Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CC03306, Corey S. Cramin, Judge.
Law Office of Lee Harwell, Jr., and Lee Harwell, Jr., for Plaintiff and Appellant.
Beam Brobeck West Borges & Rosa, John E. West and Laura L. Stephan; Greines, Martin, Stein & Richland, Martin Stein, Carolyn Oill and Lillie Hsu, for Defendant and Respondent.
OPINION
BEDSWORTH, J.
Kari Ann Phillips appeals from a summary judgment entered in favor of the Regents of the University of California (the University) in this medical malpractice case. She argues the trial court erred in granting summary judgment on statue of limitations grounds because there were triable issues of fact concerning (1) the point at which Phillips had sufficient knowledge about her potential claim to trigger commencement of the one-year limitations period; and (2) whether, despite her own initial suspicions that recurring headaches and back pain might be linked to a catheter fragment left inside of her after surgery, she reasonably relied upon assurances from University physicians that there was no such connection.
We reverse the summary judgment. Construing the evidence in the light most favorable to Phillips, as we are required to do, we are convinced there is a triable issue of fact regarding whether, despite her own initial suspicions about a catheter fragment left in her back, Phillips reasonably relied upon the assurances of her University physicians that the fragment was not significant, would resolve on its own and did not need to be removed, and was not the cause of her back pain. There is no evidence demonstrating that when she later visited a pain specialist she was not still relying upon those assurances, and no evidence the pain specialist communicated to her any opinion that the fragment was the likely cause of her pain. It was not until Phillips finally had an MRI of her back, which revealed the fragment was much larger than portrayed, that she was undisputably on notice of not only negligence, but also causation. As that MRI occurred within one year of her service of a notice of intent to sue, and she then filed her lawsuit within 90 days of that notice, the court erred in granting summary judgment.
FACTS
Phillips filed her complaint for medical negligence on February 28, 2007. In rather bare-bones fashion, she alleged that between April of 2005 and December of 2005, defendants Thomas Chappell, M.D., Chiedozie Nwagwu, M.D., Henry Macias and Joseph Barrei, Jr., performed operations on her and otherwise provided her with medical care at the University hospital, including the removal of a cyst from her pituitary gland, the insertion of a lumbar drain in her back, and the subsequent removal of that drain. She further alleged the operations and care had been performed in a manner which was below the standard of care in the medical community, and she had been injured as a result thereof.
Although the complaint refers to the initial problem as a “cyst,” later filings, as well as the parties’ briefs on appeal, refer to the growth as a “tumor.”
The University answered the complaint in March of 2007, and five months later it moved for summary judgment on the basis Phillips’ complaint had not been timely filed. In its motion, the University explained, in considerably more detail than had been set forth in the complaint, the circumstances of Phillips’ alleged injury.
Specifically, in the wake of her initial surgery for removal of a pituitary tumor, Phillips had experienced fluid accumulation – the result of an apparent leak of cerebral-spinal fluid. In an effort to alleviate the problem, defendants placed a series of catheters in her lumbar area to drain the fluid. In July of 2005, during a procedure to remove the last of the catheters, a fragment of it broke off and was left inside Phillips’ back. Immediately after the last procedure, she began experiencing pain in her lower back. Phillips expressed concern to Chappell that the back pain might have been caused by the catheter fragment, and made five separate requests of defendants to order an MRI of her lower back to determine “why it was still hurting,” but they did not do so.
In October 21, 2005, Phillips began treating with pain specialist Scott Stoney, M.D. In her initial visit, he told her he believed it was “inappropriate” for the University physicians to have left the catheter fragment in her back, and it was a shame they had not ordered the MRI she had requested.
On December 7, 2005, Phillips underwent another surgery, performed by a physician at Hoag Hospital, to remove the catheter fragment from her back. Following that surgery, the physician who performed it informed Phillips defendants’ failure to perform an MRI and remove the fragment had been negligent.
Based upon those facts, the University argued the one-year statute of limitations had commenced to run on the date of Phillips’ first visit with Stoney – or at worst, no later than the date of her subsequent surgery to remove the fragment – because at that point she indisputably knew or should have known both that the University physicians were negligent in leaving the catheter fragment inside of her, and that their negligence had caused her injury. Because she did not serve her notice of intent to sue letter until December 27, 2006, more than a year later, her complaint was untimely.
Code of Civil Procedure section 364 provides in pertinent part that “[n]o action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” (Code Civ. Proc., § 364, subd. (a).) The statute goes on to state that “[i]f 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 90 days from the service of the notice.” (Code Civ. Proc., § 364, subd. (d).)
In her opposition to the motion, Phillips offered evidence that her notice of intent to sue letter had actually been served on November 30, rather than December 27, 2006, and was thus within one year of her surgery to remove the fragment. She also offered evidence that on the date the catheter broke, Chappell had specifically assured her that the fragment was “just a little, tiny piece,” and there was no need to remove it because it would “encapsulize” in her body and “in time... it will go away.”
At some point, Phillips told Chappel that she had never experienced back pain before, and expressed concern it might be the fragment which was causing her pain. He gave no indication he believed that might be possible, and instead reassured her the fragment was not a problem. Moreover, when Phillips told Nwagwu that she was concerned about the fragment left in her back, he assured her the fragment was small and not the cause of any pain. Nwagwu instead theorized her pain was simply a result of having had several lumbar drain procedures, and assured her the pain would resolve “in time.” Both physicians assured her it had been proper to leave the catheter fragment in her back after it had broken off, because it was very small and would be absorbed. Although Phillips (a nurse) made repeated requests for an MRI to assess the cause of her back pain, both Chappel and Nwagwu declined to order one.
When Phillips’ pain did not resolve, Nwagwu referred her to pain management, but told her the University could not “get [her] into a pain management clinic for seven months.” Unwilling to wait that long, she went to see Dr. Stoney, a pain specialist unaffiliated with the University. During the first visit, she gave Stoney her history, including the fact she had a catheter fragment left in her back; however, there is no evidence she told Stoney she continued to suspect the fragment might be the cause of her pain, and no evidence he told her he believed it might be. Instead, in response to her catheter tale, Stoney merely told Phillips he considered the University hospital to be “a nightmare,” because the doctors are overworked, and even joked about suffering “post-traumatic stress when he drives by there.” He did tell her he believed it inappropriate for the catheter fragment to have been left inside her, and that he thought it was “a shame” the University doctors had not given her the MRI she requested.
Stoney also told Phillips he thought she should see a neurosurgeon “[t]o make sure everything was okay tumor-wise.” She saw the neurosurgeon he referred her to “within 30 days.” That neurosurgeon did order the MRI of her lower back which she had continually requested from defendants. That MRI revealed the catheter fragment was substantially larger than described, had become lodged in her back, and had formed a fistula which connected it to one of her lumbar discs. The neurosurgeon informed Phillips that the fragment needed to be removed immediately, and she underwent the removal surgery the next day.
According to Phillips, she remained under the care of the University’s physicians until she had the surgery to remove the catheter fragment, and had continued to rely upon and trust their advice about the catheter fragment until that point. Specifically, her decision to consult with Stoney, the pain management specialist, had been consistent with Nwagwu’s recommendation, and she consequently did not view it as representing any break in the prior physician/patient relationship.
In its reply, the University essentially conceded Phillips had served her notice of intent to sue letter in November, rather than December of 2006, as it had mistakenly asserted. However, it then reiterated its primary contention that the one-year statutory period had actually commenced running when Phillips first consulted with Stoney in October of 2005 – rather than when she had her surgery in December of that year– thus rendering the November intent to sue letter untimely in any event.
The court granted the motion. The court noted that Phillips had expressed suspicion her lower back pain might be related to the catheter fragment almost immediately after being informed it had been left inside her; that she had informed Stoney about it when she first visited him in October of 2005; and that he had told her in response he considered it “inappropriate” for defendants to have left the fragment in her back. The court reasoned that “these statements confirm [Phillips’] awareness of both the injury itself and the negligent cause thereof, which is more than sufficient to trigger the commencement of the one-year statute of limitations under [Code of Civil Procedure] section 340.5 as of October 21, 2005.”
The court then explained why Phillips’ evidence of the University physicians’ initial assurances that her back pain was unrelated to the catheter fragment was insufficient to create a triable issue of fact. According to the court, Phillips “failed to establish that she relied upon the UCI physicians’ professional skill, care, judgment and advice after October 21, 2005 regarding the broken catheter issue. Plaintiff failed to establish that there were any representations or conduct by the UCI physicians after October 21, 2005 that allayed her suspicion/discovery of her injury and its negligent cause.” (Italics added.)
I
Our review of a summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) Moreover, “[i]n performing our independent review of a defendant’s summary judgment motion, we apply the rules pertaining to summary judgment procedure. A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.) If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence, and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, [supra, ] 25 Cal.4th at p. 849.) [¶] In determining whether the parties have met their respective burdens, the court must ‘consider all of the evidence’ and ‘all of the inferences reasonably drawn therefrom,’ and ‘must view such evidence [citations] and such inferences [citations]... in the light most favorable to the opposing party.’ (Aguilar, supra, 25 Cal.4th. at pp. 844-845.)” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121-122.)
Consequently, on review of a summary judgment, “‘“the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.”... We accept as undisputed facts only those portions of the moving party’s evidence that are not contradicted by the opposing party’s evidence.... In other words, the facts [set forth] in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true.’ [Citation.]” (Buxbaum v. Aetna Life & Casualty Co. (2002) 103 Cal.App.4th 434, 441.)
II
Code of Civil Procedure section 340.5 provides in pertinent part that “[i]n 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. 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.”
“[W]e do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.)
As the court explained in Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046, 1054, the one-year statute of limitations begins to run when the patient “first ‘discovers’ the injury and the negligent cause of that injury.” Ashworth, like the instant case, involved a situation in which a foreign body (surgical sponges) had been left inside a patient after surgery in March of 1976. In contrast to this case, the patient – and presumably the doctors as well – was unaware of the existence of the sponges, and thus had no basis to consider whether they might be connected to the abscess suffered by the patient in the wake of surgery. Instead, the physicians simply assured her that her abscess “was a usual risk of surgery.”
Ashworth subsequently filed a lawsuit against the physicians, based upon other allegations of malpractice, but that action was ultimately dismissed, without prejudice, for lack of prosecution. Then, in 1983, approximately a year after the initial lawsuit had been dismissed, Ashworth underwent surgery with another physician to address the continuing abscess problem. It was that surgeon who discovered the presence of the sponges. Ashworth then filed her second lawsuit for malpractice, in 1984. Although the defendants argued the action was barred by the statute of limitations, the court disagreed, reasoning that the limitations period had been tolled during the entire period in which the sponges remained undiscovered, and commenced running thereafter only when the plaintiff “discover[s] the ‘foreign body’ exists and is the negligent cause of her injury.” (Ashworth v. Memorial Hospital, supra, 206 Cal.App.3d at p. 1058.)
The instant case, of course, is distinguishable from Ashworth in that the presence of the foreign body was known, and disclosed to Phillips, almost immediately. Thus, there was no “tolling” of the limitations period while the fragment remained undiscovered. The question, then, is whether we can say, as a matter of law, when Phillips can be said to have discovered both the fact of her injury and its “negligent cause.”
As to the first issue, it is undisputed that Phillips knew immediately of her back pain, which had not existed prior to the procedure which resulted in the catheter fragment. It is also clear that Phillips herself initially questioned whether the fragment might be related to her back pain, and urged for its removal. However, despite having already acknowledged the fragment’s existence, the physicians assured Phillips that (1) because of the fragment’s small size, it would resolve on its own, and thus their decision to leave it in place had not been negligent; and (2) it was not the cause of her back pain.
Apparently, there is no suggestion the initial breakage of the catheter was necessarily negligent. In contrast to the situation of leftover surgical sponges (which are usually the subject of assiduous tracking to ensure all are accounted for), it seems entirely possible that a catheter might break even in the absence of negligence.
In light of that evidence, we could not say as a matter of law that Phillips was initially on notice of any negligence. As the trial court apparently determined as well, Phillips was not necessarily on notice that it may have been negligent to leave the fragment inside her until Stoney indicated to her, in October of 2005, that he believed it had been “inappropriate” to do so. So the ultimate question is whether, at that point, we can say with certainty Phillips was also on notice that the negligently left-behind fragment was the “cause” of her injury. We conclude the evidence before us does not warrant that conclusion.
Although some cases characterize the test for commencement of the one-year statutory limitations period as “when the ‘plaintiff suspects or should suspect that his or her injury was caused by wrongdoing....’” (Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, 1545, quoting Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110, italics added), and in this case it seems clear that Phillips herself at least initially suspected the fragment might be her problem, what is lacking in that initial period is any evidence compelling the conclusion that Phillips also suspected – or should have suspected – wrongdoing.
As the Supreme Court made clear in Jolly, supra, “the 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.... [o]nce the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights.” (Id. at pp. 1110-1111.) In this case, it appears Phillips may have been initially suspicious notice regarding causation, but not wrongdoing. And her inquiries regarding a possible link between her back pain and the presence of the catheter fragment were met with defendants’ assurances that no such link could exist.
To the contrary, we have ample evidence indicating that she believed defendants’ assurances about the propriety of leaving the catheter fragment in place, because it was too small to represent any problem. After all, Phillips continued to treat with defendants and there is no evidence she ever sought a second opinion as to the propriety of leaving the fragment in place.
Instead, it appears Phillips was put on notice of that “wrongdoing” only because she followed defendant Nwagwu’s advice to pursue pain management. It was through her consultation with Stoney, the pain management specialist, that she first learned it might have been malpractice to leave the fragment in place.
By that point, however, there was also ample evidence suggesting defendants had allayed whatever initial suspicions Phillips may have had as to causation. According to Phillips’ evidence, Nwagwu specifically denied the catheter fragment might be the cause of her back pain, theorizing instead that it was merely a normal side effect of having had so many successive lumbar drain procedures, and would resolve on its own.
Such assurances, if relied upon by the patient as Phillips contends occurred in this case, are sufficient to preclude commencement of the malpractice statute of limitations. (Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50 [an action against hospital for injuries caused by patient’s fall from her bed, plaintiff’s claim that hospital staff had repeatedly assured her that any injuries from the fall were inconsequential, and that she had not disbelieved those assurances until less than a year before filing of her action, raised triable issues of fact concerning commencement of the limitations period]; Enfield v. Hunt (1979) 91 Cal.App.3d 417 [although patient was aware of paralysis in his foot after back surgery, evidence demonstrating he was repeatedly told it would be a long time before the foot returned to normal was sufficient to create a triable issue of fact as to whether the statute of limitations commenced running before another physician actually told plaintiff, for the first time, that his foot would never recover].)
Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, a case recently decided by this court, is also instructive. In Unruh-Haxton,(actually comprised of eight consolidated lawsuits), the plaintiffs were various patients of a fertility clinic during the late 1980’s. In 1995, there had been various news reports that the clinic’s doctors had been using human genetic material from patients receiving fertility treatments. However, these particular plaintiffs did not file their lawsuits alleging they had been victimized by those thefts until after 2000, while specifically alleging they did not become aware of their status as potential victims until less than a year prior to that filing. Defendants demurred to the complaints, arguing that in light of the wide-spread news coverage relating to the scandal, these plaintiffs were necessarily on notice of their claims much earlier than 2000.
Although the trial court agreed with defendants, this court reversed the judgment of dismissal. As this court explained, some of the patients “admit they were aware of the media coverage, but gave reasons why their discovery of wrongdoing was nevertheless delayed.... [T]hree sets of patients (the Durants, Roules and Unruh-Haxtons) had contact with the Regents and were led to believe they were not victims. [¶] Whether these patients were justified in relying on the doctors’ and the Regents’ representations cannot be decided at this time as a matter of law.... At all times, the Regents publicly gave assurances it was going to great lengths to contact the potential victims, and had even hired a private investigator to help them find everyone. We cannot hold as a matter of law what part, if any, of the media reports these patients saw or that it was unreasonable for them to rely on the Regents’ representations.” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 366-367, fn. omitted.)
If we were to conclude here that the mere fact Phillips initially questioned whether her back pain might be caused by the catheter fragment, was sufficient to demonstrate as a matter of law the causation element of notice was triggered for all time, that conclusion would be inconsistent with Unruh-Haxton. Just like Phillips, the plaintiffs in that case initially suspected they might have been harmed by the defendants’ actions, which is why they contacted the University to inquire. In response to those inquiries, those plaintiffs were reassured that they were not among the victims. It was only later, when they were given additional information sufficient to make them question the validity of those reassurances, that the limitations period was actually triggered.
Applying the reasoning of Unruh-Haxton to this case requires us to conclude that even where, as here, the plaintiff initially suspects causation, her reasonable reliance on the defendants’ reassurances to the contrary will nonetheless create a triable issue of fact as to the commencement of the limitations period. Consequently, we cannot say, as a matter of law, that Phillips was “on notice” of causation at the time she visited with the Stoney, the pain specialist, in October of 2005.
Of course, as Phillips herself acknowledged, she did disclose to Stoney during that first visit that she had a catheter fragment left in her back after her last lumbar drain procedure, but there is no evidence of the context in which that revelation was made. Phillips might have told Stoney of the fragment because she did continue to believe the fragment was the cause of her back pain (in which case that would demonstrate she was not continuing to rely on defendants’ assurances to the contrary). But it might also have been related as part of the routine disclosures made as part of a comprehensive medical work-up, or even just intended to be an interesting story. We simply do not know. Moreover, there is no evidence Stoney communicated to Phillips that he believed the fragment might be causing her pain. To be sure, he did indicate to her that he believed the fragment should not have been left inside her, but it appears that is all he said.
Thus, indulging all inferences in favor of Phillips, as we are required to do at this juncture, we conclude the evidence is sufficient to demonstrate Phillips’ own initial concerns about the fragment possibly causing her back pain were reasonably allayed by defendants’ assurances to the contrary. Moreover, there is no evidence demonstrating Phillips thereafter questioned those assurances until she finally had the MRI of her back, in December of 2007. It was that MRI which revealed the size of the catheter fragment remaining in her back, and the need for immediate surgery to remove it. Until Phillips had that indisputable information, we cannot say, as a matter of law, the one-year limitations period had commenced.
DISPOSITION
The summary judgment is reversed, and the case is remanded for further proceedings. Phillips is entitled to her costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.