Case Name: Maranon v. Jammal, et al.
Case No.: 17-CV-318939

This is a medical malpractice action initiated by plaintiff Anthony Maranon (“Plaintiff”) against defendants Mansour Jammal, M.D. (“Jammal”), Fook Wong, M.D. (“Wong”), and O’Connor Hospital (“Hospital”) (collectively “Defendants”).

According to the allegations of the complaint (“Complaint”), Plaintiff is a “T5 paraplegic” and, as such, uses a wheelchair for mobility. (Complaint, ¶ 8.) On February 21, 2015, Plaintiff fell from his wheelchair while at Levi’s Stadium after rolling over a drainage grate that did not comply with the federal American for Disabilities Act (“ADA”). (Id. at ¶ 9.) Because Plaintiff had no feeling in his legs, he did not realize he had suffered a major injury as a result of the fall until two days later, after which he sought medical attention at the Hospital. (Id. at ¶ 10.) At that time, Jammal treated him in the emergency room and Wong provided a consultation, both diagnosing him with a tibial plateau fracture and fibial fracture. (Ibid.)

At the Hospital, a knee immobilizer was placed on Plaintiff’s fractured leg. (Complaint, ¶ 10.) Due to Defendants’ negligence, the knee immobilizer was not removed for cleansing or examination until it was replaced with a brace days later. (Ibid.) The use of a knee immobilizer is “contraindicated in patients with poor circulation and no skin sensitivity, such as Plaintiff.” (Ibid.) As a result of using the knee immobilizer, Plaintiff developed pressure wounds which required medical care and caused him significant physical and emotional suffering. (Ibid.)

Plaintiff subsequently filed an action in federal court, which initially only included claims against the owners and operators of Levi’s Stadium for their violation of the ADA (“the Federal Action”). (Complaint, ¶¶ 12, 15.) In connection with that case, Plaintiff retained a consultant to review his medical records incidental to his claim for personal injury. (Id. at ¶ 13.) The consultant notified Plaintiff for the first time of Defendants’ malpractice. (Ibid.) While Plaintiff had previously been aware of his pressure wounds, he believed them to be a natural consequence of his treatment, particularly as he suffered from pressure wounds in the past in connection with other medical treatments. (Ibid.) Within a year of discovering Defendants’ negligence, on May 3, 2016, he served on them a notice of intent to commence an action for medical negligence. (Id. at ¶ 14.) Plaintiff then amended the complaint in the Federal Action to include a medical negligence cause of action against Defendants. (Id. at ¶ 15.) On October 13, 2017, the federal district court dismissed Defendants from the Federal Action because the court lacked jurisdiction over the medical negligence claim. (Id. at ¶ 16.)

Plaintiff subsequently initiated this action, asserting a single cause of action for medical negligence.

Hospital presently demurs to the Complaint on the ground of failure to state sufficient facts to constitute a cause of action. Plaintiff opposes the demurrer.

Hospital argues the Complaint is time-barred because Code of Civil Procedure section 340.5 (“Section 340.5”) requires parties to initiate a medical malpractice action within a year of discovering the subject injury, and Plaintiff failed to do so.

Section 340.5 establishes the limitations period for “any action for injury or death against a health care provider based upon such person’s alleged professional negligence.” The statute of limitations commences “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 one-year limitations period begins to run when the plaintiff has reason to suspect both the physical manifestation of the injury and its negligent cause. (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 822 (“Dolan”).) Hospital aptly argues the one-year limitations period set forth in Section 340.5 applies here because the pleading reflects Plaintiff knew of his injury and its cause less than three years before this action was filed. Plaintiff does not dispute the one-year limitations period applies.

The application of the one-year limitations period provided in Section 340.5 is similar to the application of the delayed discovery rule. (Dolan v. Borelli, supra, 13 Cal.App.4th at p. 822.) Under the rule of delayed discovery, 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 . . . plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the fact to find her.

(Jolly v. Eli Lilly Co. (1988) 44 Cal.3d 1103, 1110-11 (“Jolly”).) A plaintiff who suspects an injury has been wrongfully caused must “conduct a reasonable investigation of all potential causes of that injury.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) “If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on the cause of action when the investigation would have brought such information to light.” (Id. at pp. 808-809.)

Hospital asserts the limitations period began to run in February 2015 because Plaintiff expressly alleges he was then obviously aware of his pressure wounds. (See Complaint, ¶ 13.) Hospital insists the limitations period has elapsed because Plaintiff did not serve his notice of intent to sue until more than one year later on May 3, 2016. (See id. at ¶ 14.)

Hospital’s argument that the limitations period began to run in late February 2015 is misplaced as it neglects to consider the allegations that Plaintiff did not suspect any wrongdoing until his consultation. Notably, the pleading does not reflect Plaintiff had any suspicion of wrongdoing prior to his consultation and alleges he actually thought pressure wounds were normal as he had suffered them before. (Complaint, ¶ 13.) As stated above, awareness of the injury itself is not the only consideration in determining whether the limitations period begins to run; courts must also look to whether there is any suspicion of wrongdoing. (See Jolly, supra, 44 Cal.3d at pp. 1110-11.) Because the pleading affirmatively alleges Plaintiff did not suspect any wrongdoing until his consultation, which he alleges occurred within one year of filing an action against Defendants, it does not reflect that this cause of action is time-barred.

In reply, Hospital argues for the first time that it was not reasonable for Plaintiff to delay filing this action because any reasonable person would have been aware of the purported negligence. That argument is problematic because it was raised for the first time in reply and courts typically do not consider contentions raised for the first time in reply. (See In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303.) The argument is additionally misguided because it is not evident any reasonable person would have suspected negligence in these circumstances. As stated by Hospital, there are two tests to determine whether a plaintiff has knowledge of the injury: a subjective and an objective test. (See Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.) As to the subjective test, the pleading clearly does not reflect Plaintiff knew the injury was caused by wrongdoing. With respect to the objective test, it requires “a showing that a reasonable person would have suspected the injury was caused by wrongdoing.” (Ibid.) The reasonableness of belated discovery in malpractice cases are generally questions of fact, which can only be determined as a matter of law where reasonable minds can draw but one conclusion. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 436.) Here, reasonable minds could differ on whether Plaintiff should have suspected wrongdoing given that he previously suffered pressure wounds from unrelated treatments and considered them to be normal. As such, the demurrer cannot be sustained on the basis Plaintiff objectively should have discovered wrongdoing.

In light of the above, the demurrer is OVERRULED.

The Court shall prepare the Order.