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Beverly Vineyard v. Shasta Orthopedic & Sport Medicine et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)


August 17, 2011

BEVERLY VINEYARD, PLAINTIFF AND APPELLANT,
v.
SHASTA ORTHOPEDIC & SPORT MEDICINE ET AL., DEFENDANTS AND RESPONDENTS.

(Super. Ct. No. 164985)

The opinion of the court was delivered by: Mauro , J.

Vineyard v. Shasta Orthopedic and Sport Medicine

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Beverly Vineyard sued defendant Shasta Orthopedic & Sport Medicine (Shasta Orthopedics) and defendant Gary Hartland for negligence following treatment of broken wrists. The trial court granted defendants' motion for summary judgment on the ground that the action is time-barred, and plaintiff appeals the judgment of dismissal.

The undisputed facts establish that Ms. Vineyard had sufficient information on June 21, 2007, to put her on inquiry notice that defendants may have caused her further injury. Under the applicable limitations period, plaintiff was required to file her lawsuit against defendants within one year, or by June 20, 2008. Because she delayed until December 12, 2008, her lawsuit was untimely. We will affirm the judgment.

BACKGROUND

The following facts are undisputed. On October 26, 2005, plaintiff fell at home and injured herself. Immediately after the fall, plaintiff's sister took her to a hospital emergency room where X-rays revealed plaintiff had broken both wrists. Plaintiff was given pain medication, her left arm was put in a sling, and she was told to follow up with defendant Shasta Orthopedics.

The next day, plaintiff had her first visit at Shasta Orthopedics, where she was seen by physician assistant Gary Hartland. Hartland worked with plaintiff throughout the course of her treatment at Shasta Orthopedics. Shasta Orthopedics' records show a determination was made to proceed with non-surgical treatment, to maintain a cast on plaintiff's left wrist, and to follow up again in one week.

By November 1, 2005, her third visit to Shasta Orthopedics, plaintiff's right wrist had improved to the point that she was nearly pain free, but her left wrist continued to trouble her. She returned to Shasta Orthopedics twice in November 2005, and twice in December 2005. By December, plaintiff recognized that she "wasn't getting better" and she was "concerned about how [Hartland had] been handling [her] case up to this point."

By the time of her January 25, 2006, visit to Shasta Orthopedics, her left wrist was still painful and, in fact, she felt it had gotten worse, because of the pain and how her wrist and arm looked and were positioned. She decided to call Dr. Richard N. Cross, an orthopedic surgeon who had previously treated her for a shoulder injury.

Dr. Cross examined and X-rayed plaintiff's wrist on March 23, 2006. Dr. Cross noted that, since her injury, plaintiff had developed persistent pain and "significant deformity" to her left wrist following treatment at Shasta Orthopedics and was very unhappy with how her wrist looked and functioned. He told plaintiff this type of fracture is difficult to treat without surgery and that she needed surgery. When plaintiff asked Dr. Cross how he would have handled her wrist care at the outset, he responded he would have recommended surgery. "Due to the deformity and dysfunction of [plaintiff's] wrist and hand[,]" Dr. Cross ultimately recommended plaintiff be examined by an orthopedic hand specialist, Dr. Tortosa, for evaluation, and plaintiff agreed.

Plaintiff was examined on April 11, 2006, by Dr. Tortosa; he recommended reconstructive surgery to her wrist. Surgery proceeded on May 10, 2006. Dr. Tortosa performed more surgery on plaintiff's wrist on October 23, 2006 and April 25, 2007.

Plaintiff consulted and retained an attorney on June 21, 2007. She later testified she retained the attorney "[b]ecause [she] really wanted to find out what had happened" concerning her treatment and prognosis. During her first meeting with the attorney, plaintiff told him that her wrist had been causing her problems for too long. The attorney agreed to investigate. He sent a letter to Dr. Cross and requested copies of plaintiff's medical records.

Plaintiff's counsel sent copies of her medical records to another orthopedic surgeon for review. On or about July 5, 2008, plaintiff was told by her attorney that "the expert believes [her] pain was from a failure to properly set the fracture."

Plaintiff filed the instant action for negligence against Shasta Orthopedics*fn1 and Hartland on December 12, 2008, alleging they misdiagnosed and/or mistreated plaintiff's wrist injury, resulting in "malunion" of the fracture of her left wrist.

Defendants moved for summary judgment on the ground that plaintiff failed to file her complaint within one year after she discovered, or through the use of reasonable diligence should have discovered, her injury. (Code of Civ. Proc., §§ 437c, subd. (c), 340.5; further statutory references are to this code.) Specifically, defendants argued plaintiff had enough information to put a reasonable person on notice that she may have a cause of action for medical malpractice that should be investigated when she saw Dr. Cross in March 2006. She was not satisfied with the care she had received at Shasta Orthopedics, she was unhappy with the continued pain in her wrist and the appearance of her wrist, and she was told by Dr. Cross that he would have suggested a different course of treatment that would have included surgery.

Defendants added that in any event, plaintiff certainly suspected in June 2007, when she retained counsel, that she had been improperly treated. At that point she already had corrective surgery and possessed knowledge of facts that would have put a reasonable person on inquiry, or had the opportunity to obtain knowledge about her condition. Defendants argued that, pursuant to section 340.5, plaintiff had no more than one year from the date she retained counsel in June 2007 to bring her lawsuit against defendants. But because she waited until December 12, 2008 to file her complaint, the action was time-barred.

In opposition to the motion for summary judgment, plaintiff asserted she did not discover that defendants did anything wrong until July 2008, when she learned from the expert retained by her counsel that defendants failed to properly set her fractured wrist. She submitted portions of her deposition testimony in which she testified that, when she was examined by Dr. Cross, he said nothing critical of the treatment she had received at Shasta Orthopedics, although she did not ask his opinion because she knew "one doctor doesn't talk against another doctor." Nor did Dr. Tortosa ever discuss with plaintiff the treatment she had received at Shasta Orthopedics.

The trial court granted defendants' motion for summary judgment and entered judgment of dismissal. The trial court determined that plaintiff's action was barred by the one-year discovery rule set forth in section 340.5, because the undisputed "facts and circumstances would put a reasonable person on inquiry and alert that . . . investigation was necessary" by June 21, 2007, when plaintiff retained counsel. The trial court ruled that the fact plaintiff retained an expert but did not receive that expert's opinion until one year later did not toll the statute of limitations, because the record does not show plaintiff could not have reasonably discovered the information within one year of her first consultation with counsel.

STANDARD OF REVIEW

Our review following a grant of summary judgment is de novo. (Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1292.) We "apply the same rules and standards that govern a trial court's determination of a motion for summary judgment. [Citation.]" (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1258.) Summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).) "The papers are to be construed strictly against the moving party and liberally in favor of the opposing party; any doubts regarding the propriety of summary judgment are to be resolved in favor of the opposing party." (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112.)

"'[A] defendant moving for summary judgment has the burden to show that the plaintiff cannot establish at least one element of his cause of action, "or that there is a complete defense to that cause of action." [Citations.] Once the defendant meets this burden, the burden shifts to the plaintiff to show "that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." [Citation.]'" (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 223; Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1301; § 437c, subd. (p)(2).)

We do not defer to the trial court's ruling, but if the ruling is correct on any legal theory, we will affirm the judgment. (Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 1517.)

DISCUSSION

A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (§ 312.) A cause of action accrues when it is complete with all its elements. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807 (Fox).)

Section 340.5 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 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." The trial court applied the one-year provision of section 340.5, commonly referred to as the "discovery rule." The discovery rule "only delays accrual [of the cause of action] until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have '"'information of circumstances to put [them] on inquiry'"' or if they have '"'the opportunity to obtain knowledge from sources open to [their] investigation.'"' [Citations.] In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation." (Fox, supra, 35 Cal.4th at pp. 807-808, fn. and italics omitted.)

The patient is "'charged with "presumptive" knowledge of his negligent injury, and the statute commences to run, once he has "'notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation . . . .'" [Citation.] Thus, when the patient's "reasonably founded suspicions [have been aroused]," and [he] has actually "become alerted to the necessity for investigation and pursuit of [his] remedies," the one-year period for suit begins. [Citation.]'" (Artal v. Allen (2003) 111 Cal.App.4th 273, 279, italics omitted; see also Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-897 ["The patient is charged with 'presumptive' knowledge of his negligent injury, and the statute commences to run, once he has '"notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation,"'" italics omitted].)

The term "injury," as used in section 340.5, is defined as one's physical condition and its negligent cause. (Gutierrez v. Mofid, supra, 39 Cal.3d at p. 896.) Thus, "once a patient knows, or by reasonable diligence should have known, that he has been harmed through professional negligence, he has one year to bring his suit." (Ibid.)

Application of the statute of limitations, including the question of belated discovery, is usually a factual issue to be decided by a trier of fact. (Fox, supra, 35 Cal.4th at p. 810; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 (Jolly).) However, "where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. [Citation.]" (Jolly, supra, at p. 1112; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487.)

Here, it is undisputed that, when plaintiff retained counsel on June 21, 2007, she knew her right wrist had healed but her left wrist had not. She was concerned about the care she had received from defendants. During defendants' treatment, plaintiff's left wrist had become deformed and did not function well. She continued to experience significant pain. Dr. Cross said plaintiff's fracture was of a type difficult to treat without surgery, and he would have recommended surgery at the outset. Moreover, Dr. Tortosa had already performed several surgeries on plaintiff's left wrist by the time she retained counsel.

Thus, by June 21, 2007, plaintiff had enough information to put her on inquiry notice that an act or omission by defendants had caused her further injury. She is legally charged with knowledge of the information that would have been revealed by timely investigation. (See Fox, supra, 35 Cal.4th at pp. 807-808.)

Under the applicable limitations period, plaintiff was required to file her lawsuit against defendants by June 20, 2008. Because she delayed until December 12, 2008, her lawsuit was untimely.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur: HULL , Acting P. J. ROBIE ,J.


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