subsequent occasions” because the FAC is intended to be more precise than the complaint and the exact number of times that Plaintiff reached out to Cousineau is yet to be determined.

Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425–26.) If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations. (Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151.)

Here, the Court finds that the complaint and the FAC are not so inconsistent that the FAC may be properly deemed to be a sham pleading. The allegation in the complaint that Cousineau refused to substantively address Plaintiff’s injury is not contradicted by the allegation in the FAC that Cousineau assured Plaintiff that the injury would eventually go away. Rather, these allegations are consistent in that while Cousineau made certain assurances to Plaintiff, Cousineau did not fully and substantively evaluate Plaintiff’s symptoms. Furthermore, the omission of the allegation that Plaintiff contacted Cousineau on multiple occasions is not so inconsistent in light of the allegation that Plaintiff’s interaction with Cousineau consisted of Cousineau assuring Plaintiff that the pain would go away.

Thus, the Court finds that the FAC is not a sham pleading.

c. Statute of Limitations

LabCorp contends that Plaintiff’s action is time barred pursuant to the one year statute of limitations pursuant to CCP section 340.5. LabCorp argues that Plaintiff’s action is time barred because while Plaintiff was allegedly injured on April 29, 2016, Plaintiff did not commence this action until August 28, 2017. Specifically, LabCorp argues that based on the allegation that Plaintiff experienced pain during the blood draw and reached out to Cousineau about the pain, Plaintiff was reasonably on inquiry that the defendants had been negligent thereby commencing the one year limitations period.

Plaintiff opposes on the ground that the issue of when Plaintiff discovered or reasonably should have discovered the defendants’ medical negligence is a factual question that cannot be resolved on a demurrer. Plaintiff argues that the FAC sufficiently alleges that he did not discover the defendants’ negligence until September 2016 and thus the action is not barred by the one year limitations period.

Code of Civil Procedure § 340.5 mandates that an action for injury or death against a health care provider based on alleged professional negligence must be commenced within three years after the date of injury or one year after the plaintiff discovers or should have discovered the injury with reasonable diligence, whichever comes first. The statute emphasizes that “[i]n no event shall the time for commencement of legal action exceed three years unless tolled for one of three specific reasons (fraud, intentional concealment, or presence of a foreign body). (CCP § 340.5.)

A plaintiff’s action may be time-barred by the one-year limitation period, which begins when the plaintiff discovers both her injury and its negligent cause. (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189.) “The patient is charged with presumptive knowledge of his negligent injury, and statute commences to run, once he has notice or information of circumstances to put reasonable person on inquiry, or has opportunity to obtain knowledge from sources open to his investigation.” (Artal v. Allen (2003) 111 Cal.App.4th 273, 279 (internal citations omitted).)

Here, on April 29, 2016, Plaintiff had blood drawn in Cousineau’s office and the defendants improperly and negligently performed the blood draw. (Id. ¶¶ 8-10.) The FAC alleges that when the needle was inserted into Plaintiff’s arm, Plaintiff immediately experienced pain and then dull pain in his arm and hand thereafter. (Id.) The FAC further alleges that Plaintiff contacted Cousineau about his pain however Cousineau was dismissive and told Plaintiff that it was not possible that a nerve had been hit during the blood draw and further assured Plaintiff that the pain would go away. (Id. ¶ 10-11.)

Accordingly, as of the date of the incident, April 29, 2016, Plaintiff was presumptively on notice of the injury and the alleged negligent conduct of the defendants and the statute of limitations commenced to run. (Artal v. Allen (2003) 111 Cal.App.4th 273, 279.) Plaintiff did not file the lawsuit until August 25, 2017, more than a year later. Therefore, unless the delayed discovery rule applies, Plaintiff’s action is time barred by the one-year statute of limitation period pursuant to CCP § 340.5.

Delayed Discovery Rule

In order to rely on the discovery rule for delayed accrual of a cause of action, a plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to “show diligence”; conclusory allegations will not withstand demurrer. (Id.)

The Court finds that the allegations in the FAC are sufficient to establish the applicability of the delayed discovery rule. Notably, the FAC alleges that Plaintiff did not discover the defendants’ negligence until September 2016 when the pain, numbness, spasms and loss of control in his hand persisted, contrary to Cousineau’s assurances. (FAC ¶ 11.) Thus, the FAC alleges the time and manner of discovery. Furthermore, the FAC alleges that Plaintiff sought the advice of Cousineau regarding his pain and Cousineau essentially assured Plaintiff that the blood draw went well and that the pain Plaintiff was experiencing would go away. (FAC ¶¶ 10-11.) This allegation is sufficient to establish at the demurrer stage that Plaintiff could not discover the defendants’ negligence despite reasonable diligence. For demurrer purposes, the Court assumes as true the allegations in the complaint regardless of how improbable they may be. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)

It may be unclear as to when Plaintiff was reasonably on inquiry as to his injury and its negligent cause. (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189.) Plaintiff contacted Cousineau to inquire about the pain and numbness in his arm following the blood draw. (Id.) These allegations support the inference that Plaintiff was on inquiry to question the medical services the defendants provided him such that the statute of limitations began to run on April 29, 2016. (See Artal v. Allen (2003) 111 Cal.App.4th 273, 279; see also (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1190-1191 [“The statute of limitations runs from point at which appreciable harm was first manifested and ‘[m]anifested’ is that point at which the damage has become evidenced in some significant fashion; when the damage has clearly surfaced and is noticeable.”] (Id.))

However, the Court notes that “[t]he question of when there has been a belated discovery of the cause of action, especially in malpractice cases, is essentially a question of fact, and [i]t is only where reasonable minds can draw but one conclusion from the evidence that the question becomes a matter of law.” (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1188–1189 [internal quotations omitted.].) Here, based on the allegations in the FAC, the Court is not of the view that reasonable minds can draw but one conclusion. The cases cited by the parties primarily involve motions for summary judgment, where the courts had a full evidentiary record to determine whether the plaintiffs were reasonably on notice of the injury and its negligent cause. Furthermore, unlike in a motion for summary judgment, here, on a demurrer, the Court must assume as true the allegations in the FAC regardless of how improbable they may be. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)

Therefore, the Court finds that it is improper to determine at the demurrer stage the factual question of whether Plaintiff was actually on notice of his injury and its negligent cause on April 29, 2016. Rather, based on the allegations in the FAC, Plaintiff became aware of his injury and its negligent cause in September 2016. Since the complaint was filed in August 25, 2017, the complaint was timely.

Accordingly, the demurrer to the FAC is OVERRULED. LabCorp is ordered to file an answer within ten days of this order.

Parties who intend to submit on this tentative must send an email to the Court at sscdept7@lacourt.org as directed by the instructions provided on the Court website at www.lacourt.org.

Moving Party is ordered to give notice.