Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Lisa Guy-Schall, Judge, Super. Ct. No. GIN045180
McCONNELL, P. J.
In this dental malpractice case, the issue is whether the trial court erred by entering judgment for the defendant on the ground it is barred by the one- and three-year statute of limitations periods. (Code Civ. Proc., § 340.5.) We conclude the court's ruling is supported by substantial evidence, and accordingly, affirm the judgment.
Further statutory references are also to the Code of Civil Procedure unless otherwise specified.
BACKGROUND
On September 6, 2001, Michael Yokoyama, D.D.S., installed three dental implants on the upper right side of Jacquelyn Baumgardner's jaw. The purpose of the implants was to hold fabricated crowns. In preparation for that procedure, Dr. Yokoyama had previously extracted two of Baumgardner's teeth and applied synthetic bone graft material to her jaw to enhance the amount of bone at the implant area. Baumgardner suffered a serious infection at the implant site, and Dr. Yokoyama ultimately removed the three implants.
On March 14, 2005, Baumgardner served Dr. Yokoyama with a statutory 90-day notice of intent to commence an action against him. (§ 364, subd. (a).) On June 10, 2005, Baumgardner sued Dr. Yokoyama for malpractice and lack of informed consent. The complaint alleged that beginning on September 6, 2001, he negligently treated her, but she did not discover the negligence until March 29, 2004, through a "subsequent physician." Baumgardner's negligence theory was that the bone grafts were immature and infection was present on September 6, 2001, and thus Dr. Yokoyama should not have proceeded with the implants on that date; he should not have prescribed "steroid medrol" in November 2001 for her infection because "that acted like fuel on a fire"; and he failed to promptly remove the implants, all of which resulted in an intractable infection.
"If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended [or tolled] 90 days from the service of the notice." (§ 364, subd. (d); Russell v. Stanford University Hospital (1997) 15 Cal.4th 783, 788.)
The complaint also named other defendants, but they are not involved in this appeal.
In his answer, Dr. Yokoyama raised a statute of limitations defense. A bench trial was held on that issue, and we discuss the evidence adduced there below. The court determined the complaint is barred by the time limitations of section 340.5 and entered judgment for Dr. Yokoyama.
DISCUSSION
I
Standard of Review
The parties agree that because the trial court's ruling was based on questions of fact, it is subject to a substantial evidence standard of review. Under that standard, "our review begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the trial court's factual determinations. [Citations.] Substantial evidence is evidence of ponderable legal significance, reasonable in nature, credible, and of solid value." (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501.)
II
Section 340.5A
Section 340.5 provides in part: "In an action for injury or death against a health care provider based upon . . . 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. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person."
"[S]ection 340.5 establishes two hurdles, not one, to the timely maintenance of a medical malpractice claim. Thus, if a malpractice litigant brings her action within three years from the date of injury, she must still satisfy the one-year limitations period or the action is time barred. Conversely, if the action is properly brought within one year of reasonable discovery, the action is nevertheless barred if the three-year period is not also satisfied." (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 758, fn. omitted.)
As to the one-year period, " 'the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing . . . .' " (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.) "The three-year limitations period of section 340.5 provides an outer limit which terminates all malpractice liability and it commences to run when the patient is aware of the physical manifestation of her injury without regard to awareness of the negligent cause." (Hills v. Aronsohn, supra, 152 Cal.App.3d at p. 760.) The three-year period " 'is activated on the date of the damaging effect of the wrongful act rather than on the date of the act itself.' " (Steingart v. White (1988) 198 Cal.App.3d 406, 413.) An injury " 'is "manifested" for purposes of commencing the three-year period when it has become evidenced in some significant fashion.' " (McNall v. Summers (1994) 25 Cal.App.4th 1300, 1311.) " ' "[I]f a plaintiff does not 'discover' the negligent cause of her injury until more than three years after she first experiences harm from the injury, she will not be able to bring a malpractice action against the medical practitioner . . . whose malpractice caused her injury. [Citations.]" ' " (Id. at p. 1308.)
B
1
The evidence showed as follows. Within a few days of receiving the implants on September 6, 2001, Baumgardner returned to Dr. Yokoyama complaining of pain and swelling in her right cheek. On November 20, Baumgardner saw Dr. Yokoyama and he noted she was "having a lot of pain still" and swelling. In October and November 2001, Dr. Yokoyama referred Baumgardner to two ear, nose and throat (ENT) specialists and an oral surgeon.
Many of the supposed facts that the parties set forth in their appellate briefs are supported only by citations to trial briefs, which are not evidentiary. Additionally, Baumgardner cites pages from deposition transcripts that are not included in the appellate record. We consider only the evidence in the record, which includes the reporter's transcript and trial exhibit Nos. 1 to 14, submitted by Dr. Yokoyama.
Baumgardner saw Dr. Marc Lebovits on November 6, 2001, and he ordered an MRI. It showed "inflammation, enhancement and infiltration of the soft tissues at the anterior aspect of the right masseter muscle," findings which "are most consistent with cellulitis." On December 6, Baumgardner told Dr. Yokoyama that Dr. Lebovits told her "she had a bone [maxillary] infection that was draining into the soft tissue and the infection and swelling was causing her periotic [neck gland] blockage." Dr. Yokoyama and Dr. Lebovits prescribed a three-month course of antibiotics.
During a January 24, 2002 phone conversation, Baumgardner told Dr. Yokoyama that she learned from Dr. Robert Weisman that "there may be an infection deep into the bone," and he prescribed another round of antibiotics. Dr. Weisman ordered another MRI, and it was performed on January 30, 2002. The report states: "Evidence of extensive right maxillary sinus disease with what appears to be purulent debris within the sinus. There is extensive cellulitis anterior and inferior to the right maxillary sinus in the right cheek with some deep extension into the buccal space. There appears to be early abscess formation along the margin of the right alveolar ridge. . . . Short-term follow up should be considered to rule out enlarging abscess within the area of cellulitis."
Another MRI was conducted on February 19, 2002, and it revealed a "marked membrane thickening in the floor of the sinus with a metallic intact prosthesis projecting into the sinus," and also another implant "that minimally projects into the floor of the maxillary sinus."
On April 16, 2002, Dr. Weisman performed sinus surgery on Baumgardner. The operative report stated she had "a history of chronic sinusitis and history of a right buccal space abscess treated with antibiotics with persistent fluid collection."
On May 16, 2002, Baumgardner saw Dr. Yokoyama. By then he had learned from the other doctors who had seen her that "she had what they thought was an infection in her maxillary bone around the area of the implants," and "one or more of the implants [had] . . . gone into her sinus cavity." When Dr. Yokoyama examined Baumgardner, he found a fistula "between her mouth and her sinus along the side of the implant." He told her what he found and that "we needed to eliminate the fistula since it was infection around the implant and we couldn't leave it as it was." He told her he could either remove the implants or "try and close the fistula by doing a bone graft under the sinus against that area where the [fistula] was." Baumgardner wanted to retain the implants, and thus she approved the second option.
Baumgardner's infection got worse and on June 27, 2002, Dr. Yokoyama removed one of the implants, and bone grafting, because "the implant was preventing access to the infection." After removal of the implant, Baumgardner had "a large oral antefistula," or hole where the implant was removed. Over the following three months Dr. Yokoyama tried without success to close the hole. On November 6, 2002, he removed a second implant because it impeded treatment of her infection.
In a September 30, 2002, letter to a Dr. Irwin Barr, Dr. Weisman noted that he had again seen Baumgardner, who "has had recurring infection in the right maxillary area and has an opening between her maxillary sinus and her mouth," which caused "reflux of liquids and food into the sinus through the opening." Weisman believed the continuing infection was "related to a contaminated implant."
Baumgardner's infection persisted, however, and on December 17, 2002, Dr. Yokoyama asked her to see an infection specialist he recommended as soon as possible. Dr. Yokoyama explained to her that "[w]e had used a variety of antibiotics and nothing had worked."
On January 31, 2003, Dr. Yokoyama removed the third implant because he had been unable to "close the oral antefistula after repeated attempts," and he believed "the best approach was to take everything out of her sinus . . ., bone graft and implants."
Baumgardner testified that she knew on May 16, 2002, when she met with Dr. Yokoyama, that she had "an infection of some sort." She did not know, however, that the infection may be difficult to treat or incurable. She testified that her general dentist, Dr. Martin, who was also a neighbor, came to her house daily when the implants were in place to give her pain shots.
In October 2002 Baumgardner requested all her records from Dr. Yokoyama as soon as possible. She did not receive the records, and about a month later she sent another letter asking him to send her records as soon as possible. Baumgardner testified she wanted the records because of "the end of the year and taxes" and she "was wanting to put everything together here."
2
We conclude Baumgardner's action is barred by the outer three-year statute of limitations, and thus we are not required to address the one-year statute of limitations period. Her injury was a serious infection, and she was aware of the physical manifestation of the infection more than three years before she served Dr. Yokoyama on March 14, 2005, with a 90-day notice of intent to sue. She began complaining of pain and swelling shortly after the implant surgery on September 6, 2001, and by the following November she had seen ENT specialists and had MRI's performed. Further, she was prescribed antibiotics for months at a time, and notably, she conceded that her general dentist visited her at home every day throughout the time the implants were in place to give her pain shots.
C
Baumgardner contends that as to the three-year limitations period, "the date of injury is not entirely clear. The date of the initial infection is not the date of injury; it is the date when the infection became refractory and difficult, if not impossible, to treat." She claims she was unaware of the extent of the infection until she saw Dr. Joel Berger in March 2004. Baumgardner, however, cites no legal authority in support of her position. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
In any event, Baumgardner's argument lacks merit. The three-year statute does not begin to run when an injury has become intractable, but when the plaintiff has experienced appreciable harm from the injury. (McNall v. Summers, supra, 25 Cal.App.4th 1300, 1308.) Baumgardner cannot reasonably contend she suffered no appreciable harm until 2004, as she received daily pain shots when the implants were in place.
Additionally, Baumgardner contends the statute of limitations was tolled because of Dr. Yokoyama's fraud or intentional concealment. She asserts she continued to treat with Dr. Yokoyama until 2003, and during the treatment he "concealed his negligence from her, assuring her that her problems were just normal and natural sequelae of the implant process which was not true." Baumgardner, however, cites to no evidence in the record to support her contention, and she has thus waived appellate review of the issue. We have, however, reviewed the entire record and find no evidence to support her contention. Rather, the record shows that soon after the implant surgery Dr. Yokoyama referred her to several specialists for additional opinions and treatment.
Further, Baumgardner contends the statute of limitations was tolled until January 2003, when the last implant was removed, because the implants were foreign bodies and when they were in place they had no therapeutic effect and instead harmed her. She relies on Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046, 1057, which explains that the "foreign body" tolling provision of section 340.5 "requires that the 'foreign body' have no 'therapeutic purpose or effect' " when left in the body after surgery, such as drainage hoses, sponges and other surgical tools. Baumgardner cites no authority for the proposition that an implant or other hardware intended to remain in the body after surgery can be considered a foreign body for purposes of the tolling provision, and we are unpersuaded by her position.
Lastly, Baumgardner asserts Dr. Yokoyama is estopped from relying on the statute of limitations because he told her on May 16, 2002, "that there was no benefit to removing the implants," and she "had the right to rely on his representations." Dr. Yokoyama testified that on that date he told Baumgardner there was an infection in the implant area and he discussed two treatment options with her, removing the implant or "to try and close the fistula by doing a bone graft under the sinus." Contrary to Baumgardner's assertion, there is no evidence Dr. Yokoyama lulled her into any false sense of security or placed her under any duress.
" 'The equitable doctrine of estoppel in pais is applicable in a proper case to prevent a fraudulent or inequitable resort to the statute of limitations. [Citations.] A person by his conduct may be estopped to rely on the statute. Where the delay in commencing an action is induced by the conduct of the defendant, it cannot be availed of by him as a defense. [Citations.]' " (Ateeq v. Najor (1993) 15 Cal.App.4th 1351, 1357.) The equitable estoppel doctrine is inapplicable here.
DISPOSITION
The judgment is affirmed. Dr. Yokoyama is entitled to costs on appeal.
WE CONCUR: O'ROURKE, J., AARON, J.