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Wheeler v. Castro

Court of Appeals of California, Second Appellate District, Division Five.
Nov 24, 2003
B161740 (Cal. Ct. App. Nov. 24, 2003)

Opinion

B161740.

11-24-2003

GORDON S. WHEELER et al., Plaintiffs and Appellants, v. DAN J. CASTRO et al., Defendants and Respondents.

Law Offices of Steven Roseman and Steven Roseman for Plaintiffs and Appellants. Maranga Morgenstern, Kenneth A. Maranga, and Jeffrey B. Stoltz; Greines, Martin, Stein & Richland, Martin Stein, and Carolyn Oill for Defendants and Respondents.


Plaintiffs Gordon S. Wheeler (plaintiff) and Gail M. Wheeler appeal the dismissal of their lawsuit against defendants Dan J. Castro, M.D. and Gerald S. Berke, M.D. (together, defendants), following the latters successful demurrer to plaintiffs first amended complaint based on the statute of limitations. We conclude that the causes of action for medical malpractice and loss of consortium were timely filed, and therefore reverse the judgment of dismissal.

FACTS AND PROCEDURAL HISTORY

The following facts appear in the first amended complaint: At the recommendation of defendants, plaintiff underwent surgery in July 1996 for a chronic sinus problem. A known risk of this surgery, which defendants neither explained nor discussed with plaintiff, is that "the bony tissue adjacent to the cranium is nudged by surgery instruments so that an aperture will result that results in the flow of cerebral spinal fluid from the cranium." Within a few days after the surgery, plaintiff "became aware of dripping from his nose that was not dripping like he had before from time to time when his sinus condition flared up. The dripping was a clear liquid that sometimes accompanied drippings of mucus. Most of the time the new dripping was a steady flow and, worst of all, it had a terrible stench. The smell was so obnoxious that it disrupted his sexual relations with his wife and, in addition, hurt his work to the point where he was embarrassed and found it difficult to speak to customers and fellow employees in person. . . . Accompanying the odor were headaches and sometimes dizziness, which probably resulted from the stench."

When plaintiff complained about the dripping problem to defendants, they "gave him a liquid medication that he used on a daily basis, more than once, to irrigate his nostrils. The medication did not help. He returned to the defendant doctors to again discuss the matter, but the defendant doctors told him to utilize the medication as directed and it would be a short time for the stench problem to dissipate. The stench did not dissipate as the doctors had anticipated." On subsequent visits to address the dripping problem, the defendants "gave plaintiff multiple endoscope examinations in plaintiffs nasal channels to discover the reason for the smelly drainage." The doctors repeatedly told plaintiff "that there was nothing wrong with his nasal passage, that it would take time for the medication he was taking to effect a cure, that he was fortunate because the 1996 surgery was successful, and that some people with his condition would take the medication for a lifetime."

Finally, defendants ordered a CAT scan and MRI, which were performed on November 18, 1998 and December 22, 1998, respectively. After these procedures were completed, Dr. Berke "took himself off the case and abandoned plaintiff."

On January 7, 1999, plaintiff met with Dr. Castro, who "did not say anything to [plaintiff] about the CAT scan or the MRI. The smelly dripping continued, and [plaintiff] told this to Dr. Castro. [Plaintiff] asked Dr. Castro whether something turned up in the MRI or CAT scan that would suggest something could be done to stop the smelly flow, dizziness, and headaches. As seen in Dr. Castros report of January 7, 1999, Dr. Castro apparently did not read the reports of the MRI and CAT scan. Dr. Castros report does not indicate that he inspected the MRI or CAT scan reports or film. On January 7, 1999, Dr. Castro prescribed some additional medication for [plaintiff] and gave him the same instructions about rinsing his nasal passages with the liquid medicine."

On December 29, 2000, plaintiff had a seizure and was hospitalized, where he received treatment from medical personnel other than defendants. "Tests and examinations disclosed that the seizure resulted from brain activity at the frontal part of the cranium. . . . The doctors who were treating him opined that the seizure resulted from brain matter that had found its way through an aperture or hole between the ethmoid bone at the top of the nasal passage and the cranium where the brain lays . . . . The reports of the MRI and CAT scan favor the view that a surgical maneuver was responsible for the aperture that allowed the cerebral spinal fluid and brain matter to go through the hole and down the nasal channel."

In 2001, plaintiff had surgery to repair the aperture between his cranium and nasal passage. "The smelly drainage from plaintiffs nasal passage stopped after he had the surgery to repair the aperture. His headaches and dizziness have not bothered him since the surgery."

Plaintiff filed suit on July 11, 2001, alleging three causes of action: the first for fraud and/or deceit, the second for medical malpractice, and the third for loss of consortium. After the sustaining of a demurrer with leave to amend, plaintiff filed an amended complaint, including the same causes of action, the gist of which was that defendants failed to properly diagnose the cause of his post-surgical symptoms.

Defendants again demurred, and the trial court sustained the demurrer and dismissed the case. The court reasoned that the "injury," for purposes of the statute of limitations, was the aperture caused during the 1996 surgery, and that Code of Civil Procedure section 340.5 has "a three-year drop-dead date," rendering the malpractice claim time-barred. The court concluded: "Well, Ill tell you, if all your allegations are true, I dont feel good about what Im about to do to your client, but I think the law requires me to sustain the demurrer without leave to amend. So if what you have claimed really happened, he doesnt really have a remedy. I think it prevents him from having a cause of action."

DISCUSSION

1. Medical malpractice

Code of Civil Procedure section 340.5 contains the statute of limitations for medical malpractice. It states: "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."

Defendants maintain that the injury suffered by plaintiff was the aperture in his cranium which they caused during the 1996 surgery; that after the surgery, plaintiff immediately suffered symptoms as a result of that injury, and that the statute of limitations therefore expired no later than three years after the surgery, or in 1999.

However, that is not the injury of which plaintiff complains. Nowhere in the complaint does plaintiff allege that the doctors were negligent in poking a hole in his cranium. Rather, he claims that they were negligent in failing to diagnose the cause of his post-surgical symptoms: "Both doctors undertook a course of treatment that was not in accordance with the standard of practice because they both delayed in arranging a CAT scan and MRI in the face of plaintiffs complaints and waited two years to arrange these procedures. The results of these studies demonstrate that both doctors were wrong in announcing that there was nothing wrong with plaintiff." Thus, the negligence claim is entirely independent of the surgery, and would be precisely the same if the defendants had not performed the surgery, but had simply treated plaintiff for the condition of which he complained after the surgery. The allegation is that defendants negligent failure to diagnose occurred in 1996 after the surgery, and occurred again in 1997, 1998, and 1999, when plaintiff continued to complain of dizziness, headaches, and a malodorous nasal discharge, and pleaded with defendants to find a remedy for this debilitating medical condition. Acting below the standard of care, defendants informed plaintiff that there was nothing they could do to remedy his condition, and that it would resolve on its own. Plaintiff alleges that defendants final negligent act was their failure to read, or to read properly, the results of the MRI and CAT scan performed in November and December of 1998. He alleges that, had they properly evaluated the results of these diagnostic tests, they would have discovered the cause of plaintiffs symptoms and recommended surgery to close the aperture and remediate the nasal dripping.

Plaintiff did not learn of the cause of his symptoms (the cranial aperture) until December 2000, when he suffered a seizure. At that time, his new doctors informed him that the aperture was responsible for the nasal problems, the headaches and the dizziness which he had experienced ever since the surgery, as well as for the seizure. They also informed him that the aperture showed up in the diagnostic tests performed by defendants in 1998. Plaintiff filed suit on July 11, 2001, within one year of that discovery, and within three years of defendants last negligent act, the failure to recommend appropriate treatment based upon the diagnostic tests conducted in November and December 1998. Consequently, the suit was timely filed.

2. Loss of consortium

The parties agree that Mrs. Wheelers loss of consortium claim is completely dependent upon the viability of the malpractice cause of action. Because we conclude that the malpractice action was timely filed, the loss of consortium claim is also timely.

3. Fraud and/or Deceit

"The elements of fraud, which gives rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damages." (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173, internal citations omitted.) In Quelimane Co. v. Steward Title Guaranty Co. (1998) 19 Cal.4th 26, 47, our Supreme Court reaffirmed the "requirement of particularity in pleading a fraud cause of action. Under that rule, which is specific to fraud: (a) General pleading of the legal conclusion of fraud is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect." (Ibid., internal quotation marks omitted, quoting from Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.)

Here, the complaint alleges that defendants fraudulently failed to disclose to plaintiff the nature of his injury. Specifically, the complaint alleges that defendants did not read the MRI and CAT scan reports, which purportedly revealed the cause of plaintiffs symptoms, and that if defendants had read the reports, they would have known that what they were telling plaintiff was false. However, knowledge of the falsity of the misrepresentation, or in this case, of the undisclosed fact, is an element of a cause of action for deceit. Because the complaint does not allege that defendants actually knew the cause of plaintiffs symptoms, but simply that they should have known of the cranial aperture, the trial court properly sustained the demurrer on the fraud and/or deceit cause of action.

DISPOSITION

The order granting the demurrer on the first cause of action for fraud and/or deceit is affirmed. The trial court is directed to vacate the order sustaining the demurrer on the second and third causes of action for, respectively, medical malpractice and loss of consortium, and to enter a new order denying the demurrer on those two causes of action. Plaintiffs to recover costs on appeal.

We concur: TURNER, P.J., GRIGNON, J.


Summaries of

Wheeler v. Castro

Court of Appeals of California, Second Appellate District, Division Five.
Nov 24, 2003
B161740 (Cal. Ct. App. Nov. 24, 2003)
Case details for

Wheeler v. Castro

Case Details

Full title:GORDON S. WHEELER et al., Plaintiffs and Appellants, v. DAN J. CASTRO et…

Court:Court of Appeals of California, Second Appellate District, Division Five.

Date published: Nov 24, 2003

Citations

B161740 (Cal. Ct. App. Nov. 24, 2003)