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Gabriela Gibson v. Reinhardt Hilzinger

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


October 26, 2011

GABRIELA GIBSON, PLAINTIFF AND APPELLANT,
v.
REINHARDT HILZINGER, DEFENDANT AND RESPONDENT.

(Super. Ct. No. 05AS00671)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I

Gibson's Medical History

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.

II

The Lawsuit and Trial

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 kidney. She testified that the pain was different than the pain she had suffered from kidney stones.

The calendar entry for July 9, 2003 read: "Pain on the left to the back towards the kidney. I called Dr. Hilzinger, but he didn't call me back. 12:59 p.m. and 3:04 p.m." She called his office twice that day. The next day she called again and left a message. She testified she did not know what to believe. She was frustrated with how she felt and her off and on symptoms. "I was mad with the whole situation." At this time the pain was getting worse and more frequent, but she denied that she thought she was not getting the care she needed.

The entry for July 19, 2003 read: "Pain towards left kidney when I bend down." Again, Gibson claimed it never occurred to her that this pain was from her kidney. She made an appointment with Hilzinger for July 29, but the appointment was cancelled.

On August 7, 2003, Gibson wrote: "Left kidney hurts again." Her appointment with Hilzinger on August 12 was cancelled because he had an emergency. She called on August 14 to reschedule but received no return call. Although the pain was getting worse and more frequent and she could not get in to see the doctor, Gibson testified she was not mad at Hilzinger. She had put her trust in him. "He was my doctor." She was upset at the whole situation, but not with Hilzinger's office.

The next day, August 15, 2003, Hilzinger's office called and scheduled an appointment. On August 17, Gibson wrote on her calendar: "When I bend down I have pain towards the left kidney and cramps." She saw Hilzinger on the August 19. She wrote: "Dr. Hilzinger 4:00 p.m. Went to Dr. Hilzinger for appointment for pain, kidney, diarrhea." She told him she was having pain on the left from her abdomen to her back where the kidney is. She told Hilzinger that her kidney was hurting. He gave her some pain medication but it did not help the left kidney pain.

On August 25, 2003, Gibson noted "left kidney pain." She had an appointment with Hilzinger on August 27. At trial she could not recall if she saw him then.

The next calendar entry relating to her kidney was October 6, 2003: "Pain to left kidney. Called Dr. Hilzinger. He didn't call me back." There were several other entries in October for sharp kidney pain. At the end of the month, the CT scan was ordered. On November 20, 2003, Hilzinger told Gibson her left kidney was "dead."

Gibson denied that by October 2003 she had been mad or upset for several months about the lack of proper medical care. To impeach this testimony, a portion of her deposition was read. In her deposition, Gibson testified that by October 2003 she had been frustrated for six to nine months about not getting the care she needed.

Hilzinger testified he had reviewed Gibson's medical records and the first time she complained of left flank or abdominal pain was October 31, 2003, when he ordered a CT scan. That date was also the first time she mentioned her prior stab wound.

Hilzinger testified about Gibson's various visits and his treatment, but repeatedly denied Gibson had told him she was experiencing abdominal pain before October 31, 2003.

The jury unanimously answered "yes" to the two questions on the special verdict form. The first question asked: "Did plaintiff Gabriela Gibson discover or through the use of reasonable diligence should she have discovered her physical injury on or before October 6, 2003?" The second question asked: "Did plaintiff Gabriela Gibson discover or through the use of reasonable diligence should she have discovered the wrongful cause of her physical injury on or before October 6, 2003?"

The court entered judgment on the special verdict.

III

Posttrial Motions

Gibson moved for judgment notwithstanding the verdict and for a new trial. The court denied both motions.

Gibson appealed from the order denying the motion for judgment notwithstanding the verdict. (§ 904.1, subd. (a)(4).)

DISCUSSION

I

Standard of Review

Gibson's notice of appeal cites section 904.1, subdivision (a)(4), indicating her appeal is from only the denial of her motion for judgment notwithstanding the verdict.*fn5 "A trial court must render judgment notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted. (Code Civ. Proc., § 629.) A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. [Citation.]" (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) "As in the trial court, the standard of review is whether any substantial evidence--contradicted or uncontradicted--supports the jury's conclusion. [Citations.]" (Ibid.)

II

Statute of Limitations

The statute of limitations for medical malpractice actions is found in section 340.5. The statute provides, in pertinent 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."

This statute of limitations for actions against health care providers contains two periods of limitation--a three-year period and a one-year period. A plaintiff must meet both. (Rose v. Fife (1989) 207 Cal.App.3d 760, 767-768.) Here the parties agree the one-year statute of limitations is at issue.

Under the discovery rule of section 340.5, "the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing . . . ." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) "This rule sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing. [Citation.] The first to occur under these two tests begins the limitations period." (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.) "A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1111.)

For purposes of section 340.5, "[t]he word 'injury' signifies both the negligent cause and the damaging effect of the alleged wrongful act and not the act itself. [Citation.]" (Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 54.) There must be some manifestation of appreciable harm. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 437, fn. 8.) The injury need not, however, be the ultimate harm suffered. (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762 (Hills).) While damage that does not show itself, such as cancer, is not injury until it is diagnosed, "[i]t does not follow, however, that damage which has clearly surfaced and is noticeable is not 'injury' until either the plaintiff or her physician recognizes it." (Marriage & Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1654.) A plaintiff need not discover the actual organic cause of the injury to commence the statute of limitations. (McNall v. Summers (1994) 25 Cal.App.4th 1300, 1311 (McNall).)

III

Substantial Evidence of Gibson's Awareness of Injury

Gibson contends she had no knowledge of her injury until Hilzinger told her the results of the CT scan.*fn6 She claims that because the injury was to a complex internal organ, there was no outward physical manifestation. She contends there was no competent evidence, nor could there be without expert testimony, that she experienced any physical manifestation of a "dead" kidney.

Gibson's argument is premised on the assertion that for purposes of the statute of limitations, her injury was her "dead" kidney.

Hilzinger contends Gibson discovered, or through the use of reasonable diligence should have discovered, her injury when she became aware of her kidney pain. He asserts Gibson's awareness of kidney pain was a physical manifestation of his alleged failure to evaluate and treat her kidney, and thus was sufficient to put Gibson on notice of her ultimate kidney injury.

A number of cases have considered when a plaintiff became aware of her injury. Because this issue usually arises in the context of the three-year statute of limitations of section 340.5 (see fn. 6, ante), where the issue is solely the date of injury, most of these cases involve the three-year statute of limitations. Several cases have found a plaintiff was aware of injury, sufficient to commence the statute of limitations, when she first suffered pain or other outward manifestation of the injury.

In Hills, supra, 152 Cal.App.3d 753, plaintiff had received silicone injections in her breasts, administered by defendant. Several years later she noticed lumps in her breasts and experienced soreness. She consulted another physician and learned the cause was the silicone injections. A year later she was diagnosed with silicone granulomatosis and subsequently had a bilateral mastectomy and reconstructive surgery. She then sued defendant for negligent injection of silicone into her breasts. (Hills, supra, at pp. 756-757.) The trial court granted the doctor's motion for summary judgment on the basis that the action was time-barred. (Id. at p. 757.)

On appeal, the court found a triable issue of fact as to when plaintiff learned the negligent cause of her harm, as required to trigger the one-year statute of limitations. (Hills, supra, 152 Cal.App.3d at p. 760.) It found, however, that plaintiff failed to meet the three-year limitations period because she failed to file suit within three years from the date of injury. After considering four possible definitions of injury, the court found "injury" for this purpose meant "the damaging effect of the wrongful act." (Id. at pp. 759, 762.) Plaintiff had suffered injury four years before filing suit when she first experienced soreness and noticed lumps in her breasts which caused her to consult a physician. (Id. at p. 762.)

In McNall, supra, 25 Cal.App.4th 1300, plaintiff underwent electroconvulsive therapy (ECT) as treatment for depression. She then suffered severe confusion and memory loss and years later was diagnosed as having suffered a stroke during the ECT treatment. (McNall, supra, at pp. 1304-1306.) The court found plaintiff's "serious and continuous memory loss" constituted injury for purposes of triggering the three-year limitations period even if she did not discover "the actual organic injury" that caused the memory loss. (Id. at p. 1311.)

In Garabet, supra, 151 Cal.App.4th 1538, plaintiff suffered numerous symptoms, including cloudy vision, dryness, double vision and loss of visual acuity and sharpness, within weeks of lasik surgery. Almost seven years later, another doctor told plaintiff his vision problems were due to the lasik surgery; because of the shape of his cornea, he should not have been considered a candidate for surgery. (Garabet, supra, at p. 1542.) Plaintiff then brought suit for medical malpractice. (Id. at p. 1543.) The appellate court found plaintiff suffered injury--damaging effects and appreciable harm--almost immediately after surgery, and he associated these effects with the treatment. Because he failed to bring suit within three years of his manifest injury, his suit was time-barred. (Id. at p. 1550.)

Other cases, upon which Gibson relies, have found no injury until a diagnostic test revealed the nature of the injury.

In Steingart v. White (1988) 198 Cal.App.3d 406 (Steingart), plaintiff sued her physician for failing to diagnose breast cancer after she discovered a lump in her breast. The court concluded plaintiff suffered no appreciable harm or damaging effect from the alleged negligence until she was diagnosed with cancer following a lumpectomy. (Steingart, supra, 198 Cal.App.3d at p. 414.) The court reasoned the lump was "not a clear indication of injury"; further, distinguishing the plaintiff in Hills, here plaintiff was not advised that the lump was the result of an earlier treatment, but instead was repeatedly told the lump was non-threatening. (Steingart, supra, at p. 415.)

In Artal v. Allen (2003) 111 Cal.App.4th 273 (Artal), plaintiff suffered severe throat pain almost immediately after pelvic surgery. Over the next 18 months, she saw at least 20 specialists and received numerous possible diagnoses. (Artal, supra, 111 Cal.App.4th at p. 276.) Although she suspected the pain was due to some trauma during intubation for anesthesia during the surgery, plaintiff did not file suit for more than two years, until after exploratory surgery revealed her thyroid cartilage was fractured. (Artal, supra, at pp. 276-277.) The trial court found the medical malpractice suit barred by the one-year statute of limitations. (Id. at p. 277.) The appellate court reversed because there was no evidence plaintiff "knew, or by reasonable diligence could have known, that the throat pain was caused by professional negligence." (Id. at p. 280.) "[T]he necessary facts could not be ascertained without exploratory surgery." (Id. at p. 281.)

Artal is of no assistance to Gibson because it presented a different legal question--a different aspect of injury--than that presented here. The issue in Artal was when plaintiff discovered the negligent cause of her injury, rather than discovery of her physical condition. (Artal, supra, 111 Cal.App.4th at pp. 278, 280-281.) Here, we are concerned with the date Gibson was, or through reasonable diligence should have been, aware of the physical condition of her injury.

This case is analogous to Hills, McNall and Garabet, not Steingart. The evidence produced at trial established that Gibson was aware of an injury, that is, the damaging effect or appreciable harm of Hilzinger's alleged negligence, well before October 6, 2003. While the actual deterioration and eventual "death" of her left kidney--the ultimate harm--may have been hidden, for months prior to October 6, 2003, she had suffered repeated and severe pain in the area of her kidney. Pain may be a physical manifestation of an injury. (See Graham v. Hansen (1982) 128 Cal.App.3d 965, 974.) That pain was similar to the breast soreness and lump in Hills, the memory loss in McNall, and the vision problems in Garabet. The breast lump in Steingart is distinguishable because "such a condition is not a clear indication of injury, either damaging effect or appreciable harm." (Steingart, supra, 198 Cal.App.3d at p. 415.)

IV

Expert Testimony

Gibson argues that pain alone did not make her aware of an injury to her kidney, just as a headache alone does not necessarily alert one to a brain tumor. She contends Hilzinger was required to present expert testimony linking her pain to her ultimate kidney injury.

Generally, in a medical malpractice case, both the standard of care and defendant's breach must be established by expert testimony, unless the conduct in question is within the common knowledge of laypersons. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467 and fn. 1.)

The issue here, however, is not causation, but the physical manifestation of injury. Certainly, pain as a physical manifestation of injury is within the common knowledge of laypersons and requires no expert testimony. Gibson provides no authority that the precise nature of the injury must be established. Such authority is lacking because plaintiff need not know the ultimate harm or diagnosis--only the fact of injury. (Hills, supra, 152 Cal.App.3d at p. 762.) As explained at length ante, the plaintiff did not know her breast soreness indicated silicone granulomatosis in Hills and plaintiff did not know her memory loss indicated stroke in McNall.

Moreover, the evidence showed that Gibson knew considerably more than simply that she was in pain. Gibson knew that in March 2002, she had undergone extensive medical procedures, requiring weeks of hospitalization, to remove a kidney stone. A month or two later, when she first complained to her gynecologist about abdominal pain, he had advised her to see a urologist. She did not. After she began seeing Hilzinger as her physician, Gibson had recurring pain she described in her calendar entries, as "kidney pain" or that her "kidney hurt." She also believed, for several months prior to October 6, 2003, according to her deposition testimony, that despite her many complaints of such pain to Hilzinger, he was not treating it and not providing appropriate care. Thus, well before October 6, 2003, Gibson suspected "that someone ha[d] done something wrong" to her (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1110), and the statute of limitations commenced.

Substantial evidence supports the finding that Gibson was aware of the physical manifestation of her injury prior to October 6, 2003.

V

Continuing Physician-Patient Relationship

Gibson contends she did not discover Hilzinger's negligence until November 20, 2003, when she learned the results of the CT scan. She relies on the rule that the diligence required of a patient to learn the negligent cause of her condition is diminished while she continues to treat with the defendant physician. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102; Rawlings v. Harris (1968) 265 Cal.App.2d 452, 456.) Gibson contends that while she was frustrated with her condition, she did not lose confidence in Hilzinger as her physician until after the CT scan.

Gibson did not raise this point in her motion for judgment notwithstanding the verdict, nor did she raise any challenge to the jury's finding that she knew of Hilzinger's negligence before October 6, 2003. Thus, this contention is forfeited. "It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal. [Citations.]" (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3.)

Even if this claim were not forfeited, it is without merit. While Gibson claimed at trial that she continued to trust Hilzinger and was frustrated only with her condition, substantial evidence supports the jury's finding that she knew of his alleged negligence before October 6, 2003.

In her deposition, which was read at trial, Gibson testified she was frustrated with the care she received. She complained Hilzinger failed to order the proper tests to determine what was going on inside of her body, instead blaming her problem on her stab wound. He gave her pain medication, but it did not help. Her frustration continued until October when she threatened to leave his office if he did not refer her for a scan. She testified that, by October 2003, she had been frustrated with Hilzinger's failure to secure for her the care she needed for six to nine months.

Further, Gibson testified that in July and August 2003, she continued to have pain in her left kidney, but was unable to get an appointment with Hilzinger. Her calls were not returned, and twice her appointments were cancelled. From this testimony, despite Gibson's claims that she still trusted Hilzinger, the jury could conclude that she "suspect[ed] or should [have] suspect[ed] that her injury was caused by wrongdoing, that someone ha[d] done something wrong to her." (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1110, fn. omitted.)

DISPOSITION

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

I concur: NICHOLSON , J. RAYE, P.J., Dissenting.

There is something amiss when a trial court gives greater credence to a patient's own assessment of her physical ailments than to the diagnosis of her personal physician. The majority opinion approves this odd role reversal. I respectfully dissent.

Appellant Gabriela Gibson first saw respondent Reinhardt Hilzinger on August 29, 2002, after she picked him as her primary care physician following a change in health care providers. She told respondent about her kidney stone operation the previous March, and if her testimony is believed, she provided him with her medical records. Over the next year or so, she consulted respondent on various occasions and reported a variety of symptoms, none of which, according to respondent, suggested kidney problems. Ultimately, the death of her kidney was discovered following a CT scan respondent claims he ordered to rule out abdominal disorders suggested by appellant's complaint of abdominal pain during a visit on October 31, 2003.

It is doubtful that respondent could be held liable for malpractice if respondent's account of his interactions with appellant is believed. Of course appellant's account differs, and it is a measure of how strange this case truly is that, for purposes of the trial on the statute of limitations and for purposes of this appeal, respondent has warmly embraced appellant's recollections of her various symptoms. In multiple diary entries she describes "kidney pain," and respondent treats this description as an iron-clad diagnosis of her condition, announced months before the CT scan that revealed her dead kidney. Ironically, appellant's account of her doctor visits, bolstered by her diary entries, all of which would provide valuable support for her malpractice claims at trial of the case-in-chief, will never be considered because the same evidence has been held to trigger the running of the shortened one year statute of limitations.

This outcome is neither compelled nor supported by Code of Civil Procedure section 345 (section 345). The holding fails to appreciate that there are two different types of medical malpractice and the differences must be taken into account in applying section 345.

In the usual medical malpractice case a physician is alleged to have performed a procedure that caused injury to the patient. There are many published opinions, several cited by the majority, holding that in such an instance, a patient, upon sensing that something is awry, which is to say when the injury manifests itself, has an obligation to investigate, determine the source of the injury, and file suit if it appears that the procedure was negligently performed. The discovery rule, set forth in section 345, has its clearest and cleanest application in such a circumstance where cause and effect can be clearly discerned without the aid of expert opinion.

The present case is not the usual case and the cases that the majority believe to be analogous are anything but. Appellant's allegations bear no resemblance to those in Hills v. Aronsohn (1984) 152 Cal.App.3d 753, where the allegations of malpractice concerned complications from silicone breast injections administered by the defendant, or McNall v. Summers (1994) 25 Cal.App.4th 1300, where the physician administered electroconvulsive therapy as treatment for depression and the plaintiff suffered memory loss. Nor do they resemble the plaintiff's allegations in Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, where the plaintiff suffered numerous symptoms within weeks of having LASIK surgery. The majority's reliance on these cases is understandable as our Supreme Court has not construed section 345 in a case, like the present one, involving a negligent failure to diagnose a latent condition, and there are few reported appellate decisions on the issue.

Where a physical injury is caused by a physician, the existence of the injury and when it occurred are usually easy to determine. As to such injuries, the majority's legal observations are appropriate and on point. Truly, "For purposes of section 340.5, '[t]he word "injury" signifies both the negligent cause and the damaging effect of the alleged wrongful act and not the act itself.'" (Maj. opn. ante, at p. 11, quoting Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 54.) But where malpractice is not premised upon a wrongful act, but upon a failure to diagnose a latent progressive condition, a different analytical framework must be applied. The injury is not the undiagnosed condition, but the harm that results from the failure to correctly diagnose and treat the condition. Such injury does not announce itself, and in the present case we have not a clue from the evidence offered below as to when harm occurred, beyond the CT scan that revealed appellant's dead kidney.

Responding to appellant's arguments concerning the lack of evidence linking her symptoms to the death of her kidney, the majority instructs, "The issue here, however, is not causation, but the physical manifestation of injury. Certainly, pain as a physical manifestation of injury is within the common knowledge of laypersons and requires no expert testimony. . . . [P]laintiff need not know the ultimate harm or diagnosis--only the fact of injury." (Maj. opn. ante, at p. 17.) This makes perfect sense when a plaintiff can connect the pain to something the physician has done. It makes little sense when a plaintiff seeks help from a physician in discerning the cause of the pain and the physician, as alleged here, attributes the pain to causes other than the injury that is ultimately discovered. A patient is not a doctor and a patient's self-diagnosis is of no moment absent expert testimony that the patient's symptoms, either alone or in combination with the patient's medical history, are clear markers of specific medical conditions that should be recognized by laypersons.

We cannot assume that the various symptoms appellant reported to respondent were all related to her kidney. There is no expert evidence to that effect. And without medical evidence establishing when the condition developed, it is impossible to determine whether the symptoms she experienced were associated with the condition. It is also impossible to determine when appellant, or respondent for that matter, should have reasonably discovered the condition. We give great respect to a jury's verdict. But a jury could not properly assess plaintiff's conduct without the aid of experts and without knowledge of the significance of her symptoms and the progress of the underlying condition that led to the death of her kidney.

Statutes of limitation serve a valuable public policy. They are "'intended to run against those who are neglectful of their rights, and who fail to use reasonable and proper diligence in the enforcement thereof . . . . The underlying purpose of statutes of limitation is to prevent the unexpected enforcement of stale claims concerning which persons interested have been thrown off their guard by want of prosecution.'" (Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 228-229, quoting 1 Wood, Limitation of Actions (4th ed. 1916) pp. 8-9.) They "'are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.'" (Wood v. Elling Corp. (1977) 20 Cal.3d 353, 362, quoting Telegraphers v. Ry. Express Agency (1944) 321 U.S. 342, 348 [88 L.Ed. 788, 792].)

Appellant's claim against respondent may well lack merit. If respondent's recall of the facts is correct, his failure to diagnose appellant's condition will likely be regarded as understandable and excusable. But respondent's ability to defend was not affected at all by appellant's delay in bringing this claim. He learned about the ultimate injury suffered by appellant at the same time she did, when the CT scan results were made available; the statute should be deemed to run from that date. None of the purposes served by the statute of limitations would be served by application of the one-year statute to appellant's case.

The judgment of the trial court should be reversed and the claim adjudicated on the merits.

RAYE , P. J.


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