(Super. Ct. No. 05AS00671)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Gabriela Gibson saw defendant Reinhardt Hilzinger as her primary care physician for over a year, during which period she suffered pain on her left side that she described as "kidney pain." After she learned that her left kidney had "died," she sued Hilzinger for medical malpractice. He asserted a statute of limitations defense. In a bifurcated trial, the jury found the defense was valid. Gibson moved for both a new trial and judgment notwithstanding the verdict.
Gibson appeals from denial of her motion for a judgment notwithstanding the verdict. She contends she did not know of her injury until she learned that her kidney had "died." We find Gibson was aware of her injury, commencing the statute of limitations, once it manifested as pain that she consistently described as kidney pain. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
During the 1990's, Gibson had suffered kidney stone problems but had not required surgery. In 1999, she suffered a stab wound that lacerated her spleen. In March of 2002, she had a kidney stone and was taken to Sutter Memorial Hospital. There she saw urologist Jong Chen who tried to blast the stone with a laser. That procedure did not work and he had to perform a basket removal of the stone through the ureter which required placing a stent. Gibson was hospitalized for much of the month to resolve the kidney stone problem. By April 1, 2002, Chen declared Gibson fine. He told her he would see her again if she had another kidney stone.
During April and May, Gibson saw her gynecologist for abdominal complaints. He advised her to see a specialist, a urologist. Gibson did not.
In August 2002, after Gibson obtained health insurance through a new employer, she saw Hilzinger as her new primary care physician. She saw Hilzinger several times through early 2004.
On October 31, 2003, Gibson saw Hilzinger for abdominal pain she had suffered off and on for several months. He ordered a CT scan, which was performed in November. The results of the scan showed Gibson's left kidney was "dead." Hilzinger referred Gibson to a urologist, who removed her left kidney.
The following year, on October 7, 2004, Gibson sent Hilzinger and Chen a notice of intent to sue for medical malpractice pursuant to Code of Civil Procedure section 364.*fn1
On February 15, 2005, Gibson filed suit against Hilzinger and Chen for medical malpractice.*fn2 The suit alleged defendants "so negligently failed to exercise the proper degree of knowledge and skill in examining, diagnosing, treating, informing and caring for plaintiff, such that plaintiff was caused to suffer the damages herein alleged, including but not limited to the permanent loss of her left kidney."
Hilzinger answered with a general denial. He asserted various affirmative defenses, including the statute of limitations of section 340.5. He moved for a separate trial on this defense, which the court granted as required by section 597.5.*fn3
The parties agreed the crucial date for commencing the one-year statute of limitations of section 340.5 was October 6, 2003, one year before Gibson sent the section 364 notices. This date was included in the special verdict form. The parties also agreed on the jury instructions.
At trial, Hilzinger sought to prove his statute of limitations defense by showing Gibson was aware of her kidney problem and was upset and frustrated with his care, and thus suspected negligence, well before October 6, 2003. The primary evidence offered to establish these facts were entries Gibson had made on calendars in 2002 and 2003 about her medical condition and contacts with Hilzinger. Gibson had kept a calendar since high school as a way to get organized and keep on track. These calendars were admitted into evidence by stipulation. Her testimony explained those entries.*fn4
On August 29, 2002, Gibson wrote: "Dr. Hilzinger, 9 a.m. Dr. Appointment. Need to see kidney specialist." After the visit, she wrote that Hilzinger gave her a urine test and lab work for blood. Gibson testified she went to Hilzinger to establish a doctor-patient relationship; she claimed it was his decision whether she needed to see a specialist. She did not know if she needed to see a specialist and Hilzinger did not refer her to one.
The entry on September 10, 2002 read: "10:40 a.m. Called Dr. Hilzinger. Left message. Pain left back to front." Later she wrote, "he didn't call." According to Gibson, it never occurred to her that this pain might be related to her kidney.
The next medical entry was October 9, 2002. Gibson wrote: "12:00 Dr. Hilzinger for pain left kidney." Below that she wrote: "Got message the doctor is not in today" and drew a sad face. She maintained that she did not know what to believe about her pain; she just knew it was in the area of the kidney. Gibson testified that on her first visit, Hilzinger told her the pain was due to scar tissue from her stab wound.
The October 17, 2002 entry read: "2:30 I went to Dr. Hilzinger. Vomit, dizziness, diarrhea, headache. He told me I have a virus."
The November 13, 2002 entry was: "12:00 Dr. Hilzinger. Rash, gain weight. He send me to lab for blood work."
Gibson did not see Hilzinger for a few months. The next calendar entry relating to medical issues was on March 20, 2003. It read: "Sick. Left side pain." There was an arrow with the word "off" pointing to the 21st. The pain was the same as before: on the left side of the abdomen going around back to where the kidney was. Gibson missed work and saw Hilzinger. The calendar entry for March 21, 2002 read: "1:45 Dr. Hilzinger. Stomach upset. Pain left side back. Vomit. The doctor told me I have gastritis." Gibson testified she told Hilzinger about her left side pain but he did nothing to address a kidney problem and did not refer her to a specialist.
In early June 2003, Gibson saw Hilzinger for a headache and pain in her right knee.
The next medical entry on Gibson's calendar was June 11, 2003. It read: "9:00 p.m. Pain on left side of abdomen from the front to the back. Tomorrow to call Dr. Hilzinger to let him know." She called Hilzinger the next day, but did not receive a return call.
On June 17, 2003, Gibson wrote on her calendar: "Pain in the back where my kidney is." The next day's entry was: "9:18 a.m. called Dr. Hilzinger. No call." The final entry for June 2003 was on the 27th: "Kidney--left pain when I bend down." She claimed she wrote "kidney" because that was the area of the pain but she did not think the pain was related to her ...