Case Name: Stewart v. Wong, et al.

Case No.: 19CV346268

Defendant Sutter Bay Medical Foundation dba Palo Alto Medical Foundation (“Defendant”) demurs to the complaint (“Complaint”) filed by plaintiff Imogene Stewart (“Plaintiff”) and moves to strike portions contained therein.

I. Background
II.

A. Factual
B.

This is an action for medical malpractice arising out of an alleged misdiagnosis. According to the allegations of the Complaint, defendant Derrick Wong, M.D. (“Dr. Wong”) became Plaintiff’s hematologist/oncologist in June 2005. Plaintiff alleges that Dr. Wong failed to properly evaluate tests performed on her and consequently failed to detect that she had been diagnosed with leukemia rather than lymphoma. This failure resulted in Plaintiff being treated with unnecessary FCR chemotherapy for six months and extended the treatments actually necessary to treat her leukemia.

C. Procedural
D.

Plaintiff filed her Complaint against Defendant and co-defendant Dr. Wong on April 22, 2019, asserting a single claim for medical malpractice. Plaintiff requests punitive damages. On August 9, 2019, Defendant filed the instant demurrer to the Complaint on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subds. (e) and (f).) Defendant also filed a motion to strike Plaintiff’s request for punitive damages. (Code Civ. Proc., §§ 435 and 436.) Plaintiff opposes the demurrer only.

III. Demurrer
IV.

Defendant’s demurrer is predicated on the following arguments: (1) Plaintiff’s Complaint is time-barred; (2) Plaintiff fails to plead any claim against Defendant; and (3) the Complaint is uncertain. These arguments will be addressed in turn.

First, the applicable limitations period for a claim for medical negligence is provided by Code of Civil Procedure section 340.5 (“Section 340.5”), which reads, in pertinent part, as follows:

In an action for injury … against a healthcare provider based upon such person’s alleged professional negligence, the time for commencement of the action shall be three years after the date of the injury or one year after the plaintiff discovers, of through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

The three-year period runs from the time of injury, not from the time of the defendant’s wrongful act. (Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 54-55.) For this purpose, “injury” means both the negligent cause and the damaging effect of the alleged wrongful act … not the act itself. (Id.) The “damaging effect” of an injury, in turn, occurs at the point some “appreciable harm” is first “manifested”- i.e., when it has become evidenced in some significant fashion. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 437.) Thus, the statute begins to run when the damage has “clearly surfaced” and is noticeable even though the plaintiff does not recognize its harmful nature or negligent cause. (Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, 1545.) That is, the plaintiff’s awareness of his or her injury is not essential.

Defendant maintains that Plaintiff’s claim is time-barred given her allegations that she was injured by care rendered to her by Dr. Wong in July 2016 (when he was sent test results documenting her leukemia) and February 1, 2018 (when Dr. Wong admitted he had not reviewed her records in detail until her test results in January 2018 revealed she had leukemia). Defendant treats the latter date as the date of accrual for Plaintiff’s claim and, given Dr. Wong’s alleged admission that he had not reviewed her records in detail and thus treated her with unnecessary chemotherapy based on an incorrect diagnosis, argues that the statute of limitations ran one year later on February 1, 2019. When a plaintiff alleges that a defendant misdiagnosed or failed to diagnosis a particular disease, there is no “injury” under the one-year or three-year limitations period until the plaintiff first experiences harm as a result of the misdiagnosis. (See Drexler v. Peterson (2016) 5 Cal.App.5th 1181, 1183-1184.) This means that the plaintiff must have knowledge or awareness of the missed diagnosis/failed diagnosis. (Id.)

Here, given the foregoing standard, Plaintiff first experienced harm as a result of Dr. Wong’s alleged negligence after she learned that the chemotherapy she had been forced to undergo was unnecessary, i.e., on February 1, 2018. (Id.) Consequently, the statute of limitations began to run on her claim on that date and ran out on February 1, 2018. However, Plaintiff did not file her initial complaint until April 22, 2019, and therefore her claim appears to be time-barred.

In her opposition, Plaintiff appears to believe that the three-year limitations period applies to her claim, which she maintains accrued in October 2016 when she first began to undergo the unnecessary FCR chemotherapy. But Plaintiff’s approach does not take into account the specific way that Section 340.5 is applied in circumstances such as hers, i.e., when there has been a misdiagnosis or failure to diagnose. Even though she started the unnecessary treatment in October 2016, Plaintiff’s “injury” for the purposes of determining the accrual of her claim under Section 340.5 was when she became aware that the treatment she had undergone was unnecessary due to Dr. Wong’s alleged misdiagnosis. Accordingly, her claim did not accrue in October 2016.

Plaintiff additionally argues that her claim is timely because the statute of limitations was tolled pursuant to her service on Defendant of a notice of intent to sue under Code of Civil Procedure section 364. This code section requires that a plaintiff give a healthcare provider 90 days prior notice of her intention to commence an action for professional negligence in order to initiate such a lawsuit. (Code Civ. Proc., § 364, subd. (a).) If this notice is properly served within 90 days of the expiration of the applicable limitations period, “the time for commencement of the action shall be extended 90 days from the service of the notice.” (Code Civ. Proc., § 364, subd. (d); see also Russell v. Stanford Hospital Univ. Hosp. (1997) 15 Cal.4th 783, 788.) Plaintiff maintains that she served Defendant with a notice of intent to sue in January 2019, before the one-year limitations period expired. If Plaintiff did indeed serve such a notice, the limitations period would be extended 90 days from then. However, Plaintiff has not pleaded service of such a notice in the Complaint, nor specifically when such service was effectuated, and therefore the Court cannot determine whether the limitations period was extended and, if it was, whether that extension reached April 22, 2019, the date this action was filed. Consequently, as currently pleaded, Plaintiff’s claim is time-barred.

Even if Plaintiff’s claim was timely, it would still be deficient because no claim has been stated specifically against Defendant. As Defendant maintains in its motion papers, there are no allegations establishing the existence of any duty owed to Plaintiff, let alone a breach of a duty owned to her by Defendant. Thus, no cause of action for medical negligence has been stated against Defendant. For the same reason, the Complaint is uncertain with respect to Defendant because it cannot reasonably determine what it must respond to. (See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

In accordance with the foregoing, Defendant’s demurrer to the Complaint is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

V. Motion to Strike
VI.

With the instant motion, Defendant moves to strike Plaintiff’s request for punitive damages on the grounds that such a request is improper because Plaintiff failed to comply with Code of Civil Procedure section 425.13 (“Section 425.13”).

Section 425.13 provides that no complaint filed against a health care provider for “professional negligence” may contain a prayer for punitive damages unless the court expressly grants leave to file an amended complaint adding punitive damages after a determination that there is a substantial probability that the plaintiff will prevail on the claim. (Code Civ. Proc., § 425.13; see also Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.App.4th 181, 182.) Here, based on what is alleged in the Complaint, it is clear that Plaintiff’s theory of liability arises from Defendant’s alleged negligent provision of health care services to her in the diagnosis and treatment of her cancer. Thus, in order to include a request for punitive damages in her Complaint, Plaintiff is required to comply with Section 425.13. Here, however, Plaintiff has not obtained the necessary court order. Therefore, her request for punitive damages must be stricken and Defendant’s motion is GRANTED.