Case Number: BC515207 Hearing Date: July 03, 2014 Dept: A

Dimkpa v Providence St. Joseph Medical Center

DEMURRERS (2)

Calendar: 1
Case No: BC515207
Date: 7/3/14

MP: Defendant, Providence Saint Joseph Medical Center
Defendant, Good Samaritan Hospital
RP: Plaintiff, Ozioma Dimkpa

ALLEGATIONS IN COMPLAINT:
After a motor vehicle accident, the Plaintiff was treated by the Defendants. The Defendants’ negligent medical treatment caused a blood clot to develop in the Plaintiff’s brain and this resulted in injuries to the Plaintiff.

CAUSES OF ACTION IN CROSS-COMPLAINT:
1) Medical Malpractice
2) Negligent Infliction of Emotional Distress

RELIEF REQUESTED:
1. Defendant, Providence Saint Joseph Medical Center
Demurrer to first and second causes of action.

2. Defendant, Good Samaritan Hospital
Demurrer to first and second causes of action.

DISCUSSION:
This hearing concerns demurrers brought by Defendants, Providence Saint Joseph Medical Center and Good Samaritan Hospital. The Defendants argue that the two causes of action in the Complaint lack sufficient facts and that the dates in the pleadings indicate that the claims are barred by the statute of limitations.

1. Motion of Defendant, Providence Saint Joseph Medical Center
a. Statute of Limitations
Where the dates alleged in the complaint show the action is barred by the statute of limitations, a demurrer lies. Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300. The statute of limitations for claims arising from medical malpractice is set by CCP section 340.5. Under CCP section 340.5, Plaintiff was required to bring her claim within the first of the following:

1) three years after the date of injury; or
2) one year after the Plaintiffs discover, or through the use of reasonable diligence, should have discovered the injury.

A review of the pleadings reveals no grounds to sustain a demurrer based on the statute of limitations. The Plaintiff pleaded that her injury occurred in April to July of 2011 because this is when the Defendants failed to diagnose a condition that resulted in a blood clot. There are no dates indicating when the Plaintiff discovered this injury, i.e., when the Plaintiff discovered or should have discovered that the Defendants had provided negligent medical treatment and that this caused her to suffer personal injuries.
Instead, the Plaintiff alleges in paragraph 24 that she was recently informed that the medical records revealed that the Plaintiff had blood clot in her head from the time of the motor vehicle accident and that this condition was the cause of her injuries. This indicates that the Plaintiff discovered her injury “recently”.
The Plaintiff has three years from the date of the injury or one year from the discovery of the injury. Since the Plaintiff did not plead the date when she discovered her injury, the only basis for a demurrer based on the statute of limitations would arise from the three-year statute of limitations that runs from the date of the Plaintiff’s injury. Under the three year statute of limitations, the Plaintiff had three years to bring her claim, or until April to July of 2014. Since the Plaintiff commenced this action on July 15, 2013, she filed her claim within the three-year time period.
The Defendant argues that the Plaintiff does not plead facts identifying the date when she discovered her injury. This is not required. Under California law, dates are not essential to a cause of action. Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25. Accordingly, the Plaintiff need not plead the dates for any of the conduct at issue. If the Defendant seeks to raise the statute of limitations, it may raise this defense in its answer.
The Defendant also argues that the Plaintiff discovered that she had a blood clot in August of 2011. The Defendant cites to paragraphs 22 and 23 of the Plaintiff’s Complaint. However, a review of these paragraphs reveals no allegation that the Plaintiff discovered that she had a blood clot. Instead, the Plaintiff alleges in paragraphs 22 and 23 that in August of 2011, she was treated by physicians at the Hospital of the University of Pennsylvania who informed her that she needed brain surgery and that she underwent two head surgeries. There are no allegations that the Plaintiff was informed then that she had a blood clot.
Further, the Defendant argues that the Plaintiff should have been aware from her headaches, dizziness, and falls that she had an undiagnosed blood clot. This argument lacks persuasive force because it is not clear how the Plaintiff, a layperson, would be able to diagnose a blood clot that had not been able to be diagnosed by numerous doctors and hospitals. Instead, it will be a question of fact whether the Plaintiff should have been aware from her symptoms that she had an undiagnosed blood clot.
Therefore, there are no grounds to sustain a demurrer based on the statute of limitations.

b. First Cause of Action for Negligence
The Defendant argues that there are no specific facts identifying its negligence. However, specific facts are not required because California law permits the Plaintiff to state her professional negligence claim in general terms, without stating the facts constituting such negligence. Smith v. Beauchamp (1945) 71 Cal. App. 2d 250, 254-255 (holding it is sufficient to plead that the thing done was negligently done).
Further, the argument lacks persuasive force because the Plaintiff pleaded specific facts. The plaintiff alleges in paragraph 30 that she was treated by the Defendant after her motor vehicle accident and that the Defendants undertook to care for Plaintiff and to provide the necessary examination and treatments. In paragraphs 34 and 35, the Plaintiff alleged that the Defendants acted negligently when they failed to diagnose a blood clot that formed after the automobile accident. This is sufficient to plead a negligence cause of action for personal injuries arising from the Defendant’s failure to diagnose a blood clot.
Therefore, the Court will overrule the demurrer to the first cause of action.

c. Second Cause of Action for Negligent Infliction of Emotional Distress
The Defendant argues that this cause of action is duplicative. Under California law, there are grounds for a demurrer to a cause of action that adds nothing to a complaint by way of fact or theory. Rodrigues v. Campbell Industries (1978) 87 Cal. App. 3d 494, 501.
The second cause of action for negligent infliction of emotional distress (“NIED”) is not an independent tort in California, but is regarded simply as the tort of negligence. Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1072. Whether plaintiffs can recover damages for NIED is dependent upon traditional tort analysis, and the elements of duty, breach of duty, causation and damages must exist to support the cause of action. Burgess, 2 Cal. 4th at 1072.
A comparison of the first cause of action and the second cause of action reveal that they do seek the same relief, i.e., damages for the Defendant’s negligent failure to diagnose her blood clot. Both causes of action are based on the tort of negligence. Both causes of action are based on the same facts. The second cause of action is a duplicative cause of action for negligence. Since the second cause of action does not add new facts or a new theory of relief to the complaint, it is duplicative.

Therefore, the Court will sustain the demurrer to the second cause of action. Since it is duplicative, there is no reason to grant leave to amend.

2. Motion of Defendant, Good Samaritan Hospital
a. Statute of Limitations
Where the dates alleged in the complaint show the action is barred by the statute of limitations, a demurrer lies. Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300. The statute of limitations for claims arising from medical malpractice is set by CCP section 340.5. Under CCP section 340.5, Plaintiff was required to bring her claim within the first of the following:

1) three years after the date of injury; or
2) one year after the Plaintiffs discover, or through the use of reasonable diligence, should have discovered the injury.

A review of the pleadings reveals no grounds for a demurrer based on the statute of limitations. The Plaintiff pleaded that her injury occurred in April to July of 2011 because this is when the Defendants failed to diagnose a condition that resulted in a blood clot. There are no dates indicating when the Plaintiff discovered this injury, i.e., when the Plaintiff discovered or should have discovered that the Defendants had provided negligent medical treatment and that this caused her to suffer personal injuries.
Instead, the Plaintiff alleges in paragraph 24 that she was recently informed that the medical records revealed that the Plaintiff had blood clot in her head from the time of the motor vehicle accident and that this condition was the cause of her injuries. This indicates that the Plaintiff discovered her injury “recently”.
The Plaintiff has three years from the date of the injury or one year from the discovery of the injury. Since the Plaintiff did not plead the date when she discovered her injury, the only basis for a demurrer based on the statute of limitations would arise from the three-year statute of limitations that runs from the date of the Plaintiff’s injury. Under the three year statute of limitations, the Plaintiff had three years to bring her claim, or until April to July of 2014. Since the Plaintiff commenced this action on July 15, 2013, she filed her claim within the three-year time period.
The Defendant argues that the Plaintiff does not plead facts identifying the date when she discovered her injury. This is not required. Under California law, dates are not essential to a cause of action. Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25. Accordingly, the Plaintiff need not plead the dates for any of the conduct at issue. If the Defendant seeks to raise the statute of limitations, it may raise this defense in its answer.
The Defendant also argues that the Plaintiff discovered that she had a blood clot in August of 2011. The Defendant cites to paragraphs 22 and 23 of the Plaintiff’s Complaint. However, a review of these paragraphs reveals no allegation that the Plaintiff discovered that she had a blood clot. Instead, the Plaintiff alleges in paragraphs 22 and 23 that in August of 2011, she was treated by physicians at the Hospital of the University of Pennsylvania who informed her that she needed brain surgery and that she underwent two head surgeries. There are no allegations that the Plaintiff was informed then that she had a blood clot.
Further, the Defendant argues that the Plaintiff should have been aware from her headaches, dizziness, and falls that she had an undiagnosed blood clot. This argument lacks persuasive force because it is not clear how the Plaintiff, a layperson, would be able to diagnose a blood clot that had not been able to be diagnosed by numerous doctors and hospitals. Instead, it will be a question of fact whether the Plaintiff should have been aware from her symptoms that she had an undiagnosed blood clot.
Therefore, there are no grounds to sustain a demurrer based on the statute of limitations.

b. First Cause of Action for Negligence
The Defendant argues that there are no specific facts identifying its negligence. However, specific facts are not required because California law permits the Plaintiff to state her professional negligence claim in general terms, without stating the facts constituting such negligence. Smith v. Beauchamp (1945) 71 Cal. App. 2d 250, 254-255 (holding it is sufficient to plead that the thing done was negligently done).
Further, the argument lacks persuasive force because the Plaintiff pleaded specific facts. The plaintiff alleges in paragraph 32 that she was treated by the Defendant after her motor vehicle accident. In paragraphs 34 and 35, the Plaintiff alleged that the Defendants acted negligently when they failed to diagnose a blood clot that formed after the automobile accident. This is sufficient to plead a negligence cause of action for personal injuries arising from the Defendant’s failure to diagnose a blood clot.
Therefore, the Court will overrule the demurrer to the first cause of action.

c. Second Cause of Action for Negligent Infliction of Emotional Distress
The Defendant argues that this cause of action is duplicative. Under California law, there are grounds for a demurrer to a cause of action that adds nothing to a complaint by way of fact or theory. Rodrigues v. Campbell Industries (1978) 87 Cal. App. 3d 494, 501.
The second cause of action for negligent infliction of emotional distress (“NIED”) is not an independent tort in California, but is regarded simply as the tort of negligence. Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1072. Whether plaintiffs can recover damages for NIED is dependent upon traditional tort analysis, and the elements of duty, breach of duty, causation and damages must exist to support the cause of action. Burgess, 2 Cal. 4th at 1072.
A comparison of the first cause of action and the second cause of action reveal that they do seek the same relief, i.e., damages for the Defendant’s negligent failure to diagnose her blood clot. Both causes of action are based on the tort of negligence. Both causes of action are based on the same facts. The second cause of action is a duplicative cause of action for negligence. Since the second cause of action does not add new facts or a new theory of relief to the complaint, it is duplicative.

Therefore, the Court will sustain the demurrer to the second cause of action. Since it is duplicative, there is no reason to grant leave to amend.

RULING:
1. Demurrer of Defendant, Providence Saint Joseph Medical Center
Overrule demurrer to first cause of action.
Sustain demurrer to second cause of action without leave to amend.

2. Demurrer of Defendant, Good Samaritan Hospital
Overrule demurrer to first cause of action.
Sustain demurrer to second cause of action without leave to amend.