Case Name: Elizabeth J. Robinson, Ph.D. v. Peter Naruns, M.D., et al.

Case No.: 1-13-CV-249369

Motion for Summary Judgment or, in the Alternative, Summary Adjudication, Filed on Behalf of Defendant Peter Naruns, M.D.

Plaintiff Elizabeth Robinson, Ph.D. (“Plaintiff”) alleges she retained, among others, defendant Peter Naruns, M.D. (“Dr. Naruns”) from January 6, 2011 through September 30, 2012 to examine, diagnose, treat, prescribe medicine, and care for her. (First Amended Complaint (“FAC”), ¶6.) Plaintiff alleges Dr. Naruns is a medical specialist in the field of surgical oncology. (FAC, ¶8.) According to the allegations, Dr. Naruns negligently failed to evaluate plaintiff properly before surgery. (Id.) As an example, Dr. Naruns failed to obtain plaintiff’s medical records from the doctor who performed biopsy surgery on Plaintiff’s left breast only weeks prior to Dr. Naruns’ insertion of a Strut Adjusted Volume Implant (“SAVI”) in Plaintiff’s left breast, as the initial step to Brachytherapy, also known as Accelerated Partial Breast Irradiation. (Id.) Dr. Naruns did not perform tests to independently ascertain Plaintiff’s medical condition and, in particular, the condition of Plaintiff’s left breast before proceeding with insertion of the SAVI. (Id.) Also, Dr. Naruns failed to provide appropriate post-surgical care and failed to perform appropriate post-operative evaluations over a reasonable period of time to ensure no complications occurred. (Id.) Dr. Naruns instead the SAVI into Plaintiff’s left breast in his office rather than employing the use of a surgical facility, a substantial factor in causing an infection in Plaintiff’s left breast lasting nine months. (Id.) Dr. Naruns did not properly treat Plaintiff’s post-operative complications which resulted from improper sterilization in his facility during the SAVI insertion. (Id.) Dr. Naruns failed, post-surgery, to detect and treat the infection in Plaintiff’s left breast. (Id.) Dr. Naruns failed to use appropriate diagnostic techniques to identify the type of infection and continued to prescribe antibiotics that precluded the identification of the infection through laboratory testing. (Id.)

As a result of Dr. Naruns’s negligence, Plaintiff has had to undergo multiple surgeries to her left breast resulting in disfigurement of her left breast. (FAC, ¶12.) Plaintiff has also been diagnosed with Myasthenia Gravis symptoms due to her over-sedation with narcotics and protracted use of antibiotics. (Id.) Plaintiff will incur continued medical expenses to monitor the impact on her immune system of protracted use of antibiotics prescribed to treat the infection. (Id.)

Plaintiff further alleges Dr. Naruns failed to advise and warn her of the possible consequences and dangers and failed to make a reasonable disclosure of the information necessary for plaintiff to make an intelligent and informed consent regarding her care and treatment. (FAC, ¶14.)

On July 11, 2013, Plaintiff filed a complaint against Dr. Naruns and others alleging causes of action for: (1) professional negligence; and (2) informed consent. On September 26, 2013, Dr. Naruns filed his answer to Plaintiff’s complaint.

On May 5, 2015, Plaintiff filed a motion for leave to file a FAC. On May 26, 2015, the court granted Plaintiff leave to file a FAC.

On June 2, 2015, Plaintiff filed the FAC asserting causes of action for: (1) professional negligence; and (2) informed consent. On June 30, 2015, Dr. Naruns filed his answer to Plaintiff’s FAC.

On April 28, 2016, defendant Dr. Naruns filed the motion now before the court, a motion for summary judgment/ adjudication of Plaintiff’s FAC.

Discussion

III. Defendant Dr. Naruns’s motion for summary judgment is GRANTED.

In moving for summary judgment, defendant Dr. Naruns argues first that Plaintiff’s claim is barred by the statute of limitations set forth in Code of Civil Procedure section 340.5, which states that “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, the injury, whichever comes first.” “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.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)

The one-year period of section 340.5 begins when plaintiff is aware of both the physical manifestation of the injury and its negligent cause. (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 822.) “It is well established that, ‘ “[t]he term ‘injury,’ as used in section 340.5, means both a person’s physical condition and its negligent cause.” ’ [Citation.] However, a person need not know of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period.” (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295.)

Dr. Naruns proffers evidence that Plaintiff first presented to him for treatment on January 14, 2011. On January 18, 2011, Plaintiff elected to go forward with Brachytherapy using the SAVI catheter performed by Dr. Naruns in his office. According to Plaintiff, she believed she developed an infection during the subsequent radiation treatment resulting in injury to her left breast. At her deposition, Plaintiff testified that she suspected the condition in her left breast was due to the doctors doing something wrong. Dr. Naruns quotes the following testimony from Plaintiff’s deposition:

Q: That’s not my question, ma’am. My question is, were you thinking in June of 2011 that the possibility existed that the condition of your breast was due to the doctors doing something wrong?
A: At that point. Maybe. Maybe it—maybe the infection—just—you can just ask me.
Q: Yeah. It was a reasonable possibility as of June 2011 in your mind that the doctors had done something wrong to cause this result, correct?
A: Yes.

Based on Plaintiff’s testimony, Dr. Naruns submits the statute of limitations was triggered no later than June 2011 when Plaintiff admits having suffered injury and having a suspicion of wrongdoing. Thus, Plaintiff had until June 2012 to commence this action, but did not do so until July 2013, more than one year beyond the expiration of the statute of limitations.

In opposition, Plaintiff argues first that the three year statute of limitations of section 340.5 was tolled when she served her statutory (Code Civ. Proc., §364) notice of intent to sue on April 15, 2013. Plaintiff’s tolling argument is faulty for two reasons. First, Plaintiff is faced with the one year statute of limitations in section 340.5, not the three year statute of limitations. Second, tolling does not save Plaintiff here since the notice of intent to sue was sent ten months after the expiration of the one year statute of limitations in June 2012.

Next, Plaintiff relies on Myers v. Stevenson (1954) 125 Cal.App.2d 399, 401 – 402 (Myers) where the court wrote, “It has become settled law in California that the statute of limitations for malpractice does not ordinarily commence to run while the physician-patient relationship continues between the defendant physician and the plaintiff. … while the physician-patient relation continues the plaintiff is not ordinarily put on notice of the negligent conduct of the physician upon whose skill, judgment and advice he continues to rely.”

The Myers court explained the reason for this rule was explained by the “land-mark case of Huysman v. Kirsch, 6 Cal.2d 302, 312 [57 P.2d 908]: ‘During all this time she was under the exclusive care of the respondent, a reputable and skilful physician and surgeon, and both Mrs. Huysman and her husband relied solely upon him for information as to her physical condition and as to her failure to regain her health. It cannot be said, therefore, that they had any knowledge whatever of the cause of her failure to recover from the operation, or that they could have gained that knowledge by the exercise of due care and diligence prior to September 26, 1932.’” (Emphasis added.)

In Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102 (Sanchez), the court wrote, “the patient is fully entitled to rely upon the physician’s professional skill and judgment while under his care, and has little choice but to do so. It follows, accordingly, that during the continuance of this professional relationship, which is fiduciary in nature, the degree of diligence required of a patient in ferreting out and learning of the negligent causes of his condition is diminished. [Citation.]”

In Unjian v. Berman (1989) 208 Cal.App.3d 881 (Unjian), the appellate court reversed a trial court ruling granting summary judgment of a medical malpractice claim on statute of limitations grounds. The Unjian court explained:

Where … the injury is obvious but there is nothing to connect that injury to defendant’s negligence it cannot be said as a matter of law the plaintiff’s failure to make an earlier discovery of fault was unreasonable. [Citation.] This is especially true in cases such as the one before us where the plaintiff continues under the doctor’s care, does inquire about the cause of his apparent injury and is given an explanation calculated to allay any suspicion of negligence on the doctor’s part.

(Unjian, supra, 208 Cal.App.3d at p. 885.)

In her opposition, Plaintiff proffers her own declaration in which she states, “I trusted Dr. Naruns when he told me that my sinus and vaginal infections were not a problem and ‘Don’t worry.’ I also trusted Dr. Naruns when he told me having SAVI insertion surgery in his office would not be a problem.” This evidence and Plaintiff’s reliance on Myers is misplaced here because the reasoning employed in applying the rule can be distinguished here. Plaintiff was not under the exclusive care of Dr. Naruns. By her own admission and allegations and based on the undisputed evidence presented, Plaintiff was under the care of multiple doctors. Moreover, there is no evidence proffered by Plaintiff that she relied solely on Dr. Naruns for information concerning her condition and failure to overcome the infection following the January 18, 2011 surgery performed by Dr. Naruns. Neither Sanchez nor Unjian aid Plaintiff here in view of her deposition testimony acknowledging her suspicion of wrongdoing by June 2011.

Plaintiff argues further that the deposition testimony cited by Dr. Naruns is taken out of context and that it concerned a different subject (whether a video was taken in contemplation of a lawsuit). However, in this court’s view, the testimony cited by Dr. Naruns very explicitly focuses on Plaintiff’s suspicion of wrongdoing and is not taken out of context.

Plaintiff also refers to her own declaration stating her reliance on Dr. Naruns’s assurances. Viewed in conjunction with Plaintiff’s deposition testimony, Plaintiff relied on the assurances attributed to Dr. Naruns in proceeding with the initial surgery on January 18, 2011. There is no evidence proffered by Plaintiff to show that she relied on any assurances by Dr. Naruns to allay her subsequent suspicion of negligence. Plaintiff’s evidence regarding the assurances do not overcome Plaintiff’s testimony acknowledging her subsequent suspicion of wrongdoing in June 2011.

Finally, Plaintiff proffers her own declaration to state, “I did not believe that Dr. Naruns had done something wrong in his treatment and car of me until I met with Dr. Robert Sinha, Director of Radiation Oncology for El Camino Hospital, on April 16, 2012, who apologized in the presence of Dr. Shane Dormady, when he viewed the photographs of my breast infection: ‘I am sooo sorry. This is NOT the way it was supposed to be…’” Plaintiff’s declaration is in direct conflict with the deposition testimony cited by Dr. Naruns. “A party cannot evade summary judgment by submitting a declaration contradicting his own prior deposition testimony.” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120.) Consequently, Plaintiff’s declaration does not create a triable issue of material fact with regard to when she suspected wrongdoing by Dr. Naruns.

Accordingly, defendant Dr. Naruns’s motion for summary judgment of plaintiff Elizabeth J. Robinson, Ph.D.’s first amended complaint is GRANTED.