Filed 11/21/19 McCaffery v. Madera Community Hospital CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

PAMELA C. MCCAFFERY,

Plaintiff and Appellant,

v.

MADERA COMMUNITY HOSPITAL,

Defendant and Respondent.

F074523

(Super. Ct. No. MCV071815 )

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Madera County. James E. Oakley, Judge.

Pamela C. McCaffery, in pro. per., for Plaintiff and Appellant.

McCormick, Barstow, Sheppard, Wayte & Carruth, Scott M. Reddie and Daniel L. Wainwright for Defendant and Respondent.

-ooOoo-

Plaintiff Pamela McCaffery brought this medical malpractice action against doctors and a hospital alleging surgical procedures were performed without her consent during a June 2010 operation on her foot. The hospital filed a demurrer, contending her claims were barred by the statute of limitations. The trial court sustained the demurrer and plaintiff appealed.

Under Code of Civil Procedure section 340.5, the time for commencing a medical malpractice action “shall be three years after the date of injury or one year after the plaintiff discovers … the injury, whichever occurs first.” Here, the injuries would have occurred in 2010 when the unauthorized surgery was performed or the follow-up care was provided. Plaintiff’s complaint was filed in February 2016. A comparison of these dates shows the injury occurred more than five years before the lawsuit was filed. Consequently, the three-year period, which is the maximum allowed under the statute, expired before the lawsuit was filed. Plaintiff’s argument that she did not discover her cause of action until December 2014 is unavailing because delayed discovery does not extend the three-year period specified in section 340.5. Furthermore, plaintiff has not demonstrated she can amend her complaint to allege facts sufficient to plead the three-year limitations period was tolled by hospital’s intentional concealment or fraud. Consequently, plaintiff’s claims are barred by the statute of limitations.

We therefore affirm the order dismissing the claims against the hospital.

FACTS

Plaintiff was born in 1945 and has represented herself throughout this litigation. In 2010, while plaintiff was incarcerated at the Valley State Prison for Women, problems with her right foot reached the point where surgery was recommended. On June 10, 2010, plaintiff signed an authorization/consent to surgery in which she agreed to the recommended operation, a “Keller Bunionectomy[,] Osteotomy Second and Third Metatarsal.” Later that day, Dr. Franklyn Collier Jones, D.P.M., performed the surgery at the Madera Community Hospital (Hospital).

Following the surgery, plaintiff was discharged from Hospital’s short stay surgical center. Her discharge papers recommended staying in the prison’s infirmary for 48 hours before being moved to a housing unit; removal of the sutures in two to three weeks, and “[l]ay in x 4 weeks” with her right foot elevated by a wedge pillow.

Plaintiff alleged that after she returned to prison the wounds did not close due to improper wrapping that trapped moisture in the wounded area and created an infection that could not heal because of inadequate air circulation. Plaintiff also alleged that Dr. Malakkla, Patricia Johnson (a family nurse practitioner at the “C” yard medical clinic), and Dr. Amritpal Pannu conspired to have plaintiff hospitalized based on the unsupported medical diagnosis that plaintiff had osteomyelitis, a very serious infection that was preventing the wounds on her foot from closing. Plaintiff alleged the misdiagnosis of osteomyelitis and subsequent treatment was below the standard of care and was not supported by the medical records. She also alleged the doctors and nurse acted with malice and oppression, disregarding her rights as a patient to promote research of vancomycin, a powerful antibiotic, on an elderly patient. Plaintiff alleged the excessive number of IV bags of vancomycin (over 70) was an inappropriate treatment and caused physical, mental and emotional harm. .

The hospitalization of plaintiff to address the alleged osteomyelitis began on September 21, 2010, and lasted through September 27, 2010. After leaving Hospital, plaintiff was held in the prison infirmary from September 27, 2010, through October 27, 2010. Plaintiff was released from the infirmary and returned to general population with the two holes on her right foot still open. After release from the infirmary, plaintiff left her bandages off and the wounds closed within two weeks.

PROCEEDINGS

First Lawsuit

On November 1, 2011, plaintiff filed a personal injury complaint naming as defendants the State of California, Dr. Pannu, Dr. Virk, Dr. Malakkla, and Hospital. She also referred to an unknown Hospital administrator as a Doe defendant. The Madera County Superior Court assigned the lawsuit case No. MCV058127.

Plaintiff described her claims as being for medical malpractice, negligence and elder abuse. She alleged that after foot surgery in June 2010, the wounds experienced fungal infections due to improper dressings by the nurses. She alleged the infections were treated by giving her approximately 70 IV bags of vancomycin, which did not improve the healing of her foot. Instead, this treatment caused her harm, including a permanent partial loss of hearing in both ears, loss of head hair, raised skin sores, vision problems, and scarring on both forearms.

In March 2014, Hospital filed a demurrer to plaintiff’s second amended complaint in case No. MCV058127. In April 2014, the trial court sustained the demurrer without leave to amend on the ground the claims raised failed to comply with the statutory time limits in section 340.5.

In January 2015, the trial court granted a motion for summary judgment filed by the State of California, Dr. Virk, and Dr. Malakkla. Plaintiff filed an appeal from the summary judgment, but did not challenge the order sustaining Hospital’s demurrer. In April 2016, this court issued an unpublished opinion filed in case No. F071301 affirming the summary judgment.

Current Lawsuit

On February 4, 2016, the Madera County Superior Court filed the complaint that initiated this lawsuit. The complaint was dated December 15, 2015. Plaintiff contends prison records show it was logged and mailed on December 16, 2015, and was stamped received by the court on December 21, 2015.

The complaint alleged claims for personal injuries and other damages against Hospital, Dr. Franklyn Collier Jones, Dr. Amritpal Pannu, and Madera Multi Specialty Group, a medical corporation. Plaintiff used the Judicial Council of California forms for pleading causes of action for general negligence and intentional tort against Hospital, Dr. Franklyn Collier Jones and Dr. Pannu. Her claim against Madera Multi Specialty Group was set forth on the form for intentional torts.

Plaintiff’s complaint described her causes of action as general negligence, intentional tort, elder abuse and professional negligence. Plaintiff alleged Dr. Franklyn Collier Jones did not disclose to her additional surgeries or the reasons for the healing difficulties that caused her to be readmitted to Hospital. As the additional surgeries were not disclosed, it follows that plaintiff did not consent to those surgeries. Besides the inappropriate medical care, plaintiff also alleged Dr. Franklyn Collier Jones submitted incorrect and excessive bills for the procedures.

Plaintiff’s cause of action for intentional tort against Hospital alleged intentional, excessive billing for services not provided to her on June 10, 2010—the date her foot surgery was performed. Her general negligence cause of action against Hospital alleged that, from September 21, 2010, through September 27, 2010, Hospital failed to properly train and supervise medical staff, the quality of care fell below normal standards, and there was a lack of review or awareness of Madera Multi Specialty Group’s records and its activities regarding inappropriate billing.

Plaintiff’s complaint alleged she suffered general damage; past, present and future personal injuries; mental and emotional stress; pain and trauma; a moderate to severe loss of hearing; and a deformed right foot, which creates pain and makes it difficult to walk and balance. Her request for relief sought compensatory damages in an amount according to proof.

Plaintiff’s complaint specifically alleged she was informed and became aware of her injuries and claims on December 26, 2014. On this date, plaintiff received a letter from John R. Ziomek, D.P.M., stating he had reviewed the documents sent to him by plaintiff and her sister. Dr. Ziomek stated he had “discovered something very nefarious and illegal.” In his opinion, Dr. Franklyn Collier Jones used the wrong surgical approach. Dr. Ziomek also believed that “Dr. Jones lied in his operative report for possible monetary gains but more importantly to attempt to limit his exposure to a lawsuit.” Dr. Ziomek stated the consent signed by plaintiff did not include hammertoe procedures for the second and third toes and, therefore, Dr. Franklyn Collier Jones did not have authorization to perform the procedures on the toes. Dr. Ziomek noted the anesthesiologist report and the discharge summary did not mention the hammertoe procedures and the operative report in the file was prepared two months after the operation.

Dr. Ziomek also stated his belief that Dr. Franklyn Collier Jones “went back in and changed the [operative] report and had the hospital or possibly he removed the first operative report.” He reiterated this point later in the letter: “I believe and allege surgeon dictated a second report two months later and had the hospital get rid of the first report.” Dr. Ziomek also stated, “The trail of guilt goes up the chain to [Hospital] and the Madera Multispecialty group who all benefited from the multiple procedures.”

Hospital’s Demurrer

In June 2016, Hospital filed a demurrer to plaintiff’s complaint. The demurrer asserted plaintiff’s causes of action were not filed within the time constraints set forth in section 340.5. In addition, the demurrer asserted plaintiff’s allegations were uncertain, ambiguous and so unintelligible that Hospital was unable to reasonably respond.

The demurrer was scheduled to be heard on July 18, 2016. Plaintiff did not appear at the hearing and the court continued the matter to August 16, 2016. At the August hearing, plaintiff made no appearance. The trial court’s order stated plaintiff was provided notice of the hearing and given an opportunity to appear telephonically. The reporter’s transcript from the hearing shows the trial court reviewed a letter from plaintiff to the clerk of court, which did not specifically ask for a continuance, but stated plaintiff was having difficulty getting permission to be on CourtCall. Defense counsel argued there was no point in granting a further extension because plaintiff had not explained how she could have a viable cause of action for things that happened in 2010. Also, defense counsel argued plaintiff was, in his view, trying to relitigate a matter already adjudicated by the court.

Trial Court’s Order and Appeal

Within a week of the August 2016 hearing, the trial court signed a written order stating the matters complained of in plaintiff’s February 4, 2016, complaint, as they pertained to Hospital, were barred by the applicable statute of limitations and also were barred as having been previously litigated by the same parties in case No. MCV058127. Later that August, defense counsel served a notice of entry of order on plaintiff at the California Institution for Women in Corona, California. In October 2016, plaintiff filed a notice of appeal.

Proceedings on Appeal

In March 2019, this court addressed plaintiff’s request for judicial notice by directing the clerk’s transcript be augmented with documents, some of which were mentioned in plaintiff’s request. Those documents included the February 4, 2016, complaint, Hospital’s demurrer and supporting papers, papers submitted by plaintiff in opposition to the demurrer, and Hospital’s reply. We also advised the parties of our intent to take judicial notice of the clerk’s transcript, appellate briefs, and our unpublished opinion in Pamela C. McCaffery v. State of California, et al., case No. F071301 (super. ct. No. MCV058127). The parties did not object to this proposal for judicial notice and, in an order filed April 16, 2019, this court granted its own motion.

In May 2019, we sent plaintiff a request for supplemental briefing on questions relating to her claim of excessive billing and whether she could allege facts showing some link between the excessive billing alleged and damages suffered by her. (See Gov. Code, § 68081.) As our Supreme Court has determined the “issue of leave to amend is always open on appeal, even if not raised by the plaintiff” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746; § 472c), we preferred to learn of any additional allegations relating to the excessive billing claim prior to oral argument. After receiving plaintiff’s response, we gave Hospital the opportunity to address plaintiff’s answers and supporting arguments. Hospital filed its supplemental letter brief in July 2019.

In September 2019, oral argument was held, and plaintiff appeared by telephone. During argument, plaintiff asserted information had been withheld from her. In light of her assertions and arguments, this court sent the parties a letter requesting post-argument supplemental briefing. The letter set forth our tentative conclusions that the one-year limitation period in section 340.5 did not appear to bar plaintiff’s malpractice claim alleging unconsented surgery because of (1) the discovery date specifically alleged and (2) the application of either the prison delivery rule or the tolling allowed prisoners under section 352.1. With respect to the three-year limitations period in section 340.5, the complaint did not include allegations attempting to show it was tolled on one or more of the grounds expressly included in the statute. Consequently, our letter asked whether plaintiff was able to allege facts sufficient to show intentional concealment or another statutory ground for tolling. We included quotes or summarized statements made in Dr. Ziomek’s letter and a declaration dated January 9, 2015, and stated the view that “[t]he uncertainty in Ziomek’s statements appears to prevent those statements, standing alone, from demonstrating a reasonable possibility that appellant can amend to allege tolling based on intentional concealment by the Hospital.”

In October 2019, this court received plaintiff’s supplemental letter brief and Hospital’s responsive letter brief. Plaintiff’s letter stated her belief that the surgery to which she did not consent was intentionally concealed from her and Hospital committed fraud. Plaintiff asserted “The Hospital had a fiduciary responsibility … while she was in the care of the Hospital’s doctors/surgeons, and medical staff.” She also stated the Hospital’s attorneys “should have been alerted to the variances between patient’s consent form, surgeon’s report of surgery, as well as, billing to insurance carrier.”

DISCUSSION

I. DEMURRERS AND THE STATUTE OF LIMITATIONS

A. Grounds for Demurrer

Under section 430.30, subdivision (a), when “any ground for objection to a complaint … appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” The statute of limitations is a “ground for objection to a complaint” for purposes of this provision and, therefore, may be raised in a demurrer. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 493.)

Generally, an order sustaining a demurrer on statute of limitations grounds is subject to de novo review on appeal. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) The untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed before an appellate court will affirm an order sustaining the demurrer. (Committee for Green Foothills, supra, at p. 42.) Allegations in the complaint showing the claim might be barred are not enough. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

B. General Principles Governing Statutes of Limitation

Statutes of limitation prescribe the length of time a plaintiff is given to bring suit or be barred. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 (Aryeh).) Generally, the limitations period “runs from the moment a claim accrues.” (Ibid.; § 312 [action must be “commenced within the periods prescribed in this title, after the cause of action shall have accrued”].) California follows the “‘last element’” accrual rule, which provides the statute of limitations runs from the occurrence of the last element essential to the cause of action. (Aryeh, supra, at p. 1191.) Our Supreme Court has described the essential elements for statute of limitations purposes as “‘wrongdoing, harm, and causation.’” (Ibid.)

The foregoing general rules are subject to a handful of modifications and equitable exceptions that alter the initial accrual of a cause of action, the subsequent running of the limitations period, or both. (Aryeh, supra, 55 Cal.4th at p. 1192.) These exceptions and modifications include the discovery rule, equitable tolling, equitable estoppel, the continuing violation doctrine, the theory of continuous accrual, and waiver. (Ibid.)

The delayed discovery rule postpones the accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) Accordingly, the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have uncovered a factual basis for the particular cause of action. (Id. at p. 803.)

C. Sections 340.5 and 352.1

Section 340.5 establishes the statute of limitations in medical malpractice lawsuits. It reads in part: “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be 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. 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.” Under the plain wording of the statute, the shorter of the two limitation periods determines whether the action is timely filed. (Ngo v. County of Los Angeles (1989) 207 Cal.App.3d 946, 948.) Stated another way, “[a] plaintiff in a medical malpractice action must satisfy the requirements of both the one-year and the three-year limitations periods.” (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189.)

Section 352.1, a special tolling provision relating to prisoners, provides in part: “If a person entitled to bring an action … is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years.” (§ 352.1, subd. (a).) In other words, section 352.1 grants a two-year tolling of the statute of limitations to persons serving less than a life sentence. (See Brooks v. Mercy Hospital (2016) 1 Cal.App.5th 1, 7–8 [trial court failed to apply § 352.1 and committed reversible error in sustaining demurrer on statute of limitations grounds].)

In Belton v. Bowers Ambulance Service (1999) 20 Cal.4th 928, the Supreme Court explained the interplay between sections 340.5 and 352.1, holding that the two-year tolling for prisoners as provided in section 352.1 applies to the one-year limitations period in section 340.5, but not to the three-year limitations period in that section. (Belton, supra, at pp. 931–935.) Accordingly, a prisoner’s time to sue a health care provider can be extended by his or her incarceration up to, but never beyond, the maximum three-year deadline contained in section 340.5. In Belton, the prisoner had filed his complaint more than one year after discovery of his cause of action, but within the three-year maximum period. Based on the tolling of the one-year period pursuant to section 352.1, the court concluded the complaint was timely.

D. Application of Time Limit

1. Summary of Plaintiff’s Claims

In this case, plaintiff has alleged two basic types of wrongful conduct—inappropriate medical care and excessive billing. The allegations of inappropriate medical care can be divided into two different types of wrongful conduct—(1) Dr. Franklyn Collier Jones’s conduct in performing procedures on June 10, 2010, without obtaining plaintiff’s consent and (2) the medical care provided to plaintiff in September and October 2010 after the surgery. Next, we consider how the limitation periods in section 340.5 apply to each of plaintiff’s medical malpractice claims.

2. Dates of the Wrongful Acts

The surgery on plaintiff’s foot was performed on June 10, 2010. Therefore, any unconsented surgery would have occurred on that date. As to the substandard care after the operation, plaintiff returned to Hospital in September 2010 for treatment of the infections. An attachment to her complaint refers to her being hospitalized from September 21, 2010, through September 27, 2010, and then held at the prison infirmary through October 27, 2010. It appears the treatment prescribed at Hospital continued while plaintiff was held at the infirmary. Therefore, the wrongful acts relating to the medical care prescribed or provided at Hospital would have been completed in October 2010.

3. Discovery

The next date of significance to our application of section 340.5 is December 26, 2014. This is the date plaintiff alleges she discovered the wrongful act of unconsented surgery and the harm resulting from those wrongful acts, which is relevant to the application of the one-year limitations period.

In comparison, plaintiff has not alleged her discovery of her claim for substandard medical care after her operation was delayed. Therefore, we infer plaintiff discovered the wrongful nature of the post-surgery care about two weeks after her release from the infirmary. During that two-week period, plaintiff felt her bandages off her foot and her wounds had closed. As a result of her successful tending to her wounds and the relative speed in achieving that success, plaintiff had a factual basis for suspecting the treatment provided at Hospital and the infirmary (at Hospital’s direction) was below the professional standard of care—that is, involved “‘wrongdoing’ or ‘wrongful conduct’” that caused her harm or injury. (See Nogart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 [plaintiff discovers the cause of action when plaintiff at least suspects a factual basis for the elements of wrongdoing, causation and harm].) Therefore, we conclude plaintiff at least suspected the post-surgery medical care was substandard once her wounds had closed, and we adopt November 2010 as the month in which she discovered that cause of action for medical malpractice. Neither party has argued for another date.

4. Commencement

The next step in our analysis of whether the statute of limitations bars plaintiff’s medical malpractice claim is to identify the date the lawsuit commenced. Normally that date is when the complaint was filed, which was February 4, 2016, in this case. (See §§ 350 [action is commenced when the complaint is filed], 411.10 [“civil action is commenced by filing a complaint with the court”].) The general rule that equates commencement with filing does not apply to plaintiff because she was in prison and was representing herself. Consequently, her commencement date is determined by California’s prison delivery rule. Under that rule, “a civil complaint by a pro per prisoner litigant should be deemed filed when it is delivered to prison authorities for forwarding to the superior court.” (Moore v. Twomey (2004) 120 Cal.App.4th 910, 918; 43 Cal.Jur.3d (2019) Limitations of Actions § 128, pp. 219–220 [under prison mailbox rule, prisoner’s complaint is deemed filed when delivered to prison authorities for forwarding to court].) Accordingly, for purposes of this appeal, we deem plaintiff’s complaint filed and the lawsuit commenced on December 16, 2015.

5. Timeliness Under the One-Year Period

Plaintiff alleges she discovered her claim for unconsented surgery on December 26, 2014. A comparison of this date to the commencement date established by the prison delivery rule (December 16, 2015) establishes that the action was commenced less than one year after the discovery. Consequently, plaintiff’s unconsented surgery claim is not barred by the one-year limitation period in section 340.5. Therefore, we need not consider whether that period was extended by the tolling for prisoners provided by section 352.1.

Plaintiff discovered the claim for substandard medical care in November 2010, when the Hospital’s care and recommendations for care was discontinued and her alternate approach was successful in closing the wounds. The time between this discovery (November 2010) and the commencement date of the lawsuit (December 16, 2015) exceeds five years. Even with the two-year tolling provided by section 352.1, plaintiff’s claim for substandard care after the operation was commenced more than one year after discovery. Therefore, the one-year limitation period bars plaintiff’s claim that the care provided after her operation was substandard. As a result of this conclusion, we need not address whether that claim also was untimely under the three-year limitations period contained in section 340.5 or whether that claim was adjudicated in favor of Hospital in case No. MCV058127.

6. Timeliness of Unconsented Surgery Claim Under Three-Year Period

Under section 340.5, plaintiff shall commence an action “three years after the date of injury.” In this case, over five years passed after the unconsented surgery (June 10, 2010) and plaintiff’s commencement of this lawsuit (December 16, 2015). The passage of over five year leads to the conclusion that the three-year limitation period, which is the maximum allowed, expired before the action on the unconsented surgery type of medical malpractice claim was commenced, unless the running of that period was tolled for over two years.

The running of the three-year period was not tolled by the two-year tolling period for prisoners set forth in section 352.1 because that type of tolling does not extend the three-year period. (Belton v. Bowers Ambulance Service, supra, 20 Cal.4th at p. 932 [§ 340.5 provides tolling exceptions to the three-year maximum, which by necessary implication excludes all other exceptions, such as § 352.1].) Therefore, the medical malpractice claim for unconsented surgery is time-barred, unless the running of the three-year limitations period was suspended by one of the tolling exceptions expressly set forth in section 340.5. Those exceptions are identified in the sentence of section 340.5 that states: “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.” (Italics added.)

7. Pleading Statutory Tolling

Here, plaintiff’s complaint did not include allegations attempting to show the three-years statute of limitations was tolled by intentional concealment, fraud or the presence of a foreign body. Thus, the question, which “is always open on appeal” (City of Stockton v. Superior Court, supra, 42 Cal.4th at p. 746), is whether plaintiff can amend her pleading to cure the defect—that is, to allege facts sufficient to toll the statute of limitations. The burden of demonstrating a reasonable possibility of amending the pleading to cure the defect is squarely on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

An initial legal question we consider about the pleading statutory tolling under section 340.5 is how much detail or specificity is required. In Donabedian v. Manzer (1986) 187 Cal.App.3d 1021, the court answered this question by stating: “ ‘Intentional concealment’ must be specifically alleged.” (Id. at p. 1027.) Also, an allegation of concealment is insufficient—a plaintiff must allege intentional concealment. (Ibid.) Usually, intentional concealment does not occur as the result of mere omissions or an exercise of poor judgment and, thus, plaintiffs are required to allege affirmative acts by the defendant to adequately plead intentional concealment. (McNall v. Summers (1994) 25 Cal.App.4th 1300, 1311–1312.)

The supplemental letter brief plaintiff submitted after oral argument did not itself identify any affirmative acts taken by Hospital to conceal information about the unconsented surgery. The supplemental letter brief included as an attachment a December 4, 2016, letter prepared by Dr. Ziomek and submitted to the California State Medical Board of Quality Assurance in support of plaintiff’s complaint against Dr. Franklyn Collier Jones. That letter does not describe any acts or omissions by Hospital to conceal the alleged unconsented surgery or to mislead plaintiff about the scope of that surgery. Instead, Dr. Ziomek took the position that the unconsented surgery was billed but never performed, stating: “1. Doctor Jones never performed hammertoe procedures of the second and third PIPJ and lied on his operative report to state in fact he did. He then fraudulently billed for these procedures.”

Assuming for purposes of this appeal that the alleged unconsented surgeries actually occurred, Dr. Ziomek’s earlier allegation that Hospital got rid of the “first” operative report does not describe an act of intentional concealment of the unconsented surgery. The operative report that became a part of Hospital’s records in August 2010 (after Hospital allegedly got rid of a “first” report) states the hammertoe procedures were performed. Thus, assuming there was a “first” report and further assuming that it failed to disclose the unconsented surgery, Hospital getting rid of that report and replacing it with the August 2010 operative report would have ended the concealment of the unconsented surgery, at least from the perspective of the records maintained by Hospital. Henceforth, those records would have described, rather than concealed, the unconsented surgery.

Our review of plaintiff’s supplemental letter brief has not located any other allegations relating to affirmative acts of concealment or fraud by Hospital. Therefore, plaintiff’s supplemental letter brief and the attached documents do not carry her burden of demonstrating she can allege Hospital committed affirmative acts to conceal the existence of the unconsented surgery or otherwise committed fraud that prevented plaintiff from learning of the surgery. Accordingly, plaintiff has not carried her burden of demonstrating she can allege facts that would show the three-year limitations period in section 340.5 was tolled for a sufficient length of time to render her complaint timely.

II. STATING A CLAIM FOR EXCESSIVE BILLING

Our first request for supplemental briefing assumed the alleged excessive billing was not a claim involving professional negligence and, therefore, was not subject to the statute of limitations set forth in section 340.5. We inquired whether plaintiff was able to allege facts under a cognizable legal theory that would allow her to recover damages based on the allegations of excessive billing.

In her response, plaintiff stated she did not contend she and Hospital were parties to contract under which she agreed to pay for services rendered by Hospital and, therefore, she did not contend she could amend her pleading to allege a breach of contract cause of action. Similarly, plaintiff did not state she could amend to state a cause of action for fraud, negligent misrepresentation, intentional infliction of emotional distress, or negligent infliction of emotional distress. Instead, plaintiff argued the excessive billing brought to her attention by Dr. Ziomek damaged or injured her trust and confidence in Hospital’s medical care.

Based on plaintiff’s statements about the excessive billing and how it resulted in harm, we conclude she is unable to state a claim for relief under a legal theory recognized by California law. She has not identified a legal theory, such as breach of contract, fraud or negligent misrepresentation, that would allow her to recover damages for her excessive billing claim. Also, the additional facts plaintiff has stated she could allege are not sufficient to state the basic elements of a cause of action. (See Aryeh, supra, 55 Cal.4th at p. 1191 [basic elements of a cause of action are “‘wrongdoing, harm, and causation’”].) Although her allegations identify a wrong—namely, excessive billing—plaintiff has not set forth facts showing how the alleged wrong caused her an injury or damage compensable under California law.

It is well established the plaintiff has the burden of demonstrating “a reasonable possibility that the defect can be cured by amendment.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) When that burden is satisfied, the judgment of dismissal is reversed and the matter remanded with directions to grant the plaintiff leave to amend. (Ibid.) Here, plaintiff has not carried that burden. Accordingly, the dismissal as to Hospital cannot be overturned on the ground plaintiff is able to amend her complaint to state a claim for the recovery of damages caused by excessive billing.

DISPOSITION

The order of dismissal is affirmed. The parties shall bear their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)