HAND v DeMATTEO, et al

An Atta supervisor made the first visit to Plaintiff and DeMatteo the next eight visits, making a total of nine (9) home visits to Plaintiffs residence, on the following dates: June 7, 11, 19, 21, and 25, 2024, and July 2, 5, 12, and 19, 2024. (FAC ¶ 17.) During each visit, the supervisor or DeMatteo performed some or all of the Services. (Ibid.) DeMatteo did not change the wound VAC dressing every three days as prescribed and as required by the standard of care. (Id. ¶18.) Instead, the wound Vac dressing was changed at inconsistent intervals of two days to as many as eight days between changes. (Ibid.)

Over the course of treatment by Atta and DeMatteo, the wound became infected. (FAC ¶ 21.) DeMatteo observed and recorded the development and progression of the infection. (Id. ¶ 22.) Plaintiff had no access to those records, nor means of understanding what was contained in those records. (Ibid.) DeMatteo did not notify Plaintiff that the wound was infected, did not advice Plaintiff to seek medical care, did not notify Plaintiff’s doctor, and did not take any other action except to continue changing the would Vac dressing. (Id. ¶ 23.) A wound Vac should not be used on an infected wound and the primary contraindication for using a wound Vac is the presence of necrotic tissue. (Id. ¶ 24.) Any dead or infected tissue must first be completely and aggressively removed to establish a sterile wound field before the wound Vac is applied. (Ibid.)

DeMatteo's last visit to Plaintiff was on July 19, 2024. (FAC ¶ 27.) During that visit, she assessed the wound, changed the wound VAC dressing, and departed without advising Plaintiff of any infection or recommending that he seek medical care. (Ibid.) On July 20, 2024, Plaintiff presented to the emergency room for the wound on his right foot. (Id. ¶ 28.) Plaintiff's wound had progressed to gangrene and he was taken into surgery within approximately fifteen (15) minutes of arrival where his right leg was amputated. (Ibid.)

At or around that time, Plaintiff was advised by a treating surgeon that if he had sought care a few weeks earlier, his leg might have been saved. (Id. ¶ 29.) Plaintiff did not register that this might have been related to Atta or DeMatteo’s care because he assumed it was associated with his diabetes. (Ibid.) Plaintiff was admitted to the Veterans’ Administration (“VA”) hospital and then inpatient rehabilitation for several months. (Id. ¶ 30.)

While at the VA, Plaintiff participated in an activity called “My Story,” in which VA personnel conducted interviews with patients to understand their personal histories, circumstances, and experiences. (FAC ¶ 31.) As a result of these interviews, which took place in or around December 2024, Plaintiff began to realize that the care he received from Atta and DeMatteo may have contributed or caused his infection and resulting amputation. (Id. ¶ 32.)

II. Legal Standard

“A demurrer tests the sufficiency of a complaint and admits all facts properly pleaded.” (Setliff v. E.I.Du Pont de Nemours & Co. (1995) 32 Cal. App. 4th 1525, 1533.) The court assumes the truth of the allegations asserted but does not assume the truth of “contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247.) The court can further look at those facts that “reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken.” (MKB Management, Inc. v.

Melikian, (2010), 184 Cal.App.4th 796, 802.) If a complaint does not sufficiently state a cause of action, “but there is a reasonable probability that a defect can be cured by amendment, leave to amend must be granted.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 38.) “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, supra, at p. 747.)

Defendant asserts that the Plaintiff’s FAC is subject to demurrer because it is barred by the statute of limitations found in Code of Civil Procedure section 340.5.

III.

Discussion

A. Statute of Limitations

Code of Civil Procedure states in pertinent part:

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.

There is no dispute among the parties that this statute applies to Plaintiff's claims against the defendants. There is also no dispute that Plaintiff served a Notice of Intent as required by statute. (Code Civ. Proc. § 364(a).)

The statute also provides, "If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice." (Code Civ. Proc. § 364(d).)

Atta argues that the claims are barred by the one-year statute of limitation because Plaintiff knew, or should have known, about the negligent cause of his injury in July 2024. (Carillo v. County of Santa Clara, (2023) 89 Cal. App. 5th 227, 232 [statute of

limitations is triggered either when the plaintiff had actual suspicion or when a reasonable person would have suspected the injury was caused by wrongdoing].)

Plaintiff contends that his claims are timely based on the discovery rule, “which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005 35 Cal.4th 797, 807.) To plead the delayed discovery rule, “ ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ [Citation omitted.]” (Fox, supra, 35 Cal.4th at 808.) Whether a plaintiff has exercised reasonable diligence necessarily depends on the facts of the individual case. (Artal v. Allen (2003) 111 Cal.App.4th 273, 280.)

“The harm resulting from medical treatment may not always be objectively appreciable to the layperson, thus its discovery may be delayed until someone with expertise uncovers it.” (Brewer v. Remington (2020) 46 Cal.App.5th 14, 14.) Here, Plaintiff alleges that he did not suspect that his infection and subsequent amputation were the result of the LVN’s negligence because he reasonably believed that these were simply complications from diabetes. (FAC ¶29.) Plaintiff further alleges that he had no reason to suspect that the care he received was the cause of his infection because, he alleges, DeMatteo and Atta concealed the true nature of his injury from him.

These allegations distinguish this case from the factual allegations in the Carillo case relied upon by Atta because in that case the plaintiff knew the nurse had done something to his foot and he did not allege that he had any underlying disease which would lead him to believe that the disease – not incompetence – led to his injury. At the demurrer stage, the Court accepts all the alleged facts in the Complaint as true and does not weigh their credibility. (17421 Magnolia LLC v. V. 2022 Cal.Super.LEXIS 26263.)

Given the foregoing, the Court finds that at this stage of the pleadings, the Plaintiff has sufficiently alleged facts supporting delayed discovery and that his claims are timely. Accordingly, Atta’s demurrer is OVERRULED.

The clerk shall provide notice of this ruling to the parties forthwith. Plaintiff to submit a formal Order complying with Rule 3.1312 in conformity with this Ruling.