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Dean Whitlow et al v. Robert A. Martin

August 30, 2011

DEAN WHITLOW ET AL., PLAINTIFFS AND APPELLANTS,
v.
ROBERT A. MARTIN, DEFENDANT AND RESPONDENT.



(Super. Ct. No. CVPO090000710)

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

Whitlow v. Martin

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this medical malpractice case, plaintiffs Dean Whitlow and his sister Candace Whitlow-Powell sent defendant Dr. Robert Martin an intent to sue notice pursuant to Code of Civil Procedure section 364, but failed to name Martin as a defendant in their subsequent complaint.*fn1 After the limitations period had expired, plaintiffs filed an amendment to their complaint naming Martin as a Doe defendant. Martin moved for summary judgment on the basis that the statute of limitations had run because plaintiffs failed to comply with the requirements of section 474 for naming unknown defendants. Martin argued plaintiffs were not actually ignorant of him as a defendant as required by section 474 because they had sent him notice of an intent to sue. We agree and affirm the judgment entered after the trial court granted Martin's motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

About 1:00 a.m. on August 24, 2008, Sandy Whitlow*fn2 screamed that her head hurt. She asked her adult son Dean to take her to the hospital. Sandy was in a lot of pain and crying. She vomited in the car on the way to the hospital and twice more at the hospital.

Sandy was not seen by a doctor at the Rideout Memorial Hospital (Rideout) until the shift change at 6:00 a.m. Dean assumed the doctor would perform tests, such as an X-ray or CAT scan, and the examination(s) would take some time. He told his mother to call when she was finished and he went home. Shortly after he arrived home, Sandy called and told him to come and pick her up from the hospital. Sandy was discharged with the diagnosis of a tension headache and given a prescription for Ibuprofen.

Dr. Karen Parker was the emergency room physician at Rideout that night. Her shift ended at 6:00 a.m. and she had no contact with Sandy. She was replaced as the emergency room physician by Martin. Martin made all the physician entries on Sandy's medical records. Despite the shift change, the medical records from Rideout incorrectly listed "Parker, Karen A., M.D." as Sandy's attending physician. The records were also stamped showing Parker as the doctor. The work release form and discharge instructions, however, were on forms correctly listing "Robert A. Martin, M.D." as the doctor.

When they returned home from the hospital, both Sandy and Dean went to bed. Later that day, Sandy went to the Gold Country Casino with friends although her head still hurt. That evening, Sandy was taken by ambulance to a hospital in Oroville. That hospital transferred her to the UC Davis Medical Center where she had emergency surgery. After surgery, the doctor said there was no chance to save her. She had suffered a brain hemorrhage. Sandy died shortly after midnight on August 26, 2008.

Dean was angry about the care Sandy received at Rideout. He felt someone had been negligent or had done something wrong. He planned to file a lawsuit even before his mother died. Dean contacted attorney Timothy Evans on behalf of himself and his sister, Candace Whitlow-Powell.

On January 5, 2009, Evans sent a 90-day intent to sue letter to Martin pursuant to section 364 (364 letter).*fn3 The 364 letter was addressed to both Martin and the Fremont Rideout Health Group and referenced Sandy. The 364 letter stated that Evans would file a claim for professional negligence against Martin "for professional negligence occurring on or about August 24, 2008, at Rideout Hospital. This claim will be on behalf of her heirs, George Dean Whitlow and Candace Powell, who will apply to represent her estate. Ms. Whitlow was in emergency surgery shortly after leaving your care, and died a day later." The 364 letter went on to say that Evans "would love to comply with CCP Section 364(b), but your indifference to two requests for records make that difficult, if not impossible." Copies of the 364 letter were sent to Dean and Candace and they both received them.

Evans referred the case to the Wilcoxen law firm who filed a complaint for medical malpractice and wrongful death on behalf of plaintiffs Dean and Candace on August 18, 2009. The complaint named Rideout Memorial Hospital, Karen A. Parker, M.D., and Does 1 through 50 as defendants. The complaint alleged: "Commencing on or about August 24, 2008, defendant KAREN A. PARKER, M.D. and DOES 11 through 25 were the treating physicians of Decedent. In the course of treatment and therapy, defendants, and each of them, knew, or in the exercise of reasonable care, should have taken appropriate medical measures and exercised reasonable medical care to discover that Decedent was severely and seriously ill, and despite this, defendants, and ...


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