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Maher v. County of Alameda

California Court of Appeal, First District, First Division

February 18, 2014

Brendan MAHER, Plaintiff and Appellant,
v.
COUNTY OF ALAMEDA et al., Defendants and Respondents.

Alameda County Superior Court, Hon. George C. Hernandez. (Alameda County Super. Ct. No. RG11573562).

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COUNSEL

[168 Cal.Rptr.3d 57] Law Office of Edward A. Judge, San Francisco, Edward A. Judge; Roubinian Law Group and Leon V. Roubinian, San Francisco, for Plaintiff and Appellant.

Andrada & Associates, J. Randall Andrada, Valerie Ly and Teresa Rie Morimoto, Oakland, for Defendant and Respondent County of Alameda.

Galloway, Lucchese, Everson & Picchi, Walnut Creek, Karen A. Sparks and Martin J. Everson for Defendants and Respondents Alameda County Medical Center and Ralph Bernstein, M.D.

Manning & Kass Ellrod, Ramirez, Trester, Walnut Creek, Thomas A. Trapani; Oium Reyen & Pryor and Virgil F. Pryor, San Francisco, for Defendants and Respondents Lifelong Medical Care-Berkeley Primary Care and Vaneida White, M.D.

Hassard Bonnington, B. Thomas French, San Francisco, Robyn Schanzenback and J. Julia Hansen, San Francisco, for Defendant and Respondent Sutter East Bay Hospitals dba Alta Bates Summit Medical Center.

OPINION

Margulies, Acting P.J.

Page 1344

Surgeons implanted a biliary stent in plaintiff Brendan Maher during emergency [168 Cal.Rptr.3d 58] abdominal surgery in 1996. Maher alleges he was unaware of the stent's placement until it was discovered and removed in August 2010 after he sought treatment for abdominal pain. In April 2011, Maher sued the health care providers who treated him in 1996 and 1997 for professional negligence in not timely removing the stent, or informing him of its placement and the fact it was designed to be temporary. The defendants successfully demurred on statute of limitations grounds, and Maher appeals from the ensuing judgments. He contends the statute of limitations was tolled from 1996 to 2010 under the " foreign body" exception of Code of Civil Procedure section 340.5 (section 340.5). We agree, and reverse the judgments of dismissal. We affirm the order sustaining the demurrer of Alameda County Medical Center (ACMC) to Maher's separate cause of action for denial of access to his medical records without leave to amend.

I. BACKGROUND

A. Parties and Pleadings

Maher filed his original complaint on April 29, 2011, alleging causes of action for (1) negligence and (2) failure to provide access to his medical records as required by Health and Safety Code section 123100 et seq. The complaint named as defendants ACMC, Frederick Wright, M.D., Ralph Bernstein, M.D., Lifelong Medical Care-Berkeley Primary Care (Lifelong), Vaneida White, M.D.,[1] and Doe defendants. Maher filed a first amended complaint a few days later, naming Alameda County as an additional defendant and substituting Sutter East Bay Hospitals dba Alta Bates Summit Medical Center (Alta Bates) [2] and J. Dougal MacKinnon for two of the Doe defendants. Following entry of orders sustaining demurrers by some of the defendants, Maher filed his second amended complaint (SAC), which is in issue on this appeal.

The SAC alleged in pertinent part as follows:

Maher was injured by a gunshot in Berkeley, California on May 24, 1996. He was transported by ambulance to ACMC at Highland Hospital where he underwent medical procedures related to his injuries. As part of the procedures to address abdominal injuries sustained by Maher, a biliary stent ...


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