Opinion
Hearing Granted July 29, 1970.
Opinion on pages 934 to 948 omitted
HEARING GRANTED
Jerome Berg, San Francisco, for appellant.
Ropers, Majeski & Phelps, Redwood City, for respondent.
DRAPER, Presiding Justice.
Defendant hospital district's motion for summary judgment was granted and the action was dismissed as to the hospital. Plaintiff appeals. The action continues as to defendant doctors, who did not join in [87 Cal.Rptr. 80]the motion for summary judgment. The issue is whether, as to the hospital, the action was filed in time.
The declarations assert that plaintiff entered the hospital September 16, 1965, as a patient of Dr. Southwood, a defendant, for treatment of a wrist condition. He was given some sedation, but no guard rail was placed on his bed. Late at night, he awakened and fell from the bed to the floor. His back pained him, but Dr. Southwood told him that this was the result of arthritis and was unconnected with the fall. Plaintiff left the hospital September 28, 1965, but continued under Dr. Southwood's care until February 1966 (sic. apparently 1967 was meant). During that time, the doctor 'repeatedly' assured him that his back pains did not result from the fall. In February 1967, another physician examined plaintiff and found that in fact the fall had caused a herniated disk. A laminectomy was performed. This action seeking damages for the back injury was filed June 6, 1967. A claim against the hospital district was filed April 20, 1967 and amended the following month. Summary judgment was granted on the grounds that the complaint, filed 20 months after the fall, as well as the claim filed 18 months after the injury, were too late.
An action for personal injuries accrues at the time of the wrongful act (1 Witkin, Calif.Proc., Actions, §§ 129, 130) and must be brought within one year of that date (Code Civ.Proc. § 340, subd. 3). At one time, California applied this same strict rule of accrual to malpractice actions against doctors (Gum v. Allen (1931) 119 Cal.App. 293, 6 P.2d 311) but in 1936, the Supreme Court liberalized it. (Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908.) A surgeon had left a drainage tube in the abdomen of a patient who, despite pain, continued under his care for some 20 months before surgical removal of the tube and consequent relief from her symptoms. It was held that the action accrued only upon discovery by the patient of the cause of her discomfort (Huysman v. Kirsch, supra). The court, however, emphasized that the patient's ignorance of her condition 'was due solely to the negligent act of the respondent' (id. p. 313, 57 P.2d p. 913). That decision quoted an Ohio case (Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865) which emphasized the unfairness of a rule that the statute commenced to run 'while the surgeon was still in charge of the case and * * * assuring her that proper patience would witness a complete recovery.' The rule of Huysman has not been limited to surgical introduction of foreign bodies (see 1 Witkin, Calif.Proc., pp. 641-2). But the element of continuing reliance upon the negligent doctor is emphasized (see Petrucci v. Heidenreich, 43 Cal.App.2d 561, 562-563, 111 P.2d 421).
Appellant does not cite, and we fail to find, any decision applying this doctrine against a hospital in favor of a patient under continuing supervision of a physician of his own choice. Our recent decision (Wozniak v. Peninsula Hospital, 1 Cal.App.3d 716, 82 Cal.Rptr. 84) dealt only with application of the claims statute to a minor. The dissenting opinion cites a number of decisions which, in their titles, list a hospital as defendant. But two of them (Mock v. Santa Monica Hospital, 187 Cal.App.2d 57, 9 Cal.Rptr. 555, and Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 327 P.2d 131) deal only with claims against physicians. Two others (Rice v. California Lutheran Hospital, 27 Cal.2d 296, 163 P.2d 860 and Gin Non Louie v. Chinese Hospital Assn., 249 Cal.App.2d 774, 57 Cal.Rptr. 906) announce the unquestioned rule that a hospital is liable for negligent performance of its own functions, and is not relieved merely because the patient's doctor has general charge of diagnosis and treatment. Another decision cited in the dissent (Guilliams v. Hollywood Hospital, 18 Cal.2d 97, 114 P.2d 1) emphasizes this distinction by pointing out that the complaint 'cannot be construed as setting forth an agreement whereby the hospital * * * undertook * * * to furnish medical diagnosis and treatment,' (p. 103, 114 P.2d p. 5), but [87 Cal.Rptr. 81]charged only negligence in the performance of duties normally a part of hospital care. None of these cases deals with delayed accrual of a cause of action against a hospital.
If a hospital employee or agent negligently or intentionally misrepresents plaintiff's condition, the normal date of accrual could well be extended. But no such misrepresentation by a hospital agent is suggested here. Rather, plaintiff's declaration avers that 'the hospital never examined me relative to that fall, nor did it ever undertake to inform me of my condition.'
Plaintiff seeks to bring in the hospital by pointing to Dr. Southwood's membership on its staff. But the declarations show, without denial by plaintiff, that he was chosen by plaintiff, and not by the hospital. He arranged for plaintiff's admission to the hospital, but financial arrangements for hospitalization were made solely between patient and hospital, and those for the doctor's services solely between him and his patient. He received no remuneration from respondent and was a staff member of several other hospitals.
A doctor's hospital staff membership means merely that he is privileged to bring his patients there, and does not make him an agent of the institution (Mayers v. Litow, 154 Cal.App.2d 413, 417-418, 316 P.2d 351). There is no declaration that Dr. Southwood was ever authorized to or did act or purport to act in behalf of the hospital or in its name, or that plaintiff ever considered him so to act. Thus there is neither actual nor ostensible agency, and his alleged statements afford no basis for applying against the hospital either the rule of delayed accrual in malpractice cases or that of estoppel to plead the statute.
We recognize that silence or inaction by the hospital could conceivably operate to delay accrual, but only if that entity had actually or ostensibly assumed the duty of diagnosis and advice which normally rests with the attending physician. But there is not even a faint suggestion of any such assumption of function. There is no claim that the fact of the fall or the absence of guard rails was concealed. Plaintiff avers that he was awake at the time and that there were no guard rails. Plaintiff's claim of concealment runs only to the element of diagnosis, and his own declaration denies that the hospital 'ever undertook to inform me of my condition.' To accept plaintiff's position would be to place upon a hospital, as a matter of law, a duty of medical diagnosis, separate and distinct from that of the physician independently chosen by the patient. We find no conceivable reason or purpose of policy to be served by such a general rule, pitting physician and hospital against each other to the obvious confusion of both, and often to the detriment of the patient.
No triable issue of fact as to the running of the statute in favor of the hospital is presented by the declarations. Even though the complaint is unverified, we have looked to it and to the claim, and find in them nothing to remedy this defect. Thus the motion for summary judgment and the judgment of dismissal were properly granted.
Judgment affirmed.
CALDECOTT, J., concurs.
HAROLD C. BROWN, Associate Justice.
I respectfully disagree with the opinion of the majority of this court and would reverse the trial court's grant of the summary judgment. I base my dissent on Wozniak v. Peninsula Hospital, 1 Cal.App.3d 716, 82 Cal.Rptr. 84; Warrington v. Charles Pfizer & Co., 274 A.C.A. 619, 80 Cal.Rptr. 130; Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908, and the reasons which are hereinafter set forth.
The facts have been accurately stated in the majority opinion, but in stating my conclusions, it is necessary to supplement these facts at the risk of some repetition.
Appellant asserts that he was in Sequoia Hospital for surgery on an artery in his right wrist, as well as for other medical [87 Cal.Rptr. 82]complaints. The operation was performed on September 16, 1965. His attending physicians were Drs. Pavy and Southwood. The physician who performed the surgery was a Dr. Rancheler. Following the surgery appellant continued under the care of Dr. Southwood, an internist, until the end of 1966. Dr. Southwood was an independent practitioner but was on the staff of the defendant hospital.
On a night between September 16 and 20, 1965, following his operation, appellant states he was given three 100 grain tablets of nembutal and subsequently fell from his bed upon awakening from sleep. The bed was not equipped with guard rails or, if equipped, the rails were not put in place to prevent appellant from falling out of bed. While still under the care of Dr. Southwood, appellant complained of back pains and on a number of occasions questioned Dr. Southwood as to whether the pains could have been the result of his fall from the bed. Dr. Southwood informed him that there was no causal relation and that the pain was caused by an arthritic condition. On February 10, 1967, appellant visited a doctor at the Veterans Administration Hospital in Palo Alto who diagnosed his condition as a herniated disk resulting from the fall. Appellant on March 29, 1967, was operated on at the Veterans Hospital for a laminectomy and fusion of the vertebra involved.
On April 20, 1967, appellant filed a verified claim and an application to file a late claim (Gov.Code, § 911.4) with the Sequoia Hospital District. The claim and application were denied on May 18, 1967, by the hospital board. His complaint for damages was filed on June 6, 1967.
Respondent hospital is a public entity and as such the provisions of Government Code, section 900 et seq. apply relating to the requirement for the filing of claims. Under section 911.2, '[a] claim relating to a cause of action for death or for injury * * * shall be presented * * * not later than the 100th day after the accrual of the cause of action.'
The one-year statute of limitations embodied in Code of Civil Procedure, section 340(3) is applicable to medical malpractice actions. (Stafford v. Shultz, 42 Cal.2d 767, 775, 270 P.2d 1; Mock v. Santa Monica Hospital, 187 Cal.App.2d 57, 64, 9 Cal.Rptr. 555.)
Appellant concedes that his claim was filed more than 100 days after his fall in the hospital and, further, concedes that the complaint for damages was filed more than one year after the fall. He contends, however, that as this is a medical malpractice action, the date of the accrual of his cause of action is not necessarily the date of his fall in the hospital, and that the former should be used as the date the statute commenced to run. Appellant contends that his cause of action accrued on about March 1967 when the physician at the Veterans Hospital informed him that he had a herniated disk as the result of the fall, and therefore his claim and this action were timely filed. This was the first occasion that appellant related his back condition to the fall.
The date of the accrual of a cause of action for the purpose of computing the time limit prescribed by the Government Code (Gov.Code, § 900 et seq.) is the same as for the statute of limitations which would otherwise be applicable. (Gov.Code, § 901.)
It is to be noted at the outset that this matter came before the trial court on a motion for summary judgment. The real issue is whether appellant should have discovered at an earlier time that he had a cause of action. To determine this question there must be some evidence of the respective obligations of the hospital, the nurses and the physician to appellant, and of their relation to each other. The issue was not answered by the media used by the parties, i. e., their respective declarations and affidavits. I believe that the issue should be presented to the trier of fact. (See Wilson v. Bittick, 63 Cal.2d 30, 34-35, 45 Cal.Rptr. 31, 403 P.2d 159.)
[87 Cal.Rptr. 83]In Wozniak v. Peninsula Hospital, supra, 1 Cal.App.3d 716, 82 Cal.Rptr. 84, this court recently reviewed the authorities relative to the requirement of filing claims against a public entity pursuant to the provisions of the Government Code and the duties of the physician and hospital attendants to make a fair disclosure of the cause of plaintiff's condition. We concluded that in a suit for malpractice the statute of limitations commences to run when the plaintiff discovers the injury and its negligent cause, or through the exercise of reasonable diligence should have discovered it, and that this question is one of fact to be decided by the trier of fact. (Alter v. Michael, 64 Cal.2d 480, 483, 50 Cal.Rptr. 553, 413 P.2d 153; Mock v. Santa Monica Hospital, supra, 187 Cal.App.2d 57, 64, 9 Cal.Rptr. 555; Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 806, 327 P.2d 131; Howe v. Pioneer Mfg. Co., 262 Cal.App.2d 330, 342, 63 Cal.Rptr. 617; Stafford v. Shultz, supra, 42 Cal.2d 767, 778, 270 P.2d 1.)
The majority opinion here attempts to distinguish Wozniak v. Peninsula Hospital, supra, from the case presently before us on the basis that the injured person in Wozniak was a minor. I do not believe that Wozniak is distinguishable on that basis as we held there (with some disrelish) that the knowledge of the parents was attributable to the child in determining when she discovered her injury, or through the exercise of reasonable diligence should have discovered it.
The rule of late discovery, as set forth in Wozniak (and to which I believe we should adhere), differs from the rule in the ordinary personal injury case where the statute commences to run at the date of the accident. The reason for the difference is apparent. The injured plaintiff in a medical malpractice action is not put on notice of any cause of action while he continues to rely upon the expert opinions of the physician, the medical technicians, the nurses and others in attendance on him at the hospital.
Also pertinent is the fiduciary relationship that exists between physician, medical technicians, nurses and the patient. Facts which ordinarily would require investigation by medical experts may not excite the suspicion of the patient, and, for that reason, the same degree of diligence is not required of the patient as would be required of plaintiffs in other types of negligence actions. As such fiduciaries, it was the duty of the physician and the hospital staff to make a full and fair disclosure of all facts which materially affect a patient's rights and interests. (See Bowman v. McPheeters, 77 Cal.App.2d 795, 800, 804, 176 P.2d 745; Hobart v. Hobart Estate Co., 26 Cal.2d 412, 439-440, 159 P.2d 958.)
There is but little doubt that the fiduciary relationship is not merely limited to doctor and patient but also extends to others caring for him in the hospital, particularly between patient and nurses in whose care he reposes his confidence because of their superior training and knowledge, and upon whom he has the right to rely. 'The professions of doctor and nurse are so closely allied that decisions applicable to one would apply equally well to the other. * * *' (Moody v. Industrial Acc. Com., 204 Cal. 668, 671, 269 P. 542, 543.)
In Gin Non Louie v. Chinese Hospital Assn., 249 Cal.App.2d 774, 787, 57 Cal.Rptr. 906 (also involving a fall from a hospital bed), the court stated: "Malpractice is the neglect of a physician or a nurse to apply that degree of skill and learning in treating a patient which is customarily applied in treating and caring for the sick or wounded similarly suffering in the same community. See Webster's International, Oxford and Bouvier's dictionaries; C.J., Am.Jur. While proof of it [medical malpractice] is customarily made by the testimony of experts [citations], and while the law makes allowances for human weakness in the application of skill and learning [citation], the facts of each case must be judged according to their own merits. If the alleged neglect relates to matters or conduct which [87 Cal.Rptr. 84]are reasonably within the ken of the average layman the jury may determine the culpability of the person charged therewith without the aid of experts. If it relates solely to the exercise of judgment in the application of skill and learning then proof of the negligence must be made by experts.' (Valentin v. La Societe Francaise (1946) 76 Cal.App.2d 1, 5, 172 P.2d 359.)' (Emphasis added; also see Griffin v. County of Colusa, 44 Cal.App.2d 915, 113 P.2d 270.)
In Huysman v. Kirsch, supra, 6 Cal.2d 302, 312, 57 P.2d 908, the court said: '[T]he statute of limitations should not run against an injured * * * [person's] right to compensation during the time said person was in ignorance of the cause of his disability and could not with reasonable care and diligence ascertain such cause.'
'* * * It would be trifling with the law and the courts to exact compliance with such a rule [the statute of limitation], in order to have a standing in court for the vindication of her rights. It would impose upon her an improper burden to hold that, in order to prevent the statute from running against her right of action, she must sue while she was following the advice of the surgeon and upon which she all the time relied.' (P. 309, 57 P.2d p. 911; emphasis added.)
In Warrington v. Charles Pfizer & Co., supra, 274 A.C.A. 619 at 624-625, 80 Cal.Rptr. 130, 133, the court, quoting with approval the language in an Oregon case, said: "* * * [I]t is impossible to justify the applicability of the discovery rule to one kind of malpractice and not to another. * * * It is manifestly unrealistic and unfair to bar a negligently injured party's cause of action before he has had an opportunity to discover that it exists * * *. (Emphasis added.)
"We do not believe that the danger of spurious claims is so great as to necessitate the infliction of injustice on persons having legitimate claims which were undiscoverable by the exercise of ordinary care prior to the lapse of two years from the time of the act inflicting the injury. Nor do we believe the legislature intended such a result. We therefore overrule our former decision. * * *" (See Heyer v. Flaig, 70 Cal.2d 223, 74 Cal.Rptr. 225, 449 P.2d 161, for recent trends in applying statutes of limitation.)
While appellant was well aware that he fell out of bed and that thereafter he had pain in his low back, he states that he was unaware that his condition was caused by the fall. To the contrary, he believed, on the basis of his physician's statements (and the lack of being otherwise informed by the hospital), that an arthritic condition was causing his discomfort.
In appellant's declaration in opposition to the summary judgment he states: '* * I further declare that the hospital never examined me relative to that fall, nor did it ever undertake to inform me of my condition as a result of the fall. * * * Dr. Southwood reqeatedly told me that there was no causal relation between the fall and the pain. (Emphasis added.)
'I further declare that in February of 1966 [1967] I consulted another doctor who informed me that the painful condition of my back was indeed the result of my fall in the hospital.'
Appellant, as a result of the advice of this latter physician, was operated on for a laminectomy at the Veterans Hospital.
There is nothing in the record before us to indicate that appellant was knowledgeable of medical matters or was ever informed by the hospital staff of technicians or by the nurses that his pain was caused by the fall. It is difficult to understand how a person suffering pain could discover its cause without expert medical information. This is especially true in cases, as here, involving low back pain, the origin and cause of which are difficult to diagnose.
In Mock v. Santa Monica Hospital, supra, 187 Cal.App.2d 57, 64, 9 Cal.Rptr. 555, 560, the court said: "Certainly the statute of limitations should not run against appellant's rights during the time she was in ignorance of the cause of her disability, and could not with reasonable [87 Cal.Rptr. 85]care and diligence ascertain such cause * * *.' More recently, in Hundley St. Francis Hospital, 161 Cal.App.2d 800 at page 806, 327 P.2d 131 at page 135, it was said: 'Thus, in the absence of actual discovery of the negligence, the statute does not commence to run during such period [citation], and this is true even though the condition itself is known to the plaintiff, so long as its negligent cause and its deleterious effect is not discovered [citation].' [Citation.]' (See De Vault v. Logan, 223 Cal.App.2d 802, 36 Cal.Rptr. 145; Hemingway v. Waxler, 128 Cal.App.2d 68, 274 P.2d 699; Costa v. Regents of Univ. of California, 116 Cal.App.2d 445, 254 P.2d 85; Valentin v. La Societe Francaise, 76 Cal.App.2d 1, 172 P.2d 359.) It is only where reasonable minds can draw but one conclusion from the evidence that the question becomes a matter of law. (Mock v. Santa Monica Hospital, supra, 187 Cal.App.2d 57, 9 Cal.Rptr. 555; Hurlimann v. Bank of America, 141 Cal.App.2d 801, 297 P.2d 682; Wozniak v. Peninsula Hospital, supra, 1 Cal.App.3d 716, 82 Cal.Rptr. 84.)
The question as to whether appellant here should have reasonably discovered his condition and its cause at an earlier time, and whether he should have sought further advice as to that condition is a question of fact.
In Cooper v. National Motor Bearing Co., 136 Cal.App.2d 229, 236, 288 P.2d 581, 586, the court said: 'There is no merit in the contention that respondent was guilty of contributory negligence as a matter of law because although concerned about the fact that the wound was not healing, he did not consult a doctor about it. The evidence shows that he continually consulted the nurse about it. He relied upon her for treatment. She kept assuring him that it was all right. It never occurred to him that he might have cancer, and since it was not disabling, he could continue his work as usual. Under the circumstances testified to herein, it was certainly a question of fact for the jury to decide whether or not respondent had been guilty of contributory negligence [citation].'
In the case before us it would likewise be a question of fact for the trier of fact to determine whether plaintiff was negligent in failing to make an earlier discovery of his condition.
In West v. Great Western Power Co., 36 Cal.App.2d 403, 411, 97 P.2d 1014, 1019, the court stated: "Whether one has notice of 'circumstances sufficient to put a prudent man upon inquiry as to a particular fact', and whether, 'by prosecuting such inquiry, he might have learned such fact', are themselves questions of fact to be determined by the jury or the trial court.' (20 Cal.Jur., p. 240.)'
Appellant was discharged from respondent hospital on September 21, 1965, but continued under the care of Dr. Southwood through 1966. The trier of fact could be justified in concluding that appellant placed his reliance on those who cared for him and that such reliance would include the belief that both the physician and hospital, with its team of specialists, would advise him of the serious possibilities that might have resulted from the fall.
It would also appear reasonable to find that appellant's manifestations of pain following the fall should have alerted respondent hospital to the possibility of injury. Upon such findings it would be grossly inequitable to permit respondent to assert the statute of limitations as a defense when respondent itself was the underlying cause for appellant's failure to discover the relation between his pain and its cause.
Respondent, however, contends that its declaration in support of the motion for summary judgment clearly demonstrates that it is not bound by the statements of Dr. Southwood to the effect that appellant's pain emanated from an arthritic condition. The issue, of course, is not whether respondent or its agent acted in such a manner as to estop it from asserting the statute of limitations. Rather, we are primarily concerned with the diligence exercised by appellant in attempting to determine [87 Cal.Rptr. 86]whether he had a cause of action, i. e., knew that his condition was the result of a negligent act. This, of course, depends upon the information he received or should have received from those to whom he entrusted his care. Respondent hospital's declaration does not touch on this issue.
Repondent argues only that Dr. Southwood was not representing the hospital; that he was not in its employ, received no salary from the hospital and that Dr. Southwood was selected and paid by appellant. These allegations in respondent's declaration are not contradicted by appellant, and, in my opinion, are irrelevant to the main issue of when appellant discovered or reasonably should have discovered that he had a cause of action.
I recognize that it has been held that a physician is an independent contractor and not an agent of the hospital in the usual meaning of those terms. (See Mayers v. Litow, 154 Cal.App.2d 413, 316 P.2d 351.) However, in the modern practice of medicine, it is a team effort consisting of the physician joining with the hospital staff of attendants and technicians in postoperative care to accomplish the desired recovery. It is common knowledge in the modern day practice of medicine that the physician and staff of the hospital act jointly and in concert in the treatment of the patient. The physician is the spokesman for the hospital in all matters concerning diagnosis, prognosis and treatment. It is well known that nurses and other medical technicians connected with the hospital do not discuss the patient's ailments with the patient, nor are the hospital records made available to the patient to read. The physician thus may be the agent of the hospital in the matter of being the one authorized to give information to the patient concerning any phase of his treatment and cause of his condition, and also, he may be an independent contractor in other aspects of the case. Under Health and Safety Code, section 32128, hospitals are permitted to organize staffs of physicians, surgeons and dentists, etc., and to prescribe rules of conduct for such staff. The physician is compelled to follow the direction of the hospital while he is a member of the staff. Failure to follow prescribed rules might result in forfeiture of staff privileges. Respondent hospital's declaration alleges that appellant's physician is not its agent; but it states nothing about who is authorized to keep the patient informed of his condition, or of general practies of hospitals after a patient suffers an injury while in its care.
(See Doctor and Patient and the Law, by Louis J. Regan, M.D., LL.B., Published by C. V. Mosly Co., pp. 357, 364.) 'Early in her career it is wise for the nurse to develop a firm habit of not discussing with a patient his ailments, the various types of treatment, or various doctors. When a patient desires more information about his condition, it is prudent for a nurse to suggest that the patient consult his doctor.' (Law Every Nurse Should Know, Helen Creighton, p. 84, published by W. B. Saunders Co., Philadelphia.)
The question of whether the physician is representing the hospital in some or all respects cannot be categorically answered. It is determined by all of the facts and circumstances of the particular case and incidents involved.
In Rice v. California Lutheran Hospital, 27 Cal.2d 296, 304, 163 P.2d 860, 865, the court said: '* * * that a nurse or physician may be a servant of a hospital, thus requiring the application of the doctrine of respondeat superior even though they are performing professional acts. [Citations.]' (See Brown v. La Societe Francaise, supra, 138 Cal. 475, 71 P. 516; Guilliams v. Hollywood Hospital, 18 Cal.2d 97, 101-102, 114 P.2d 1.)
'Unless the evidence is susceptible of but a single inference, the question of agency is one of fact for the jury' or court sitting without a jury. (Seneris v. Haas, 45 Cal.2d 811, 831, 291 P.2d 915, 926; Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, 167, 41 Cal.Rptr. 577, 397 P.2d 161.)
[87 Cal.Rptr. 87]In holding that an X-ray laboratory was the ostensible agent of a college of chiropractics, the case of Stanhope v. L. A. Coll. of Chiropractic, 54 Cal.App.2d 141, 146, 128 P.2d 705, 708, stated: "An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.' (§ 2300, Civ.Code.) * * * Agency is always a question of fact for the jury. * * *'
But regardless of whether Dr. Southwood comes within the technical definition of agent, I feel there is sufficient reason to allow the appellant to have a court or jury pass on the issue of his compliance with the claims statutes and the statute of limitations.
In Warrington v. Charles Pfizer & Co., supra, 274 A.C.A. 619, 622-623, 80 Cal.Rptr. 130, 131-132, the court stated: 'However, analysis of some of the cases show that if the unawareness of the injury is induced by fraud, or there is some valid excuse for the ignorance [citation], or there is a lack of actual and perceptible trauma (thus in Rubino v. Utah Canning Co., 123 Cal.App.2d 18, 226 P.2d 163, cited for the strict rule--the fact was plaintiff ate canned peas and became violently ill almost immediately thereafter--immediate illness after food poisoning is perceptible trauma)--or in the case of insidious and creeping disease (Anderson v. Southern Pac. Co., 231 Cal.App.2d 233, 240, 41 Cal.Rptr. 743), the strict rule will not be applied. There is, too, a line of cases holding that when no perceptible trauma is involved, and there is a silent and insidious onset of the injury or its effects, the cause accrues only when there is knowledge or means of knowledge which should alert the injured. [Citations.]
'In addition, there appears to be a definite trend toward the discovery rule and away from the strict rule in respect of the time for the accrual of the cause of action for personal injuries. [Fn. omitted]
'In California, in compensation cases [citation], and in the Federal courts in the cases of insidious and creeping disease [citations] the strict rule which starts the running of the statute does not apply. Accrual date of the cause of action is postponed in cases involving medical [citations] insurance broker [citations]; and stock broker [citations] and certified accountant [citation] malpractice and misfeasance cases. The strict rule excerpted from Howe [Howe v. Pioneer Mfg. Co., 262 Cal.App.2d 330, 68 Cal.Rptr. 617] is, in various cases, relaxed for a variety of reasons, such as implicit or express representation; fraudulent concealment, fiduciary relationship, continuing tort, continuing duty, and progressive and accumulated injury, all of them excusing plaintiff's unawareness of what caused his injuries and all applying the rule of discovery.' (Emphasis added.)
It, of course, would be conceded that if the hospital and its staff concealed from the patient the seriousness of the consequences of his fall from the bed that such concealment and affirmative action on their part would preclude them from asserting that the claim was barred by the statute of limitations. Some jurisdictions have abandoned the requirement of affirmative conduct, holding that the fiduciary relationship imposes a duty of disclosure and mere silence in violation of this duty will also preclude the assertion of the statute. (See Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224, 228, 229 (citing cases).) I am in full accord with this view. Here the respondent hospital, after the fall, did nothing to alert appellant of the possibility of injury. While denying that Dr. Southwood was its agent, the hospital does not deny that it did nothing. I feel, therefore, that respondent hospital's declaration in support of the summary judgment failed to show that appellant discovered the injury or reasonably should have discovered it in a more timely fashion. The declaration of appellant discloses reasons excusing earlier discovery [87 Cal.Rptr. 88]of his cause of action. Respondent has not met or answered this issue as required under motions for summary judgment. (See Wilson v. Bittick, supra, 63 Cal.2d 30, 34-35, 45 Cal.Rptr. 31, 403 P.2d 159.)
The facts at trial may also reveal that respondent hospital had the duty to ascertain the extent of appellant's injury immediately after the fall by X-ray or other examination. This is a factual issue, just as implied concealment is a factual issue, not to be determined by summary procedures.
Statutes of limitations are statutes of repose protecting parties from the prosecution of stale claims where by loss of evidence and departure of witnesses it might be impossible to establish the truth. But by the same token, we cannot eliminate the presence of other important considerations, i. e., to insure that a party with a valid claim will be given an opportunity to present it.
In the instant case the respondent hospital undoubtedly has complete records concerning the fall, the symptoms before and after, the complaints and the treatment rendered. Whatever defense was available at the time of injury would still seem to be available now. (For decisions in other states see Billings v. Sisters of Mercy of Idaho, supra, 86 Idaho 485, 389 P.2d 224; Johnson v. St. Patrick's Hospital, 148 Mont. 125, 417 P.2d 469; Yoshizaki v. Hilo Hospital (Hawaii) 433 P.2d 220; Baker v. Hendrix, 126 W.Va. 37, 27 S.E.2d 275; Hinkle v. Hargens, 76 S.D. 520, 81 N.W.2d 888, 80 A.L.R.2d 368, 375.)
I conclude that the trier of facts may reasonably find that the accrual of appellant's cause of action was postponed until he discovered that the fall in the hospital caused his injury, and therefore that there was a timely filing of his claim and his action. The summary judgment of the trial court should be reversed.