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Arroyo v. Plosay

California Court of Appeals, Second District, Fourth Division

April 2, 2014

GUADALUPE ARROYO et al., Plaintiffs and Appellants,
JOHN J. PLOSAY III et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC484024, Rolf M. Treu, Judge.

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Law Offices of Scott E. Schutzman and Scott E. Schutzman for Plaintiffs and Appellants.

Reback, McAndrews, Kjar, Warford, Stockalper & Moore, James J. Kjar, Brian T. Selogie and Ryan P. Deane for Defendant and Respondent John J. Plosay III.

Ryan, Datomi, Richard J. Ryan and Dawn Cushman for Defendant and Respondent White Memorial Medical Center.



On July 26, 2010, Maria de Jesus Arroyo (the decedent) died at White Memorial Hospital (the Hospital) after being transported there by ambulance and treated for cardiac arrest by Dr. John J. Plosay III. On May 3, 2012, the decedent’s husband, Guadalupe Arroyo, and the decedent’s eight

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children[1] filed the present action against the Hospital and Dr. Plosay, alleging three causes of action, the first two of which were based on facts diametrically opposed to those underlying the alternative third cause of action.[2]

The first two claims, medical negligence (brought as a survivorship action by plaintiff Guadalupe Arroyo alone) and wrongful death (brought on behalf of all plaintiffs) were based on allegations that the Hospital staff and Dr. Plosay prematurely declared the decedent dead, after which she was placed in a compartment in the Hospital morgue while still alive, inflicted disfiguring injuries to her face while trying to escape, and ultimately froze to death. Plaintiffs alleged that they did not discover these facts, and could not reasonably have discovered them, until December 8, 2011, when an expert they retained in a prior dismissed action against the Hospital (which was based solely on the alleged disfigurement of the decedent’s remains after death) reviewed discovery material in the prior case and opined, inter alia, that the decedent’s injuries occurred pre-mortem. The third cause of action, styled negligence (and brought on behalf of all plaintiffs), was based on the alternative factual premise (the premise underlying the prior action against the Hospital) that after the decedent died from cardiac arrest, her body was mishandled by Hospital staff when placing it in the morgue, resulting in facial disfigurement that could not be masked by the mortuary whose workers first observed the injuries.

In sustaining two demurrers by the Hospital without leave to amend (one to the medical negligence and wrongful death claims, the other to the negligence claim after amendment), the trial court concluded that the one-year limitation period of Code of Civil Procedure section 340.5, [3]applicable to actions for professional negligence against a health care provider, applied to all claims and commenced on or about July 26, 2010, the date plaintiffs learned of the decedent’s death and the disfiguring injuries to her face. Therefore, the filing of this action on May 3, 2012, was untimely, and the court dismissed the action against the Hospital. As to Dr. Plosay, by stipulation plaintiffs agreed that the trial court’s ruling on the Hospital’s demurrer to the medical negligence and wrongful death claims applied to him as well, and plaintiffs agreed to dismiss those claims, along with the negligence claim, as to him. The court entered an order of dismissal based on the stipulation.

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Plaintiffs appeal from the dismissals, contending that the trial court erred in concluding that their three claims were barred by section 340.5. Assuming (as we must) that plaintiffs’ allegations are true, we hold that they do not show, as a matter of law, that the one-year period of section 340.5 for the medical negligence and wrongful death claims began running on or about July 26, 2010. First, the “injury” - a term of art encompassing the generic elements of wrongdoing, causation and harm (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 [87 Cal.Rptr.2d 453, 981 P.2d 79] (Norgart)) - that plaintiffs then reasonably suspected was not the same “injury” as that underlying the medical negligence and wrongful death claims. Second, the facts alleged do not permit the conclusion, as a matter of law, that a reasonable investigation of all potential causes of the injury plaintiffs suspected at the time of the decedent’s death would have uncovered the factual basis for the negligence and wrongful death claims before December 8, 2011, the date plaintiffs’ expert in the prior action against the Hospital rendered his opinion. Therefore, the trial court erred in sustaining the Hospital’s demurrer to these two causes of action, and we reverse the orders dismissing those claims as to the Hospital and Dr. Plosay.

As to the cause of action for negligence, we conclude that section 340.5 provides the applicable limitation period, because (1) facts subject to judicial notice (the Hospital’s licensed status and administrative regulation) establish that placing the decedent’s remains in the Hospital morgue falls within the definition of professional negligence, i.e., negligence in providing services for which the Hospital is licensed, and (2) section 340.5 is not limited to actions for injury caused to a patient, but rather applies to actions for injury by any party whose injury was a foreseeable result of the alleged professional negligence. Because the present action was filed more than one year after plaintiffs knew of or reasonably suspected their injury, the negligence claim is barred. On that basis, we affirm the trial court’s dismissal of the negligence claim against the Hospital. We affirm the dismissal as to Dr. Plosay based on plaintiffs’ stipulated dismissal of the claim as to him.


The Mutilation Action

The case at issue in this appeal was not plaintiffs’ first suit against the Hospital. Before filing the instant action on May 3, 2012, plaintiffs had filed suit against the Hospital on January 31, 2011.[4] For ease of reference, we (like the parties) refer to this action as the mutilation action.

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The complaint in the mutilation action alleged that on July 26, 2010, the decedent was taken by ambulance to the Hospital, where she received treatment for cardiac arrest, acute myocardial infarction, and hypertension. Shortly after arrival, she was pronounced dead by hospital staff. When workers for the mortuary selected by the family came to pick up the body, they found it lying face down in the Hospital morgue. The decedent’s nose was broken and her face had suffered lacerations and contusions - injuries that had not been present when she arrived at the Hospital or when the body was viewed by relatives after the declaration of death. The workers informed plaintiffs of the injuries to the decedent’s remains, which the mortuary was unable to mask.

Plaintiffs alleged causes of action for: (1) negligence per se (based on Health & Saf. Code, § 7052, subd. (a), which makes it a felony to “willfully mutilate[]... any remains known to be human, without the authority of law”), (2) ordinary negligence, and (3) intentional infliction of emotional distress. After the trial court denied plaintiffs’ ex parte request to shorten time to hear a motion to amend the complaint and summarily adjudicated the claims for negligence per se and intentional infliction of emotional distress in the Hospital’s favor, plaintiffs dismissed the remaining claim for negligence without prejudice on January 20, 2012, just before trial.

The Current Lawsuit

On May 3, 2012, plaintiffs filed the instant lawsuit, naming the Hospital and Dr. Plosay as defendants. The complaint acknowledged the prior filing of the mutilation action, and in part alleged facts substantially similar to the facts alleged in that action. Thus, the complaint in the present case alleged that Dr. Plosay and the Hospital staff pronounced the decedent dead shortly after she arrived to be treated for cardiac arrest, acute myocardial infarction, and hypertension, that the body was laid out for plaintiffs to view and pay their respects before it was taken to the Hospital’s morgue, and that the decedent’s face then had no injuries. It further alleged that when the mortuary workers examined the decedent’s body in the Hospital’s morgue, it was lying face down. After the body was taken to the mortuary, the workers discovered that the decedent’s nose was broken and the face showed lacerations and contusions. Plaintiffs became aware of the disfiguring of the remains when contacted by the mortuary, and the mortuary was unable to mask the injuries.

However, whereas the mutilation action was premised solely on the injuries having occurred after death, plaintiffs now alleged that during discovery in the mutilation action, an expert, relying on deposition testimony, declarations of the Hospital personnel, and the decedent’s medical records, opined that the decedent’s remains were not disfigured after death. Rather, according to the

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expert, the decedent “had been prematurely declared dead” by Dr. Plosay and the Hospital staff, “frozen alive” in the Hospital’s freezer, “eventually woke up” due to the extreme cold, and “damaged her face and turned herself face down as she struggled unsuccessfully to escape her frozen tomb.” To avoid the statute of limitations, plaintiffs alleged that they did not discover that the decedent had been frozen alive until the expert ...

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