Opinion
F071493
01-24-2017
TIMOTHY TRIMBLE, Plaintiff and Appellant, v. RICHARD FIGHTLIN, Defendant and Respondent.
Wild, Carter & Tipton, Monrae L. English for Plaintiff and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth, Jerry D. Casheros and Kelley B. Lowe for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCU253653)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Melinda Myrle Reed, Judge. Wild, Carter & Tipton, Monrae L. English for Plaintiff and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth, Jerry D. Casheros and Kelley B. Lowe for Defendant and Respondent.
-ooOoo-
Defendant and respondent, Richard Fightlin, M.D. (Fightlin), performed surgery on plaintiff and appellant, Timothy Trimble (Trimble), to remove a kidney stone. After the surgery, Fightlin informed Trimble that the guide wire used in the procedure had broken and a piece was lodged in his kidney. Fightlin planned to remove the wire at a later date.
Trimble acknowledged that he suspected Fightlin was negligent shortly after the surgery and hired a medical malpractice attorney. Two months later, the attorney served Fightlin with a notice of Trimble's intent to sue for negligence as required by Code of Civil Procedure section 364. However, Trimble did not file a lawsuit until over a year later.
All further statutory references are to the Code of Civil Procedure.
The trial court granted Fightlin's summary judgment motion finding that the action was barred by the one-year statute of limitations for medical malpractice actions. (§ 340.5.) Trimble contends the trial court erred. According to Trimble, when the patient has been advised of the presence of a foreign body, the statute of limitations should be tolled until the patient learns of the true injury. Trimble further argues that the statute of limitations should be tolled while the physician/patient relationship exists.
Trimble's action is barred by the statute of limitations. Therefore, the judgment will be affirmed.
FACTS AND PROCEDURAL HISTORY
Trimble was admitted to Sierra View District Hospital on July 8, 2012, with a kidney stone. Fightlin was assigned to Trimble's care.
On July 9, 2012, Fightlin performed a surgical procedure to laser and break up the kidney stone. During the surgery, Fightlin placed a guide wire as a pathway to visualize the kidney and stone. However, when the guide wire was removed, a piece of it remained in the kidney. That evening, Fightlin told Trimble there was a piece of wire in his kidney and that he (Fightlin) planned to wait and see if the piece would move to where it would be easier to remove.
After he was discharged, Trimble experienced pain and weakness. He was upset and concerned about the wire in his kidney. On July 13, 2012, Trimble went to the Kaweah Delta emergency room because he was in a lot of pain and did not feel comfortable going back to Sierra View.
On July 16, 2012, Fightlin performed a second procedure to remove the stent he had placed during the first surgery. Fightlin attempted to remove the piece of guide wire but was unsuccessful. In September 2012, Fightlin referred Trimble to UCSF Medical Center where a more advanced procedure to remove the wire could be performed.
On July 19, 2012, three days after his second surgery, Trimble hired attorney Nick Pritchett to pursue a medical malpractice claim against Fightlin. That same day, Trimble executed an authorization for release of records and information and an authorization for disclosure of health information allowing Fightlin to release Trimble's records to Pritchett "for the purpose of representing me in a pending legal matter."
On September 19, 2012, Pritchett served a section 364 notice on Fightlin informing him that Trimble intended to file suit against him for damages resulting from professional negligence. Pritchett explained the action would be based on the "negligent cystoscopy surgery performed by you on Mr. Trimble on or about July 9, 2012 wherein the lead wire and other items were left in Mr. Trimble's body." Pritchett further stated that the "legal action will also include claims relating to your failure to provide assistance to Mr. Trimble in obtaining information or a referral for the purpose of removing said items from his body."
On October 29, 2012, Trimble underwent surgery at UCSF. The surgeon removed the wire. It was also discovered that a segment of Trimble's ureter was completely obliterated. On December 10, 2012, Trimble's right kidney was removed due to minimal functioning and ureteral stricture.
Trimble dismissed Pritchett as counsel and hired attorney Monrae English to represent him. On July 3, 2013, English served a second section 364 notice on Fightlin informing him that Trimble intended to file a medical malpractice action against him "for the failed care, treatment regarding his surgery and surgery complications (including the retained foreign object) starting on or around July 8, 2012."
Trimble filed his complaint for medical malpractice against Fightlin on September 30, 2013. Trimble alleged that Fightlin "breached the standard of care by failing to use proper due care in performing a ureteroscopy to remove a kidney stone with a laser, which resulted in a piece of guide wire to be lodged in [Trimble's] kidney." Trimble additionally alleged that, as Fightlin "attempted to remove the broken piece of guide wire from [Trimble's] right kidney, he obliterated [Trimble's] distal ureter" and that this failure to remove the piece of guide wire and the obliteration of the ureter ultimately caused the removal of Trimble's right kidney.
Fightlin moved for summary judgment on the grounds that Trimble's action was barred by the statute of limitations for medical malpractice and that he could not create a triable issue as to the standard of care and causation. The trial court granted summary judgment in Fightlin's favor finding that Trimble's action was time-barred as a matter of law.
DISCUSSION
I. Standard of review
To prevail on a summary judgment motion, a defendant must demonstrate that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. "If the defendant meets this burden, the burden shifts to the plaintiff to set forth 'specific facts' showing that a triable issue of material fact exists." (Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1402.)
When summary judgment is challenged on appeal, the trial court's ruling is reviewed de novo. (American Inter. Specialty Lines Ins. Co. v. Continental Cas. Ins. Co. (2006) 142 Cal.App.4th 1342, 1357.) While strictly construing the defendant's supporting documents and liberally construing the plaintiff's documents, the appellate court determines whether the defendant has negated an essential element of the plaintiff's cause of action or established the nonexistence of any triable issue of material fact, such that the defendant is entitled to judgment as a matter of law. (Baroco West, Inc. v. Scottsdale Ins. Co. (2003) 110 Cal.App.4th 96, 99-100.) II. Trimble's action is barred by the statute of limitations
Section 340.5 sets forth the statute of limitations for medical malpractice actions. That section provides, in part:
"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 the 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."
An action accrues on the date of the injury. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 (Jolly).) However, the accrual date is delayed until the plaintiff is aware of his or her negligent injury and its negligent cause. (Ibid.) Thus, the plaintiff must bring suit within one year after he or she discovers, or should have discovered, his or her injury. (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896 (Gutierrez).)
Nevertheless, a plaintiff need not be aware of either the specific facts or the actual negligent cause of the injury. (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295.) Rather, once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, the one-year period for suit begins. (Jolly, supra, 44 Cal.3d at p. 1111.) It is enough if the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry. (Id. at pp. 1110-1111.) At this point, the "patient is charged with 'presumptive' knowledge of his negligent injury." (Gutierrez, supra, 39 Cal.3d at pp. 896-897.)
Here, Trimble learned that Fightlin was unable to remove a guide wire from his kidney on July 9, 2012, the day of his first surgery. Fightlin was still unable to remove the wire during the second surgery on July 16, 2012. Three days after the second surgery, on July 19, 2012, Trimble hired legal counsel to investigate his case. Trimble testified that he sought legal counsel because he felt Fightlin had made a mistake. Thus, in July 2012, Trimble had a suspicion of wrongdoing. Accordingly, he was on "'presumptive' notice of [his] claim at the time [he] saw the lawyer, and the one-year period had therefore started." (Gutierrez, supra, 39 Cal.3d at p. 897.)
Before filing suit, a plaintiff alleging medical malpractice must give the health care provider 90 days' prior notice. (§ 364.) The purpose of this 90-day waiting period is to decrease the number of medical malpractice actions filed by encouraging the parties to negotiate outside the formal litigation process. (Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 389 (Bennett).) If the section 364 notice is served during the last 90 days of the limitations period, the time for commencement of the action is extended 90 days from the service of the notice. However, if the section 364 notice is served before the last 90 days of the limitations period, the limitations period remains unchanged. (Bennett, supra, 75 Cal.App.4th at p. 390.)
Trimble served a section 364 notice on Fightlin on September 19, 2012. The notice informed Fightlin that Trimble intended to file suit based on the negligent cystoscopy surgery performed on July 9, 2012, wherein the guide wire was left in Trimble's body. This demonstrates that Trimble knew of Fightlin's alleged negligence no later than that date.
As noted above, Trimble's attorney served Fightlin with a second section 364 notice on July 3, 2013. This notice again informed Fightlin that Trimble intended to file a medical malpractice action against him for the failed care and treatment regarding the surgery and the surgery complications, including the retained foreign object, starting on July 8, 2012.
A second notice, such as the one here, does not serve the legislative purpose of encouraging settlement. Rather, the earlier notice achieved that objective and stated the same claim as the second notice. Trimble had only one malpractice cause of action against Fightlin. Accordingly, the second notice was a nullity and had no effect on the statute of limitations. (Bennett, supra, 75 Cal.App.4th at pp. 390-392.)
In sum, the limitations period commenced as early as July 2012, but no later than September 19, 2012. Therefore, the complaint filed on September 30, 2013, more than one year later, is time-barred. III. The foreign-body exception did not toll the limitations period
Trimble contends that the presence of a "foreign body," i.e., the guide wire, tolled the statute of limitations until he became aware of the guide wire's role in causing his injuries. To support this position, he relies on Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046 (Ashworth).
Section 340.5 creates two separate statutes of limitation. First, the plaintiff must file the action within one year after discovery of the injury. Second, the plaintiff must file within three years after he first experiences harm from the injury. Thus, if a plaintiff does not discover the negligent cause of his injury until more than three years after he first experiences harm, he will not be able to bring a malpractice action. (Ashworth, supra, 206 Cal.App.3d at p. 1054.)
However, the presence of a foreign body with no therapeutic or diagnostic purpose or effect tolls this three-year statute of limitations. (§ 340.5.) It lifts the three-year outside limit entirely if a nontherapeutic "'foreign body'" has been left inside a patient and gives that patient an unlimited time to discover, or to use reasonable diligence to discover, the foreign body's presence. (Ashworth, supra, 206 Cal.App.3d at p. 1058.) Nevertheless, once the patient discovers, or through reasonable diligence would have discovered, the foreign body and its role in his injury, he has only one year to file his lawsuit. (Ibid.)
In Ashworth, sponges were left inside the patient and were not discovered until a second surgery some years later. (Ashworth, supra, 206 Cal.App.3d at p. 1053.) In contrast, here, Trimble was immediately aware of the presence of the foreign body in his kidney. He acknowledges this fact and admits he had a suspicion of negligence. He argues that, nevertheless, the statute should have been tolled until he knew the full extent of his injury.
Trimble's position is contrary to the law. First, the guide wire was used as an aid in breaking up the kidney stone and thus arguably had a therapeutic purpose.
More importantly, Trimble suspected wrongdoing immediately. Therefore, he was charged with "'presumptive' knowledge of his negligent injury" at that time. (Gutierrez, supra, 39 Cal.3d at p. 896.) "'"As a general rule, where an injury, although slight, is sustained in consequence of the wrongful act of another, ... the statute of limitations attaches at once. It is not material that all the damages [resulting] from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date."'" (Bennett, supra, 75 Cal.App.4th at p. 391.) The essential inquiry is when did Trimble suspect Fightlin was negligent, not when did Trimble learn precisely how Fightlin was negligent. (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 824.) Additionally, the section 340.5 tolling provision applies only to the three-year statute of limitations. "[T]he one-year period is not similarly extended." (Gutierrez, supra, 39 Cal.3d at p. 896.)
Here, Trimble suffered appreciable injury in July 2012, when Fightlin was unable to remove the broken piece of the guide wire. Trimble suspected Fightlin was negligent no later than September 19, 2012, when the section 364 notice was served. Thus, the one-year statute of limitations attached no later than September 19, 2013. That Trimble may not have known the full extent of his injury at that time is of no consequence. Therefore, the limitations period was not tolled. IV. The recent case of Drexler v. Petersen does not support Trimble's position
Drexler v. Petersen (2016) 4 Cal.App.5th 1181 (Drexler).
During oral argument, appellant's counsel argued that Drexler, handed down by Division 7 of the Second District in October of last year, compelled reversal of summary judgment. We disagree. In Drexler, the plaintiff filed a medical malpractice action alleging the defendant physicians failed to diagnose, and thus delayed the diagnosis of, a brain tumor leading to serious injuries. The plaintiff began treating with his primary care physician for severe headaches. This defendant diagnosed the plaintiff with tension headaches and prescribed pain medication. (Drexler, supra, 4 Cal.App.5th at pp. 1184-1185.) When the symptoms did not improve and the plaintiff began to also experience neck pain, shoulder pain, and tingling in his hands, the defendant continued to diagnose tension headaches and referred the plaintiff to a neurologist. The neurologist defendant diagnosed the plaintiff with carpal tunnel syndrome. (Id. at pp. 1185-1186.) This course of treatment went on for over four years. Approximately two years later, an emergency room physician correctly diagnosed a brain tumor as the cause of the headaches. The plaintiff had emergency surgery and, because the tumor had grown so large, the surgeons had to sever cranial nerves to remove it. (Id. at pp. 1183, 1187.)
The trial court granted summary judgment in favor of the defendants on the ground that the action was barred by the section 340.5 statute of limitations period. (Drexler, supra, 4 Cal.App.5th at p. 1188.) The appellate court reversed.
The Drexler court noted that, because the case was one of failure to diagnose a preexisting condition, the issue was not whether the plaintiff had actual or constructive notice of the doctors' alleged wrongdoing, but when the plaintiff discovered his injury. (Drexler, supra, 4 Cal.App.5th at p. 1190.) In such a case, "'the injury is not the mere undetected existence of the problem at the time the physician failed to diagnose or treat the patient or the mere continuance of that same undiagnosed problem in substantially the same state. Rather, the injury is the development of the problem into a more serious condition which poses greater danger to the patient or which requires more extensive treatment.'" (Id. at p. 1193.) Thus, the cause of action accrues when the plaintiff discovers, or reasonably should have discovered, that the preexisting undiagnosed condition has developed into a more serious condition, even if it has not caused the ultimate harm. (Id. at pp. 1194-1195.)
After providing the court with the citation hours before oral argument, Trimble's counsel, asserted that Drexler required a finding that Trimble's cause of action did not accrue until October 2012, when it was discovered that a segment of Trimble's ureter was obliterated. Counsel argued for the first time in oral argument that, as in Drexler, this was a case of failing to diagnose a preexisting condition, i.e., the obliterated ureter.
First, it was totally inappropriate for counsel to change her theory of the case at oral argument. More importantly, however, the established facts do not support her claim.
Unlike Drexler, Fightlin did not fail to diagnose a preexisting condition that later developed into a more serious problem. Rather, Fightlin correctly diagnosed Trimble as having a kidney stone. Trimble alleged in his complaint that the more serious problem, the obliterated ureter, was caused by Fightlin's unsuccessful attempt to remove the broken piece of guide wire. As discussed above, it was shortly after this second surgery in July 2012 that Trimble suspected wrongdoing. Thus, at issue here is the date Trimble suspected, and therefore had presumptive knowledge of, this alleged negligence. Other than the correctly diagnosed kidney stone, Trimble did not have a preexisting disease or condition. Accordingly, Drexler is inapposite and inapplicable. V. The continuing doctor/patient relationship did not toll the statute of limitations
Trimble argues that, because his doctor/patient relationship with Fightlin continued until the October 29, 2012 surgery, the statute of limitations was tolled until that date. Trimble notes that, during the continuance of the professional relationship between physician and patient, "the degree of diligence required of a patient in ferreting out and learning of the negligent causes of his condition is diminished." (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102.) According to Trimble, during this doctor/patient relationship, Fightlin made material misrepresentations about the guide wire that Trimble relied on.
Appellant cites Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384 (Kitzig) to support his position. In Kitzig, the plaintiff sued her dentist for negligent placement of dental implants. (Id. at p. 1390.) Despite problems arising during the procedures, including a hole in the plaintiff's sinus, the defendant continually assured the plaintiff that everything was fine. Nevertheless, the plaintiff consulted another dentist due to her concern with the sinus opening. However, this dentist advised the plaintiff that "'everything looked okay.'" (Id. at p. 1389.) Thereafter, the defendant continued to treat the plaintiff.
In Kitzig, the defendant claimed the statute of limitations was triggered when the plaintiff consulted the second dentist because it demonstrated that the plaintiff subjectively suspected the failure of her implants was caused by wrongdoing. The appellate court disagreed. The court noted that (1) the plaintiff's suspicions did not pertain to the injury for which she later sought recovery; (2) the second dentist opined that the defendant was doing nothing wrong; and (3) the plaintiff's briefly held suspicion regarding the hole in her sinus had no effect on her relationship with the defendant, and she continued to rely exclusively on the defendant's medical judgment. (Kitzig, supra, 81 Cal.App.4th at pp. 1392-1393.)
In contrast here, Trimble admitted he suspected wrongdoing on Fightlin's part in July and hired an attorney because he believed Fightlin had made a mistake. Thus, Trimble had more than a briefly held suspicion of negligence. Further, Fightlin did not conceal the presence of the guide wire in Trimble's kidney and told him it would have to be removed. Finally, despite the continuing relationship, Trimble served Fightlin with a section 364 notice of his intent to sue for malpractice. Thus, Trimble's claim that he relied on Fightlin's representations regarding the retained guide wire is belied by his actions. Accordingly, Trimble's continuing relationship with Fightlin had no effect on the commencement of the limitations period.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Fightlin.
/s/_________
SMITH, J. I CONCUR: /s/_________
PEÑA, J. Poochigian, Acting P.J., dissenting,
I agree with the majority that plaintiff's claim that Dr. Fightlin negligently performed the first surgery on July 9, 2012, is time barred. However, as explained below, Dr. Fightlin has failed to show that no dispute of fact exists as to whether the statute of limitations precludes plaintiff's claim that he negligently performed the second surgery. I would reverse the grant of summary judgment and respectfully dissent from the majority's contrary conclusion.
Summary Judgment Law
"Resolution of the statute of limitations issue is normally a question of fact. [Citation.]" (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810.) However, "where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. [Citation.]" (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)
Allegations of the Complaint
Review of a summary judgment " 'begins with an analysis of the pleadings, because "[t]he pleadings define the issues to be considered on a motion for summary judgment." [Citation.]' " (Salazar v. Upland Police Dept. (2004) 116 Cal.App.4th 934, 941.)
In his complaint, plaintiff alleged Dr. Fightlin committed two negligent acts:
1. "RICHARD FIGHTLIN, M.D. breached the standard of care by failing to use proper due care in performing a ureteroscopy to remove a kidney stone with a laser, which resulted in a piece of a guide wire to be lodged in Plaintiff's kidney."
2. "As RICHARD FIGHTLIN, M.D. attempted to remove the broken piece of guide wire from Plaintiff's right kidney, he obliterated Plaintiff's distal ureter."
These allegations clearly identify two negligent acts: (1) causing a piece of guide wire to become lodged in plaintiff's kidney during the uteroscopy and (2) "obliterat[ing] Plaintiff's distal ureter" while attempting to remove the broken piece of guidewire.
In effect, the complaint asserted two separate counts of medical malpractice even though the acts were described under a single count in the complaint. (See Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046, 1060 [under section 340.5, "a medical malpractice cause of action is defined as a single specific act which proximately causes injury"].) When a defendant moves for summary judgment, he or she must "identify and respond to all theories of liability reflected in the complaint, 'even if not separately pleaded.' [Citation.]" (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714; see also Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 928-929.)
The Two Surgeries Performed by Dr. Fightlin
Dr. Fightlin performed plaintiff's uteroscopy on July 9, 2012. During the surgery, a piece of guide wire broke off and lodged in plaintiff's kidney. Dr. Fightlin told plaintiff not to worry and that "he's going to go in there and get that wire out." A second procedure was scheduled for July 16. After the second procedure, Dr. Fightlin informed plaintiff he was unable to retrieve the wire.
Third Surgery
A third surgery was performed on October 29, 2012, at UCSF primarily by Dr. Marshall Stoller. The broken piece of guidewire was successfully removed during this surgery. During the surgery, Dr. Stoller found that "an approximately 3 cm segment of ureter ... was either strictured or completely obliterated at the area of the proximal ureter." Plaintiff maintains October 29, 2012, is when he first learned Dr. Fightlin obliterated his ureter during one of the July surgical procedures.
Plaintiff's Claim Regarding the First Surgery is Time-Barred
The majority explains why plaintiff's claim that Dr. Fightlin negligently caused the piece of guide wire to become lodged in his kidney during the first surgery is time barred. I join the majority's conclusion on that issue because plaintiff initially suspected Dr. Fightlin had negligently performed the first surgery more than a year before he filed suit. (See Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295 ["a person need not know of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period"].)
Dr. Fightlin Failed to Carry his Summary Judgment Burden with Respect to Plaintiff's Claim Regarding the Second Surgery
However, the complaint alleged a second act of negligence: obliterating plaintiff's ureter. In summary judgment proceedings, plaintiff asserted that this second act of negligence likely occurred during the second surgery. This act gives rise to a separate medical malpractice claim, distinct from the claim concerning the guidewire. (See Ashworth v. Memorial Hospital, supra, 206 Cal.App.3d at p. 1060 [under section 340.5, "a medical malpractice cause of action is defined as a single specific act which proximately causes injury"].) As a result, the fact that plaintiff "discovered" the factual basis for his malpractice claim regarding the first surgery sometime between July and September 2012 does not mean plaintiff simultaneously "discovered" the factual basis for his malpractice claim regarding the second surgery. In other words, " '[d]iscovery' of other specific negligent acts and their presumed consequences did not represent 'discovery' of this negligent act and its consequences." (Ashworth v. Memorial Hospital, supra, 206 Cal.App.3d at p. 1060, original italics.)
The allegations of the complaint do not specify whether plaintiff was contending the obliteration of the ureter occurred during the first or second surgery. But a motion for summary judgment must respond to the complaint "by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. [Citations.]" (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, italics added.)
At oral argument, plaintiff's counsel did concede that the obliteration of plaintiff's ureter could have occurred during the first surgery. If that is indeed what happened, plaintiff would not prevail because "a person need not know of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period. [Citations.]" (Knowles v. Superior Court, supra, 118 Cal.App.4th at p. 1295.) And Dr. Fightlin has shown that plaintiff did suspect negligence as to the first surgery more than one year before he filed suit. But if the obliteration of plaintiff's ureter occurred at the second surgery, Dr. Fightlin would not prevail on the statute of limitations issue unless he showed that plaintiff suspected negligence as to the second surgery more than one year before he filed suit. Because a dispute of material fact remains, the matter cannot be resolved on summary judgment.
Dr. Fightlin insists there is significant evidence plaintiff had suspicion of wrongdoing with respect to the guide wire almost immediately. That is true. But the factual basis for wrongdoing during the first surgery is "different" (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 293) from the factual basis of the wrongdoing during the second surgery. The factual basis for wrongdoing during the first surgery was the failure or inability to remove all of the guide wire. And, as Dr. Fightlin has shown, plaintiff had suspicion of wrongdoing occurring during the first surgery by early September 2012. But Dr. Fightlin has failed to show that there is no material dispute of fact as to when plaintiff first suspected the factual basis for the separate instance of alleged wrongdoing: obliterating plaintiff's ureter during the second surgery. That failure is fatal to his summary judgment motion with respect to the statute of limitations issue.
Dr. Fightlin might have been entitled to summary adjudication of the guide wire claim if he had made such a motion. (See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855 (Lilienthal) ["a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action"].) However, Dr. Fightlin's motion for summary adjudication attacked the whole of each individual cause of action rather than challenging each "separate and distinct wrongful act" (ibid.) within the medical malpractice cause of action.
I would reverse the judgment without prejudice to Dr. Fightlin presenting a motion for summary adjudication challenging, on statute of limitations grounds, the "separate and distinct wrongful act" (Lilienthal, supra, 12 Cal.App.4th at pp. 18541855) of causing the guidewire to become lodged in plaintiff's kidney.
Cases like Bennett v. Shahhal (1999) 75 Cal.App.4th 384 (Bennett) do not alter my conclusion. On April 4, 1996, defendant Dr. Shahhal inserted a shunt into plaintiff Bennett's brain that drained into his abdomen. In the following weeks, plaintiff complained to Dr. Shahhal of swelling near the abdominal incision. Plaintiff "believed [Dr. Shahhal] had done something wrong." (Bennett, supra, 75 Cal.App.4th at p. 387.) Another physician, Dr. Mark Stern suspected the shunt had dislodged, so he surgically reattached the shunt and excised an abdominal cyst on May 20, 1996. After the May 20, 1996, surgery, plaintiff spoke to an attorney who sent a section 364 notice to Dr. Shahhal on July 30, 1996. In January 1997, Dr. Stern performed another surgery on plaintiff to reposition the shunt in Bennett's brain. Bennett retained a different attorney who sent another section 364 notice to Dr. Shahhal on March 5, 1997. Bennett filed a complaint against Dr. Shahhal on July 1, 1997. (Bennett, supra, 75 Cal.App.4th at p. 387.)
Bennett did not know his first attorney sent the July 30, 1996, notice. (Bennett, supra, 75 Cal.App.4th at p. 387.)
Dr. Shahhal prevailed on summary judgment, relying on a statute of limitations defense. Bennett argued on appeal that his second notice under section 364 was not a nullity because it concerned different injuries than the first notice. The first notice asserted that Dr. Shahhal's negligence " 'CAUSED THE FOLLOWING INJURIES: surgery to remove a cyst in [Bennett's] abdomen as a result of the unsecured shunt' " while the second notice stated Dr. Shahhal " 'negligently performed a surgical procedure for placement of [a] right ventriculoperitoneal shunt and that personal injuries resulted....' " (Bennett, supra, 75 Cal.App.4th at p. 391, fn. omitted.)
Bennett's primary holding was that Bennett's second section 364 notice was a nullity. That holding is immaterial to the present case because plaintiff is not claiming that his second 364 notice tolled the statute of limitations.
At oral argument, plaintiff's counsel said, "I don't believe this is a 364 case at all, we are not using that as part of our argument to toll at all." !(Oral Arg. Audio at 2:20:13 PM)!
Dr. Fightlin and the majority quote a passage from Bennett stating " ' "[a]s a general rule, where an injury, although slight, is sustained in consequence of the wrongful act of another,... the statute of limitations attaches at once. It is not material that all the damages [resulting] from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date...." ' [Citation.]" (Bennett, supra, 75 Cal.App.4th at p. 391, italics added.) But plaintiff is not merely alleging that the second surgery is another component of his damages from the malpractice at the first surgery, he is alleging the manner in which Dr. Fightlin performed the second surgery is a separate instance of negligence. This is important for understanding why Bennett is different. After stating the principle of law quoted above, Bennett immediately goes on to say that, " 'The long-standing rule in California is that a single tort can be the foundation for but one claim for damages.' [Citation.]" (Id. at pp. 391-392, italics added.) The defendant in Bennett only performed one surgery and only committed one alleged act of negligence: improperly placing the shunt. Consequently, there was only one "claim for damages" (i.e., one cause of action) no matter how many injuries or "damages" subsequently manifested. But plaintiff here has alleged two negligent acts: (1) causing a piece of guide wire to become lodged in his kidney during the first surgery; and (2) obliterating plaintiff's ureter during the second surgery.
Specifically, he alleged facts constituting two torts. However, those facts were set forth under the heading of a single count of malpractice. (See fn. 1.) --------
In sum, this is not a case where a single tort caused delayed-onset injuries and the plaintiff points to a late-manifesting injury to postpone the accrual date. Instead, it is a case of two torts - one time-barred and the other timely.
For these reasons, I respectfully dissent.
/s/_________
POOCHIGIAN, Acting P.J.