The Court of Appeal of the State of California Fifth Appellate District (“California Appellate Court”) affirmed in its opinion filed on March 4, 2020 the trial court’s grant of a new trial to the California medical malpractice plaintiff, stating “we agree with the trial court that granting summary judgment in favor of [the defendant spine surgeon] on statute of limitations grounds constituted an error of law. We affirm the trial court’s order granting plaintiffs’ motion for a new trial.”
The plaintiff underwent carpal tunnel surgery and shoulder surgery on April 22, 2013. Early the next morning, she became paralyzed and sought emergency treatment. A spine surgeon performed a spinal decompression surgery on the plaintiff on May 30, 2013, after which she did not recover a substantial amount of function.
On June 9, 2014, the plaintiff filed her California medical malpractice lawsuit against various defendants, but not the surgeon who performed her spinal decompression surgery. In July 2015, the plaintiff obtained through discovery medical charts and imaging which she sent to a retained neurosurgical expert. The plaintiff’s neurosurgical expert opined that the surgeon who performed her spinal decompression surgery breached the standard of care by delaying the plaintiff’s surgery from April 23, 2013, when she was first examined by the spine surgeon, until May 30, 2013.
On July 24, 2015, based on the expert’s opinion, the plaintiff amended her California medical malpractice complaint, adding the spine surgeon as a defendant. The defendant spine surgeon subsequently filed a motion for summary judgment on the ground that the plaintiff’s claims against him were barred by the applicable statute of limitations, which motion the trial court granted. The plaintiff subsequently filed a motion for a new trial, asserting that the grant of summary judgment was based on an error of law in the application of the delayed discovery rule. The trial court agreed with the plaintiff and granted the motion for a new trial, vacating and effectively reversing its previously issued summary judgment in favor of the spine surgeon. The defendant spine surgeon then appealed.
Delayed Discovery Rule
Section 340.5 sets forth the California statute of limitations for medical malpractice actions and states in relevant 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 the injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first … ”
California Appellate Court Opinion
The California Appellate Court stated, “Under the one-year limitation period of section 340.5, the plaintiff must bring suit within one year after he or she discovers, or should have discovered, his or her injury. However, a plaintiff need not be aware of either the specific facts or the actual negligent cause of the injury … If the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry notice, the limitation period is activated … There is, however, no bright-line rule that when a plaintiff has cause to sue based on knowledge or suspicion of negligence, the limitation period begins to run as to all potential defendants, regardless of whether those defendants are alleged as wrongdoers in a separate but related cause of action … If “a plaintiff’s reasonable and diligent investigation discloses only one kind of wrongdoing when the injury was actually caused by tortious conduct of a wholly different sort, the discovery rule postpones accrual of the statute of limitations on the newly discovered claim.””
The California Appellate Court stated, “The limitation period of section 340.5 may commence, as a matter of law, once appreciable harm unambiguously manifests which causes actual suspicion of wrongdoing … unsatisfactory outcomes or naturally occurring side effects are not necessarily sufficient as a matter of law to place a person on inquiry notice of a defendant’s wrongdoing. In other words, even when there is an appreciable manifestation of harm, that harm may not necessarily cause any suspicion of wrongdoing … Even a strongly developed suspicion of wrongdoing, standing alone, will not necessarily commence the statute of limitations when there is a factual dispute whether that suspicion was linked to any appreciable harm.”
The California Appellate Court stated, “the term “injury” as used in section 340.5 is a term of art—it signifies both the negligent cause and the damaging effect (appreciable harm) of the wrongful act, and not necessarily the ultimate injury suffered … Thus, the one-year limitation period under section 340.5 requires the plaintiff to file a claim within one year of discovering appreciable harm and is, or should be, suspicious of wrongdoing as to the cause of that harm.”
In the case it was deciding, the California Appellate Court stated, “The persistence of [the plaintiff’s] symptoms during [the defendant spine surgeon’s] care, without more, does not trigger the statute of limitations as a matter of law … whether plaintiffs should have linked the persistence of [the plaintiff’s] symptoms to wrongdoing by [the defendant spine surgeon] is a factual question—there is evidence from which it can be inferred plaintiffs reasonably did not link [the plaintiff’s] symptoms to any wrongdoing by [the defendant spine surgeon].” [“Again, at the time [the plaintiff] sought care with [the defendant spine surgeon] she already suffered from paralysis and loss of sensation. Until July 2015, no one told plaintiffs that [the plaintiff’s] symptoms would be relieved with surgery, or that the surgery should have been performed more quickly for better results. Other than the April 24, 2013, chart note that [the plaintiff’s] lower extremities were losing function, which should have, according to [the plaintiff’s neurosurgical expert], signified a surgical emergency, there is no evidence [the plaintiff’s] condition worsened while she waited for the spinal surgery … Moreover, simply because [the defendant spine surgeon’s] treatment did not resolve or more fully mitigate [the plaintiff’s] injuries did not, in itself, place plaintiffs on inquiry notice that [the defendant spine surgeon] provided negligent care.”]
“Here, it is disputed when there was an appreciable manifestation of harm after [the defendant spine surgeon] started providing medical care to [the plaintiff]. The persistence of [the plaintiff’s] symptoms was not necessarily an appreciable manifestation of harm from [the defendant spine surgeon’s] treatment. There is no evidence [the plaintiff’s] symptoms worsened during the five weeks she waited for the spinal surgery, nor is there evidence a certain level of improvement was an expected or a promised result of the spinal decompression surgery … In fact, [the plaintiff] experienced some small improvements after [the defendant spine surgeon’s] spinal surgery.”
The California Appellate Court stated, “The harm resulting from medical treatment may not always be objectively appreciable to the layperson, thus its discovery may be delayed until someone with expertise uncovers it.”
Source Brewer v. Remington, F076467.
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