Opinion
C042883.
10-29-2003
BILLY PAUL MEEKER, Plaintiff and Appellant, v. DAVID NORENE et al., Defendants and Respondents.
Defendants filed a motion for summary judgment, claiming the statute of limitations barred plaintiffs medical malpractice action against them. The trial court granted the motion and dismissed the action against defendants with prejudice. Plaintiff appeals from the dismissal. We affirm.
FACTS
Plaintiff Billy Paul Meeker became a patient of defendant Dr. David Norene in January of 1998. At that time, Meeker was a 47-year-old diabetic who smoked a pack of cigarettes a day. He was overweight, did not exercise and was under treatment for depression.
In March 1998, Norene performed a complete physical examination on Meeker, including an electrocardiogram (EKG). The EKG revealed no significant findings. The EKGs computer-generated interpretation stated there was a possible left ventricular hypertrophy (general increase in bulk of ventricle (PDR Medical Dict. (2d ed. 2000) p. 857)), but this was not a "worrisome finding."
Meekers diabetes, weight, diet and smoking worried Norene. Norene repeatedly discussed with Meeker his weight, diet, smoking and stress management.
In June 1998, Meeker met with Norene and admitted he had not been watching his diet, had continued to smoke, was suffering from erectile dysfunction, and was under extreme stress. Meeker also complained of pain in his left elbow and of possible exposure to poison oak. Norene examined Meekers elbow and found bursitis and a rash. Norene prescribed pain medication for Meekers elbow. Norene also referred Meeker to a counselor.
The following month, Norene again saw Meeker. Meeker admitted he had not seen the counselor as ordered, nor had he quit smoking. His elbow had improved. Norene again counseled Meeker about his smoking and the hazards it posed to him.
In November 1998, after helping a friend move, Meeker complained to Norene of numbness and tingling in his right arm and hand. Norene examined Meeker and found nothing suspicious.
In March 1999, Meeker complained to Norene of temporary back pain, tingling in his left arm, shortness of breath and the feeling of cool water sloshing about in his thorax. He also complained of extreme stress. Norene examined Meeker and found nothing abnormal about his lungs or heart. Norene again counseled Meeker about diet, weight loss, exercise, stress management, and smoking cessation.
Meeker returned two days later for a checkup and reported his symptoms had not returned. However, he admitted he was not taking his medication faithfully, was still smoking, neglecting his diet, and not exercising. Norene counseled Meeker to take responsibility for his own health.
In May 1999, Meeker told Norene he had been arrested the previous day. The next day, Meeker called Norenes office and expressed he was feeling self destructive. Norene again urged Meeker to seek counseling.
In September 1999, another member of defendant Sutter Medical Group, Dr. Barish-Wreden, evaluated Meeker. Meeker complained of shortness of breath and stress. Barish-Wreden examined Meekers heart and lungs and found no abnormalities.
Three weeks later, Meeker returned to be seen by Norene. He complained of pain above his waist in the lower left abdomen. He admitted the week before he ate a great deal of diabetic candy, which gave him diarrhea. He then became constipated. He tried a laxative, but it caused him more abdominal pain. Meekers heart sounded normal to Norene. They discussed diet extensively.
Meeker returned five days later still complaining of left side abdominal pain. Norene ordered a barium enema, the results of which were negative for diverticulitis.
In October 1999, Meeker told Norene he was again under a great deal of stress. His partner had suffered serious injuries in a car accident, and Meeker was having a difficult time getting away from work and caring for him. Norene and Meeker discussed ways to reduce Meekers stress.
On February 9, 2000, Meeker met with Norene and complained of a cough that had lasted for 10 days and occasional shortness of breath. Norene performed a physical examination on Meeker. Meekers heart had a regular rhythm, normal rate, and no ectopy or gallop. The lungs had decreased breath sounds, which is seen in early emphysema due to smoking. Norene did not diagnose Meeker with a coronary problem, but did prescribe for him Proventil, a bronchiodialator, and Vanceril, an inhaled anti-inflammatory steroid.
On February 29, 2000, Meeker returned to Sutter Medical Group but saw Dr. Barish-Wreden. Meeker complained he was still suffering from shortness of breath. He stated that five or six nights earlier he began waking up at night gasping for air. Barish-Wreden noted Meeker abused cigarettes, was diabetic, and had a family history of heart disease. Upon examining Meeker, Barish-Wreden heard what sounded to be an S3 gallop along his chest wall. She ordered an EKG. The EKG was abnormal and markedly different from the EKG Norene performed two years earlier. Barish-Wreden ordered Meeker be admitted to the hospital immediately.
Meeker recalled carrying with him the drugs Norene had prescribed for him on February 9, 2000, when he was transferred to the hospital. At that time, someone looked at these drugs and stated: "Oh, my God, its a miracle those drugs didnt kill him. These are the opposite to what he should have been taking."
Meeker was diagnosed with congestive heart failure. He had a 99 percent blockage in the left anterior descending artery and a 90 percent blockage in the mid proximal right coronary artery. On March 3, 2000, Meeker underwent surgery to have stents placed at both these locations to relieve the blockages. Meeker consented to the surgery. During the surgery, doctors noted Meeker had severe left ventricular dysfunction, probably due to an earlier silent heart attack. Such attacks are more common in diabetics.
A few weeks after being discharged from the hospital, Meeker returned to be examined by Norene. Plaintiff was still smoking, tired, and under stress from his personal and employment relationships. Meeker continued seeing Norene up until May 22, 2000. During this time, Meeker continued to smoke, had trouble with his diet, and remained under stress. Eventually, doctors recommended Meeker begin injected insulin to control his diabetes. About the same time, Meekers cardiologist recommended he take a disability retirement. After Norene instructed Meeker on the use of injected insulin, Meeker transferred responsibility for his primary health care to another physician within Sutter Medical Group.
PROCEDURAL HISTORY
Pursuant to Code of Civil Procedure section 364, Meeker served a notice of intent to sue on defendants on March 15, 2001. (All undesignated section references are to the Code of Civil Procedure.) He filed a complaint against defendants on April 23, 2001, alleging defendants negligently failed to diagnose his heart disease until he suffered congestive heart failure on February 29, 2000, despite his exhibiting symptoms of heart disease since March 1999. Meeker also alleged he was not aware of his injuries or that his injuries were caused by defendants negligence until May 16, 2000, when he consulted with Dr. Harinder Gogia, who informed him his heart had suffered permanent damage and he would have to take a disability retirement from his employment.
Defendants filed a motion for summary judgment, claiming Meeker filed his complaint untimely in violation of the applicable statute of limitations, section 340.5. The trial court granted defendants motion, and eventually dismissed the action against them with prejudice.
Meeker appeals from the dismissal, claiming the trial court erred in granting summary judgment to defendants.
DISCUSSION
I
Standard of Review
Appellate courts review summary judgment issues de novo. We must independently determine whether the decision of the trial court is correct. (Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1292.) We "apply the same rules and standards that govern a trial courts determination of a motion for summary judgment. [Citation.]" (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1258.) Summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).)
"`[A] defendant moving for summary judgment has the burden to show that the plaintiff cannot establish at least one element of his cause of action, "or that there is a complete defense to that cause of action." Once the defendant meets this burden, the burden shifts to the plaintiff to show "that a triable issue of one or more material facts exists as to that cause of action or a defense thereto."" (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 223, citations omitted.)
"The papers are to be construed strictly against the moving party and liberally in favor of the opposing party; any doubts regarding the propriety of summary judgment are to be resolved in favor of the opposing party." (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112.)
We give the trial courts ruling no deference. However, if the ruling is correct on any legal theory, we will affirm the judgment. (Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 1517.)
II
Statute of Limitations
Section 340.5 states in relevant part: "In an action for injury or death against a health care provider based upon such persons 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." (Italics added.)
This case concerns the one-year provision of section 340.5, commonly referred to as the "discovery rule." We must determine whether, as a matter of law, Meeker discovered the alleged injury or, through the use of reasonable diligence, should have discovered the alleged injury more than one year before he filed his complaint. We conclude undisputed facts demonstrate Meeker had sufficient notice of his injury more than one year prior to filing his complaint.
"While the reasonableness of a delayed discovery is ordinarily a question of fact, the issue presents a question of law when the evidence establishes beyond dispute that the plaintiff has failed to bring the action within one year after notice of its existence." (Graham v. Hansen (1982) 128 Cal.App.3d 965, 972.)
"Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that [his] injury was caused by wrongdoing, that someone has done something wrong to [him]. . . . [T]he limitations period begins once the plaintiff `"`has notice or information of circumstances to put a reasonable person on inquiry . . . ." [Citations.] 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 [or should have a suspicion of wrongdoing], and therefore an incentive to sue, [he] must decide whether to file suit or sit on [his] rights. So long as a suspicion exists [or should exist], it is clear that the plaintiff must go find the facts; [he] cannot wait for the facts to find [him]." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111, italics in original.)
The undisputed facts demonstrate Meeker had sufficient notice to suspect defendants possible negligence no later than March 3, 2000. Despite being continuously treated for two years for conditions other than heart disease even though he at times allegedly manifested symptoms of heart disease, Meeker was not diagnosed with heart disease until he suffered congestive heart failure on February 29, 2000. He became aware that day his EKG was abnormal. In the hospital, he overheard someone express shock that the medications he was taking were the "opposite" of what he needed for his condition. Meeker himself took this statement to mean Norene had given him something that worsened his condition and further delayed proper diagnosis.
Meekers heart condition was severe. Doctors informed him he had a 99 percent blockage in the left anterior descending artery and a 90 percent blockage in the mid proximal right coronary artery. To relieve the blockages, Meeker underwent surgery on March 3, 2000, to have stents placed at both affected locations. At this point, Meeker knew he suffered from serious heart disease, and also knew Norene had not diagnosed his condition during numerous visits over the previous two years. He was thus aware of all of the facts necessary to suspect wrongdoing on Norenes part.
Meeker argues he was not aware of his injury until May 16, 2000. Following his surgery, and based on conversations with Drs. Gogia and Norene, Meeker believed his heart disease would not cause permanent damage. He would be able to return to work and lead a life feeling much better than he did before the surgery. He argues he had no reason to believe he had suffered actionable injuries until May 16 when Dr. Gogia informed him he had incurred permanent damage and his "risk of sudden death [was] very high."
Meekers argument misses the issue. The statute of limitations began running once he should have suspected wrongdoing, not when he actually suspected wrongdoing. Whether Meeker subjectively realized on May 16 he had suffered permanent heart damage is irrelevant under section 340.5 to determining whether he objectively should have suspected wrongdoing by Norene for not diagnosing the heart disease earlier.
The crux of Meekers complaint is Norenes failure to diagnose the heart disease. The undisputed facts demonstrate Meeker should have recognized this alleged failure no later than the time he learned of his heart disease, and he learned of that no later than March 3, 2000, the day stents were surgically placed inside his arteries with his consent to relieve the blockages. Thus, as a matter of law, section 340.5s limitations period began running no later than March 3, 2000, and expired on March 3, 2001. Meeker served his notice of intent to sue on March 15, 2001, and his complaint on April 23, 2001, after the limitations period had expired. The trial court thus correctly determined Meekers complaint was time barred, and appropriately awarded summary judgment to defendants.
DISPOSITION
The judgment of dismissal is affirmed.
We concur: SCOTLAND, P.J., RAYE, J. --------------- Notes: The trial court reached the same determination. It stated: "When plaintiff became ill on February 29 and learned of the abnormal EKG he was on notice of an existing heart condition which he now contends Dr. [Norene] failed to diagnose between January 1998 and that date. At the latest he was on notice of his condition when the stents were implanted on March 3, 2000. Plaintiff declares that he thought he was getting better and was told he could return to work. In fact he did return to work in April. Then in May he was informed that his condition was so serious that he must not work and should immediately apply for disability retirement. He contends that this is when he discovered the alleged malpractice of defendants. Even if plaintiff believed he would recover, he had to have known on February 29 or March 3 of any previously undiagnosed heart condition. At this point he was on notice of all the essential facts upon which his complaint for failure to diagnose his heart condition is based."