Opinion
B160233.
7-7-2003
CRYSTAL GUTIERREZ, a Minor, etc., Plaintiff and Appellant, v. ALFONSO BAEZ, Defendant and Respondent.
Nassir, Stearn & Associates and Martin E. Stearn for Plaintiff and Appellant. Patterson, Ritner, Lockwood, Gartner & Jurich and Tobie B. Waxman for Defendant and Respondent.
Plaintiff Crystal Gutierrez appeals from a summary judgment entered in favor of defendant Alfonso Baez, M.D., after the trial court found plaintiffs cause of action was barred by the statute of limitations applicable to medical malpractice claims brought by minor plaintiffs over the age of six. On appeal, plaintiff contends the trial court erroneously applied the law on the statute of limitations for minors treated by health care workers. We affirm.
FACTS AND PROCEEDINGS BELOW
On October 5, 1998, plaintiff, Crystal Gutierrez, a seven-year-old female, underwent an appendectomy at Kaiser Permanente. The hospital released plaintiff on October 13, 1998. Plaintiff continued to complain of pain in her lower right quadrant and also suffered from continual low-grade fever and lethargy. Defendant Alfonso Baez, M.D., treated plaintiff on November 5, 1988 by prescribing oral medication. Plaintiffs symptoms did not improve, and she was admitted to Daniel Freeman Marina Hospital for treatment on January 27, 1999. Plaintiff was diagnosed with an abscess of the Morrison Pouch, which then was drained with catheters. Plaintiffs symptoms thereafter disappeared and the diagnosis concluded the infection was post surgical in nature.
Pursuant to a contract provision, plaintiff went to arbitration with Kaiser Permanente, resulting in a judgment for Kaiser Permanente in October 2000. During arbitration, Kaiser Permanente produced evidence placing liability for plaintiffs injury primarily on the defendant for his failure to initially diagnose and treat the post surgical infection. Upon receiving this information, plaintiff sent a Code of Civil Procedure section 364 notice to defendant on November 6, 2000.
On March 19, 2002, plaintiff filed suit against defendant. Plaintiff sought general damages in the amount of $ 250,000.00, special damages for medical expenses in an amount to be proved at trial, and costs of suit. After answering plaintiffs complaint, defendant filed a motion for summary judgment on the ground plaintiffs claim for damages was barred by the applicable statute of limitations.
Defendant treated plaintiff between November 5, 1998 and January 27, 1999. Plaintiff did not discover her injury, however, until October 2000. Plaintiff filed suit on March 19, 2002. The trial court granted defendants motion for summary judgment on June 27, 2002, and this appeal followed.
DISCUSSION
I. THE TRIAL COURT DID NOT ERR IN GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT.
Appellant contends the trial court erred in granting respondents motion for summary judgment by failing to apply the law of the case on which it based its judgment. Respondent answers by arguing the trial court properly exercised its discretion in granting the motion for summary judgment.
On appeal, the reviewing court employs de novo review to determine whether, as a matter of law, summary judgment was proper. De novo review is also appropriate when reviewing a trial courts interpretation of a statute, as entailing a pure question of law. The reviewing court must identify the issues framed by the pleadings, determine whether the moving partys showing has established facts which negate the opponents claim and justify a judgment in the moving partys favor. If the summary judgment motion is meritorious on its face, the court will determine whether the opposition demonstrates there are triable, material factual issues.
Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 560; Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054-1055.
Camarillo, supra, 105 Cal.App.4th at 560.
Clark, supra, 83 Cal.App.4th at 1054. Although the record on appeal is incomplete here, where the Clerks Transcript lacks both the plaintiffs opposition to the motion for summary judgment and original complaint, and no Reporters Transcript was ever prepared, the dates as to the alleged wrongful act and discovery are undisputed, and are sufficient to decide the case in this instance. The missing records are therefore not relevant here.
This appeal turns on the trial courts interpretation of Photias v. Doerfler, as applied to the medical malpractice statute of limitations set forth in Code of Civil Procedure section 340.5. Section 340.5 states in relevant part:
Photias v. Doerfler (1996) 45 Cal.App.4th 1014.
In an action for injury or death against a health care provider based upon such persons 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.
. . . Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendants insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.
Section 340.5 (emphasis added).
Section 340.5 provides the actions of adults and minors accrue differently. "The adults cause of action may accrue either from the `date of injury or from the time `the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs earlier. The minors cause of action, by contrast, accrues from the date of the `wrongful act rather than the injury, and the statute contains no comparable provision permitting accrual when the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury." After recognizing the actions of adults and minors accrue differently under section 340.5, Photias followed the earlier decision in Torres v. County of Los Angeles, declaring section 340.5 violated the minors right to the laws equal protection. Photias therefore held "allowing adult causes of action to accrue on the date of injury or the date upon which the injury reasonably should have been discovered, but requiring minors causes of action to accrue on the date of the wrongful act does treat minors more harshly. . ."
Photias, supra, 45 Cal.App.4th at 1021 (citing Torres v. County of Los Angeles (1989) 209 Cal.App.3d 325, 334, 257 Cal. Rptr. 211).
Torres, supra, 209 Cal.App.3d 325.
Photias, supra, 45 Cal.App.4th at 1020.
Appellant takes the position minors not only benefit from the discovery rule but that, unlike adults, have three years after discovery, not one, to file a lawsuit. According to appellant, the trial court misinterpreted Photias by ruling a childs rights must be exactly the same as an adults in order to provide a child equal protection under the law. In finding the terms "wrongful act" and "injury" not synonymous as used in the statute, appellant contends the Photias court clarified these terms by deliberately not referring "in any way, shape, or form," to the three year provision in the statute but addressed itself only to when the time commenced. Appellant further contends current laws giving more protection to children have not been ruled violative of the equal protection clause just because children were provided with legal protection not afforded any adult. Finally, appellant maintains Photias sole intent was to give children the same right to delay commencing accrual of an action from the point of discovery that an adult had, without removing the protection of doing so within three years. Appellants contentions are not supported by any case law and her interpretation of Photias is erroneous.
Photias is consistent with prior case law in holding, in a suit for medical malpractice, "a minors medical malpractice cause of action . . . accrues when the minors parent or guardian knew or should have known through the exercise of reasonable diligence that a negligent wrongful act of medical care caused the childs injuries." The term "injury" refers to both the plaintiffs physical condition and its negligent cause. Therefore, once plaintiffs know, or by reasonable diligence should have known, they have been harmed through professional negligence, they have one year to file suit. Furthermore, where the person who is injured is a minor, the parents knowledge or lack of knowledge is controlling.
Photias, supra, 45 Cal.App.4th at 1021 (emphasis added).
Jefferson v. County of Kern (2002) 98 Cal.App.4th 606, 610.
Jefferson, supra, 98 Cal.App.4th at 610 (citing Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896, 218 Cal. Rptr. 313, 705 P.2d 886).
Jefferson, supra, 98 Cal.App.4th at 610 (citing County of Los Angeles v. Superior Court (2001) 91 Cal.App.4th 1303, 1309); Photias, supra, 45 Cal.App.4th at 1021.
We agree with the trial courts interpretation of section 340.5 and the Photias decision. Photias conferred on minors the benefit of the discovery rule provided adults under section 340.5, by providing one year after discovery, not three years, to file suit. The Photias court did not remotely suggest section 340.5 allows minors a statute of limitations extending three years from date of discovery. Rather the three-year period mentioned in 340.5 as applicable to adults is an outside limit and is measured from the date of the injury, not the discovery of that injury. Consequently, if consistent with Photias we apply the same standard to minors as adults, a minor as well as an adult must file an action 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."
"Prior to the enactment of section 340.5 the discovery rule would extend the statute of limitations period indefinitely if a patient could not have discovered her cause of action through the exercise of diligence. But section 340.5 now places an outer limit which terminates all malpractice liability once three years have passed from the date of injury." Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 761, 199 Cal. Rptr. 816, emphasis supplied.
Nothing in Photias suggests minors are entitled to the three-year period as an alternative rather than outside limit, to start running only after they discover their injuries instead of when those injuries occur, while adults have a shorter period within which they must file. Photias recognized 340.5s shortened time limits were rationally related to the statutory objective of curbing "long tail" medical malpractice claims, but held there was no rational basis for providing a shorter limitation period for minors than adults. The court cured that constitutional defect by providing minors with a statute of limitations of one year from the date of discovery of the "injury", or three years from the date of the "injury" or the "wrongful act," whichever occurs first.
II. PLAINTIFFS SUIT WAS CLEARLY BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS AT THE TIME IT WAS FILED.
As explained above, under Photias equal protection problems inherent in the disparate treatment of adults and minors in the medical malpractice statute of limitations set forth in section 340.5 are avoided by providing minors with the benefit of the discovery rule as applicable to adults. Photias posed an unusual set of facts, where the "injury" the patient suffered may not have occurred until many years after the wrongful act. In that case the wrongful act was failing to properly diagnose and treat an undescended testicle during the period the patient was six months to five years old. The injury appellant suffered — and for which he sued — was the sterility this condition allegedly caused, an injury he did not discover until he was eighteen. He filed his action within a year of that discovery, but the question remained whether the injury was "manifest" and thus discoverable earlier in the patients life.
Photias, supra, 45 Cal.App.4th at 1020.
The trial court had granted summary judgment on grounds the patients limitations period started running on the date of the "wrongful act" not the discovery of his "injury." Thus, the record before the Photias court did not reveal how early or how recently the patients injury, e.g., his sterility, became "manifest" — or even when it actually occurred. The Photias court, nonetheless, reversed and left these factual issues to further proceedings in the trial court.
The facts in this case are more typical and do not serve to extend the limitations period more than a decade beyond the "wrongful act" as they did in Photias. In October, 2000, through expert testimony during arbitration proceedings with Kaiser, if not earlier, appellant and her guardian ad litem discovered her injury and that it had been caused by respondents wrongful act. Here, where appellant is a minor, discovery as applied to minors is imputed to her parents, and "the parents knowledge or lack of knowledge is controlling." Under Photias, appellant had one year from October 2000 to file suit against respondent. Appellant did not file suit until March 19, 2002, however, five months after the statute of limitations expired. Accordingly, appellants suit was barred by the applicable statute of limitations.
Jefferson, supra, 98 Cal.App.4th at 610.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
We concur: PERLUSS, P.J., and WOODS, J.