PATRICIA MARTIN VS INLAND VALLEY CARE AND REHABILITATION

Tentative Rulings

Case Number: *******2037    Hearing Date: February 04, 2021    Dept: 29

Martin v. Inland Valley Care and Rehabilitation

Demurrer by Defendant Inland Valley Care and Rehabilitation is SUSTAINED with 30 days leave to amend. The motion to strike is TAKEN OFF CALENDAR AS MOOT.

In the complaint, Plaintiff Patricia Martin alleges that her mother was a resident in Defendant Inland Valley Care & Rehabilitation skilled nursing facility. Plaintiff alleges that defendant acted in such a negligent manner that she, plaintiff, witnessed “several incidents where defendant failed to exercise due care for her mother’s wellbeing,” including “careless and improper supervision leading to injury, severe dehydration causing hospitalization, lack of proper medical care and lack of proper nutrition.” Plaintiff alleges that as a result of witnessing these incidents, plaintiff suffered extreme emotional distress. Plaintiff brings a single cause of action for general negligence based on a negligent infliction of emotional distress theory. Defendant demurs on two primary grounds: (1) the complaint is barred by the statute of limitations under Code of Civil Procedure section 340.5; and (2) the allegations are not sufficient to state a claim for negligent infliction of emotional distress on a bystander theory.

DISCUSSION

A. STATUTE OF LIMITATIONS

“A personal injury action generally must be filed within two years of the date on which the challenged act or omission occurred. (Code Civ. Proc. ; 335.1 (section 335.1).) A special statute of limitations applies, however, to actions “for injury or death against a health care provider based upon such person's alleged professional negligence.” (Code Civ. Proc. ; 340.5 (section 340.5).) Unlike most other personal injury actions, professional negligence actions against health care providers must be brought within ‘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’.” (Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal. 4th 75, 79.)

Here, the complaint alleges that Plaintiff suffered the alleged emotional distress at the time of the allegedly negligent acts, which Plaintiff contends occurred sometime between early 2018 and January 21, 2019. The complaint was filed on August 21, 2020. Thus, if section 340.5 applies, the claim would be barred by the statute of limitations.

Defendant argues that the complaint alleges that Plaintiff’s injury was caused by “a health care provider” based on “alleged professional negligence.” In opposition, Plaintiff does not contest that the complaint adequately alleges that Defendant was a “health care provider” as defined in 340.5, subdivision (1). Thus, the issue for the court is whether it can be determined from the face of the complaint, that the claim is one for “alleged professional negligence.”

Professional negligence is defined in section 340.5, subdivision (2) as follows: “‘a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.”

“The definition of ‘professional negligence’ in section 340.5 has four elements: (1) ‘a negligent act or omission to act by a health care provider in the rendering of professional services’, (2) ‘which act or omission is the proximate cause of injury or wrongful death’, (3) ‘provided that such services are within the scope of services for which the provider is licensed’, and (4) ‘which are not within any restriction imposed by the licensing agency or licensed hospital’. (; 340.5, subd. (2).)” (Flores, supra, 63 Cal. 4th at 84.)

Plaintiff does not contest that the cause of action, as pleaded, arises at least in part out of “alleged professional negligence” rendered to Plaintiff’s mother. Indeed, the claim expressly alleges that the incidents constituted, among other things “lack of proper medical care.”

Plaintiff argues, however, that the MICRA statute of limitations does not apply because the professional services were not being provided to her. But case law establishes that when the negligent act or omission to act by a health care provider in the rendering of professional services to a patient causes injury to a third party, the statute of limitations in section 340.5, subd. (2) applies. Instead, MICRA applies to “any foreseeable injured party, including patients, business invitees, staff members or visitors, provided the injuries alleged arose out of professional negligence.” (Williams v. Superior Court (1994) 30 Cal. App. 4th 318 [discussing and citing cases.]).

There are aspects of the reasoning in the Williams v. Superior Court decision that are arguably inconsistent with the Supreme Court’s decision in Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal. 4th 75, 79. But the point for which it is cited here -- specifically that the MICRA statute of limitations applied to any foreseeable injured parties, not only the patient herself, so long as the injuries arose out of professional negligence to a patient – remains good law.

Thus, the court sustains the demurrer on the ground that the claim as currently pleaded is barred by the statute of limitations. Leave to amend is granted as it is possible that Plaintiff could state a valid claim. (See, e.g., Flores, supra, 63 Cal. 4th at p. 87 [drawing a distinction between the professional obligations of hospitals in the rendering of medical care to their patients” and general duties of due care, such as, for example, those that a hospital has simply by virtue of operating facilities open to the public; MICRA statute of limitations does not apply to claims arising out of the general duty of care not arising out of professional negligence.].)

B. WHETHER THE COMPLAINT ADEQUATELY ALLEGES THE ELEMENTS OF A NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM

Because leave to amend is granted, the court touches briefly on the elements of a negligent infliction of emotional distress claim.

In order to state a claim for negligent infliction of emotional distress based on a bystander theory, a plaintiff must allege the following elements, among others: the plaintiff “(1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness." (Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1073.)

Importantly, the plaintiff must allege both that the plaintiff observed the defendant’s conduct and had the contemporaneous awareness that the defendant’s conduct (or omission) was then causing injury to the loved one. (Ochoa v. Superior Court (1985) 39 Cal. 3d 159; Keys v. Alta Bates Summit Medical Center (2015) 235 Cal. App. 4th 484 [plaintiff must prove contemporaneous awareness that the loved one was being injured.].) This has not been clearly alleged in the present complaint.

Moving party is ordered to give notice.