1. Defendant Khalife’s DEMURRER TO PLAINTIFF’S COMPLAINT

Respondent: Plaintiff Goodwin (pro per)

2. Defendant Khalife’s MOTION TO STRIKE

Respondent: Plaintiff Goodwin (pro per)

TENTATIVE RULING

1-2. Demurrer and Motion to Strike

Defendant Prime Healthcare Services-San Dimas, LLC’s demurrer to plaintiff’s complaint is SUSTAINED without leave to amend. Defendant Prime Healthcare Services-San Dimas, LLC’s motion to strike is MOOT.

JUDICIAL NOTICE is taken of Defendant’s exhibits. (Ev. Code 452 and 453.)

STATUTE OF LIMITATIONS:
CCP 340.5 specifies that a plaintiff must bring an action for “professional negligence” within the earlier of (1) three years after the date of injury, or (2) “one year after the plaintiff discover, or through the use of reasonable diligence should have discovered, the injury.” (CCP 340.5.)

Plaintiff alleges that he went to the San Dimas Community Hospital on 10/3/10, and that he underwent surgery on 10/4/10. (Complaint, Pars. 2, 4-5.) Plaintiff further alleges that he had consented to a colonoscopy—not surgery through his abdomen—but that he “found his abdomen was cut” on 10/4/10. (Complaint, Par. 5.) On 12/1/10, he experienced “extreme abdominal pains” and was advised by doctors that his “small bowel” had “extensive scar tissues.” (Complaint, Par. 6.) Thus, the allegations in Goodwin’s complaint establish that, by 12/1/10, he knew doctors had performed a different surgery that he had expected and that he had been injured thereby. This was the date upon which the statute of limitations began to run. (See Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 414 – “The statute begins to run when the plaintiff actually knows or suspects, or reasonably should know or suspect, the injury was caused by wrongdoing.”) However, Plaintiff did not file his complaint until 7/22/13, which is more than one year after 12/1/10, and thus outside the limitations period specified in section 340.5.

While the Complaint asserts other causes of action based on fraud, it is well settled that courts must look to the gravamen of a plaintiff’s claims, not the label he uses. Otherwise, plaintiffs would be able to plead around the limitations periods fixed by our Legislature. Section 340.5 defines “professional negligence” as “a negligent act or omission to act by a health care provider in the rendering of professional services.” (CCP 340.5.) “Even though the plaintiff alleges false representations on the part of the physician or fraudulent concealment, our courts have always treated the action as one for malpractice.” (Taylor v. Tell (1961) 191 Cal.App.4th 266, 271.) These fraud-related claims are therefore barred by section 340.5.

For similar reasons, Goodwin’s actions for medical battery and for the absence of informed consent are untimely. “[A] medical act performed without a patient’s informed consent . . . is medical negligence, not battery.” (Massey v. Mercy Medical Center Redding(2009) 180 Cal.App.4th 690, 698.) Such negligence claims accordingly qualify as “professional negligence” under section 340.5, even if the Court were to treat these claims as arising under the tort of battery. (Cline v. Lund (1973) 31 Cal.App.3d 755, 768 – “when a doctor obtains consent from the patient to perform one type of treatment and thereafter performs a substantially different treatment for which consent was not obtained . . . there is a case of battery”), the limitations period would be two years (CCP 335.1), and Goodwin’s action is still untimely.

Goodwin’s remaining claims for violations of provisions of the Code of Federal Regulations and the Los Angeles Superior Court Rule are also either untimely or otherwise do not state a cause of action. To the extent he cites the regulations as a basis for establishing negligence per se (see Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1266-1275), the claims are based upon negligence and are time barred by CCP 340.5. To the extent Goodwin seeks to assert independent causes of action, he may not do so. 42 CFR 482.13(b)(2) requires hospitals to establish an “informed consent process” and section 482.51(b)(2) requires hospitals to have “[a] properly executed informed consent form . . . in the patient’s chart before surgery.” Neither regulation explicitly establishes a private right of action, and courts are reluctant to imply private rights of action, especially when the statute or regulation does not explicitly confer rights or prohibit consent and instead requires that certain records be maintained. (Touche Ross & Co. v. Redington (1979) 442 U.S. 560, 569; see also Alexander v. Sandoval (2001) 532 U.S. 275, 286-87, 289 – “Statutes that focus on the person regulated rather than the individuals protected create no implication of an intent to confer rights on a particular class of persons.”)

Plaintiff, in his opposition, contends that because there are new facts just discovered that toll or extend the statute of limitation, i.e., that on 9/5/13, Plaintiff found out his sigmoid colon segments had stuck and overlapped. However, the fact that Plaintiff may have recently discovered additional injury, as a result of Defendant’s alleged negligence at the time of surgery, does not toll the statute of limitations.

The one-year limitation period applies, even though three years have not passed since “time of the injury,” if plaintiff has discovered or should have discovered the injury: i.e., the action will be barred if not commenced within one year from the discovery or “deemed” discovery date of the injury. (CCP 340.5.) The one-year/discovery-rule limitations period begins once plaintiff is aware of circumstances or information that would put a reasonable person on “inquiry notice”—i.e., when plaintiff suspects or should suspect the injury was caused by someone’s wrongdoing. “So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110–1111; see Knowles v. Super.Ct. (Labo) (2004) 118 Cal.App.4th 1290, 1295–1297.) When the fact of injury and the identity of the party responsible for it are known, THE FAILURE TO DISCOVER SOME OR MOST OF THE RESULTING DAMAGE UNTIL LATER WILL NOT TOLL THE RUNNING OF THE STATUTE. (Howe v. Pioneer Mfg. Co. (1986) 262 Cal.App.2d 330, 340-341.)

Plaintiff clearly states that he sustained injury on 10/4/10 when Defendants performed open abdominal surgery without his consent. (Complaint, Par. 5.) Plaintiff knew about his alleged injury and its negligent cause when he filed a previous suit against the surgeon on 9/6/11 for damages arising from the exact same injury that he claims he sustained in this case. Plaintiff clearly states in his complaint that his surgery on 10/4/10 may cause one or more corrective surgeries to repair his ONGOING colon damages. (Complaint, Par. 1.) Thus, the “colon adhesions” are not a new injury because it flows from the original surgery on 10/4/10.

For these reasons, Goodwin’s claims are time barred.

Demurrer is SUSTAINED without leave to amend. Motion to strike is GRANTED.