Case Number: VC062113 Hearing Date: May 02, 2014 Dept: 93

Defendant Bell Community Medical Group’s unopposed Motion for Summary Judgment and/or Adjudication is GRANTED. The claims in Plaintiff Selvin Araujo’s operative complaint are barred by the statute of limitations set forth at CCP section 340.5.
Araujo underwent surgery for carpal tunnel syndrome on October 13, 2010. Motion, Exh. E (“Araujo Depo.”), p. 57:19-23. He alleges that the surgery was negligently performed, causing him injuries. Second Amended Complaint (“SAC”), p. 2:25-3:27. A week after the surgery he began experiencing excruciating pain, swelling, bleeding, numbness and weakness in the arm on which the surgery was performed and worried something had been done wrong. Motion, Araujo Depo., p. 97:6-25.
The Complaint in this action was filed on October 12, 2012 and alleges malpractice, battery and negligent hiring. The battery claim, however, should properly be considered a claim for negligence, as explained by the California Supreme Court in Cobbs v. Grant:

Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery. (Berkey v. Anderson (1969) supra, 1 Cal.App.3d 790 (allegation of consent to permit doctor to perform a procedure no more complicated than the electromyograms plaintiff had previously undergone, when the actual procedure was a myelogram involving a spinal puncture); Bang v. Charles T. Miller Hosp. (1958) 251 Minn. 427 (plaintiff consented to a prostate resection when uninformed that this procedure involved tying off his sperm ducts); Corn v. French (1955) 71 Nev. 280 (patient consented to exploratory surgery; doctor performed a mastectomy); Zoterell v. Repp (1915) 187 Mich. 319 (consent given for a hernia operation during which doctor also removed both ovaries).)

However, when an undisclosed potential complication results, the occurrence of which was not an integral part of the treatment procedure but merely a known risk, the courts are divided on the issue of whether this should be deemed to be a battery or negligence. (Gray v. Grunnagle (1966) 423 Pa. 144 (failure to warn a patient a spinal operation involved an inherent risk of permanent paralysis; battery); Belcher v. Carter (1967) 13 Ohio App.2d 113 (failure to warn of danger of radiation burns; battery); Nolan v. Kechijian (1949) 75 R.I. 165 (operation to strengthen ligaments of spleen when spleen was removed; trespass to the body and negligence); Natanson v. Kline (1960) 186 Kan. 393 (radiation treatment produced a severe burn; semble battery or negligence); Natanson v. Kline (1960) 187 Kan. 186 (rehearing of previous case; negligence); Mitchell v. Robinson (Mo. 1960) 334 S.W.2d 11 (vertebrae broken during insulin shock treatment; negligence).) California authorities have favored a negligence theory. Carmichael v. Reitz (1971) 17 Cal.App.3d 958 (pulmonary embolism caused by adverse reaction to drug; negligence); Dunlap v. Marine (1966) 242 Cal.App.2d 162 (cardiac arrest allegedly caused by administration of anesthetic; negligence); Tangora v. Matanky (1964) 231 Cal.App.2d 468 (anaphylactic shock as a result of intramuscular penicillin shot; negligence); Salgo v. Leland Stanford etc. Bd. Trustees (1957) 154 Cal.App.2d 560 (paralysis of lower extremities after aortographic examination; negligence).)

Dean Prosser surveyed the decisions in this area and concluded, “The earliest cases treated this as a matter of vitiating the consent, so that there was liability for battery. Beginning with a decision in Kansas in 1960 [Natanson v. Kline (1960) supra, 187 Kan. 186], it began to be recognized that this was really a matter of the standard of professional conduct …. [T]he prevailing view now is that the action … is in reality one for negligence in failing to conform to the proper standard ….” (Fns. omitted; Prosser on Torts (4th ed. 1971) pp. 165-166.)
Although this is a close question, either prong of which is supportable by authority, the trend appears to be towards categorizing failure to obtain informed consent as negligence. That this result now appears with growing frequency is of more than academic interest; it reflects an appreciation of the several significant consequences of favoring negligence over a battery theory. As will be discussed infra, most jurisdictions have permitted a doctor in an informed consent action to interpose a defense that the disclosure he omitted to make was not required within his medical community. However, expert opinion as to community standard is not required in a battery count, in which the patient must merely prove failure to give informed consent and a mere touching absent consent. Moreover a doctor could be held liable for punitive damages under a battery count, and if held liable for the intentional tort of battery he might not be covered by his malpractice insurance. (Comment, Informed Consent in Medical Malpractice (1967) 55 Cal.L.Rev. 1396.) Additionally, in some jurisdictions the patient has a longer statute of limitations if he sues in negligence.

We agree with the majority trend. (9) The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.
(1972) 8 Cal.3d 229, 239-242. CCP section 340.5 states in relevant 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.” The statute of limitations begins to run when “the plaintiff has, or should have, inquiry notice of the cause of action.” Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 807. Accord Bernson v. Browning-Ferris Indus. (1994) 7 Cal. 4th 926, 931 (“[T]he accrual date may be ‘delayed until the plaintiff is aware of her injury and its negligent cause.’”).

Generally speaking, a cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’… An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action…. A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’… Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.

Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal. 4th 623, 634. Based on the undisputed fact that Araujo suspected wrongdoing with regard to his surgery a week after its completion, but did not file the instant action until two years later, his claims are barred by the statute of limitations.
Moving party is ordered to give notice.