Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, No. 07C0189, James T. LaPorte, Judge.
Corsiglia McMahon & Allard, Bradley M. Corsiglia and Jeffry W. Lochner for Plaintiff and Appellant.
Weiss, Martin, Salinas & Hearst, Lisa M. Martin and Andrew M. Aller for Defendant and Respondent Asela Wickremasinghe.
Schuering Zimmerman Scully Tweedy & Doyle, Dominigue A. Pollara and Theodore D. Poppinga for Defendant and Respondent Sudesh Nagavalli.
OPINION
CORNELL, J.
Appellant Jerry Dominguez sued Sudesh Nagavalli, M.D., and Asela Wickremasinghe, M.D., for medical malpractice. The two doctors filed motions for summary judgment alleging the suit was filed after the expiration of the statute of limitations. The trial court granted summary judgment and Dominguez appeals. We agree with the trial court and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Dominguez was admitted to Central Valley General Hospital’s (CVGH) emergency room on December 30, 2005, complaining of fever, midback pain, and vomiting. The physician who examined Dominguez, Edward Wargo, ordered tests and formed an initial impression that Dominguez had a pulmonary embolism. Dominguez was admitted to Hanford Community Hospital (HCH), where he was placed under the care of Wickremasinghe. He placed Dominguez in the intensive care unit and ordered blood cultures.
On December 31, 2005, the lab made a preliminary determination that the cultures were positive for bacterial growth. According to the laboratory director, David Baca, the lab would have telephoned the results to the nursing staff, who in turn would have noted the results in the patient’s chart or notified the treating physician by phone. The preliminary results also would have been entered into HCH’s electronic medical record system.
About 30 minutes after the preliminary blood results were entered into HCH’s computer system, Wickremasinghe examined Dominguez. Wickremasinghe made no changes to the prescribed treatment for Dominguez.
Nagavalli assumed care for Dominguez while Wickremasinghe was on vacation. Nagavalli accessed Dominguez’s electronic chart in HCH’s computer system on December 31, 2005, and January 1, 2006. Nagavalli saw Dominguez on January 1 and 2.
On January 2, 2006, the lab determined that the blood cultures from Dominguez were growing a methicillin-resistant staphylococcus aureus (MRSA) bacteria that is highly resistant to antibiotics. A little over an hour after the posting of the final lab results, Nagavalli logged into Dominguez’s electronic chart. There was no indication that any change to Dominguez’s treatment was ordered to address the MRSA bacteria.
The evening of January 3 Wickremasinghe resumed care of Dominguez and accessed the electronic chart. Wickremasinghe accessed the electronic chart again on January 4 and also saw Dominguez on that day. No treatment was ordered for the MRSA and Dominguez was discharged on January 4.
There is no indication that Dominguez ever was informed he had a MRSA infection; no treatment was ever prescribed for the infection; and the discharge orders did not mention the MRSA.
Dominguez again was seen by Wickremasinghe on January 9 and 16 for followup outpatient treatment. Wickremasinghe testified that he was advised of the lab results by the time of these visits, but concluded that the results were a false positive or asymptomatic because Dominguez did not have any significant complaints. Wickremasinghe did not inform Dominguez of the MSRA lab results.
On January 22, Dominguez was at CVGH’s emergency room complaining of vomiting, fatigue, back pain, and chest pains. Dominguez was seen by Dr. Michael Leoni, who diagnosed acute chest wall pain and prescribed pain medication. Dominguez was sent home.
The morning of January 23, Dominguez was unable to stand, so he was transported back to the emergency room. Leoni ordered a chest scan, but also called Nagavalli, the on-call physician, and described Dominguez’s symptoms. Nagavalli suggested Leoni conduct further tests.
When additional tests were negative, Leoni discharged Dominguez, telling him to return if things did not improve. Dominguez at this point barely was able to walk and had to be taken from the emergency room in a wheelchair.
On January 24, Dominguez was no better and went to a clinic, complaining of increasing paralysis, low back spasms, and an inability to urinate. Because of the severity of his complaints, Dominguez was taken by ambulance to University Medical Center (UMC), where it was discovered that Dominguez had a spinal abscess.
UMC performed emergency surgery involving decompression and drainage of the abscess. Dominguez was told before the surgery that his paralysis likely was caused by the mass pressing on his spine and that the mass could have been an infection. Dominguez also was told that if he had been admitted to the hospital earlier, the paralysis could have been prevented. Dominguez remained hospitalized after surgery until February 9, 2006.
Dominguez was left with permanent nerve damage. The abscess was caused by the MRSA and, had it been treated earlier, the resulting nerve damage could have been prevented.
On December 22, 2006, Dominguez contacted legal counsel to discuss a potential malpractice action. The focus was on his emergency room visits on January 22 and 23, 2006, and the treatment by Leoni. A Code of Civil Procedure section 364 notice of intent was served on Leoni on January 16, 2007.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Dominguez executed a release so that his counsel could obtain and review medical records. Some of the medical records were received by counsel and reviewed on or about January 26, 2007. The medical records disclosed that during the December 30, 2005, hospitalization, a MRSA was diagnosed and left untreated. On February 14, 2007, Dominguez served a section 364 notice of intent on Wickremasinghe.
A full set of medical records was received by Dominguez in March 2007. These records included more information about the days that Nagavalli was responsible for overseeing Dominguez’s care.
On April 5, 2007, Dominguez filed suit against Wickremasinghe and Nagavalli. On May 13, 2008, Nagavalli moved for summary judgment, asserting the statute of limitations pursuant to section 340.5 had expired and that he did not breach the standard of care in treating Dominguez. On May 16, 2008, Wickremasinghe filed a motion for summary judgment, solely on the grounds that the statute of limitations had expired.
Dominguez opposed the motions. In support of the opposition, Dominguez filed points and authorities and declarations from two of his attorneys, Bradley Corsiglia and Jeffry Lochner. Dominguez maintained that there were separate periods of negligence as to each doctor; therefore, separate limitations periods applied.
Nagavalli objected to Corsiglia’s declaration on the basis that the statements contained therein were hearsay and not based on personal knowledge. The trial court sustained the objection. The trial court also sustained the objections made by Wickremasinghe to the additional facts asserted by Dominguez in his response to the summary judgment motions.
On August 11, 2008, the trial court issued a written order granting the motions for summary judgment. The trial court found that the undisputed facts established that Dominguez was aware of his injury and had a suspicion his injury was caused by medical negligence no later than February 9, 2006. The trial court concluded that the one-year period set forth in section 340.5 commenced when Dominguez should have suspected negligence and that Dominguez should have been on notice as of February 9, 2006. The trial court further concluded that although Dominguez may not have known the identity of all those responsible for negligent treatment as of that date, the statute of limitations was not tolled. The period begins to run as to all potential defendants when the plaintiff suspects medical negligence on the part of someone.
Dominguez appeals the grant of summary judgment.
DISCUSSION
The issue on appeal is whether the statute of limitations under section 340.5 expired prior to the filing of the complaint on April 5, 2007. We conclude it did and Dominguez’s complaint is time-barred.
Standard of review
“Because plaintiff appeals from an order granting defendants summary judgment, we must independently examine the record to determine whether triable issues of material fact exist.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) “In performing our de novo review, we must view the evidence in a light favorable to plaintiff[s] as the losing party [citation], liberally construing [their] evidentiary submission while strictly scrutinizing defendant[’s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff[s’] favor.” (Id. at p. 768.) If there are no triable issues of material fact, what remains is a matter of law to be decided by the court.
Statute of limitations
This case requires us to address the proper application of a statute of limitations. (See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 (Jolly); Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926 (Bernson).) “‘Statute of limitations’” is the collective term applied to acts or parts of acts that “‘prescribe the periods beyond which’ a plaintiff may not bring a cause of action.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395 (Norgart).)
There are several policies underlying statutes of limitations. One purpose is to protect parties from “defending stale claims, where factual obscurity through the loss of time, memory or supporting documentation may present unfair handicaps. [Citation.]” (Bernson, supra, 7 Cal.4th at p. 935; see also Jolly, supra, 44 Cal.3d at p. 1112; Davies v. Krasna (1975) 14 Cal.3d 502.) A statute of limitations also encourages plaintiffs to pursue their claims diligently. (Norgart, supra, 21 Cal.4th at p. 395; Jolly, at p. 1112; see, e.g., Bernson, at p. 935.)
A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (Norgart, supra, 21 Cal.4th at p. 397.) Generally speaking, a cause of action accrues at “the time when the cause of action is complete with all of its elements.” (Ibid.) An important exception to the general rule of accrual is the “discovery rule,” which “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Ibid.)
A plaintiff has reason to discover a cause of action when he or she “has reason at least to suspect a factual basis for its elements.” (Norgart, supra, 21 Cal.4th at p. 398, quoting Jolly, supra, 44 Cal.3d at p. 1110.) Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. (Norgart, at p. 398, fn. 3; Jolly, at p. 1112.) Norgart explained that by discussing the discovery rule in terms of a plaintiff’s suspicion of “elements” of a cause of action, it was referring to the generic elements of wrongdoing, causation, and harm. (Norgart, at p. 397.) In using the term “elements,” we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiff suspects facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiff has reason to at least suspect that a type of wrongdoing has injured him. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (Fox).)
The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have “‘“information of circumstances to put [them] on inquiry”’” or if they have “‘“the opportunity to obtain knowledge from sources open to [their] investigation.”’ [Citation.]” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-897.) In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury and are charged with knowledge of the information that would have been revealed by such an investigation. (Id. at p. 897.)
Section 340.5 is the applicable statute of limitations for a medical malpractice action. Section 340.5 provides in relevant part that an action against a medical provider must be commenced 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.”
Analysis
It is undisputed that a doctor told Dominguez on February 9, 2006, that had he “gotten to the hospital earlier his inability to walk may have been avoided” and by that date Dominguez knew there was a mass on his spine that was causing the paralysis and the mass possibly was caused by an infection. The trial court concluded this information triggered the running of the statute of limitations as to Wickremasinghe and Nagavalli, a conclusion Dominguez disputes.
Dominguez contends that the information he received February 9, 2006, gave rise to a reasonable suspicion that Leoni’s treatment may have been negligent, but that this information was not sufficient to give rise to a suspicion of wrongdoing by Wickremasinghe and Nagavalli. Dominguez argues that he had no reason to suspect wrongdoing by Wickremasinghe and Nagavalli until after the lab reports were reviewed by his counsel in early 2007 and that, at a minimum, there is a triable issue of material fact regarding whether these statements placed him on notice of the cause of action against Wickremasinghe and Nagavalli.
In this appeal, we address the proper application of the statute of limitations. Dominguez’s argument (1) fails to distinguish between knowledge of the injury and knowledge of the specific wrongdoers, (2) confuses the identity of potential defendants with an element of the cause of action, and (3) labels a contested legal conclusion as a triable issue of material fact.
The facts are not in dispute. Dominguez knew as of February 9, 2006, that he had a mass on his spine that previously had not been diagnosed and treated and, if it had been diagnosed and treated earlier, he might not have suffered any paralysis. As of February 9, 2006, Dominguez had knowledge of his injury. Having knowledge of the injury, Dominguez was required to conduct a reasonable investigation as to the cause of the injury and is charged with knowledge that could have been uncovered by a timely reasonable investigation. (Fox, supra, 35 Cal.4th at p. 808.)
The discovery rule, as described in Bernson, allows accrual of the cause of action, even if the plaintiff does not have reason to suspect the defendant’s identity. (Bernson, supra, 7 Cal.4th at p. 932.) The discovery rule does not delay accrual in that situation because the identity of the defendant is not an element of a cause of action. (Norgart, supra, 21 Cal.4th at p. 399; Bernson, at p. 932.) As the court reasoned in Norgart, “It follows that failure to discover, or have reason to discover, the identity of the defendant does not postpone the accrual of a cause of action, whereas a like failure concerning the cause of action itself does.” (Norgart, at p. 399.)
In Norgart, the California Supreme Court distinguished between ignorance of the identity of the defendant and ignorance of the cause of action based on “‘the commonsense assumption that once the plaintiff is aware of’ the latter, he ‘normally’ has ‘sufficient opportunity,’ within the ‘applicable limitations period,’ ‘to discover the identity’ of the former.” (Norgart, supra, 21 Cal.4th at p. 399, quoting Bernson, supra, 7 Cal.4th at p. 932.)
“Simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light.” (Fox, supra, 35 Cal.4th at pp. 808-809, italics added.) In order adequately to allege facts supporting a theory of delayed discovery, Dominguez had to establish that, despite diligent investigation of the circumstances of the injury, he reasonably could not have discovered facts supporting the cause of action within the applicable statute of limitations period. (Id. at p. 809.)
Here, Dominguez could have discovered all facts supporting his causes of action for medical malpractice within the applicable statute of limitations. The information was contained in his medical records, which Dominguez could have obtained at any time within the one-year statutory period. The delay in discovering this information was not due to any delay in discovering the injury. The delay in discovery of the identities of all those responsible was due to Dominguez’s delay in pursuing an investigation. Dominguez did not commence an investigation until December 22, 2006, more than 10 months after knowledge of the injury and knowledge that the cause of injury was in all likelihood medical malpractice. Even then Dominguez assumed, without any investigation to support that assumption, that the cause related to treatment by Leoni and not to treatment received shortly prior to that from Wickremasinghe and Nagavalli. Dominguez could have discovered the identities of all potential medical professional defendants if he had acted diligently. (Norgart, supra, 21 Cal.4th at p. 399.)
The Legislature, in enacting section 340.5, has required plaintiffs to pursue their claims diligently by making accrual of a cause of action contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause. This policy of charging plaintiffs with presumptive knowledge of the wrongful cause of an injury is consistent with the general policy of encouraging plaintiffs to pursue their claims diligently. (Norgart, supra, 21 Cal.4th at p. 395.)
Dominguez contends he did not suspect or have reason to suspect one of the core elements of his claim, causes of action against Wickremasinghe and Nagavalli, until after he reviewed the full medical records. He cites Fox for the proposition that the delayed discovery rule operates to postpone the running of the statute of limitations on the claims against Wickremasinghe and Nagavalli. Dominguez is incorrect for two reasons. First, he fails to distinguish here between the identity of the wrongdoer and the cause of action (medical malpractice). Second, Fox does not support Dominguez’s analysis.
In Fox, the plaintiff had timely pursued a medical malpractice claim. In the course of pursuing that claim, the plaintiff uncovered facts supporting a products liability claim when one physician testified in discovery that a device used during surgery had malfunctioned. (Fox, supra, 35 Cal.4th at p. 811.) The court concluded that the statute of limitations on the products liability claim does not commence, even though the statute has begun to run on a related medical malpractice claim, unless a plaintiff has reason to suspect that a medical injury is the result of products liability. Dominguez is not attempting to assert a separate basis for injury against Wickremasinghe and Nagavalli, as in Fox. He is asserting the same basis of injury -- medical malpractice -- against additional defendants.
The cases cited by Dominguez, Whitfield v. Roth (1974) 10 Cal.3d 874 (Whitfield) and Wozniak v. Peninsula Hospital (1969) 1 Cal.App.3d 716 (Wozniak), also are inapposite. In Whitfield, one doctor at a county hospital had suspected a minor’s symptoms might be the result of an organic brain disease, craniopharyngioma. That suspicion was not confirmed with tests and never was communicated to the minor plaintiff’s mother. Instead, the county hospital documented and reported to the mother that the child had been diagnosed as suffering from the psychiatric disorder of anorexia nervosa. (Id. at p. 887.) It was not until nine months later that a diagnosis of craniopharyngioma was made. (Ibid.) There was some question as to whether a claim had been presented against the county hospital within the statutory timeframe. The court noted that when the claimant, or plaintiff, has been a minor throughout the statutory time period, it is mandatory that a late claim be granted. (Id. at p. 884.)
In Wozniak, as in Whitfield, the claimant was a minor throughout the statutory period. (Wozniak, supra, 1 Cal.App.3d at p. 720.) The minor’s parents presented a late claim and the county hospital denied the claim and did not give any notice of its denial, as required. (Ibid.) The minor’s parents did not petition the superior court to be relieved from the late filing within the required six months of denial of the claim. (Id. at p. 721.) The county hospital conceded that if the petition had been filed in superior court, mandatory provisions of state law would have required that it be granted. (Ibid.) The appellate court concluded “children are to be protected during their minority from the destruction of their rights by the running of the statute of limitations” and should not be penalized for the errors of the adults. (Id. at pp. 723, 724.)
Dominguez was not a minor during any of the statutory period and cannot rely on the holdings of Whitfield or Wozniak to justify filing a late claim.
The other case relied upon by Dominguez, Artal v. Allen (2003) 111 Cal.App.4th 273, also is distinguishable. In Artal, the cause of the plaintiff’s throat pain was uncovered during exploratory surgery where a thyroid cartilage fracture was revealed. (Id. at pp. 280-281.) Nothing in the plaintiff’s medical records from her earlier surgery, where she was intubated and which the plaintiff alleged was done negligently, would have disclosed the fracture. The appellate court concluded that the action was not time-barred because depositions, interrogatories, and routine pretrial discovery would not have disclosed the cause of injury; the cause was determined only after exploratory surgery. (Id. at p. 281.) In the instant case, Dominguez was aware of the cause of his injury, an untreated mass on his spine, and readily could have discovered all potential defendants through routine pretrial discovery within one year of discovery of the injury on February 9, 2006.
Dominguez also argues that whether his knowledge on February 9, 2006, was sufficient to start the statute of limitations running is a disputed issue of fact for a jury to decide. He is wrong. There are no disputed facts for a jury to decide. The only task remaining is the application of the law to those facts. That is a function the trial court performs in the first instance, and we perform on review. Dominguez may dispute the trial court’s legal conclusion, and ours on review, but such a dispute does not create an issue of material fact for a jury to decide.
Conclusion
Contrary to Dominguez’s contention in the trial court and in this appeal, ignorance of the identity of the defendant does not delay accrual of a cause of action. (Fox, supra, 35 Cal.4th at p. 807; Norgart, supra, 21 Cal.4th at p. 399.) Dominguez never disputed that the statements made to him on February 9, 2006, put him on notice that he may have a cause of action for medical malpractice. Dominguez disputed only whether the statements put him on notice that Wickremasinghe and Nagavalli may be liable.
Dominguez made no showing that he could not have uncovered the role Wickremasinghe and Nagavalli played in the lack of early treatment for the MRSA by a diligent pursuit of his medical malpractice action upon discovery of the injury on February 9, 2006. The burden was on Dominguez to show that the information could not have been discovered with reasonable diligence. (Fox, supra, 35 Cal.4th at p. 808.) No such showing could be made because the information readily was available in his medical records and would have been discovered if Dominguez diligently had pursued his cause of action.
As there is no triable issue of material fact, what remains is an issue of law for us to decide. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We conclude that proper application of the statute of limitations to the undisputed facts requires that judgment be entered for Wickremasinghe and Nagavalli.
DISPOSITION
The judgment is affirmed. Costs are awarded to Wickremasinghe and Nagavalli.
WE CONCUR: LEVY, Acting P.J., POOCHIGIAN, J.