Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC490329, Gary B. Tranbarger, Judge.
Tepper Law Firm, Nicholas Tepper and Heather A. Hickman for Plaintiff and Appellant.
Kramer, DeBoer, Endelicato & Keane and Kathleen A. Stosuy for Defendants and Respondents.
OPINION
Ramirez, P.J.
Plaintiff, Geneva Legrone, injured her ankle during a work-related activity and was seen by Thomas Mogensen, M.D. (Mogensen), at Central Occupational Medical Providers (COMP), the provider of medical care for injured workers employed by the City of Perris. Mogensen initially refused to order an MRI (magnetic resonance imaging) and thus failed to promptly diagnose an Achilles tendon tear, causing the injury to become worse. A month after sustaining the injury, an MRI was finally ordered, and plaintiff had to undergo surgery to repair the injury. In October 2006, plaintiff was terminated from her employment after making a worker’s compensation claim for the injury. In January 2008, plaintiff filed a medical malpractice complaint against—among other parties—defendant Mogensen and COMP. The defendants filed a motion for summary judgment on the ground that the action was untimely under the one-year statute of limitations (Code Civ. Proc., § 340.5), which was granted by the trial court, resulting in a judgment in favor of the defendants. Plaintiff appeals from that judgment. We affirm.
Plaintiff also sued the City of Perris, her supervisors, and Hazelrigg Risk Management Services for her wrongful termination and related claims. The instant appeal relates exclusively to the medical malpractice claim in the sixth cause of action.
BACKGROUND
Plaintiff was employed by the City of Perris as a recreation leader. In the evening hours of March 24, 2006, plaintiff reached down to pick up a basketball while performing her duties when she heard a “pop” in her left ankle and experienced great pain. Later that evening, plaintiff went to the Corona Regional Medical Center (CRMC) where her leg was x-rayed. The attending physician believed plaintiff had torn her Achilles tendon and referred plaintiff to an orthopedist for evaluation and an MRI, which was scheduled for March 27, 2006.
The next day, plaintiff notified her supervisor of the appointment for the MRI and was instructed to report to human resources, which, in turn, referred plaintiff to COMP, instructing plaintiff not to attend the appointment at CRMC. Plaintiff did as instructed and went to COMP, where she was examined by defendant Mogensen, who refused to order an MRI but concluded that plaintiff’s Achilles tendon was not torn. Mogensen recommended physical therapy and prescribed pain medication, directing plaintiff to return to work with restrictions of intermittent standing and no walking.
Plaintiff was reexamined by Mogensen on March 31, 2006, and was instructed to return to work with restrictions. Plaintiff began physical therapy as directed, but the physical therapist discontinued treatment to prevent further injury. An MRI was finally ordered and performed on April 11, 2006. The MRI revealed a full-thickness tear of the Achilles tendon. On April 14, 2006, plaintiff returned to Mogensen for a follow up, taking with her the MRI results, but the doctor did not look at the report or the films. Instead, Mogensen directed her to return to work without a splint or brace.
On April 25, 2006, plaintiff was examined by another doctor, Dr. Ronny Ghazal, who recommended immediate surgery to repair a torn ligament. During this examination, plaintiff overheard Dr. Ghazal speak to defendant Mogensen on the telephone, complaining that Mogensen had misdiagnosed the injury, making plaintiff suffer needlessly and contributing to the possibility plaintiff would have a long-term, permanent disability. The delay in diagnosing the torn tendon exacerbated the injury, increasing the tear gap, making it more difficult to heal.
Surgery to repair the torn Achilles tendon took place the next day. However, plaintiff was unable to return to work until September 2006, and she continued to suffer pain and discomfort as well as a loss of range of motion, plantar facititis [sic], and difficulty walking. After she returned to work, plaintiff requested accommodation due to her injury. During this time, plaintiff believed that Dr. Ghazal, who had been referred by Mogensen, was connected with her employer, the City of Perris, so that when she “battled” her employer for proper accommodations stemming from the injury, she believed that Mogensen was part of her employer’s illegal actions. It was not until after January 28, 2007, that she realized Mogensen’s negligence was separate and distinct.
The medical documents in the record use the term “facititis” repeatedly, so we use that term, although we assume the doctors intended to say “fasciitis.”
Plaintiff was eventually terminated from her employment by the City of Perris on October 5, 2006, and initiated proceedings seeking administrative remedies. Plaintiff exhausted her administrative remedies on March 23, 2007, by filing a charge of discrimination with the California Department of Fair Employment and Housing (DFEH). The DFEH issued to plaintiff a notice of right to bring a civil action on March 26, 2007, after which plaintiff filed her complaint on January 22, 2008. The complaint alleged five causes of action against the City of Perris relating to the termination of her employment, and one cause action against COMP and Mogensen for medical malpractice.
On July 6, 2009, defendants COMP and Mogensen filed a motion for summary judgment on the grounds that (1) the claim was barred by the one-year statute of limitations (Code Civ. Proc., § 340.5); (2) defendants’ treatment of plaintiff’s injury was not below the standard of care; and (3) defendants’ treatment of plaintiff’s injury was not the proximate cause of plaintiff’s injuries or damages. The motion was heard on October 28, 2009, and was granted. Judgment was entered in favor of defendants COMP and Mogensen on December 18, 2009. Plaintiff appealed from that judgment.
DISCUSSION
Plaintiff asserts that she did not discover the damaging effect of the injury until 2007, 10 months after the injury, when she still suffered pain. In the trial court she explained that “her initial focus was the maltreatment she received from her employer and she did not appreciate that Defendants’ actions had significantly injured her until after February 2007, when it became clear to her that her injuries were not properly healing.” She asserts that her claim is governed by the three-year statute of limitations prescribed by Code of Civil Procedure section 340.5, relating to actions against health care providers where the injury is discovered after the fact, and that she filed her action within one year of the discovery.
Defendants assert that plaintiff discovered the injury in April 2006, when Dr. Ghazal contradicted defendant Mogensen’s diagnosis, informed plaintiff that the MRI revealed the torn tendon, and performed surgery on plaintiff to repair it. We agree with defendants.
a. General Principles and Standard of Review Relating to Summary Judgments.
The purpose of a motion for summary judgment is to discover whether the parties possess evidence which requires the fact-weighing procedures of a trial. (Soto v. County of Riverside (2008) 162 Cal.App.4th 492, 496, quoting City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273.) A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) 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 v. Navegar, Inc. (2001) 26 Cal.4th 465, 476, citing Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) Because we review de novo, the trial court’s stated reasons for granting summary judgment are not binding on us; we review the ruling, not the rationale. (Soto v. County of Riverside, supra, 162 Cal.App.4th at p. 496; Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
In the trial court, once a moving defendant has “shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, ” the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff “may not rely upon the mere allegations or denials of its pleadings... but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....” (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) An opposition to a summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative, or based on conjecture and speculation. (MRI Healthcare Center of Glendale, Inc. v. State Farm General Ins. Co. (2010) 187 Cal.App.4th 766, 777; Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11.)
In reviewing the evidence, we strictly construe the moving party’s evidence and liberally construe the opposing party’s and accept as undisputed only those portions of the moving party’s evidence that are uncontradicted. “‘Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. “Any doubts about the propriety of summary judgment... are generally resolved against granting the motion, because that allows the future development of the case and avoids errors.” [Citation.]’” (Ogborn v. City of Lancaster (2002) 101 Cal.App.4th 448, 457.)
Analysis
Code of Civil Procedure section 340.5 provides, in relevant part, that “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 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.” Section 340.5 thus includes two prescriptive periods within which a medical malpractice litigant must bring her cause of action or lose her right to assert it. (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 757-758.) The plaintiff must satisfy both provisions and the action must be brought within the limitation period occurring first. (Id. at p. 758.) In other words, if a malpractice litigant brings her action within three years of the date of the injury, she must still satisfy the one-year limitations period or the action is time barred. (Ibid.)
The general rule for defining the accrual of a cause of action sets the date as the when, under the substantive law, the wrongful act is done, or the wrongful result occurs, and the consequent liability arises. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) The one-year period does not commence to run until the patient is reasonably aware not only of the physical manifestation of her injury but the negligent cause as well. (Hills v. Aronsohn, supra, 152 Cal.App.3d at p. 759.)
An exception to the general rule for defining the accrual of a cause of action is the discovery rule, which postpones the accrual of the cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 397 .) Under the delayed discovery rule, the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for the particular cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 803.)
The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action; 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. (Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at pp. 807-808.) The event which activates the three-year limitations period is the moment the plaintiff discovers the harm caused by the alleged negligence. (Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, 1546.)
Plaintiff argues that she did not discover the harm caused by Mogensen’s negligence until after she was terminated from her job, which occurred in October 2006. She argues that while the negligent act occurred in April 2006, the date of injury was much later, when she discovered the extent of the damaging effect, after months of treatment resulting in little or no improvement, constant pain, and near debilitating plantar fasciitis. Thus, she asserts she discovered and “fully appreciated” she had been injured by defendants’ negligence in 2007, making her complaint timely. We disagree.
Plaintiff does not dispute that she suspected Mogensen of acting negligently by failing to order an MRI on her first meeting with him on March 27, 2006. She had repeatedly requested an MRI. On March 31, 2006, at her second meeting with Mogensen, plaintiff still suspected negligence on the part of Mogensen. On April 25, 2006, after the MRI confirmed that the Achilles tendon had been torn, plaintiff overheard Dr. Ghazal speaking disparagingly of the quality of defendant Mogensen’s treatment of plaintiff’s injury, which would make the healing process more difficult. At this time plaintiff had reason to suspect the injury and wrongful cause. In fact, on this date she was aware that Mogensen’s negligence would make repair of the torn tendon more difficult and affect her recovery. Thus, plaintiff was aware of the injury by April 25, 2006, more than one year prior to the date she filed her complaint.
Plaintiff argues that because of the relationship between her employer and the defendants, COMP and Mogensen, she was still under the physician’s care and had diminished her duty to discover the physician’s tortious acts, citing Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102. However, plaintiff did not allege that she was still under Mogensen’s care between April 2006, when she had the surgery, and October 2006, when she was terminated from her employment. There was no ongoing care during that period. To the contrary, plaintiff’s surgery was performed by another doctor and there is nothing in the record to show that the professional relationship between Mogensen and plaintiff extended beyond April 2006.
Plaintiff has cited no cases (and we have found none) holding that due to the fact that COMP provided medical services for employees of the city, there was an ongoing fiduciary relationship between the negligent physician and the injured patient. Because the authorities on which plaintiff rely refer to the fiduciary relationship between the particular physician and the patient (see Unjian v. Berman (1989) 208 Cal.App.3d 881, 886, citing Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at p. 102), they do not apply to corporate medical providers with whom a physician may work under contract. Even if such a case could be found, it would not extend the statute of limitations because plaintiff was already aware of the injury more than a year before the action was filed.
To summarize, plaintiff’s arguments rely on the fact that the action was filed within one of the limitations periods mentioned in section 340.5, although she acknowledges she was aware of the injury more than a year prior to filing the action. Because both provisions must be satisfied, the action was not timely. The trial court correctly granted the defendants’ motion for summary judgment.
DISPOSITION
The judgment is affirmed. Costs are awarded to defendants.
We concur: King J., Miller J.