Case Number: BC673274 Hearing Date: May 07, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT MICHAEL H. ROBBINS, D.D.S.’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On August 22, 2017, Plaintiff Jonathan Chapin (“Plaintiff”) filed this action against Defendant Michael H. Robbins, D.D.S. (“Defendant”) for dental negligence relating to treatment rendered between 1986 and 2016. Defendant moves for summary judgment on grounds this action is barred by the statute of limitations.

II. FACTUAL BACKGROUND

Plaintiff first presented to Defendant on October 30, 1986. (Undisputed Material Fact “UMF” No. 2.) In 1986, Defendant’s patient notes indicate Plaintiff’s periodontal condition was healthy and stable with periodontal measurements generally 2-3 mm. He also noted Plaintiff gave a history of smoking one pack of cigarettes per day. (UMF No. 3.) In July 1990, Defendant performed deep scaling and root planning and noted Plaintiff had “bony defects” on the upper right and left second molars. Defendant advised Plaintiff he may need periodontal surgery and the notes indicate Plaintiff “wanted to wait . . . not ready.” In March 1992, Defendant performed periodontal surgery on the upper left back teeth (teeth #12-15). (UMF No. 7.) In October 1994, Defendant recommended periodontal surgery on tooth #8, which had developed a 6mm pocket. Plaintiff “wanted to wait,” which Defendant documented in the chart. (UMF No. 8.) On July 31, 1995, Defendant noted extensive bone loss on three upper right front teeth (teeth #6, 7, 8), which had caused the teeth to begin to rotate. An appliance was made to straighten the teeth. (UMF No. 9.)

In 1997, Plaintiff’s periodontal condition worsened. However, Defendant’s notes indicate Plaintiff did not want to have periodontal surgery and wanted to wait to see if the condition improved. A June 9, 1998 x-ray demonstrated extensive breakdown of bone on the upper right front teeth. Defendant performed an emergency laser treatment in the area of teeth #6 and 8 and a root canal on tooth #8. (UMF No. 10.) On June 14, 1999, Defendant performed periodontal surgery on the upper right quadrant (teeth #2-7) and grafted the area with synthetic bone. Nothing in the chart reflects Plaintiff complained of severe gum recession. (UMF No. 11.)

In 2001, the notes indicate Plaintiff was still smoking heavily and had poor oral hygiene. Defendant’s notes indicate Plaintiff wanted to continue maintenance of his periodontal condition without surgery. (UMF No. 12.) In 2005, Defendant recommended periodontal surgery for the upper right teeth (teeth #2-6) and indicated in his notes that Plaintiff’s periodontal condition was worsening. Defendant also recommended surgery for the molars to the left side (teeth #14-15 and #18-19). Defendant again documented Plaintiff’s response was that Plaintiff wanted to wait. Oral hygiene was noted to be poor and the smoking continued. (UMF No. 13.) In November 2006, Defendant referred Plaintiff to Sam Markzar, a periodontist, for evaluation and treatment. (UMF No. 14.)

On May 29, 2007, Defendant received a letter from Dr. Markzar stating Plaintiff was diagnosed with generalized severe chronic periodontitis with localized acute periodontal abscess on teeth #6, 7, and 8. The treatment plan included deep cleanings (scaling and root planning), possible surgery, and potentially replacing certain teeth with implants. The letter stated Plaintiff was well educated about his condition. (UMF No. 15.)

Dr. Markzar’s custom and practice is to discuss the effects of smoking on the periodontal status. (UMF No. 22.) Dr. Markzar’s plan was to treat Plaintiff’s deep pockets and per his custom and practice, would have discussed his treatment plan with Plaintiff. (UMF No. 28.) Dr. Markzar’s notes reflect that Plaintiff had pus around several upper right anterior teeth (teeth #6, 7, and 8). (UMF No. 29.) The patient chart also reflects certain teeth were loose. (UMF No. 30.) The notes indicate a “plan for replacement of poor prognosis teeth via implants.” (UMF No. 32.) Dr. Markzar’s written sequential treatment plan confirms that Dr. Markzar explained to Plaintiff that he had severe periodontal disease. (UMF No. 35.) Dr. Markzar performed periodontal surgery on Plaintiff on June 7, 2007. (UMF No. 36.) Post-surgery notes indicate Plaintiff was informed he would have “higher shrinkage” and “apical displacement” of his gums due to the severity of his periodontal problems. (UMF No. 38.)

After surgery, Plaintiff was shocked and almost burst into tears upon seeing how his gums and teeth looked. (UMF Nos. 54, 55.) Plaintiff was shocked at how much gum tissue had been removed in surgery. (UMF No. 57.) On July 20, 2007, Plaintiff returned to Defendant and was very unhappy that the periodontal surgery had resulted in large triangular spaces between his upper right teeth. (UMF No. 59.) Defendant recommended that Plaintiff return to Dr. Markzar, but Plaintiff refused. (UMF No. 60.) In 2008, Defendant again recommended that Plaintiff return to Dr. Markzar, but Plaintiff did not want to. (UMF No. 61.) Thereafter, Plaintiff continued to have periodontal dental cleanings at Defendant’s office. During these visits, Defendant and the dental hygienist repeatedly informed Plaintiff that his periodontal condition was poor and the condition of his teeth was “guarded” due to poor oral hygiene and continued smoking. (UMF No. 62.) In 2012, Defendant informed Plaintiff of his increased pocket depth/inflammation and his worsening oral condition. Defendant prescribed low dose antibiotics. Plaintiff insisted he wanted to maintain his condition without surgery or extractions. (UMF No. 63.) The 2014 and 2015 patient notes show Defendant repeatedly informed Plaintiff of his serious condition. In July 2015, Plaintiff stated he could not financially handle any replacement of teeth or complicated treatment. (UMF No. 64.) In 2016, the notes indicate that Defendant again informed Plaintiff that his periodontal condition was worsening. (UMF No. 65.) July 21, 2016 was Plaintiff’s final visit to Defendant’s office. (UMF No. 66.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

As framed by the Complaint, Plaintiff alleges Plaintiff consulted with Defendant from about 1985 through July 2016 for the purpose of obtaining dental care and treatment. According to the Complaint, “[f]rom and after said times” Defendant negligently treated and care for Plaintiff, and “during the course of the Plaintiff’s dental treatment, Defendant . . . failed to properly monitor Plaintiff’s dental condition all to his damage.” (Complaint, ¶¶ 8, 11.) Thus, Plaintiff is complaining about negligence during the entire course of his time as a patient of Defendant. Specifically, Plaintiff alleges Defendant failed to properly monitor Plaintiff’s dental condition, failed to diagnose and treat and refer Plaintiff to a periodontal specialist for existing dental pathologies, and that as a result of these failures, Plaintiff experienced significant generalized attachment loss, severe gingival recession, tooth mobility, areas of root caries and resorption due to bone and tissue loss, root exposure and advanced bone loss due to generalized advanced periodontitis. (Complaint, ¶ 11.)

At issue is whether this action is barred by the statute of limitations. In an action for injury against a health care provider based upon 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. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. (Code Civ. Proc., § 340.5.)

A plaintiff in a medical malpractice action must satisfy the requirements of both the one-year and three-year limitations periods. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 436-437.) The injury commences both the three-year and one-year limitations periods (Larcher v. Wanless (1976) 18 Cal.3d 646, 658), but the one-year limitations period does not begin to run until the plaintiff discovers both his or her injury and its negligent cause (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189). The three-year limitations period is “designed to put an outside cap on the commencements of actions for medical malpractice, to be measured from the date of the injury, regardless of whether or when the plaintiff discovered its negligent cause.” (Marriage & Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1652.)

The “injury” is not necessarily the ultimate harm suffered, but instead occurs at “the point at which ‘appreciable harm’ is first manifested.” (Brown, supra, 32 Cal.3d at p. 437, fn. 8; Drexler, supra, 4 Cal.App.5th at p. 1190 [“The word ‘injury’ in section 340.5 ‘refers to the damaging effect of the alleged wrongful act and not the act itself’”]; Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762 [“Once the damaging effect of the alleged wrongful act is apparent, the statute is activated”].) “The word ‘manifest’ as used by our courts indeed suggests not only actual damage but that the damage has made itself known in some outward fashion.” (Marriage & Family Center, supra, 228 Cal.App.3d at p. 1652.) “‘Each case necessarily will turn on its own particular circumstance. It could well be that an injury or pathology will not manifest itself for some period after the last treatment by a physician. On the other hand, that injury or pathology may manifest itself and the patient will suffer known appreciable harm at a time prior to the ‘ultimate’ result. In the latter case, the . . . period will start to run at the point at which the ‘appreciable harm’ is first manifested.” (Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 543.)

“‘The question of when there has been a belated discovery of the cause of action, especially in malpractice cases, is essentially a question of fact,’ and ‘it is only where reasonable minds can draw but one conclusion from the evidence that the question becomes a matter of matter of law.’ [Citation.]” (Drexler, supra, 4 Cal.App.5th at p. 1189.)

Defendant argues that the undisputed facts show appreciable harm manifested no later than June 2007, based on Plaintiff’s consultation and seven-month treatment with Dr. Markzar, which resulted in exposed roots and big gaps between Plaintiff’s teeth—providing Plaintiff with actual knowledge of his periodontal injuries. It is undisputed that in May 29, 2007, Dr. Markzar provided a diagnosis of “generalized severe chronic periodontitis with localized acute periodontal abscess on teeth numbers 6, 7, and 8.” On June 7, 2007, Plaintiff underwent periodontal surgery by Dr. Markzar and Dr. Markzar’s notes indicate he informed Plaintiff he would experience gum shrinking and recession due to the severity of the bone loss. After the surgery, it is undisputed that Plaintiff was fully aware of the “appreciable harm,” when he was in shock at the amount of gum tissue that had been removed and was unhappy with the cosmetic appearance of the gaps in his teeth and gums. Defendant contends that based on Plaintiff’s own deposition testimony, there is no question that appreciable harm had manifested itself and Plaintiff was fully aware of the harm, as he returned to Defendant’s office complaining of the outcome of the surgery with Dr. Markzar.

Defendant further argues that under the “reasonable person” standard and the “discovery rule” applicable to the one-year statute of limitations, Plaintiff had actual knowledge which bars this action. “A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Ibid.) Defendant argues that Plaintiff had actual knowledge of injury in June 2007 when he was diagnosed with chronic severe periodontal disease, when he underwent periodontal surgery, and when he became distraught upon seeing how much gum tissue was removed and the gaps in his teeth. At the very least, Plaintiff had or should have had suspicions of injury such that he should have conducted a reasonable investigation and filed this action within one year of that date.

The Court finds Defendant has met his initial burden of showing that based on the undisputed facts, this action is barred by the statute of limitations. The burden shifts to Plaintiff to show a triable issue of fact exists. Defendant’s objections to the Declaration of Robert McCulloch and Jonathan Chapin are overruled.

Plaintiff argues that he first suspected dental negligence on November 23, 2016, when he was seen by Dr. Stella Kahn and Dr. Kevin Sands, who advised Plaintiff that he would require 8-10 extractions due to bone loss. Plaintiff states this is the first date he was advised about the extent and severity of his ongoing periodontal disease and that he would potentially lose multiple teeth due to bone loss. On November 29, 2016, Plaintiff consulted with periodontist Dr. Soleymani, who advised Plaintiff had aggressive generalized advanced periodontitis. On March 24, 2017, Plaintiff consulted with prosthodontist Dr. Davodi, who advised Defendant was aware of the extent and severity of Plaintiff’s chronic periodontal disease and failed to undertake a comprehensive plan to manage and treat the condition.

Plaintiff contends there is a triable issue of fact as to when Plaintiff actually had notice or should have had notice of the subject injury and cause thereof. Plaintiff relies on Kitzig v. Nordquist (2008) 81 Cal.App.4th 1384, where the plaintiff was treated by defendant dentist from January 1992 to August 1995, during which time the plaintiff suffered a series of infections and failed implants. The plaintiff filed her action in April 1996 and the jury found that the one-year limitations period did not begin to run when plaintiff consulted with a second dentist in May 1994, which the defendant had argued showed her suspicion or knowledge of negligent treatment. (Id. at p. 1390.)

Plaintiff’s reliance on Kitzig is misplaced. Plaintiff argues exclusively about the discovery rule, which applies only when the one-year statute of limitations is at issue. Plaintiff neglects the three-year statute of limitations and that a plaintiff in a medical malpractice action must satisfy both the one-year and three-year limitations period. (Brown, supra, 32 Cal.3d at pp. 436-437.) Kitzig focused solely on the one-year statute of limitations and therefore, analysis of the plaintiff’s suspicions of wrongdoing and her ongoing patient relationship with the defendant were crucial to determining when the plaintiff discovered the injury, thereby triggering the one-year statute of limitations. (Kitzig, supra, 81 Cal.App.4th at pp. 1392-1393.) Here, even if Plaintiff did not discover the injury and the cause of the injury until November 23, 2016, his action is still barred if he failed to file it within three years of the manifestation of appreciable harm.

Plaintiff contends he was not informed of the full extent and severity of his periodontal condition until November 23, 2016, when he was advised he would need 8-10 extractions. The need for 8-10 extractions can be characterized as the “ultimate harm” resulting from Defendant’s alleged negligence. The court in Marriage & Family Center expressly rejected the “correlation between manifestation of damage and the plaintiff’s ‘discovery’ of the damage” (Marriage & Family Center, supra, 228 Cal.App.3d at p. 1654), and it is well settled that a plaintiff need not suffer his or her “ultimate harm” for either of section 340.5’s limitations periods to start running (Hills, supra, 152 Cal.App.3d at p. 762). Therefore, the crucial inquiry is when the appreciable harm first manifested, thereby triggering the three-year statute of limitations.

“[D]amage is ‘manifested’ for purposes of commencing the three-year period when it has become evidenced in some significant fashion, whether or not the patient/plaintiff acutally becomes aware of the injury . . . [S]evere damage which does not show itself (hidden cancer, for instance) is not ‘injury’ until it is found by diagnosis. It does not follow, however, that damage which has clearly surfaced and is noticeable is not ‘injury’ until either the plaintiff or her physican recognize it.” (Marriage & Family Center, supra, 228 Cal.App.3d at p. 1654.) In Drexler, the Court of Appeal addressed when appreciable harm is manifest in the context of an alleged failure to diagnose or treat a preexisting condition. (Drexler, supra, 4 Cal.App.5th at p. 1194.) The court concluded, “With the worsening of the plaintiff’s condition, or an increase in or appearance of significant new symptoms, the plaintiff with a preexisting condition either actually (subjectively) discovers, or reasonably (objectively) should be aware of, the physical manifestation of his or her injury.” (Ibid.)

This not a case of hidden damage where the harm of negligent diagnosis is manifested only by correct diagnosis. Plaintiff alleges Defendant negligently monitored and treated his periodontal status, including failing to refer him to a periodontist. The undisputed facts show the worsening condition of his periodontal status manifested throughout his treatment with Defendant. Plaintiff testified that when he started treating with Defendant in 1986, he saw Defendant on 6-month intervals. In 1991, he started seeing Defendant at 3-month intervals. It was explained to Plaintiff that he needed to come in more frequently because he was showing signs of gum disease. (UMF No. 42; Pltff’s Depo., 86:14-87:1.) The harm—i.e., the worsening of Plaintiff’s periodontal condition as a result of Defendant’s alleged negligent treatment—was manifest at that time. Between 1990 and 1997, Plaintiff underwent periodontal surgery to some teeth, emergency laser treatment and root canal, and was repeatedly recommended to undergo periodontal surgery. Plaintiff insisted he wanted to wait and see if the condition improved. In 2001 and 2005, Defendant made additional recommendations that Plaintiff undergo periodntial surgery, but Plaintiff wanted to wait. Throughout this time, the harm was again manifest—that Plaintiff’s condition was worsening.

Defendant referred Plaintiff to Dr. Markzar in 2006, where Plaintiff was diagnosed with generalized severe chronic periodontitis with localized acute periodntal abscess on teeth #6, 7 and 8. From November 2006 through June 2007, Plaintiff treated with Dr. Markzar. Dr. Markzar’s notes reflect Plaintiff had pus around several teeth, that certain teeth were loose, and a treatment plan to replace poor prognosis teeth via implants. Dr. Markzar performed periodontal surgery on Plaintiff on June 7, 2007, after which, Plaintiff was shocked by and unhappy with the amount of gum tissue that had been removed.

Plaintiff argues that he was never advised of the “ultimate harm” of tooth loss, or the severity of his condition, and that because Defendant had performed prior periodontal surgeries on some teeth, there was no reason for him to believe the periodontal surgery with Dr. Markzar signified a worsened condition. Plaintiff argues Defendant assured Plaintiff that his periodontal condition was being managed. Again, these arguments focus on discovery of the injury rather than manifestation of appreciable harm.

The decision in Marriage & Family Center is instructive. There, the plaintiff was sexually abused by her father, her first therapist, and her second therapist, Dr. Hansen. The plaintiff subsequently sought treatment by another therapist, Dr. Morris. (Mariage & Family Center, supra, 228 Cal.App.3d at p. 1650.) When Dr. Morris began treating the plaintiff in 1985, he reported the abuse by plaintiff’s father, first therapist, and Dr. Hansen. (Ibid.) Dr. Morris also identified the abuse by Dr. Hansen as a cause of plaintiff’s emotional damage, anxiety, and inability to effectively funciton and work. (Ibid.) The plaintiff filed a malpractice action against Dr. Hansen in 1989, and Dr. Hansen filed a summary judgment motion on grounds the action was barred by the statute of limitations. (Ibid.) The plaintiff argued that only through her four years of treatment with Dr. Morris did she begin to see the events more objectively, and she did not “discover” her cause of action against Dr. Hansen until late in her treatment with Dr. Morris. (Id. at p. 1654.)

The trial court denied the defendant’s motion for summary judgment. On appeal, the appellate court stated, “Dr. Morris’s reports can be read as suggesting that while he understood as early as 1985 the damage which had been done to plaintiff, he did not effectively advise her of it until a much later date. Assuming these facts, we have the unique situation of plaintiff’s damage being most manifest—indeed being recognized by her physician—but not being recognized or understood by the plaintiff.” (Id. at p. 1655.) The appellate court then explained, “[t]he one-year period commences when the ‘plaintiff discovers . . . the injury.’ The three-year period, however, commences simply upon the ‘date of injury.’ That nothing beyond the mere existence of the ‘injury’ is to be required is emphasized by the statement that the three-year period may be extended only by three specific exceptions, none of which relates to the plaintiff’s discovery of her condition (absent fraud or concealment by the defendant).” (Id. at p. 1654.) Given this, the Court of Appeal concluded “there can be no dispute, under the admitted facts of the case, that the three-year statute has run; the superior court therefore should have granted summary judgment in favor of petitioner.” (Id. at p. 1655.)

Similarly, here, the harm of Defendant’s alleged failure to adequately monitor and treat Plaintiff’s periodontal condition manifested throughout his treatment with Defendant and especially when Plaintiff treated with Dr. Markzar in 2007. Defendant and Dr. Markzar recognized the injury (the worsening of Plaintiff’s condition) even if Plaintiff did not accept it or understand the consequences (the loss of teeth, i.e., the ultimate harm) until 2016. Significantly, Plaintiff argues he was never advised as to the “extent” and “severity” of his condition, not that he was never advised as to the worsening condition. Plaintiff’s worsening periodontial prognosis was manifest when he was required to see Defendant every three months, rather than six; when he was advised to undergo periodontal surgery, but he insisted he wanted to wait; when he was referred to and treated by Dr. Markzar, who diagnosed Plaintiff with generalized severe chronic periodontitis; and when he saw how much gum tissue was removed after surgery. Plaintiff was aware of the condition and that it was manifest, even if he did not know the “extent” or “severity” of the ultimate harm.

While there is evidence of manifestation of appreciable harm much earlier, the injury—actual and apparent manifestation of harm as a result of Defendant’s alleged failure to monitor and treat Plaintiff’s periodontal condition—occurred by at least 2007. Therefore, the statute of limiations has expired and this action is barred.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.