Opinion
D041451.
11-25-2003
JAMES A. HINES, Plaintiff and Appellant, v. JOHN SEROCKI, Defendant and Respondent.
Plaintiff James A. Hines appeals a summary judgment in favor of defendant John Serocki, M.D., on Hiness complaint for medical malpractice. Hines contends the court erred in granting summary judgment on the ground his claim against Serocki was barred by the applicable one-year statute of limitations. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 1, 2000, Hines fractured his arm and leg as a result of being hit by a car. He was taken to Scripps Memorial Hospital where Serocki surgically repaired the fractures. Several days after the surgery, Hines realized part of his tibia had not fused to the rod that Serocki had surgically inserted. However, Serocki assured Hines the bone was healing.
During an office visit on December 19, 2000, Serocki determined the bone in Hiness leg was no longer straight and another surgery was needed to insert a larger rod. Hines attempted on numerous occasions to schedule the surgery with Serocki, but was unsuccessful. When Hines telephoned Serockis office to complain about the pain in his leg, the doctor covering for Serocki suggested he go to the emergency room.
On January 9, 2001, Hines intended to go to the emergency room at Scripps Memorial Hospital, but instead was taken to the emergency room at University of California San Diego (UCSD) Medical Center. The examining physician took X-rays of Hiness leg and determined he needed to have it repaired immediately. Hines scheduled an appointment at UCSD where, on January 17, 2001, his orthopedic surgeon criticized Serocki for using a rod that was too small in diameter, causing Hiness leg to misalign.
Hines filed a complaint for medical negligence against Serocki and others on January 15, 2002. Serocki successfully moved for summary judgment on the ground Hiness claim against him accrued no later than January 9, 2001, and thus Hiness action was barred by the one-year statute of limitations of Code of Civil Procedure section 340.5. The court granted summary judgment and dismissed Hiness complaint.
DISCUSSION
A
Summary judgment is proper only where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) A defendant moving for summary judgment based on an affirmative defense has the overall burden of showing there is a complete defense to the plaintiffs action. (§ 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 849.) In this regard, the defendant must first produce evidence to support a prima facie showing of the nonexistence of any triable issue of material fact as to the defense. (Id. at p. 850.) Once the defendant has met this initial burden of production, the burden shifts to the plaintiff to show the existence of a triable issue of one or more material facts as to that defense. (Ibid.; § 437c, subd. (o)(2).) The plaintiff may not rely on the mere allegations or denials of its pleadings to show a triable issue of material fact exists. (§ 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Company, supra, 25 Cal.4th at p. 849; Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464 & fn. 4; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69.)
On appeal, we independently assess the correctness of the trial courts ruling, applying the same legal standard that governs the trial court. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404; Buss v. Superior Court (1997) 16 Cal.4th 35, 60, 65.) We strictly construe the moving partys evidence and liberally construe the opposing partys evidence, resolving any doubts as to the propriety of granting the motion in favor of the opposing party. (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261; Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)
B
Section 340.5 sets forth the applicable statute of limitations for medical malpractice, requiring a plaintiff to commence his or her action "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." (§ 340.5.) "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." (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896.) However, actual knowledge of malpractice is not necessary to commence the running of the statute of limitations. The statute begins to run "when the plaintiff knows of the injury and has `a suspicion of wrongdoing." (Bristol-Myers Squibb Co. v. Superior Court (1995) 32 Cal.App.4th 959, 963-964, disapproved on other grounds in Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 410, fn. 8; see also Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101.) The term "wrongdoing" is used, not in a technical sense, but rather in accordance with its "`lay understanding." (Norgart v. Upjohn Co., supra, 21 Cal.4th at pp. 397-398.) Although the plaintiff need not know the specific facts necessary to establish a cause of action, he must try to learn the facts necessary to bring the cause of action in the first place and file suit if he finds them. (Id. at p. 398.)
C
Hines contends January 9, 2001, the date he sought emergency treatment at UCSD, is not a legally significant date for purposes of commencing the one-year limitations period. He asserts the evidence raises triable issues of fact as to whether, at that time, he lost trust in Serocki and intended to terminate the doctor-patient relationship. He further asserts the act of going to UCSD did not eliminate other reasonable inferences as to whether he had a suspicion of wrongdoing.
To analyze whether summary judgment was properly granted, we first identify the issues framed by the pleadings, and examine the undisputed facts to determine whether only one legitimate inference may be drawn from them regarding Hiness actual notice, or "the amount of notice or information of circumstances that would put a reasonable layperson on inquiry about potential wrongdoing that harmed [him], such as will begin the running of the limitations period." (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1055, citing Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1101-1112.) "`While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. [Citation.]" (Clark v. Baxter Healthcare Corp., supra, 83 Cal.App.4th at pp. 1054-1055; see also Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374.)
Hines alleged he filed his complaint less than one year after learning, or having a reasonable opportunity to learn, that his injuries were caused by Serockis negligent acts or omissions. He further alleged he discovered Serockis negligence on January 17, 2001, when he sought treatment at UCSD; until that time, he reasonably and justifiably relied on Serockis professional judgment and care. In moving for summary judgment, Serocki argued Hines had an actual suspicion his injury was caused by Serockis wrongdoing as of January 9, 2001, a date beyond the one-year limitations period. In support of this argument, Serocki presented Hiness deposition testimony:
"Q. Did you feel as of January 9, [2001], that [Serocki] had probably done the original surgery wrong?
"A. Yes." [¶] . . . [¶]
"Q. Lets fast-forward now to January 9th of 2001, as of the time you see the first UCSD female doctor who said you need that fixed immediately; Ill make an appointment in the ortho clinic. As of that date, January 9, 2001, did you suspect Dr. Serocki had committed malpractice?
"A. I wouldnt — I would need the definition of malpractice. I mean, he wasnt treating me like I thought a patient should be treated. Thats what I thought.
"Q. Did you feel that he had done the original surgery improperly?
"A. I did.
"Q. And did you feel as a result of his having done the surgery improperly you had suffered?
"A. Yes."
Thus, by his own admission, Hines suspected wrongdoing by Serocki as of January 9, 2001, more than a year before filing suit on January 15, 2002.
Citing Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, Hines asserts the limitations period was not triggered on January 9, 2001, when he consulted another doctor at UCSD. He claims he did not intend to terminate his relationship with Serocki on or before that date and he was entitled to rely on Serockis professional skill and judgment while under his care. In Kitzig, the plaintiff sued her former dentist, Dr. Nordquist, for professional negligence, alleging he improperly placed dental implants. (Id. at p. 1386.) The jury found the limitations period did not begin to run when Kitzig consulted another dentist during her ongoing dentist-patient relationship with Dr. Nordquist. The evidence at trial showed the plaintiff consulted the second dentist when she discovered a hole in her sinus and asked him to examine the implants. The second dentist reassured the plaintiff "everything looked `okay," and she should go back to Dr. Nordquist. (Id. at p. 1392.) The plaintiff continued to see Dr. Nordquist on a regular basis for the next year. After that, she began to suspect the implants were failing and these failings, along with other medical problems, might be attributable to Dr. Nordquist. (Ibid.)
On appeal, this court held substantial evidence supported the jurys finding the limitations period was not triggered when the plaintiff sought the opinion of the second dentist. (Kitzig v. Nordquist, supra, 81 Cal.App.4th at p. 1392.) We reasoned her "suspicions" leading her to consult with the second dentist "did not pertain to the injury for which she later sought recovery." (Ibid.) We further reasoned a person need not file suit within one year when she (1) obtains a second medical opinion while under the care of her personal physician, (2) is assured her physician is doing nothing wrong and (3) continues treatment with the personal physician. (Id. at p. 1393.) Thus, "a patient is `fully entitled to rely upon the physicians professional skill and judgment while under his care, and has little choice but to do so. [Citations.]" (Ibid.) However, "this reliance may not be justified if the patient actually suspects wrongdoing . . . ." (Ibid .) The plaintiffs testimony in Kitzig "made clear that her briefly held `suspicion regarding the hole in her sinus had no effect on her continuing relationship with Dr. Nordquist and that she continued to rely exclusively on Dr. Nordquists medical judgment." (Ibid.)
Here, Hines consulted with a new doctor at UCSD on January 9, 2001, when he knew the bone in his leg was not straight, it required another surgery and he continued to have pain in his leg. Unlike the facts in Kitzig, this was the same injury for which Hines later sought recovery. He received no assurance from the UCSD doctor that Serocki had done nothing wrong, and indeed, was told his leg need to be repaired immediately. Hines did not continue treatment with Serocki or continue to rely on his medical judgment. Rather, at the time Hines saw the UCSD doctor, he actually suspected wrongdoing and never returned to Serocki. Thus, Hiness reliance on Kitzig is misplaced.
Hiness own deposition admissions are susceptible of only one legitimate inference. (Clark v. Baxter Healthcare Corp., supra, 83 Cal.App.4th at pp. 1054-1055.) Under these circumstances, his action for malpractice was barred by section 340.5, and summary judgment was proper. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at pp. 1112-1114.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, J., HALLER, J. --------------- Notes: Statutory references are to the Code of Civil Procedure.