Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles Superior Court No. SC100497, Jacqueline Conner, Judge.
Robert W. Bates for Plaintiff and Appellant.
Berman, Berman, Berman, Mark Lowary and Howard Smith for Defendants and Respondents.
CHANEY, J.
Alicia Benham sued her dentist, Joseph Stan, D.D.S., and his practice, Aesthetic and Implant Dentistry of Beverly Hills, for malpractice and fraud in connection with Dr. Stan’s placement of cosmetic veneers on her teeth. (We refer to Dr. Stan and the employees of his office collectively as Dr. Stan.) On appeal from the judgment in Dr. Stan’s favor, Benham contends that the trial court erred by instructing the jury to apply a one-year statute of limitations to the fraud cause of action as well as to the causes of action for dental malpractice, and by excluding evidence of a prior conviction of Dr. Stan and related Dental Board disciplinary proceedings for Medi-Cal fraud. We affirm.
Background Facts
Benham filed a complaint on November 3, 2008, charging Dr. Stan with negligence, lack of informed consent, battery, and fraud. She went to trial on her First Amended Complaint after Dr. Stan’s demurrer to the battery cause of action was sustained without leave to amend.
Benham’s cause of action for negligence alleged that from April 2007, until July 2008, she had received dental consultations and surgical treatments from Dr. Stan, with respect to which he failed to exercise the degree of skill, ability and learning normally exercised by competent dentists, oral surgeons, clinics and health care facilities in the community, and that his failure to exercise ordinary care to assure the competence of his staff created an unreasonable risk of harm to his patients. As a second theory she alleged that Dr. Stan had negligently failed to provide Benham with an appropriate informed consent, by failing to inform her and misleading her with respect to the risks of the procedures he would undertake. And her fraud cause of action alleged that Dr. Stan and his staff intentionally misrepresented a number of facts with respect to her treatment in order to “upsell” her to a more expensive treatment plan that resulted in permanent damage to her teeth.
Benham testified that she initially went to Dr. Stan’s to have her teeth cleaned, then inquired about “lumineers” as a cosmetic correction for a blemish in one tooth that had resulted from an earlier auto accident. In response to her inquiry, a dentist in Dr. Stan’s office had persuaded her that lumineers were not appropriate, that veneers would be far better, and that they would not require much of her tooth enamel to be removed. Another member of the office staff then persuaded her to have 20 of her teeth veneered, rather than just the four that the dentist had initially suggested. Benham testified that she was repeatedly assured that the veneering procedure would require the removal of very little enamel from each tooth, and that if it turned out that more enamel would have to be removed, the procedure would be aborted. She denied that she was warned about any risks or complications.
The precise definitions and differences between dental “lumineers” and “veneers” are not relevant to the issues in this appeal. “Veneers” are apparently thin porcelain or glass shells that are glued over natural teeth for cosmetic purposes; lumineers are referred to as less durable “prep-less” veneers.
The procedure was not successful. When she awoke from sedation, she testified, Dr. Stan told her that “there had been a mistake” and that he was taking over from the dentist who had done the procedure. Over a short period of time the temporary veneers, particularly on her bottom teeth, “popped off, ” causing her continuing pain and requiring her to pester Dr. Stan’s office for corrective action. During one such visit, she testified, Dr. Stan told her that because of characteristics of her jaw, it had been a mistake even to attempt to place veneers on her bottom teeth.
Because Dr. Stan’s office staff kept postponing the placement of permanent veneers on Benham’s bottom teeth, and began telling her that her demands for corrective treatment were unreasonable, Benham consulted another dentist, Dr. Fugier, who had been referred to her as a specialist in dental veneers. Upon examining her lower teeth, Dr. Fugier told Benham that all the enamel had been removed from them.
In June 2007—just a week or two after Benham’s last visit to Dr. Stan’s office—Dr. Fugier wrote to Dr. Stan, and helped Benham write a letter to her credit card company, recounting her physical injuries and seeking a refund for the defective dental work. The letters quoted Dr. Fugier’s advice to Benham that her teeth had been “unnecessarily over prepared” for veneering, they described temporary and permanent injuries that allegedly resulted from Dr. Stan’s work, and they expressed Benham’s opinion that Dr. Stan and his staff “should [not] be practicing dentistry.”
Benham confirmed that after Dr. Stan received Dr. Fugier’s letter, he refunded Benham’s down payment for the veneer placements in full, without requiring a release of her claims against him.
Benham filed suit against Dr. Stan on November 3, 2008.
Before trial, the trial court granted Dr. Stan’s motion in limine, precluding Benham from presenting evidence of Dr. Stan’s December 1999 conviction of grand theft (Pen. Code, § 487, subd. (a)), on a plea of no contest, and his stipulation to a disciplinary order of the Dental Board of California, Department of Consumer Affairs, providing for restitution and five years’ probation. Dr. Stan’s plea had admitted that between December 1993, and August 1997, he had charged the Medi-Cal program $37,000 for dental services he had not provided.
Following the presentation of testimony and exhibits at trial, the court instructed the jury that to establish a defense to Benham’s claims, Dr. Stan had the burden of proving that “before November 3, 2007”—one year before the action was filed—“Alicia Benham discovered, or knew of facts that would have caused a reasonable person to suspect, that she had suffered harm that was caused by someone’s wrongful conduct.” The first question on the special verdict form asked: “Before November 3, 2007, did... Benham “discover, or know of facts that would have caused a reasonable person to suspect, that she had suffered harm that was caused by defendants’ wrongful conduct?” In light of its affirmative response to that question, the jury did not respond to any other questions on the special verdict.
Based on that verdict, on February 5, 2010 the trial court entered judgment against Benham and in favor of Dr. Stan. On April 1, 2010, Benham timely appealed from the judgment.
In conjunction with her reply brief Benham has asked this court to augment the record on appeal to include the complete transcript of Dr. Fugier’s testimony, in order to dispel perceived implications in respondent’s brief about the sufficiency of the evidence with respect to standard of care, causation, and damages. We have received no opposition to the motion, however, we deny the motion because we have concluded that the requested augmentation is unnecessary to the determination of any issue in this appeal.
Discussion
1. The Court Did Not Err By Instructing the Jury To Apply the One-Year Statute of Limitations of Code of Civil Procedure Section 340.5.
The statute of limitations in an action for medical or dental malpractice is ordinarily “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; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111 .) For fraud, however, the statute of limitations is three years from the plaintiff’s discovery of the facts constituting the fraud. (§ 338, subd. (d).)
Further statutory references are to the Code of Civil Procedure unless otherwise noted.
Benham’s suit alleges that Dr. Stan committed not just dental malpractice, but also fraud, by misrepresenting the risks of the procedures he prescribed and performed on her, thereby inducing her to consent to those procedures. These fraud allegations, she contends, entitle her to rely on the three-year-from-discovery statute of limitations of Section 338, rather than the one-year-from-discovery limit imposed on medical malpractice actions by section 340.5. She therefore claims error in the trial court’s instruction to the jury that proof that Benham knew she had suffered harm at Dr. Stan’s hands before November 3, 2007 would establish Dr. Stan’s defense to her claims for both malpractice and fraud. Applying a de novo standard of review, we find no error. (Int’l Engine Parts v. Feddersen & Co. (1995) 9 Cal.4th 606, 611-612 [application of statute of limitations to identified facts is issue of law].)
The issue is one of legislative intent. To determine the statute of limitations that applies to a cause of action, “it is necessary to identify the nature of the cause of action, i.e., the ‘gravamen’ of the cause of action. [Citations.] ‘[T]he nature of the right sued upon and not the form of action nor the relief demanded determines the applicability of the statute of limitations under our code.’ [Citation.]” (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22-23.) The issue therefore is whether the gravamen of Benham’s claims against Dr. Stan rest upon allegations of dental malpractice. Put another way, the question is whether the Legislature intended that plaintiffs such as Benham could extend the one-year malpractice limitation to three years merely by claiming that their medical providers had misrepresented the value, risks, and expected outcomes of the prescribed treatments. The only authority on the subject is that it did not.
The conduct alleged by Benham’s complaint, pleaded under a number of rubrics, comes well within the statutory definition of medical malpractice or professional negligence: “‘Professional negligence’ means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (§ 1295, subd. (g)(2).) Although intentional acts that are not within patient’s consent or the scope of services for which the provider is licensed fall under the definition of battery, misleading medical advice and failure to advise of known risks, whether intentional or negligent, comes within the broad definition of medical malpractice. (Cobbs v. Grant (1972) 8 Cal.3d 229, 239-241 [battery occurs when doctor performs procedure to which patient has not consented; but undisclosed complication is within category of medical malpractice].) As Benham’s dentist, Dr. Stan’s relationship with Benham imposed on him a “duty not merely to perform... work with ordinary care but to use the skill, prudence, and diligence commonly exercised by practitioners of [that] profession.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188.) Intrinsic to that relationship was Dr. Stan’s duty to disclose to Benham the facts materially affecting her rights and interests, including the risks of the prescribed procedures. (Cobbs v. Grant, supra, 8 Cal.3d at pp. 240-241 [physician’s failure to disclose risks fall within definition of medical malpractice, not tort of battery]; Garlock v. Cole (1962) 199 Cal.App.2d 11, 15.)
Benham’s first and second causes of action, for “negligence” and “lack of informed consent, ” allege that she consulted with Dr. Stan, a dental health professional, for evaluation, examination, and treatment; that Dr. Stan did not accurately advise her as to the appropriate treatments and the medical risks of the treatments he persuaded her to undertake; that Dr. Stan’s evaluation, examination, and treatment of her was below the standard accepted in the community, creating an unreasonable risk of harm to Benham and others; that she would not have given her consent to the procedures recommended by Dr. Stan if she had known what the results would be; and that as a result of Dr. Stan’s misleading recommendations and negligent performance, she now suffers permanent damage to her teeth.
We disregard the technical defect resulting from the fact that nowhere does Benham’s first cause of action for negligence actually allege that harm resulted from Dr. Stan’s professional negligence. The defect apparently played no role in the trial court, it is unmentioned by the parties on appeal, and it is cured by the allegations of the “lack of consent” cause of action and by Benham’s testimony at trial.
Benham’s third cause of action, for “fraud, ” incorporates the facts on which the malpractice and lack of informed consent claims rest; it also realleges essentially those same facts under the rubric of fraud. She alleges, for example, that to induce her consent to the veneering procedures, Dr. Stan represented that he would remove no more than 3mm of enamel from each treated tooth; but in fact he removed at least 5mm from each tooth. Those are essentially the same facts that form the basis for her “lack of informed consent” cause of action: that Dr. Stan “negligently failed to provide plaintiff with an appropriate informed consent, namely specifically discussing the possible loss of a significant loss of tooth structure, approximately 5mm as opposed to the no greater than 3mm promised of the enamel on her teeth....”
Benham also testified at trial to the grounds for her claims. She testified, for example, that although she had expressed concerns about losing tooth enamel, Dr. Stan assured her that little enamel would be removed, and that he would abort the procedure if he found he could not “do as I wanted” in that respect. She testified also that Dr. Stan told her that the procedure had been a mistake, and that Dr. Fugier told her that the procedure apparently had resulted in removal of all the enamel from the treated teeth. And she testified that she has no enamel on her teeth and she continues to suffer hypersensitivity and periodic loss of veneers. These facts form the basis not only for her claims of medical malpractice, but also for her claims of lack of informed consent and fraudulent misrepresentation in obtaining her consent.
Because Benham does not challenge the sufficiency of the evidence to support the jury’s determination that she knew or should have discovered that Dr. Stan had caused her injuries before one year before she filed suit, we need not examine the precise facts required for such a showing. (See Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1110-1111 [limitations period begins to run when plaintiff becomes aware of facts that would cause a reasonable person to suspect that she suffered injury caused by someone’s wrongdoing; when that occurs is question of fact for jury].)
It has long been held that the one-year malpractice statute of limitations, rather than the three-year statute for fraud, continues to apply—even when a malpractice plaintiff pleads a failure to disclose medical risks of a prescribed procedure, or a misrepresentation of those risks as fraud. (Tell v. Taylor (1961) 191 Cal.App.2d 266, 271; see also Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 227 [malpractice statute of limitations applies to allegation of deceit in physician’s failure to disclose the nature and extent of plaintiff’s injuries].) Were this not the rule, claims of medical malpractice could—and would—be repleaded as fraud in order to evade the statutory limitation that the Legislature has imposed on claims of medical malpractice.
In fixing the appropriate definitions and statutes of limitations for malpractice and other actions, the Legislature was undoubtedly aware of the potential impact of these classifications on the availability of insurance coverage for defendant medical providers. (See Cobbs v. Grant, supra, 8 Cal.3d at pp. 240-241.)
In Tell v. Taylor, supra, 191 Cal.App.2d at p. 269, the plaintiff alleged her physician’s negligent diagnosis and treatment for her fractured hip, including that he had assured her that her fracture would heal and she would sustain no permanent injury. Upon her pleading of a claim of deceit in those representations, the Court of Appeal refused to permit her to rely on the three-year fraud statute of limitations: “Rather, even though the plaintiff alleges false representations on the part of the physician or fraudulent concealment, our courts have always treated the action as one for malpractice [citations].” (Id. at p. 271.)
Benham relies on a single decision, Nelson v. Gaunt (1981) 125 Cal.App.3d 623 (disapproved on another ground in Douglas v. Ostermeier (1991) 1 Cal.App.4th 729), for the contrary result. Nelson v. Gaunt, an action alleging nondisclosure in connection with medical services, does not disagree with the general rule stated in Tell v. Taylor, but distinguishes it on its facts in order to apply the three-year fraud statute of limitations.
In Nelson v. Gaunt, the plaintiff had sought elective breast-augmentation surgery. She alleged that the defendant had committed intentional fraud, negating her knowing consent to the procedure, by injecting her with silicone without telling her either that he was injecting silicone, or that it was illegal for him to do so; indeed, he had been arrested just a few months earlier for the same unauthorized and unapproved practice. (Id. at pp. 629-630, 635.) Under those circumstances, the court held, application of the fraud statute of limitations was justified: “[W]here, as here, a physician knowingly and intentionally represents that he can administer safely a substance that, in fact, can be administered only under restrictions and controls of state or federal authority, and he administers that substance without the requisite permit and without informing the patient of the restrictions and dangers, the patient can maintain an action for fraud as well as malpractice.” (Id. at p. 636.)
The rule articulated in Nelson v. Gaunt does not apply here. Here, unlike in Nelson v. Gaunt, Benham did not claim that Dr. Stan was guilty of unlicensed conduct, use of unauthorized substances or procedures, or failure to disclose any such use, as was claimed of the medical provider in Nelson v. Gaunt. Benham did not challenge Dr. Stan’s legal authority to provide the promised dental veneers. Her claims against Dr. Stan involved the sorts of alleged failures to perform his duties as a medical provider—duties that come within the definition of medical malpractice: a failure to disclose the medical risks of the treatments and procedures to which the patient consented, and a failure to perform those procedures in accordance with the prevailing medical standards. (Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230; Budd v. Nixen (1971) 6 Cal.3d 195, 200 [gist of malpractice is breach of medical professional’s duty to use skill, prudence, and diligence commonly exercised by other members of profession].) Recasting her allegations as fraudulent misrepresentations does not change the gravamen of her claims.
This does not preclude the overlap of medical malpractice and intentional tort theories in some circumstances. But Benham’s claims are squarely based on the deficiencies she claimed in Dr. Stan’s performance as a medical professional. And her testimony contains no hint that she would have had the slightest objection to either his representations or his services, if only her dental veneers had lived up to her expectations and what she contended were Dr. Stan’s medical representations.
E.g., Baker v. Sadick (1984) 162 Cal.App.3d 618, 625-626 [claim of medical malpractice is bottomed on fraud principles, justifying punitive damages, when plaintiff was fraudulently induced to submit to unnecessary surgery and consent was uninformed]; Nelson v. Gaunt, supra, 125 Cal.App.3d 623 [claim of fraudulent use of unauthorized treatment justifies application of fraud statute of limitations; see also Herrera v. Superior Court (1984) 158 Cal.App.3d 255 [intentional tort pleaded in malpractice action is subject to arbitration under agreement for arbitration of “professional negligence”].)
The trial court thus did not err in instructing the jury to determine whether Benham knew before November 3, 2007 that she had suffered harm at Dr. Stan’s hands, or in entering judgment in Dr. Stan’s favor on her claims for both malpractice and fraud based on the jury’s determination that she did.
2. The trial court did not err in excluding evidence of Dr. Stan’s grand theft conviction and stipulation to a disciplinary order of the Dental Board of California.
Benham appeals from the trial court’s order excluding evidence of Dr. Stan’s December 1999 conviction for grand theft (Pen. Code, § 487, subd. (a)), and his related stipulation to a disciplinary order of the Dental Board of California, Department of Consumer Affairs. Her contention is based on Evidence Code section 788, which provides that to attack a witness’s credibility “it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony....” (Evid. Code, § 788.) Benham argues that “[s]ince Dr. Stan was convicted of a crime of moral turpitude, especially relevant in a case in which there is a fraud claim against him, ” the grand theft felony conviction for Medi-Cal insurance billing fraud “is far more probative than prejudicial in this case.”
We need not evaluate the merits of Benham’s appeal on that point, however, nor the scope of the trial court’s discretion to find that the prejudice resulting from the admission of evidence of a felony conviction to impeach a witness’s credibility would outweigh its probative value. (Evid. Code, § 352.) Whatever the relevance of that evidence to Dr. Stan’s credibility, evidence of Dr. Stan’s felony conviction has no relevance at all to the date on which Benham knew or should have known of the facts supporting her claims against him.
We therefore conclude that the ruling—right or wrong—could not have prejudiced Benham’s ability to persuade the jury that she did not know of her claims against Dr. Stan before November 3, 2007. The ruling—right or wrong—therefore could not have affected the judgment, and did not result in prejudice to Benham or a miscarriage of justice, as the law requires in order to justify the judgment’s reversal. (Cal. Const. Art. VI, § 13 [no judgment shall be set aside for error in rejection of evidence unless error has resulted in miscarriage of justice]; §§ 906 [reviewing court may review ruling that “involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party”], 475 [no judgment shall be reversed for erroneous ruling unless “a different result would have been probable” if such error or ruling had not occurred].)
Disposition
The judgment is affirmed. Respondent to recover his costs on appeal.
We concur: MALLANO, P. J.ROTHSCHILD, J.