Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. SC086549, James Allen Bascue, Judge.
Law Offices of Sheldon Rosenfield and Sheldon Rosenfield; Arkin & Glovsky and Sharon J. Arkin for Plaintiff and Appellant.
Fonda & Fraser, Peter M. Fonda and Cecille L. Hester for Defendant and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Plaintiff James E. Middlestetter appeals from a summary judgment in favor of defendant Regents of the University of California. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 20, 2004, plaintiff was admitted to UCLA Medical Center for a liver transplant. One night during the course of his recovery after the surgery, and while he was still on heavy pain medication, plaintiff called for nursing assistance to help him to the bathroom. An assistant—who still remains unidentified—came to his room, helped him out of bed and into the bathroom. The assistant helped plaintiff turn and, as she tried to lower him to the toilet, he fell, striking his backbone on the toilet.
Plaintiff testified in his deposition that he was aware that the incident occurred on August 4, 2004 in the early morning hours and that he knew it was that date as he received x-rays either that evening or the following day. He described in detail how the incident occurred, and he stated he was aware that he had been dropped and hit his spine on the toilet and that he had pain after the fall. Plaintiff reported the incident to Nurse Kathleen Russell on August 4, 2004.
Plaintiff did not object to this evidence. However, plaintiff sought to introduce evidence by way of a recent declaration which contradicted his deposition testimony. In his declaration, plaintiff stated that the staff member who was helping him left him on the toilet and he never saw her again. Someone else came and helped him back to bed and he began to pass out. Plaintiff does not remember returning to bed because he was passing out. Additionally, he does not have recollection regarding the date of the incident because he was disoriented and medicated. Plaintiff said he was given heavy doses of morphine after the incident and was not aware of much that happened to him until he was discharged from the hospital. He was in pain but did not know that he had been injured. Additionally, plaintiff stated no one—neither a doctor nor anyone else—told him while he was in the hospital that he needed treatment due to being dropped onto the toilet. Within days after the toilet incident, the head nurse spoke to plaintiff about it. He does not remember the name of the head nurse or the conversation very clearly because he was still on pain medication. However he remembers the head nurse insisting that he was “okay.” Additionally, Hanna, the head floor nurse, told plaintiff that the incident could not have happened at all because he had never been assisted to the bathroom.
According to plaintiff’s declaration, it was not until he was discharged on August 10, 2004 that he learned for the first time, from the discharge nurse, that he had actually suffered an injury in the toilet incident, compression fractures of two vertebrae. At that time, he was told he needed to wear a back brace.
Plaintiff filed his complaint on August 8, 2005. It contained three causes of action: (1) medical malpractice, (2) lack of informed consent, and (3) negligence. Plaintiff subsequently dismissed the second cause of action for lack of informed consent. Defendant filed an answer to the first cause of action only for medical malpractice.
In the first cause of action for medical malpractice, plaintiff alleged that “on or about 8/06/04 to 8/10/04, defendants, and each of them, negligently, carelessly and unskillfully treated, attended, prescribed, diagnosed, cared for and advised plaintiff, James E. Middlestetter, and thereby negligently and carelessly failed to conform to the standard practice in the medical community.” Plaintiff also argued that the defendant’s own misrepresentations to him that he was “okay” estopped defendant from asserting the limitations period.
Defendant moved for summary judgment on the basis that plaintiff was aware of the fall and its alleged cause on August 4, 2004, but he did not file his complaint until August 8, 2005. Plaintiff’s lawsuit therefore was barred by the one-year statute of limitations in Code of Civil Procedure section 340.5.
The trial court granted summary judgment on the ground that plaintiff’s statute of limitations period accrued at the time of the accident itself, not the time he learned of his injury, and his complaint was therefore untimely.
DISCUSSION
A. Standard of Review
Plaintiff contends that because there is no evidence that he was ever aware of his injury prior to August 10, 2004, summary judgment was improperly granted. Defendant claims that summary judgment was properly granted on the basis that plaintiff was aware of the fall and its alleged cause on August 4, 2004 but did not file his complaint until August 8, 2005, and therefore plaintiff’s lawsuit was barred by the one-year statute of limitations in Code of Civil Procedure section 340.5.
Whether the trial court properly grants or denies a motion for summary judgment is subject to de novo review to determine whether triable issues of material fact exist. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) Therefore, while we review a summary judgment ruling under the same general principles applicable to the trial court, we must independently determine the construction and effect of the facts as a matter of law. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1515.) Illustrating this, courts have stated that “we review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill, supra, at p. 476, citing Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.)
Code of Civil Procedure section 437c states in pertinent part that “a motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A defendant seeking summary judgment must present evidence showing that one or more of the elements of plaintiff’s cause of action cannot be established. (Union Bank v. Los Angeles County Superior Court (1995) 31 Cal.App.4th 573.) The burden then shifts to the plaintiff to present evidence of sufficient quality to raise a triable issue of fact. If the plaintiff fails to present sufficient evidence on any element addressed by the defendant, the motion must be granted, and summary judgment entered in favor of the moving party. (Code Civ. Proc., § 437c, subd. (o)(2).)
B. Whether Plaintiff’s Claim was Barred by the Statute of Limitations
Plaintiff relies on his declaration in contending summary judgment was not properly granted, ignoring the fact that he is citing evidence to which objections were sustained by the trial court. In determining whether summary judgment properly was granted, we cannot consider evidence to which objections were made and sustained. (Code Civ. Proc., § 437c, subd. (c).)
Plaintiff makes no claim of error in her opening brief regarding the trial court’s sustaining of defendant’s objections to his evidence. Any such claim therefore is waived. (Title G. & T. Co. v. Fraternal Finance Co. (1934) 220 Cal. 362, 363; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, pp. 627-629.)
Moreover, we note that when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, and the party subsequently presents a declaration with contrary facts to oppose summary judgment, the subsequent declaration does not create a triable issue and an objection to the evidence is proper. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22; Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 858-859 [trial court must defer to deposition testimony where contrary subsequent declaration is submitted in opposition to motion for summary judgment]; Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613 [“Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment.”].) Therefore, plaintiff cannot rely on his declaration to the extent it is inconsistent with his deposition testimony.
The trial court granted summary judgment in favor of defendant on the ground that plaintiff had notice of the fall on August 4, 2004, and that commenced the running of the statute of limitations. Plaintiff contends that since the existence of the injury was not discovered until August 10, 2004, that was when the statute of limitations period accrued.
The limitations period in a medical malpractice case is set forth in Code of Civil Procedure section 340.5. That statute provides that an action against a healthcare provider must be brought 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. (Code Civ. Proc., § 340.5.)
Plaintiff argues that the date of discovery is the date the plaintiff actually finds out that an injury occurred and that there was a negligent cause. However, the one-year period of limitations commences running when the plaintiff actually discovers, or should have discovered, the alleged injury and its negligent cause. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 97-101; Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 758; Tresemer v. Barke (1978) 86 Cal.App.3d 656, 664.)
It is established that “the plaintiff discovers the cause of action when he at least suspects a factual basis . . . for its elements . . . when, simply put, he at least ‘suspects . . . that someone had done something wrong’ to him [citation] ‘wrong’ being used, not in any technical sense, but rather in accordance with its ‘lay understanding’ [citation]. . . . He has reason to suspect when he has ‘“‘“notice or information of circumstances to put a reasonable person on inquiry.”’”’ . . . [H]e need not know the ‘specific “facts” necessary to establish’ the cause of action; rather, he may seek to learn such facts through the ‘process contemplated by pretrial discovery’; but, within the applicable limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place—he ‘cannot wait for’ them ‘to find’ him and ‘sit on’ his ‘rights’; he ‘must go find’ them himself if he can and ‘file suit’ if he does.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398, fn. and italics omitted, citing Jolly v. Eli Lily & Co. (1988) 44 Cal.3d 1103, 1110-1111.)
Accordingly, an action for medical negligence must be brought within one year after the plaintiff first suffered appreciable harm and suspected, or a reasonable person would have suspected, that someone had done something wrong. (Norgart v. Upjohn Co., supra, 21 Cal.4th at pp. 397-398, 405-406; Jolly v. Eli Lily & Co., supra, 44 Cal.3d at pp. 1110, 1111, 1114.) “This rule sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing.” (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.) Put another way, the one-year period is triggered when the plaintiff has suffered an injury and suspects or should suspect it may be due to someone’s wrongdoing. (Jolly, supra, at p. 1110.)
The term “injury” as used in Code of Civil Procedure section 340.5 to denote the commencement of the limitations period refers to the damaging effect of the alleged wrongful act and not the act itself. Accordingly, the statute of limitations does not begin to run until some damage occurs. It could well be under some other set of facts that an injury or pathology will not manifest itself for some period after the last treatment by a physician, for example. On the other hand, the injury may manifest itself and the patient will suffer pain and known appreciable harm at a time prior to the ultimate determination of what the injury actually is. “‘In the latter case, the . . . period will start to run at the point at which the “appreciable harm” is first manifested.’” (Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 542-543.)
In Artal v. Allen (2003) 111 Cal.App.4th 273, plaintiff was admitted to Cedars-Sinai Medical Center to undergo surgery on May 8, 1998. (Id. at p. 275.) The actual injury occurred when the plaintiff was intubated for anesthesia in the course of a pelvic surgery. When she awoke from the anesthetic, she had severe persistent throat pain. The pain continued for months and she consulted several doctors to discover the source of the problem. On May 6, 1999, she indicated on one doctor’s pain management form that she thought the pain resulted from some sort of trauma during the intubation. (Id. at p. 276.) After exploratory surgery, it was discovered that the intubation had caused trauma—a portion of the thyroid cartilage was broken and was protruding into her vertebral column. (Id. at p. 276.) Plaintiff did not discover the negligent cause of her condition and could not reasonably identify the negligent cause until after the exploratory surgery on November, 5, 1999. She filed her complaint on October 27, 2000. (Id. at p. 277.) The appellate court ruled that plaintiff’s claim was not barred as a matter of law by the one-year limitation period. (Id. at pp. 280-281.)
In the instant case, it is plaintiff’s position that since he did not know the extent of his injuries (whether he had broken bones or not) on August 4, 2004, the injury had not been discovered. The fallacy with this reasoning is apparent upon examination of the evidence. Plaintiff testified at his deposition that he suffered pain when he was dropped by a staff person, he was aware that he had been dropped and felt pain as a result, and he reported the incident to a nurse that same day. The date of the injury therefore was August 4, 2004.
Plaintiff’s citation to the Artal case is unavailing. In Artal, the plaintiff truly was unable to appreciate the injury until subsequent diagnosis of broken thyroid cartilage which was protruding into her vertebral column. (Artal v. Allen, supra, 111 Cal.App.4th at p. 278.) Here, plaintiff testified that he suffered pain immediately after the fall. Plaintiff was aware he had fallen, that a staff person dropped him, and that he suffered pain after the fall, sufficient to report the incident to a nurse the same day. Therefore, the Artal case is inapposite.
Plaintiff also claims that, even assuming the injury occurred on August 4, 2004, his suit filed on August 8, 2005 was within the three-year period from the date of the injury. Inasmuch as Code of Civil Procedure section 340.5 provides a limitations period of three years from the date of injury or one year from the discovery of the injury, “whichever occurs first” (italics added), plaintiff’s claim is without merit.
The trial court properly granted defendant’s motion for summary judgment as to plaintiff’s cause of action for medical malpractice. The evidence submitted proved it was barred by the one-year statute of limitations (Code Civ. Proc., § 340.5), which had already expired by the time plaintiff’s complaint was filed on August 8, 2005.
Plaintiff contends summary judgment was improperly granted because the medical providers broke their fiduciary duty to him by not telling him he had an injury and that the incident never occurred. However, plaintiff did not allege a cause of action for breach of fiduciary duty. On summary judgment, the question is “‘whether there is any triable issue of fact within the issues delimited by the pleadings.’” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) “‘“[P]ossible theories not fully developed or factually presented to the trial court cannot create a triable issue on appeal.”’” (Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 842, italics omitted.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P. J., ROTHSCHILD, J.