Case Number: 19STCV35896 Hearing Date: December 19, 2019 Dept: 4A

Demurrer with Motion to Strike

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On October 8, 2019, Plaintiff Teresa Salas (“Plaintiff”) filed a complaint against Defendants Beverly Radiology Medical Group, Inc. dba Torrance Advanced Imaging Center (erroneously sued and served as Torrance Advanced Imaging Center) and Jerome Gold, M.D. alleging premises liability for a loose sheet getting stuck in an MRI machine that Plaintiff was in, causing injuries on April 28, 2018.

On November 19, 2019, Defendant Beverly Radiology Medical Group, Inc. dba Torrance Advanced Imaging Center filed a demurrer to Plaintiff’s complaint pursuant to California Code of Civil Procedure section 430.10.

Trial is set for April 6, 2021.

PARTY’S REQUESTS

Defendant Beverly Radiology Medical Group, Inc. dba Torrance Advanced Imaging Center (“Demurring Defendant”) requests that the Court sustain its demurrer as it fails to state facts sufficient to constitute a cause of action for medical malpractice because it is barred by the statute of limitations.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at p. 747.)

Before filing a demurrer, the demurring party is required to meet and confer in person or by telephone with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code of Civ. Proc. § 430.41, subd. (a).)

DISCUSSION

Meet and Confer

The Court finds that Demurring Defendant has fulfilled the meet and confer requirement prior to filing this demurrer. (See Iacopino Decl., ¶¶ 2-3.)

Duplicative

Demurring Defendant argues that the Plaintiff’s premises liability cause of action is truly a medical malpractice cause of action. The Court agrees.

In Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, the California Supreme Court addressed the question of when “negligence in the use or maintenance of hospital equipment or premises qualifies as professional negligence” and when such negligence may be ordinary negligence that may support a premises liability claim. (Id. at p. 84). In answering this question, the Supreme Court distinguished between “the professional obligations of hospitals in the rendering of medical care to their patients and the obligations hospitals have, simply by virtue of operating facilities open to the public, to maintain their premises in a manner that preserves the well-being and safety of all users.” (Id. at p. 87).

The scope of professional negligence recognized in Flores is quite broad. The Court reaffirmed the notion that “’the professional duty of a hospital . . . is primarily to provide a safe environment within which diagnosis, treatment, and recovery can be carried out. Thus if an unsafe condition of the hospital’s premises causes injury to a patient, as a result of the hospital’s negligence, there is a breach of the hospital’s duty qua hospital.’” (Id. at p. 83 (quoting Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, 56-57). Thus, the Court explained that professional negligence does not require the exercise of medical skills and can occur, for example, when a janitor’s broom accidentally separates a patient from a ventilator, or where a hospital employee mistakenly delivers the wrong food to a patient on a restricted diet, or where hospital staff fail to secure a violently coughing patient who then falls off his gurney.

The Flores Court also clarified that “[a] hospital’s negligent failure to maintain equipment that is necessary or otherwise integrally related to the medical treatment and diagnosis of the patient implicates a duty that the hospital owes to the patient by virtue of being a health care provider. Thus, if the act or omission that led to the plaintiff’s injuries was negligence in the maintenance of equipment that, under the prevailing standard of care, was reasonably required to treat or accommodate a physical or mental condition of the patient, the plaintiff’s claim is one of professional negligence.” (Flores, supra, 63 Cal 4th at p. 88). Where, on the other hand, the equipment or facilities are made available to members of the public and generally play no role in medical diagnosis or treatment, a hospital’s failure to exercise care in their maintenance or repair would give rise to a case of premises liability grounded on ordinary negligence standards. (Ibid.)

Plaintiff’s complaint alleges that Plaintiff was on an MRI machine when a loose sheet was placed over Plaintiff. (Compl., ¶ 9.) The sheet got caught in the mechanism of the MRI machine, Plaintiff’s hand was pulled, and Plaintiff sustained injuries. (Ibid.)

The complaint implies that the MRI machine was on while Plaintiff was in it. The only reasonable inference that can be drawn is that Plaintiff was a patient who was being examined in the MRI machine. This action is thus an action for medical malpractice because the act that led to Plaintiff’s injuries was the alleged negligent use of equipment that was being used to examine or treat Plaintiff. As such, Plaintiff’s premises liability cause of action is actually a cause of action for medical malpractice.

Statute of Limitations

California Code of Civil Procedure section 340.5 states: “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. . . .”

The term “injury,” as used in California Code of Civil Procedure section 340.5, means both a person’s physical condition and its negligent cause. Thus, once a patient knows, or by reasonable diligence should have known, that he has been harmed through professional negligence, he has one year to bring his suit. The patient is charged with “presumptive” knowledge of his negligent injury, and the statute commences to run, once he has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation. (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-897.) A plaintiff has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for the elements of the cause of action. (Fox v. Ethicon Edo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) “In so using the term ‘elements,’ we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether plaintiffs have reason at least to suspect that a type of wrongdoing has injured them.” (Ibid.) Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, he or she must decide whether to file suit or sit on his or her rights. (Id. at 769.)

In assessing a demurrer challenging the complaint based on a statute of limitations defense, the Court must determine whether such a defense is plain on the face of the complaint. “’A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred.’ [Citations omitted.] It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. [Citations omitted.] This will not be the case unless the complaint alleges every fact which the defendant would be required to prove if he were to plead the bar of the applicable statute of limitation as an affirmative defense. [citations omitted]” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

Demurring Defendant argues Plaintiff’s medical malpractice cause of action is barred by the one-year statute of limitations because Plaintiff was aware of her injury at the time it was inflicted by virtue of its infliction. The Court agrees. Nothing in the allegations of the complaint indicates that anything prevented Plaintiff from knowing about her injury and its allegedly negligent cause on the day of the accident. Based on these allegations, the Court finds that the complaint clearly and affirmatively reflects that Plaintiff had a reasonable suspicion on April 28, 2018 that alleged negligence in Demurring Defendant’s use of the sheet caused Plaintiff’s injury. Because this action was commenced more than one year later on October 8, 2019, the action is barred by the he incident. As a result, Demurring Defendant’s demurrer based on the statute of limitations has merit.

The demurrer is SUSTAINED, with 20 days’ leave to amend.

Demurring Defendant is ordered to give notice of this ruling.