Filed 10/4/19 Woods v. Lifschutz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

LOUISA WOODS,

Plaintiff and Appellant,

v.

HARRY LIFSCHUTZ,

Defendant and Respondent.

E070637

(Super.Ct.No. PSC1603823)

OPINION

APPEAL from the Superior Court of Riverside County. David M. Chapman, Judge. Affirmed.

Spile, Leff & Goor and D.W. Duke for Plaintiff and Appellant.

Ford, Walker, Haggerty & Behar and Jeffrey S. Behar, Tina I. Mangarpan, and Mark P. LaScola for Defendant and Respondent.

I.

INTRODUCTION

Defendant and respondent, Harry Lifschutz, M.D., performed surgery on plaintiff and appellant, Louisa Woods’s abdomen in January 2015, and again in April 2015. On April 18, 2015, Woods went to another physician, Dr. Reckard, because her stomach was “open,” which Woods believed was abnormal. Dr. Reckard performed surgery on Woods on April 21, 2015, and told Woods after the surgery that Dr. Lifschutz had caused a tear in her colon, which necessitated yet another surgery in order to repair it.

About sixteen months later, on August 5, 2016, Woods sued Dr. Lifschutz for negligence. The trial court granted Dr. Lifschutz’s motion for summary judgment on the ground that Woods failed to file her complaint within the limitations period for medical malpractice claims.

Woods contends the trial court erred by granting summary judgment because she did not have reason to suspect Dr. Lifschutz had committed malpractice until April 2016, when her son suggested that she consult an attorney.

Based on the undisputed facts presented, we conclude as a matter of law that the statute of limitations for Woods’s complaint accrued on April 21, 2015, when Dr. Reckard told her that she had to undergo surgery because Dr. Lifschutz had caused a tear in her colon. Accordingly, the statute of limitations expired at the latest on July 20, 2016, before Woods filed her complaint on August 5, 2016. Because the trial court did not err in granting Dr. Lifschutz’s motion for summary judgment based on the statute of limitations, we affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

The following undisputed facts are taken from the evidence cited in Dr. Lifschutz’s summary judgment statement of undisputed material facts, Woods’s separate statements of undisputed material facts, and Dr. Lifschutz’s reply.

In January 2015, Woods went to John F. Kennedy Memorial Hospital (Kennedy) and was diagnosed with an incarcerated parastomal hernia with a small bowel obstruction. Dr. Lifschutz performed on Woods a laparotomy, a complex reconstruction of her stoma, and other procedures.

On April 9, 2015, Woods returned to Kennedy with a recurrent incarcerated parastomal hernia. The next day, Dr. Lifschutz performed another surgery on Woods’s hernia.

On April 18, 2015, Woods went to the Eisenhower Medical Center Emergency room (Eisenhower) because the wound from her April 9 surgery had opened and “she had stool coming out.” Woods went to Eisenhower instead of Kennedy because she did not want to be seen by Dr. Lifschutz because her “stomach had come open” and she did not “think that that’s normal after you perform a surgery.”

An unknown emergency room physician at Eisenhower commented to Woods that her wound was “open.” Woods responded, “‘Yeah, I know it’s open. But I refused to go back to the doctor that performed the surgery.’” The physician asked Woods who the doctor was, and Woods told her that it was Dr. Lifschutz. In response, the physician stated, “‘Oh, I’ve heard of him. We’ve had to clean up his messes before.’” During the same visit, someone at Eisenhower told Woods that her wound had opened because she was obese and that, “because [she] came in right away [she] was not in any danger.”

On April 21, 2015, Woods returned to Eisenhower because stool was leaking out of her wound. Dr. Reckard noticed Woods had “foul-smelling drainage from her wound,” and “had stool either leaking from her colostomy into the wound or more concerning would be potentially stool leaking out of the wound.” Dr. Reckard informed Woods that she had developed an infection and needed a colostomy with resection, which he performed later that day.

During the procedure, Dr. Reckard determined that Woods “would need to have her colostomy moved.” After her surgery, Dr. Reckard told Woods that she had developed an infection and was not healing because Dr. Lifschutz had caused a tear in her colon, which caused feces to leak into her abdomen.

The next day, April 22, 2015, Dr. Reckard performed surgery on Woods. In his post-operative report, Dr. Reckard indicated the surgery was in part necessary to repair the colon tear Dr. Lifschutz had caused, which, in turn, caused feces to leak into her body and her resultant infection.

Almost a year later, in April 2016, Woods’s son suggested that she consult with an attorney to determine whether Dr. Lifschutz had committed malpractice. On April 9, 2016, Woods’s counsel sent Dr. Lifschutz a 90-day notice of intent to sue under Code of Civil Procedure section 364, subdivision (a). Woods then filed this case on August 5, 2016, alleging medical negligence against Dr. Lifschutz.

Dr. Lifschutz moved for summary judgment on the ground that Woods’s complaint was barred by the one-year statute of limitations for medical malpractice actions. (See § 340.5.) Dr. Lifschutz argued that the statute of limitations accrued when a physician at Eisenhower told Woods on April 18, 2015, that “[we’ve] had to ‘clean up’ Dr. Lifschutz’s ‘messes’ before.” Woods opposed the motion, arguing that she did not have notice sufficient to trigger the statute of limitations until her son recommended in April 2016 that she consult an attorney. Thus, Woods argued her August 2016 complaint was timely.

On March 29, 2018, the trial court heard and granted Dr. Lifschutz’s motion for summary judgment on the ground that the latest the statute of limitations began to run was April 21 or 22, 2015, which rendered her August 5, 2016, complaint untimely filed. The trial court reasoned: “Woods acknowledges in her declaration that she understood at the time of her second surgery (April 22, 2015) that Dr. Reckard had discovered a tear in her colon which necessitated the surgery.” The trial court therefore concluded the statute of limitations expired on July 21, 2016, at the latest, which made Woods’s August 5, 2016, complaint time-barred. Woods timely appealed.

IV.

DISCUSSION

Woods contends the trial court erred in concluding that her August 5, 2016, complaint is barred by the statute of limitations. She argues the statute did not begin to run until April 2016, when her son advised her to see an attorney to assess whether Dr. Lifschutz had committed medical malpractice.

We disagree. We conclude that, even if Woods did not actually suspect Dr. Lifschutz was negligent on April 18, 2015, when she returned to Eisenhower, she reasonably should have suspected he had been negligent on April 21, 2015, when Dr. Reckard told her that he had to perform another surgery on her because Dr. Lifschutz had caused a tear in her colon. We therefore conclude the statute of limitations ran at the latest one year and 90 days later, on July 20, 2016. (See Woods v. Young (1991) 53 Cal.3d 315, 325 [holding statute of limitations for medical malpractice actions is one year and 90 days when the plaintiff sends the physician-defendant a 90-day notice of intent to sue].) Accordingly, Woods’s August 5, 2016, complaint was untimely filed.

A. Summary Judgment Principles
B.
“The trial court properly grants a motion for summary judgment ‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).)” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 639.) We independently review the trial court’s ruling on Dr. Lifschutz’s motion for summary judgment, “applying the same three-step analysis required of the trial court. [Citations.] First, we identify the issues framed by the pleadings. . . . [¶] Second, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. . . . [¶] [T]he third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.) “[W]e construe the moving party’s affidavits strictly, construe the opponent’s affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.” (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.)

“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 (Jolly).)

B. Applicable Statute of Limitations Law

Code of Civil Procedure section 340.5, provides that a plaintiff must bring a claim for medical malpractice no later than “one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury” underlying the claim. Code of Civil Procedure section 364, subdivision (a) requires a plaintiff to provide a healthcare provider with 90 days’ notice of an intent to sue for medical malpractice. When, as here, a notice of an intent to sue “is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” (Code Civ. Proc., § 364, subd. (d).) This “results in a period of 1 year and 90 days in which to file the lawsuit.” (Woods v. Young, supra, 53 Cal.3d at p. 325.)

The statute of limitations period for medical malpractice actions 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.” (Jolly, supra, 118 Cal.App.4th at p. 1110.) The limitations period begins once a plaintiff has notice or information to put a reasonable person on inquiry. (Id. at pp. 1110-1111.) The plaintiff “need not be aware of the specific ‘facts’ necessary to establish the claim” for the statute to begin to run. (Id. at p. 1111.) “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Ibid.) “In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)

Jolly thus “sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing. [Citation.] The first to occur under these two tests begins the limitations period.” (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391, citing Jolly, supra, 44 Cal.3d at p. 1110.)

C. Analysis
D.
Dr. Lifschutz argued in his summary judgment motion that the latest Woods suspected or should have suspected her injury was April 18, 2015, when: (1) she went to Eisenhower because her “stomach had come open,” which she considered to be not “normal after a doctor performs a surgery,” and (2) an Eisenhower E.R. physician told her that “[we’ve’ had to ‘clean up’ Dr. Lifschutz’s ‘messes’ before.” Dr. Lifschutz alternatively argued Woods was on notice of his alleged negligence on April 21, 2015, when Dr. Reckard performed a surgery related to the infection Woods had developed because Dr. Lifschutz tore her colon.

1. Evidence on April 18, 2019, that Dr. Lifschutz was negligent
2.
Woods stated in her deposition that, while recovering after her April 10, 2015, surgery, she told Dr. Lifschutz that her wound did not “‘look right’” and that she could “‘still see inside.’” She further testified that, on April 18, 2015, she went to Eisenhower because her “stomach had come open,” which she did not believe was “normal after you perform a surgery.” Notably, Woods testified that she went to Eisenhower instead of Kennedy because she did not want Dr. Lifschutz to see her. Taken together, these circumstances show that Woods suspected that Dr. Lifschutz had done something wrong by April 18, 2015—more than a year and 90 days before she filed her lawsuit on August 5, 2016.

In opposing the summary judgment motion, Woods submitted a declaration stating that she did not suspect on April 18, 2015, that Dr. Lifschutz had committed malpractice. Woods further stated she chose to go to Eisenhower instead of Kennedy because she “wanted someone else to take care of the open wound so hopefully it wouldn’t happen again.” This statement suggests that she suspected that Dr. Lifschutz had done something wrong by April 18, 2015, thereby triggering the statute of limitations.

3. Woods reasonably should have suspected Dr. Lifschutz was negligent by April 21, 2015, at the latest
4.
Even if Woods had not actually suspected any wrongdoing on April 18, 2015, the undisputed evidence shows Woods reasonably should have suspected by April 21, 2015, that Dr. Lifschutz was negligent. Because the one-year statute of limitations was triggered at the latest on April 21, 2015, the deadline to file her complaint was one year and 90 days later, on July 20, 2016.

On April 21, 2015, Dr. Reckard performed a colostomy on Woods, during which he found a tear in her colon, which he attributed to Dr. Lifschutz. Later that evening, Dr. Reckard informed Woods she had developed an infection because Dr. Lifschutz tore her colon, which prevented her from healing correctly. Dr. Reckard recommended further surgery to correct the tear, and he performed the surgery the next day.

Although Woods claimed that she had “only a very hazy recollection” of her hospitalization at Eisenhower, she does not dispute she understood Dr. Reckard’s diagnosis and recommendation when he explained it to her on April 21, 2015. Specifically, Woods testified she understood Dr. Reckard when he told her on April 21, 2015, that Dr. Lifschutz had caused a tear in her colon, which caused her infection and, in turn, required surgery the next day, April 22, 2015. Based on this evidence, we conclude Woods reasonably should have suspected Dr. Lifschutz negligently performed her surgeries on April 21, 2015. (Jolly, supra, 118 Cal.App.4th at p. 1111.) Therefore, the deadline to file her complaint was July 20, 2016, (one year and 90 days after April 21, 2015), which means her August 5, 2016, complaint was untimely filed.

5. The statute of limitations began in April 2015, not April 2016.
6.
On appeal, Woods offers four arguments to support her position that the statute of limitations period began to run in April 2016, not in April 2015. We find none of them persuasive.

First, Woods argues the trial court erred because she was not on notice on April 18, 2015, that Dr. Lifschutz was negligent, “because there was no diagnosis” until April 22, 2015. This argument misses the point because the trial court concluded the statute of limitations began to run at the latest on April 21 or 22, 2015, and Woods’s complaint was untimely filed regardless of whether the statute of limitations began to run before April 22, 2015, because it was not filed until August 5, 2016—more than a year and 90 days after April 22, 2015.

Furthermore, an exact diagnosis is not necessary to trigger the statute of limitations. A patient does not have to know the actual negligent cause of the injury, because “mere suspicion of negligence suffices to trigger the limitation period.” (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295, original italics.) The plaintiff need not know the specific facts (e.g., medical cause, diagnosis, etc.) necessary to establish a claim for medical malpractice. (Norgart v . Upjohn Co. (1999) 21 Cal.4th 383, 398.) Instead, the plaintiff need only “‘suspect[] . . . that someone has done something wrong’ . . . [citations], ‘wrong’ being used, not in any technical sense, but rather in accordance with its ‘lay understanding.’ [citation].” (Id. at pp. 397-398.)

Dolan v. Borelli (1993) 13 Cal.App.4th 816, is instructive. In Dolan, the defendant-physician told the plaintiff that she would be pain-free within 60 days after a surgery. (Id. at p. 819.) When the plaintiff continued to experience pain more than 60 days later, she suspected that the defendant had performed the surgery improperly. As a consequence, she consulted another physician, who performed a second procedure. (Id. at p. 820.) During that procedure, the second physician observed the defendant had not performed the first surgery correctly. (Ibid.) The Court of Appeal rejected the plaintiff’s argument that the statute of limitations began to run from the date of her second operation. (Id. at p. 824.) The Court explained that, under Jolly, “the essential inquiry is when did [the plaintiff] suspect [the first doctor] was negligent, not when did she learn precisely how he was negligent.” (Dolan, supra, at p. 824.) The statute of limitations thus can begin running before a medical malpractice patient receives a diagnosis or learns how a physician was negligent, as in the instant case.

For similar reasons, we reject Woods’s second argument that the statute of limitations could not have begun to run in April 2015 because “no one ever told her that Dr. Lifschutz may have committed malpractice” until she retained counsel in April 2016.

As our Supreme Court explained in Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897 and 898: “[T]he uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim. [Citations.] It is irrelevant that the plaintiff is ignorant of . . . the legal theories underlying his cause of action. Thus, if one has suffered appreciable harm and knows or suspects that . . . blundering is its cause, the fact that an attorney has not yet advised him does not postpone commencement of the limitations period.”

Here, the undisputed facts show Woods suspected Dr. Lifschutz had done something wrong as early as April 18, 2015, when she went to Eisenhower for treatment by someone other than Dr. Lifschutz so that her wound “hopefully it wouldn’t [open] again.” Woods also went to Eisenhower because she did not want Dr. Lifschutz to see her and she thought it was not “normal after you perform a surgery” for a wound to open like hers did.

Woods’s third argument also lacks merit. Woods argues she was not on notice on April 18, 2015, that Dr. Lifschutz may have been negligent because Eisenhower staff told her that her wound opened due to her obesity. Even assuming Woods no longer suspected that Dr. Lifschutz had done anything wrong, she reasonably should have suspected he was negligent on April 21, 2018, when Dr. Reckard told her that Dr. Lifschutz had torn her colon, which caused an infection and other complications. As explained above, Woods’s awareness of Dr. Lifschutz’s wrongdoing on April 21, 2015, triggered the statute of limitations. Whether she actually suspected he had been negligent before then does not alter our conclusion that her complaint was not timely filed on August 5, 2016.

Finally, Woods asserts the trial court erred because Dr. Lifschutz did not respond to her separate statement of undisputed facts in support of her opposition to the summary judgment motion. Because he did not do so, Woods argues the trial court was required to accept her undisputed facts as true. Specifically, Woods contends the trial court had to find she was not on notice of Dr. Lifschutz’s negligence, because she asserted in her separate statement she was not sufficiently aware of his alleged negligence on April 18, 2015, to trigger the statute of limitations, and “[n]othing occurred between April 18 and April 22” that would have triggered the statute of limitations. As explained above, even if Woods was not on notice of Dr. Lifschutz’s alleged negligence on April 18, 2015, the undisputed evidence shows she was on notice of it three days later, on April 21, 2015. Whether Dr. Lifschutz responded to Woods’s separate statement does not change that conclusion. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1271 [holding it was “irrelevant” that “fact” in separate statement of undisputed facts was undisputed by opposing party because “fact” was a legal conclusion].)

Based on the undisputed evidence, we conclude the statute of limitations for Woods’s medical malpractice claim began to run at the latest by April 21, 2015. The trial court therefore properly granted Dr. Lifschutz’s summary judgment motion on the ground Woods’s August 5, 2016, complaint was untimely because it was filed more than one year and 90 days after Woods was on notice of Dr. Lifschutz’s alleged negligence as a matter of law.

V.

DISPOSITION

The judgment is affirmed. Dr. Lifschutz is awarded his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

SLOUGH

J.