Opinion
B314512
10-18-2022
KAREN CULLINANE, Plaintiff and Appellant, v. ALYN KIM, M.D. et al., Defendants and Respondents.
Martorell Law, Eduardo Martorell and JoAnn Victor for Plaintiff and Appellant. Kjar, McKenna & Stockalper, Robert L. McKenna III, and Richard E. Wirick for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 20STCV09723 Daniel M. Crowley, Judge. Affirmed.
Martorell Law, Eduardo Martorell and JoAnn Victor for Plaintiff and Appellant.
Kjar, McKenna & Stockalper, Robert L. McKenna III, and Richard E. Wirick for Defendants and Respondents.
RUBIN, P. J.
Plaintiff appeals after the trial court granted summary judgment on her medical malpractice case based on expiration of the one-year statute of limitations. In September 2015, defendants Dr. Alyn Kim and Southern California Ear Nose and Throat (SCENT) failed to diagnose and treat a fungal ball infection (also known as a fungal mycetoma) plaintiff had developed in her right sinus from mold exposure. Plaintiff continued to seek medical care for her symptoms, which worsened. In December 2016, another doctor diagnosed and treated the fungal infection. However, plaintiff waited until March 2020 to file her medical malpractice claim against defendants. In opposing summary judgment, plaintiff argued that she did not know or have reason to know of defendant's alleged medical malpractice until December 2018, when her treating physician stated the 2015 fungal infection was the same 2016 fungal ball removed from plaintiff's sinus. We affirm because the action is time-barred: plaintiff had reason to know of the alleged medical malpractice when the fungal ball was diagnosed in December 2016.
FACTUAL AND PROCEDURAL BACKGROUND
1. Plaintiff's Mold Exposure and Treatment
From April 2014 to February 2015, Plaintiff worked as a branch manager for Citibank in Corona Del Mar; she had been at this branch since December 2009. In December 2015, plaintiff's superiors directed her to review sensitive banking records, which were moldy from being stored in the branch's moldy basement. Although plaintiff complained that the records were moldy, she was instructed not to discuss the mold and complete her task. Plaintiff reviewed the documents in an enclosed room for days at a time. From December 2014 into January 2015, plaintiff became ill with flu-like symptoms. When her health did not improve, she began to suspect mold caused her illness and sought treatment from her primary care physician in January 2015. On May 5, 2015, plaintiff underwent a CT scan of her sinuses. On September 8, 2015, plaintiff sought care from otolaryngologist Dr. Alyn Kim at SCENT to address various ailments that plaintiff attributed to mold exposure. Dr. Alyn Kim reviewed the May 2015 CT scan that showed plaintiffs sinuses, and diagnosed plaintiff with chronic sinusitis and allergic rhinitis. However, Dr. Alyn Kim failed to diagnose a fungal ball in plaintiffs right sinus, even though it had been apparent on the May 2015 CT scan. Plaintiffs health continued to decline.
An otolaryngologist is also referred to as an ear, nose, throat doctor. In 2016, plaintiff consulted a doctor named Michael Kim, who is featured prominently in the appeal. To avoid confusion, we use both doctors' first and last names. Plaintiff refers to Dr. Michael Kim as a non-party.
By December 13, 2016, Plaintiff suspected that Dr. Alyn Kim had "missed something" in her sinus and sought a second opinion from otolaryngologist Dr. Michael Kim. On December 19, 2016, Dr. Michael Kim treated plaintiff. He first reviewed a November 2016 PET/CT scan that showed a calcified lesion in plaintiffs right sinus, performed a procedure to explore plaintiffs sinuses, and then discovered the fungal ball in plaintiffs right sinus. In making his diagnosis, he did not review the May 2015 CT scan that Dr. Alyn Kim had reviewed. Plaintiff then underwent various procedures to have the fungal ball removed.
2. Plaintiff Sues the Branch's Landlord
In the interim, in July 2015, plaintiff sued the branch's landlord for the mold exposure. She eventually amended her complaint to add the landlord's property management companies and a restaurant, alleging the restaurant caused the leak that led to mold growth in the branch's basement. Plaintiff settled with the landlord. She went to trial against the remaining parties from October to December 2018, and lost.
At that trial, on November 7, 2018, Dr. Michael Kim testified as plaintiff's witness. A month later, the defense expert doctor testified plaintiff had not developed the fungal infection until the late summer or fall of 2016. During his testimony, he mentioned the May 5, 2015 CT scan.
Plaintiff called Dr. Michael Kim as a rebuttal witness. On December 12, 2018, Dr. Michael Kim testified the May 2015 CT scan showed the presence of a fungal ball, the same ball that he operated on in December 2016. The doctor stated he had only just provided plaintiff and her counsel a copy of the May 2015 CT scan.
Plaintiffs counsel attested that neither counsel nor plaintiff were familiar with the May 2015 CT scan until it was brought to their attention during the defense expert's testimony. Counsel stated that despite having possession of the May 2015 scan, plaintiffs retained expert (not Dr. Michael Kim) did not "flag" it when reviewing plaintiffs "thousands of medical records." Both Dr. Michael Kim and Dr. Naveen Bhandarkar (another of plaintiffs treating ENT doctors) were unfamiliar with the May 2015 scan prior to trial in the lawsuit against the branch's landlord.
3. Present Lawsuit
On March 10, 2020, plaintiff filed the present lawsuit against defendants Dr. Alyn Kim and SCENT for medical malpractice. On March 2, 2021, defendants filed a Motion for Summary Judgment, arguing expiration of the statute of limitations and that defendants had caused no damages. In arguing the suit was time barred, defendants asserted that by December 13, 2016, plaintiff suspected Dr. Alyn Kim had missed something in her sinus and thus sought an opinion from Dr. Michael Kim. The statute of limitations began running on December 19, 2016, when Dr. Michael Kim identified a fungal ball in her right sinus and planned for its removal.
Plaintiff opposed the motion, arguing the statute of limitations began running on December 12, 2018-the date Dr. Michael Kim testified that Plaintiff had the fungal ball (which he eventually discovered and operated on) as of May 2015.
The trial court granted the motion for summary judgment, citing Dolan v. Borelli (1993) 13 Cal.App.4th 816, 823, a medical malpractice case that holds the statute of limitations begins to run when the plaintiff suspects or should suspect wrongdoing. The court held: "Here, Plaintiff first became suspicious of wrongdoing after her visit with Dr. Alyn Kim. In her deposition, Plaintiff stated she went to Dr. Michael Kim because 'I wanted a second opinion . . . I obviously had already gone to Dr. Alyn Kim and she said there was nothing there, and I'm trying to say there is something somewhere, so where is it. So I need someone to help me figure it out. So [another physician] referred me then to Dr. Michael Kim.' [Citation.] Plaintiff sought a second opinion because she believed Dr. Alyn Kim had missed that 'there was fungal somewhere up in my sinus somewhere.' [Citations.] Plaintiff informed Dr. Michael Kim that she believed Dr. Alyn Kim had missed the fungal in her sinus. [Citations.] In essence, Plaintiff was expressing concern over Dr. Alyn Kim's care. She had the subjective belief that something was wrong with her care. Dr. Michael Kim then provided care and ultimately removed the fungus in her sinus. [Citations.] At that point, Plaintiff should have known that Dr. Alyn Kim's care was deficient (if at all). [¶] Dr. Michael Kim's testimony at trial is irrelevant for the purpose of determining when the statute of limitations began. An expert's opinion does not trigger the statute of limitation. Rather, it is Plaintiff's suspicion of negligence."
The court stated, "Plaintiff's suspicions were aroused by recognition of her own symptoms and by external corroboration of what other doctors had told her. [Citations.] It is irrelevant that Plaintiff did not know the extent of her injury or of its specific causal mechanism until Dr. Michael Kim's testimony." The court concluded plaintiff filed her complaint well after the statute of limitations expired.
On June 9, 2021, the court entered judgment. On August 5, 2021, plaintiff appealed.
DISCUSSION
Plaintiff contends the court erred in concluding her claim was time barred.
1. Standard of Review and Applicable Law
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334.) "A defendant moving for summary judgment based on the affirmative defense of the statute of limitations carries its burden by presenting evidence establishing that the plaintiff's claim is time barred. [Citation.] 'It then falls to plaintiff[ ] to counter with evidence creating a dispute about a fact relevant to that defense.'" (Genisman v. Carley (2018) 29 Cal.App.5th 45, 49.)" 'While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.'" (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1388.)
The limitations period for medical malpractice actions 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." (Code Civ. Proc., § 340.5.) "For purposes of the one-year period, discovery of the injury means the plaintiff has discovered 'both his or her injury and its negligent cause.' [Citation.] The plaintiff 'need not be aware of either the specific facts or the actual negligent cause of the injury. [Citation.] If the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry notice, the limitation period is activated.'" (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 779 (Filosa).)" 'Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.'" (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1296 (Knowles).)
2. The Statute of Limitations Expired on Plaintiff's Medical Malpractice Claim Before She Filed Suit
Here, plaintiff admitted she suspected that Dr. Alyn Kim missed something fungal in her sinus, and specifically sought a second opinion from Dr. Michael Kim for that reason. In the separate statement of facts, Defendants' fact number nine stated: "Plaintiff sought a second opinion with Dr. Michael Kim, M.D. on December 13, 2016 because Plaintiff suspected she had fungus in her sinus that was missed by Dr. Alyn Kim," citing plaintiff's deposition testimony. Plaintiff's response to defendants' separate statement admitted this fact was undisputed.
On December 19, 2016, Dr. Michael Kim informed her that she had a fungal ball in her right sinus and initiated treatment. This is the date plaintiff discovered that Dr. Alyn Kim failed to properly diagnose her symptoms, and the moment plaintiff was placed inquiry notice about Dr. Alyn Kim's malpractice. (See Filosa, supra, 59 Cal.App.5th at p. 779.) The one-year statute of limitations on plaintiff's claims against defendants thus expired on December 19, 2017, more than three years before plaintiff filed her complaint.
Plaintiff argues she "could not connect the dots to implicate Dr. Alyn Kim in any wrongdoing until the trial testimony of Dr. Michael Kim in December 2018." She asserts, "even if [plaintiff] knew she had a fungal ball in her nose in December 2016, she could not possibly have known that the evidence of that mycetoma was in the 2015 CT scan that was at Dr. Alyn Kim's disposal in September 2015. The first time the trail of negligence led back to Dr. Alyn Kim was when Dr. Michael Kim testified that the fungal ball that was apparent in a November 2016 PET/CT scan was precisely the same as the fungal mycetoma that Dr. Alyn Kim should have detected from the May 2015 CT scan at her disposal in September 2015, when she treated [plaintiff]." Plaintiff asserts that prior to Dr. Michael Kim's testimony about the May 2015 CT scan, she "could, at best, only speculate about whether Dr. Alyn Kim had missed something."
We disagree. The point is not that plaintiff knew of no evidence of the fungal ball prior to the 2016 diagnosis. The point is that plaintiff had a duty to seek such evidence after her suspicions about Dr. Alyn Kim overlooking a fungal growth in her sinus was confirmed by Dr. Michael Kim.
We agree with the trial court: it is irrelevant that plaintiff did not know how exactly how Dr. Alyn Kim committed malpractice until hearing Dr. Michael Kim's 2018 testimony. When plaintiff learned she had a fungal ball in her sinus in 2016, plaintiff became aware of Dr. Alyn Kim's misdiagnosis. Plaintiff then had a duty to" 'find the facts.'" (Knowles, supra, 118 Cal.App.4th at p. 1296.) Instead, plaintiff waited for the facts to find her, and missed her opportunity to pursue her malpractice claim.
DISPOSITION
The judgment is affirmed. Defendants and respondents Dr. Alyn Kim and Southern California Ear, Nose and Throat are awarded costs on appeal.
WE CONCUR: BAKER, J., MOOR J.