Opinion
A151678
03-27-2018
CANDY ZUNIGA, Plaintiff and Appellant, v. HENRY D. HAMILTON, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV537343)
Plaintiff Candy Zuniga appeals from a judgment entered on a grant of summary judgment in favor of Dr. Henry Hamilton. The court correctly ruled that Zuniga's action was barred by the statute of limitations that governs medical malpractice claims, so we affirm.
BACKGROUND
I. The Unsuccessful Tubal Ligation
This is a medical malpractice action concerning a failed elective sterilization procedure. In April 2010 Zuniga, a mother of three, underwent a tubal ligation. Dr. Hamilton, her surgeon, advised her he would use the Adiana procedure, and that it would be permanent and irreversible. According to Zuniga, Dr. Hamilton neither warned her of a risk the procedure could fail nor advised her to return in three months for a follow-up x-ray (called a hysterosalpingogram) to confirm the procedure was successful. Zuniga did not return to Dr. Hamilton's office after the tubal ligation and never had a hysterosalpingogram to confirm that her fallopian tubes were fully occluded.
On January 21, 2015, Zuniga tested positive in a self-administered home pregnancy test. On January 22 she called Dr. Hamilton to report the positive test result. His office referred her for additional testing, which confirmed she was pregnant. An ultrasound and prenatal lab work conducted on January 23 showed that Zuniga was 10 weeks and four days pregnant.
When she first learned she was pregnant, Zuniga suspected Dr. Hamilton had done something wrong when he performed her tubal ligation in 2010. We will quote at length from her deposition offered by Dr. Hamilton in support of summary judgment.
"Q. And there was a pregnancy test done. And by January 22, 23, the pregnancy was confirmed? [¶] A. Yes. [¶] Q. You said to yourself at that time something must have gone wrong with the tubal ligation for me to be pregnant? [¶] A. I did. That's why I went to go see Dr. Hamilton. [¶] Q. Right. And you thought, 'Hey, Dr. Hamilton must have failed to do this right because if he had done it correctly, I would not be pregnant.' [¶] A. First of all, I did think of Dr. Hamilton did mess up. But I also thought is that clip still in my body? Is the baby okay? Am I going to lose the baby? Is he healthy because of the procedure? [¶] . . . [¶] Q. But when you learned that you were pregnant on January 22, 2015, one of the things that did go through your mind was Dr. Hamilton messed up or did Dr. Hamilton mess up and make a mistake such that the tubal failed and now I'm pregnant; correct? [¶] A. I said Dr. Hamilton messed up. I guess he messed up. I don't know. He's a human. [¶] Q. But when you say 'messed up,' you're thinking there's something he didn't do correctly, he made a mistake, he messed up. He didn't do it right; correct? [¶] A. I wanted to know what was going on in my body. [¶] . . . [¶] Q. Did you say to your husband when he said, 'I think we're pregnant,' and you then had the pregnancy test and by January 22 or January 23, 2015 the pregnancy was confirmed, did you talk to your husband about your wanting to go see Dr. Hamilton? [¶] Yes, I do. [¶] Q. And did you tell your husband, 'Hey, I need to find out if Dr. Hamilton messed up? [¶] A. Yes. and he suggested, 'Maybe you should go see him.' " [¶] . . . [¶]
"Q. . . . So did you ever ask Dr. Hamilton and share with him your suspicion that he might have messed up and made a mistake? Did you ask him, 'Doctor, did you mess up or make a mistake?' [¶] A. I asked him, 'What went wrong?' [¶] Q. [¶] . . . [¶] On January 23, 2015 with a confirmed pregnancy after a tubal that you thought was going to be a hundred percent permanent, you knew one way or the other something had gone wrong; right? [¶] A. Yes. [¶] And you thought to yourself, although you didn't know, because you're not a doctor either, it was Dr. Hamilton's fault or possibly some other reason that you were pregnant? [¶] A. Yes. [¶] . . . [¶]
"Q. When you testified a few moments ago that on or about January 21, 22, when you have a confirmed pregnancy— [¶] A. Yes. [¶] Q. — that one of the things you thought about was am I pregnant because Dr. Hamilton messed up? [¶] A. Yes. [¶] Q. And by messed up, did you mean that he'd done something incorrectly when he did the tubal? [¶] A. Yes. [¶] Q. Did you mean that by messed up, that he hadn't done the procedure right? [¶] A. Yes. [¶] Q. And maybe Dr. Hamilton had made a mistake or done something wrong? [¶] A. Yes."
In late January 2015, Zuniga visited Dr. Hamilton at his office. She asked him, " 'What went wrong?' " Dr. Hamilton told her that she was supposed to have come back for an x-ray after her tubal ligation. Zuniga testified she was "shocked" to hear this because Dr. Hamilton never advised her to return for an x-ray after the procedure to ensure it was successful. She told him "I didn't know I was supposed to come. How come I—I didn't get that. I don't know."
II. The Lawsuit
On February 10, 2016, Zuniga sued Dr. Hamilton for medical malpractice. Her first cause of action alleged Dr. Hamilton negligently performed the tubal ligation and failed to schedule or advise her of the need for an x-ray or other follow-up to confirm she was sterile. A second cause of action, for lack of informed consent, alleged that Dr. Hamilton failed to tell Zuniga the sterilization procedure could fail.
Dr. Hamilton moved for summary judgment on the ground the complaint was barred by the one-year statute of limitations for medical malpractice actions. The court granted summary judgment. It explained: "Code Civ. Proc. 340.5 (professional negligence action must be commenced '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'). Plaintiff's malpractice claim arose, at the latest, Jan. 23, 2015, after Plaintiff received definitive confirmation she was pregnant, and discussed the matter with Defendant, who asked her why she had not returned for the follow-up X-ray three months after the tubal ligation. Christ v. Lipsitz (1979) 99 Cal.App.3d 894, 898 ('The statute begins to run when the plaintiff has notice of circumstances sufficient to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation') . . . .
"Many of the relevant facts here are undisputed. Plaintiff believed the procedure at issue (the tubal ligation) was permanent and irreversible [citation]; Plaintiff contends she was never told there was a chance the procedure would not work [citation]; Plaintiff believed that once she had the procedure, there was 'no chance whatsoever' she could become pregnant [citation]; when Plaintiff learned she was pregnant on Jan. 21, 2015, she was 'shocked' [citation]; her pregnancy was confirmed by Jan. 23, 2015 [citation]; when Plaintiff spoke with Dr. Hamilton on Jan. 23, 2015 and asked him 'what went wrong?', he asked her why she had not returned three months after the procedure for the required follow-up X-ray (hysterosalpingogram), and she was shocked by the question, because she didn't know about any requirement to return for a follow-up X-ray. [Citation.] Per Christ v. Lipsitz, supra, these undisputed facts establish that by Jan. 23, 2015, Plaintiff was on inquiry notice of her negligence claim, which triggered the statute of limitations.
"In addition to inquiry notice, the evidence demonstrates Plaintiff actually suspected wrongdoing (negligence) not later than Jan 23, 2015. . . . Plaintiff testified that upon learning she was pregnant, she immediately went to see Dr. Hamilton to ask him 'what went wrong?' [Citation]; she 'knew one way or the other that something had gone wrong' [citation]; she thought 'Dr. Hamilton had made a mistake or done something wrong' [citation]; she believed 'that he'd done something incorrectly' [citation]; she believed 'he hadn't done the procedure right' [citation]; see also [citation] (I did think Dr. Hamilton did mess up.'). Her suspicions of wrongdoing were confirmed on Jan. 23, 2015 when Dr. Hamilton asked her why she had not returned for the follow-up X-ray, and she responded she didn't know she was supposed to come back for any follow-up procedure. [citation.]"
Zuniga has timely appealed from the ensuing judgment.
DISCUSSION
I. Legal Standards
" 'To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff's cause of action [citations] or show that an element of the cause of action cannot be established [citations]. [Citation.] The defendant "must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.' " (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.) " 'Once the moving party has met its burden, the opposing party bears the burden of presenting evidence that there is any triable issue of fact . . . .' " (Ibid.)
"In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. [Citation.] The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. [Citation.]" (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703-704.) "We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ' "specific facts," ' and cannot rely upon the allegations of the pleadings. [Citations.]" (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.) "While '[s]ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact' [citation], it is also true '[j]ustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.' " (M.B. v. City of San Diego, supra, at p. 704.)
II. Analysis
Code of Civil Procedure section 340.5 provides: "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 . . . one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury. . . ." "Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110 (Jolly).)
Additional statutory citations are to the Code of Civil Procedure.
To the extent that Zuniga appears to argue Jolly, Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 and their ilk do not apply to medical malpractice actions because they address the statute of limitations formerly applicable to products liability actions (former § 340, subd. (3)), rather than section 340.5, she is mistaken. "[I]t is well established that Jolly's discussion of the discovery rule applies to actions involving section 340.5. (See, e.g., Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391, 97 Cal.Rptr.2d 762 [applying Jolly/Norgart analysis to § 340.5 case]; Dolan v. Borelli (1993) 13 Cal.App.4th 816, 824 . . . ["the Jolly analysis applies to section 340.5"]; Rose v. Fife (1989) 207 Cal.App.3d 760, 769, fn. 9, . . . [same].)"
"[T]he limitations period begins once the plaintiff ' " 'has notice or information of circumstances to put a reasonable person on inquiry . . . .' " ' [Citation.] A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. 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." (Jolly, supra, at pp. 1110-1111; see also Christ v. Lipsitz (1979) 99 Cal.App.3d 894, 898 [wife's pregnancy put plaintiff on inquiry notice of potential claim for negligently performed vasectomy].) "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. [Citation.] The first to occur under these two tests begins the limitations period." (Kitzig v. Nordquist, supra, 81 Cal.App.4th at p. 1391.)
Here, under either test, the limitations period for Zuniga's action began to run no later than January 23, 2015. Based on her testimony, by January 23, 2015, Zuniga: knew she had become pregnant despite her tubal ligation; discovered that Dr. Hamilton should have, but did not, advise her to have a post-operative x-ray to confirm it was successful; and actually suspected the sterilization procedure failed because Dr. Hamilton "messed up" or did something wrong. Her position that the limitations period did not commence until her brother suggested her pregnancy could be caused by medical negligence or her attorney investigated the possibility of such negligence is therefore unavailing. (See Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1298-1299 (Knowles) [plaintiff's desire to review autopsy results and consult an attorney regarding potential claim did not toll statute of limitations once he suspected medical malpractice].)
In her declaration, Zuniga states Dr. Hamilton did not explain "how or why I became pregnant" after the tubal ligation, that she did not begin to suspect malpractice until late February, and that it was not until late March 2015 that she learned she should have had a follow-up x-ray. The trial court properly disregarded these statements because they contradict Zuniga's deposition testimony. (Archdale v. American Intern. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 473; Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521-1522.)
Zuniga disagrees. She argues her action did not accrue until she discovered "the facts essential to her claim (i.e., that Dr. Hamilton negligently failed to advise her of all of the requirements to complete the tubal ligation via the Adiana method and failed to perform the necessary follow-up hysterosalpingogram or subsequent X-ray to confirm the completeness of the sterilization procedure )" after consulting an attorney at the end of March 2015. But, assuming arguendo the pregnancy alone did not put her on inquiry notice of potential malpractice (cf. Christ v. Lipsitz, supra, 99 Cal.App.3d at p. 894), Zuniga testified that Dr. Hamilton informed her for the first time on January 23, 2015, that she should have returned for a hysterosalpingogram three months after her tubal ligation. Zuniga was on inquiry notice no later than January 23, 2015 and, indeed, actually suspected that Dr. Hamilton had done something wrong. "The limitations period begins when the plaintiff's suspicions are aroused." (Knowles, supra, 118 Cal.App.4th 1290, 1300, 1298 & fn. 5.) Moreover, "a plaintiff need not know the precise manner in which a wrongdoer was negligent in order to discovery his or her injury, within the meaning of section 340.5. In the aftermath of Jolly, courts have rejected the argument that the limitations period does not begin to run until a plaintiff learns the specific causal mechanism by which he or she has been injured." (Id. at p. 1298.)
Zuniga argues the statute of limitations was tolled because Dr. Hamilton allayed her suspicions of malpractice by blaming the pregnancy on her failure to return for a hysterosalpingogram. In her view, "[b]y failing to acknowledge responsibility for any error in completing the tubal ligation process and instead implying that it was Ms. Zuniga who failed to complete the required follow-up procedures to confirm sterilization, a question of fact exists as to whether Dr. Hamilton misled Ms. Zuniga into believing she had no right of action following her appointment with him." Zuniga relies principally for this argument on Brown v. Bleiberg (1982) 32 Cal.3d 426, 435-436, in which the Court found there was an issue of fact as to whether the plaintiff reasonably relied on her surgeon's repeated misrepresentations about the cause of her continuing medical problems and on that basis reversed a grant of summary judgment. (See Enfield v. Hunt (1979) 91 Cal.App.3d 417, 423 [statute of limitations tolled during extended period that plaintiff remained under defendant surgeon's care and defendants repeatedly assured him his condition would eventually correct itself] .)
Those cases are inapposite. In this case there is no evidence that Dr. Hamilton lied to Zuniga when she saw him in January 2015 or otherwise attempted to allay her admitted suspicion of malpractice. To the contrary, Zuniga testified (and alleges) that when she had the tubal ligation Dr. Hamilton failed to instruct her to return for a confirmatory x-ray. Accordingly, his disclosure five years later that Zuniga should have had the follow-up test she claims he did not tell her about in 2010 could only have confirmed her suspicion of malpractice. Nothing in this record supports Zuniga's claim that Dr. Hamilton did anything to lull her into inaction.
Having carefully reviewed the record in accordance with the appropriate standard of review, we agree with the trial court that Zuniga was both on inquiry and had actual notice of a potential claim against Dr. Hamilton no later than January 23, 2015. Her complaint was not filed until February 10, 2016, so it is time barred.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------