Demurrer to the First Amended Complaint is sustained with 14 days leave to amend.
Judicial notice is taken of the original Complaint that identifies the Defendant as a health care provider. (Evid. Code § 452(d); see original Complaint ¶ 26; Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 295 (“‘A pleader may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective.’ [Citation.] Moreover, any inconsistencies with prior pleadings must be explained…”); accord Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 302.)
Under CCP § 340.5, a shorter one-year statute of limitations applies to bring an action for injury against a health care provider based on professional negligence. In laymen’s terms, a plaintiff discovers a cause of action when he reasonably should suspect that “someone has done something wrong’ to him [citation], ‘wrong’ being used, not in any technical sense, but rather in accordance with its ‘lay understanding’ [citation]…. he need not know the ‘specific ‘facts’ necessary to establish’ the cause of action; rather, he may seek to learn such facts through the ‘process contemplated by pretrial discovery….” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 358-59.) The “[a]ggrieved parties generally need not know the exact manner in which their injuries were ‘effected, nor the identities of all parties who may have played a role therein.’” (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 744-45.) Those details are reserved for the pretrial discovery process.
Here, the tipping of the wheelchair, and falling out of the wheelchair and the striking of the plaintiff’s head and upper body against a concrete pillar, occurred on approximately August 11, 2018. (FAC ¶ 11-12.) The lawsuit was commenced over one year later, on October 17, 2019. It appears to be time-barred under the one-year MICRA period.
The Opposition argues that the event was not within MICRA for the reason that it was not professional negligence. However, the Court disagrees. The pleading alleges that the Plaintiff was in the course of receiving professional services when he was injured. Plaintiff was a post-surgical patient, required by the Defendant to be in the wheelchair, and to be wheeled out by the Defendant’s employee, while in the course of being discharged (see FAC ¶ 11-13.)
The facts describe injury occurring in the rendition of professional care to a patient albeit at the very tail-end of the care. Moreover, the medical equipment in question was being used in providing care to the patient at the time that it caused injury. “A hospital’s negligent failure to maintain equipment that is necessary or otherwise integrally related to the medical treatment … of the patient implicates a duty that the hospital owes to a patient by virtue of being a health care provider…. “ (Flores v. Presbyterian Intercommunity Hospital, (2016) 63 Cal.4th 75, 88-89.)
The Supreme Court has said that Micra is not limited “to those specific tasks that require advanced medical skills and training. A medical professional or other hospital staff member may commit a negligent act in rendering medical care, thereby causing a patient’s injury, even where no particular medical skills were required to complete the task at hand.” (Flores, at 85, emphasis added) (see also Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153, 158–159 (“Injury-causing conduct that requires no special skill may nonetheless occur in the rendering of professional services, for example, when a janitor accidentally bumps a patient’s ventilator; a hospital employee accidentally serves a patient food that is not part of the patient’s medically-prescribed diet; or hospital staff fails to adequately secure a violently coughing patient awaiting a diagnosis….”).)
In Nava, our DCA ruled, “The transfer of [patient] in the hospital on a gurney was integrally related to [patient’s]s medical treatment or diagnosis, and, therefore, the injury occurred in the rendering of professional services.” (Nava v. Saddleback Memorial Medical Center (2016) 4 Cal.App.5th 285, 292.)
The facts described here are similar. (FAC ¶ 11-13.)
Plaintiff is given leave to amend, however, should be mindful of the notion that factual allegations may not be substantively changed without some reasonable explanation by the pleader.
The amended complaint is due within 14 days.
Defendant to give notice.