Case Number: BC600599 Hearing Date: June 11, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

TRESHUNA JUDDINE,

Plaintiff,

vs.

DOES 1 THROUGH 100,

Defendant.

CASE NO: BC600599

[TENTATIVE] ORDER DENYING

motion for summary judgment

Dept. 3

1:30 p.m.

June 11, 2019

BACKGROUND

This action for medical negligence arises from the allegedly negligent treatment of Plaintiff Treshuna Juddine (“Plaintiff”) who came to Defendant Armen Hovhannisyan’s (“Defendant”) office with a swollen neck. After Defendant referred Plaintiff to the emergency room, Plaintiff was transferred to a cardiovascular intensive care unit, and finally to a subacute medical center. Plaintiff alleges that she suffered severe brain damage as a result of Defendants’ medical negligence.

DISCUSSION

Defendant Dr. Armen Hovhannisyan moves for summary judgment on the grounds that Plaintiff’s complaint is barred by the statute of limitations under CCP § 340.5, and Plaintiff cannot establish that Defendant failed to meet his standard of care, or that the breach thereof was the cause of Plaintiff’s injuries.

Statute of Limitations

CCP § 340.5 provides that “[i]n 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.”

Defendant contends that Krishawnna Barker, Plaintiff’s Guardian Ad Litem, formed the opinion that “somebody didn’t do their job correctly” on October 26, 2015. Thus, Defendant contends that under CCP § 340.5, the one year window for filing a complaint against Defendant expired on October 26, 2016. Plaintiff filed this action on November 19, 2015, but waited until November 28, 2016, to substitute Defendant for a Doe Defendant, outside of the one-year window. Defendant also argues that Plaintiff knew of her harm at the time she brought suit because the complaint specifically alleges the harm suffered. (Compl. ¶ 12, “causing brain injury and leaving Plaintiff in a comatose condition.”).

In McOwen v. Grossman, the plaintiff filed a medical malpractice action against a medical group on March 25, 2004. (2007) 153 Cal. App. 4th 937, 940. On August 8, 2005, the plaintiff amended his complaint by substituting a doctor for one of the Doe defendants. Id. The trial court granted the defendant’s summary judgment motion on the grounds that the statute of limitations barred the action against the doctor. Id. In reversing the judgment of the trial court, the appellate court held that “[w]hile reasonable diligence may be material to the determination of the accrual of a cause of action, reasonable diligence is not germane to determining whether a Doe amendment was timely.” Id. at 944. Ultimately, the appellate court held that the grant of summary judgment was incorrect on two independent grounds. Id. at 94-8. First, the court found that he record revealed a question of fact as to whether the plaintiff knew of facts to cause a reasonable person to believe that the defendant was probably liable. Id. at 947-8. Second, the court held that because the action was filed with the statute of limitations, Plaintiff was entitled to amend the pleadings upon learning of facts that would cause a reasonable person to believe that defendant was liable. Id. at 944.

“A plaintiff can avail him or herself of section 474 if the plaintiff is ignorant of facts that give rise to a cause of action against a person who is otherwise known to the plaintiff. ‘In keeping with th[e] liberal interpretation of section 474, it is now well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant’s actual identity (that is, his name), the plaintiff is ”ignorant” within the meaning of the statute if he lacks knowledge of that person’s connection with the case or with his injuries.’” Id. at 942.

Plaintiff’s counsel declares that the complaint was filed twenty-seven (27) days after Plaintiff suffered the brain damage at issue in this action. (Gambardella Decl. ¶ 4). Gambardella declares that there was no immediately available information availability as to responsibility, and that Plaintiff’s family only had “vague information that perhaps Ms. Juddine had gone to see her primary care physician, Dr. Hovhannisyan, on the day of admission.” (Id. ¶ 5).

Consequently, Defendant’s statute of limitations argument is unavailing. Defendant has not shown that the action was filed outside of the statutory period, nor has he shown that at the time of the filing of the complaint, Plaintiff was aware of facts that would lead a reasonable person to believe that Defendant was probably liable. Defendants contention that the statute of limitations began tolling as to Plaintiff’s claims against Defendant when her guardian formed the opinion that “somebody didn’t do their job correctly” is incorrect. The opinion that “somebody” is at fault is not the kind of factual basis which would afford Plaintiff reason to believe that Defendant specifically is liable for medical negligence. In other words, the mere fact that Plaintiff knew that Defendant was involved in her care in insufficient to start the one year period for Plaintiff to bring suit absent specific facts without would tend to indicate Defendant’s probable liability.

Medical Malpractice

Defendant also moves for summary judgment on the ground that no triable issue of material fact exists as to whether Defendant acted within the appropriate standard of care when treating Plaintiff.

“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” Lattimore v. Dickey (2015) 239 Cal. App. 4th 959, 968.

Defendant submits the expert opinion of Richard Mansour, internal medicine specialist, who declares that he has personally reviewed Plaintiff’s medical and hospital records, and opines that nothing Defendant or his assistant did or failed to do caused or contributed to Plaintiff’s injuries. (Mansour Decl. ¶ 7, 28). Mansour’s declaration reiterates the statement of facts provided by Defendant’s motion for summary judgment while asserting that Defendant’s conduct remained with the appropriate standard of care at all times relevant to Plaintiff’s complaint.

Furthermore, Defendant contends that no triable issue exists as to whether Defendant conduct or omissions contributed to Plaintiff’s injuries.

“Liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. [Citation] ‘[C]ausation must be proven within a reasonable medical probability based upon competent expert testimony.’” Dumas v. Cooney (1991) 235 Cal. App. 3d 1593, 1603.

Again, Defendant points to the declaration of Richard Mansour, who declares that “to a reasonable degree of medical probability, that nothing Dr. Hovhannisyan or his physician’s assistant Artur Ambartsumyan, P.A. did or failed to do caused or contributed to patient’s injuries and damages.” (Mansour Decl. ¶ 28).

The Mansour declaration submitted by Defendant meets Defendant’s burden of demonstrating no triable issue as to the issues of duty of care and causation. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact.
Plaintiff provides the expert testimony of Dr. Richard Treger, internal medicine specialist, who has reviewed the medical records of Plaintiff and opines that Defendant and Defendant’s physician’s assistant failed to comply with their standard of care, and were a cause of Plaintiff’s injuries. (Treger Decl. ¶ 1, 8). Specifically, Treger declares that Defendant’s “failure to appreciate the acuity of [Plaintiff’s] clinical presentation was below the standard of care,” the lack of documentation regarding “pertinent history or physical exam findings,” as well as what information was conveyed by the physician’s assistant to the supervising physician constitutes a breach of Defendant’s duty of care. (Id. ¶ 9, 10). Finally, Treger declares that it is his opinion that the circumstances under which Plaintiff’s condition progressed to respiratory failure occurred to “a reasonable degree of medical probability below the standard of care,” and was a “substantial factor resulting in Treshunda Juddine’s injuries.” (Id. ¶ 11).

Thus, Plaintiff has presented expert testimony in contradiction with the expert testimony offered by Defendant. Such evidence creates a triable issue as to whether Defendant’s actions indeed fell below the applicable standard of care and were a cause of Plaintiff’s injuries.

Conclusion

Defendant Armen Hovhannisyan’s Motion for Summary Judgment is DENIED.