Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCV051812, Ernest J. LiCalsi, Judge.
Diane Reimers, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
OPINION
Before Levy, Acting P.J., Kane, J. and Poochigian, J.
Appellant, Diane Reimers, filed a complaint for personal injury and medical malpractice against respondents, Dr. Jagdev Singh and Dr. Joselito Syfu, and the California Department of Corrections and Rehabilitation (CDCR). Appellant alleged causes of action for general negligence, intentional tort, and medical malpractice. Singh and Syfu demurred to the complaint on the grounds that appellant had not stated causes of action for general negligence and intentional tort and that the medical malpractice cause of action was barred by the statute of limitations. The trial court sustained the demurrer without leave to amend and dismissed the complaint as to Singh and Syfu.
Appellant challenges the dismissal of her complaint claiming that she filed her medical malpractice claim within one year of discovery of the injury. Appellant further argues that CDCR deliberately delayed medical treatment and demonstrated deliberate indifference in violation of her Eighth Amendment right to medically necessary treatment.
As discussed below, the allegations in the complaint demonstrate that appellant did not file the action against Singh and Syfu within one year of discovering her injury. Thus, appellant’s medical malpractice cause of action is barred by the statute of limitations. (Code Civ. Proc., § 340.5.) Appellant’s arguments regarding the CDCR’s actions are irrelevant because the order appealed from did not dismiss the CDCR from the complaint. Accordingly, the order will be affirmed.
BACKGROUND
On April 22, 2010, appellant filed a complaint for general negligence, personal injury and medical malpractice against Singh, Syfu and the CDCR. In the complaint appellant alleged that on April 16, 2008, “During a biopsy performed by Dr. J. Singh, this doctor/Anesthesiologist (J. Syfu). I was told when I woke up after surgery, ‘they’ had trouble positioning my neck. Because of forcing my head/neck into position, I suffered damage to my neck and spine and brain.” Appellant further alleged that she had “15 months of undue pain and suffering” and continued medical problems.
Singh and Syfu demurred to the complaint on the grounds that appellant had improperly pled general negligence in the place of medical malpractice, failed to state a cause of action for intentional tort, and failed to file the complaint within the statutory period for a medical malpractice cause of action. The trial court sustained the demurrer without leave to amend for failure to file within the statute of limitations and dismissed the action against Singh and Syfu.
DISCUSSION
In reviewing a ruling on a demurrer, the appellate court’s only task is to determine whether the complaint states a cause of action. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824.) In doing so, the court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a demurrer is sustained without leave to amend, the appellate court must decide whether there is a reasonable possibility that the defect can be cured by amendment. If so, the trial court abused its discretion and the judgment will be reversed. (Ibid.) However, the burden is on the appellant to show the manner in which the complaint can be amended and how the amendment will cure the defect. (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 161.)
Code of Civil Procedure section 340.5 provides that the time for commencement of a medical malpractice action is “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.” As noted above, the date of the injury was April 16, 2008, and the complaint was filed on April 22, 2010.
Appellant contends that she did not discover the injury, i.e., the cause of the pain in her neck and other medical problems, until she went to a neurosurgeon in December 2009. At that time, appellant received a diagnosis of cervical spine canal stenosis with cord compression. Therefore, appellant argues, the complaint was filed within the one-year statutory period.
However, the complaint belies this claim. Appellant alleges that she was told on April 16, 2008, by the respondents that they had forced her neck into position and that she should have her neck checked. Appellant further states that she had been suffering from pain in her neck and other medical problems for 15 months. Thus, appellant either knew, or should have known, at least 15 months before the complaint was filed that her injury was caused by the forceful positioning of her neck on April 16, 2008. Appellant did not need a specific diagnosis to discover that her neck had been injured. Accordingly, appellant’s complaint is barred by the one year limitation set forth in Code of Civil Procedure section 340.5.
Appellant further argues that the CDCR failed to properly treat her. According to appellant, when she went to the CDCR yard doctor and told the doctor she needed to have her neck checked because there were problems positioning her neck during surgery, the CDCR did not check her neck but, rather, conducted other unnecessary tests. Appellant states that based on her complaints, her neck should have been X-rayed in December 2008. Appellant contends that the inaction by CDCR medical staff caused her prolonged and undue pain.
However, the sufficiency of the complaint against the CDCR is not before this court. The appeal is from the sustaining of the demurrer filed by Singh and Syfu. According to the record before us, the CDCR remains a party to this action.
DISPOSITION
The order is affirmed. In the interest of justice, no costs are awarded.