2013-00151106-CU-MM

Andreanna Kamilos vs. Heritage Oaks

Nature of Proceeding:   Hearing on Demurrer to First Amended Complaint

Filed By:  Katzorke, Carolyn L.

Defendant BHC Heritage Oaks Hospital, Inc.’s (“Defendant”) demurrer to Plaintiff Nick
Kamilos’ (“Nick”) First Amended Complaint (“FAC”) is ruled upon as follows.

This is a medical malpractice action. Nick, together with his wife Andreanna Kamilos
(“Andreanna”)(collectively “Plaintiffs”), filed a complaint against Defendant on
September 5, 2013, alleging a single cause of action for medical malpractice arising
from medical care provided to Andreanna on December 30, 2012. On February 5,              2014, Plaintiffs filed the FAC adding a second cause of action for loss of consortium.
Defendant now demurs to the first and second cause of action in the FAC as to Nick
only.

1rd cause of action Medical Malpractice:

Defendant demurs to this cause of action on the ground that Nick failed to state a
cause of action for medical malpractice. Defendant contends that it owes no duty to
Nick because Nick was not and is not a patient of Defendant, thus a physician-patient
relationship does not exist between them. The incident alleged in the complaint only
involves medical care provided to Andreanna. Plaintiffs also concede that the demurrer
should be sustained as to Nick.

Accordingly, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

2nd cause of action Loss of Consortium:

Defendant demurs to this cause of action on the grounds that it is time barred by the
one year statute of limitations and the amendment does not relate back to the original
complaint.

A cause of action for loss of consortium is subject to statute of limitations and must be
filed within one year from date of injury which gives rise to loss of consortium. Priola v.
Paulino (1977) 72 Cal.App.3d 380, 383. Here, the injury which gives rise to the loss of
consortium claim occurred on December 30, 2012. Plaintiffs amended the original
complaint and added a cause of action for loss of consortium on February 2, 2014,
which is approximately 2 months after the expiration of applicable statute of limitations.
Therefore, Plaintiffs’ second cause of action is time barred by the one year statute of
limitations. The issue now is whether Plaintiffs’ amendment relates back to the original
complaint.

A loss of consortium claim is derivative of the spouse’s injuries. Here, Plaintiffs’ original
complaint contained specific facts concerning Andreanna’s injuries, thus the relation-
back doctrine will apply because the amendment “(1) rests on the same general set of
facts, (2) involves the same injury, and (3) refers to the same instrumentality.” Pointe
San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP
th
(2011) Cal.App.4   265, 276. Defendant fails to proffer any bright-line rule or case
authority showing that a loss of consortium claim does not relate back in this case.

Accordingly, the demurrer is OVERRULED.

Defendant shall file and serve and answer by no later than July 7, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.