Motion for Summary Judgment

Defendant Dr. Luis Chanes M.D. moves for summary judgment as to the Original Complaint filed by Plaintiff Eva Mejia on 4/3/13. The court DENIES the motion for the reasons set forth below.

Procedural Problem

The court DENIES the motion for summary judgment on procedural grounds because the Complaint is ambiguous. Defendant failed to demur to clarify the ambiguity, failed to present discovery responses to establish precisely what theories of liability Plaintiff was advancing, and failed to defeat all theories of liability advanced by Plaintiff.

The Complaint alleges a single cause of action. But the caption of the Complaint alleges at least two different theories of malpractice – for professional negligence in recommending and performing premature cataract surgery and for lack of informed consent. And the allegations of the Complaint clearly allege two theories of malpractice. (Cf. ¶¶ 9-11 with ¶ 13 [note that the paragraphs are incorrectly numbered and that the citations are to the corrected numbers].)

So even if Defendant successfully attacks the theory that it was premature to recommend and perform cataract surgery, Defendant fails to address the theory of lack of informed consent. So the court cannot grant summary judgment.

Nor may the court grant summary adjudication as to one theory of liability, because Defendant did not properly notice a motion for summary adjudication, and because striking down one theory of liability would not defeat the entire cause of action.

In addition, the court DENIES the motion on substantive grounds.

Issue 1: No Breach of Duty of Care

Issue 2: No Causation

Defendant’s Prima Facie Showing

Defendant Dr. Chanes makes a prima facie showing that his care and treatment of Plaintiff did not breach the standard of care and did not cause Plaintiff’s harm consisting of eye pain, headaches, blurred vision, and other complaints. (See generally Dr. Reynard Decl.; Separate Statement Facts 1-17.)

Triable Issue of Material Fact

The burden shifts to Plaintiff to show that triable issues of material fact exist. In Opposition, Defendant presents the expert declaration of Dr. Paul B. Donzis which is sufficient to carry her burden to show that there are triable issues of material fact as to:

1. whether it fell below the standard of medical care for Dr. Chanes to recommend cataract surgery for the right eye when Plaintiff had no visual complaints and there was no evidence in the medical record that her two eyes had any difficulty working together. (Facts 11-17; 18-29.)

2. whether Dr. Chanes violated the standard of care by failing to perform a refraction test to determine the best corrected visual acuity and to determine the visual significance of the right eye cataract. (Facts 21, 26.)

3. whether Dr. Chanes violated the standard of care by falsely telling Plaintiff that she had to have the cataract surgery or else risk infection. (Fact 27.)

4. although Dr. Chanes appears to have performed the surgery within the standard of care, whether he violated the standard of care by prematurely recommending surgery, and whether the surgery caused Plaintiff to suffer blurred vision prematurely and unnecessarily.

5. whether Plaintiff lacked a posterior subscapular cataract in her right eye, such that cataract surgery was premature and an unnecessary risk. (Facts 22-23.)

6. whether Dr. Chanes failed to properly obtain Plaintiff’s informed consent, a theory which is alleged in the Complaint, but which is not addressed by Dr. Chanes’s summary judgment motion or by Dr. Reynard’s expert declaration.

Issue 3: One-Year Statute of Limitations Bars Medical Negligence Claim

Defendant’s Prima Facie Showing

Defendant makes a prima facie showing that the 1-year statute of limitations under CCP 340.5 bars Plaintiff’s medical negligence claim. The statute of limitation runs either 3 years from the date of injury or 1 year after the plaintiff discovers or through reasonable diligence should have discovered the injury, whichever occurs first.

Defendant argues that the injury occurred on 1/25/11, so that 3 years after the date of injury would have been 1/25/14.

But Defendant also argues that the 1-year statute of limitations began to run on 11/22/11, the date of her last visit with Dr. Chanes, when she knew her symptoms had not improved, when she had a subjective suspicion that something was wrong, and when she wanted to seek a second opinion. So that the statute ran one year thereafter on 11/22/12. But she did not file her Complaint until 4/03/13, which was untimely. (Facts 7-9.)

Under the discovery rule, the statute of limitations begins to run when a plaintiff suspects or should suspect that her injury was caused by wrongdoing. She need not be aware of the specific facts necessary to establish the claim. (Rose v. Fife (1989) 207 Cal.App.3d 760.)

A plaintiff discovers his or her cause of action when she suspects a factual basis for its elements, not when the accuracy or validity of an already aroused suspicion are confirmed or sufficient information to succeed on the claim is acquired. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398 & fn. 3; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111; Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-898; Sanchez v. South Hoover Hospital (1976) 18 Cal.3d at 101-102.)

Triable Issue of Material Fact

The burden shifts to Plaintiff to show that triable issues of material fact exist as to whether the statute of limitations has run and whether her claim is already time-barred.

In Opposition, Plaintiff successfully carries her burden to show that triable issues of material fact exist as to whether she discovered or reasonably should have discovered the injury on 11/22/11, or whether because of Defendant Dr. Chanes’s repeated and consistent reassurances that her symptoms were normal and everything was alright, she did not reasonably discover the injury until some time after she consulted another physician Dr. David B. Sacks on or 9/11/12. (Facts 7-8, 29.)

There is a triable issue of material fact as to precisely when plaintiff suspected wrongdoing. She argues that while her last physical visit to Dr. Chanes was on 11/22/11, her last consultation with him over the phone was much later in July or August 2012.

In her Complaint at paragraph 8, she alleges that her last “consultation” was “on or about” July 2012. And in her deposition, she testified that it was not until Aug. 2012 that she asked Dr. Chanes if she had the right to seek a second opinion. (Facts 7-8, 29.) If the 1-year statute did not start to run until Aug. 2012, then Plaintiff had until Aug. 2013 to file her Complaint, which she filed on 4/03/13.

While under a physician’s care a patient is entitled to rely on his advice and judgment, so that the degree of diligence in ferretting out professional negligence is diminished. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102 [statute began to run when patient was discharged from hospital because in her deposition testimony she admitted that she had suspected medical malpractice at that point].)

In Brown v. Bleiberg (1982) 32 Cal.3d 426, 432, the patient waited 12 years to sue. The California Supreme Court held that the trial court had improperly granted summary judgment because reasonable minds could differ as to whether the patient reasonably relied on the physician’s misrepresentations about the nature of the surgery and why he performed it.

The question of reasonable discovery is typically a question of fact, not a question of law. And even an 11-month delay in discovering the nature of the injury may be reasonable in a medical malpractice case. (Wozniak v. Peninsula Hospital (1969) 1 Cal.App.3d 716, 722.)

Defendant’s Case Law is Distinguishable

Defendant at page 11 of his motion, cites four cases regarding when the discovery rule is triggered, but these cases are distinguishable for several reasons.

Norgart v. Upjohn Co. involved the wrongful death of plaintiffs’ daughter from the side effects of a drug called Halcion. Norgart was not a medical malpractice case and there were no allegations that a treating physician was misrepresenting to a patient the nature and cause of the patient’s injuries. Because the daughter’s date of death was well-established, it was far more certain that the statute had begun to run from the date of her death.

Similarly, Jolly v. Eli Lilly was not a medical malpractice action and there were no allegations that a treating physician had misrepresented the nature and cause of plaintiff’s injury. Therein, the California Supreme Court held that the one-year statute had run because plaintiff was aware that she had been injured in utero by a drug administered to her mother during pregnancy, but she was unable to timely identify the drug manufacturer.

Gutierrez v. Mofid was a medical malpractice case, but therein the date when plaintiff discovered her injury was certain, because when she awoke from surgery to remove a tumor near her appendix, she was informed that the doctors had removed her uterus without her consent, in order to prevent the spread of a cancerous tumor. There were no allegations that the treating physicians or surgeons had misrepresented the nature and cause of her injury. And the California Supreme Court held that advice from attorneys that she had no provable cause of action did not toll the discovery statute.

Finally, Sanchez v. South Hoover Hospital was a malpractice case wherein the California Supreme Court held that the one-year statute of limitations had run. But therein, plaintiff had admitted in her deposition that she suspected malpractice at the time when she was discharged from the hospital. Plaintiff admitted that she did not accept the physician’s false assurances at face value. In this case, by way of contrast, there is no evidence before the court that Plaintiff has made any such admissions against interest. There remains a triable issue of fact as to when Plaintiff reasonably should have discovered her injury.

Plaintiff’s counsel shall give notice of this ruling.