Filed 2/27/20 Rygh v. Brinton CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

STANLEY RYGH,

Plaintiff and Appellant,

v.

DANIEL A. BRINTON et al.,

Defendants and Respondents.

A156083

(Contra Costa County

Super. Ct. No. C17-00351)

Plaintiff Stanley Rygh (Stanley), as successor in interest to his late mother Doris Rygh (Doris), brought a medical malpractice action against defendants Daniel A. Brinton (Brinton) and Brinton’s medical group East Bay Retinal Consultants, Inc. (collectively, defendants), alleging defendants’ negligence caused Doris to lose vision in her left eye—the only eye in which she had vision at the time she was seen by defendants. He appeals from summary judgment entered in favor of defendants on statute of limitations grounds. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 6, 2014, Doris scored nearly 20/20 on a post-cataract-surgery vision exam. A week later, she saw her cataract surgeon again because of decreased vision in her right eye; the cataract surgeon examined Doris, conducted a visual field test, ordered lab work, and referred her to Brinton, a board-certified ophthalmologist who specializes in diseases of the retina. The next day, before her first appointment with Brinton, Doris became completely blind in her right eye.

On October 15, Doris saw Brinton for the first time and told him she had just lost vision in her right eye. Brinton examined Doris and ordered an MRI and more bloodwork; Doris had the bloodwork and MRI done. On October 21, Doris suddenly lost vision in her left eye; it went “from being fine, normal to being completely dark.” Stanley called Brinton’s office, but Brinton was unavailable. Doris saw Brinton again on October 22. Brinton asked, “why didn’t you take her to the hospital?” and “emergently sent Doris to the hospital” after a brief examination.

At the hospital, Doris underwent a biopsy that revealed her blindness was caused by Giant Cell Arteritis (GCA). She was immediately placed on prednisone; when she asked, “ ‘Why am I on this?’ ” an emergency room or hospital doctor told her, “ ‘It stops the disease.’ ” Neither Stanley nor Doris knew at that time that GCA is a medical emergency that can cause blindness and requires immediate treatment with prednisone to prevent the risk of irreversible blindness. Brinton called twice while Doris was in the hospital and also visited; each time, he asked whether Doris had regained her vision or if there was any change in her vision. Doris stayed in the hospital for about one week.

On October 30, Stanley called Brinton’s office and asked for suggestions on how to improve Doris’ vision. In January 2015, Brinton referred Doris to low vision support services; at that time, he mentioned to Stanley that Doris’ lab results did not support a diagnosis of GCA. Stanley reached out to the low vision specialist who told him there was nothing that could be done to improve Doris’ vision. In February 2015, Stanley called Brinton to ask him whether a drug he learned about on the internet would help Doris’ vision. Brinton told Stanley it was unlikely Doris would ever see again and there was nothing available to treat her. This was the last contact Stanley and/or Doris had with Brinton.

Doris was blind for the rest of her life. After her one-week stay at the hospital, she moved to a skilled nursing facility, then to an assisted care living facility. Before becoming blind in both eyes, Doris was a healthy 88-year-old who lived on her own and worked up to three days a week at a cardiology office. After becoming blind, she could no longer work or live by herself and became depressed. Stanley spent up to 10 hours a day helping his mother. From November 6 to 14, 2015, Doris was hospitalized for reasons unrelated to her blindness. She became unresponsive on or about November 15 and passed away at the assisted care living facility on November 22.

A “couple months” after Doris’ death, Stanley requested and reviewed Doris’ medical records “[j]ust to find out what happened.” He came to believe that if Brinton had ordered a biopsy or prescribed prednisone upon seeing Doris and receiving lab results, her vision in her left eye would have been preserved.

On November 21, 2016—one day before the first anniversary of Doris’ death—Stanley served on defendants a notice of intent to commence a malpractice action as Doris’ successor in interest (Code Civ. Proc., § 364). On February 21, 2017, he filed a medical malpractice survival action alleging defendants negligently failed to comply with professional standards in treating Doris, which caused her to lose her left eye vision, leaving her completely blind.

Defendants moved for summary judgment on the ground that Stanley’s deposition testimony established the one-year statute of limitations accrued at least one week before Doris’ death. In particular, Stanley testified: “Towards the end of her life, we had spoken about many things.” “At some point when it became very clear that she would never see again, she would wonder how did this all happen, why did it all happen, how come—how come she wasn’t given the medicine that would have stopped the disease in its tracks.” Defendants’ counsel asked, “When did she think that? Are you talking about the prednisone?” Stanley responded, “Yeah. She was wondering how come they didn’t offer the medicine earlier.” Stanley did not recall precisely when this conversation took place but thought it was before Doris’ last hospital stay (from November 6 to 14, 2015) before she became nonresponsive in the last week of her life. Stanley further testified: “There was always a general feeling that something had gone off the rails and we just didn’t know what had happened. . . .” Counsel asked whether both Stanley and his mother had “this general feeling that something had gone off the rails.” Stanley replied: “Well, after a while at some point, we realized—I don’t remember when it was. At some point, we realized—somebody told us—it was a doctor or someone—that had she been diagnosed correctly and had prednisone sooner, it would have stopped the vision loss. Had it been soon enough, she would have had vision in her one eye.”

Stanley opposed the summary judgment motion and argued, among other things, that the statute of limitations did not accrue until after Doris’ death because “[a]t no time through the date that [she] passed away, did she or I suspect or believe that Dr. Brinton or East Bay [Retina] were to blame or responsible for [her] blindness or that they committed any wrongdoing.” He explained he suspected only that the lab company had provided inaccurate results, causing Doris to be misdiagnosed. Stanley testified as follows at his deposition: “We thought maybe there was a problem with LabCorp. LabCorp didn’t have the greatest reputation. We knew we had gone there for lab work. We thought, ‘Did these guys screw up?’ ” “It was towards the end of her life. It was—it was just kind of like what had happened . . . and how come she didn’t get the medicine and did LabCorp screw up. I said I’d look into it sometime down the road, which is why I did. That’s why I initially requested the medical records after her death.” Stanley testified that phlebotomists at Doris’ skilled nursing facility and assisted care living facility “would always bad-mouth LabCorp and talk about how they didn’t really like working for them. [¶] After a while, it kind of became, gee, maybe LabCorp screwed something up. . . .” “I believe at some point, I looked LabCorp’s history up on the internet, and it looked like LabCorp had had some trouble with some of their operations in the past. I started to wonder whether they were providing accurate lab results.” Stanley also argued in his opposition to the summary judgment motion that the statute of limitations should be tolled due to Doris’ blindness because she was incapable of caring for herself and could not reasonably be expected to investigate the cause of her injury.

The trial court granted the motion for summary judgment and entered judgment in favor of the defendants. The court determined it was undisputed Doris had the “belief or suspicion” of wrongdoing necessary for the limitations period to begin running “sometime in the days or weeks before November 15, 2015. At that time she was on notice to investigate. . . .” “The CCP 364 notice served on November 21, 2016 was late and the complaint which was not filed until February 21, 2017 is barred by the statute of limitations.”

DISCUSSION

We conclude the trial court properly granted defendants’ motion for summary judgment on statute of limitations grounds.

A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (Code Civ. Proc., § 312.) Generally speaking, a cause of action accrues “when the cause of action is complete with all of its elements.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) An exception to the accrual rule is the “discovery rule,” which postpones accrual until the plaintiff discovers, or has reason to discover, the cause of action. (Ibid.) “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. . . . [T]he limitations period begins once the plaintiff ‘ “ ‘has notice or information of circumstances to put a reasonable person on inquiry. . . .’ ” ’ [Citations.] A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. 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.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110–1111; Norgart, supra, 21 Cal.4th at p. 398 [a plaintiff is considered to have discovered a cause of action when “he at least ‘suspects . . . that someone has done something wrong’ to him”].)

Moreover, the “failure to discover, or have reason to discover, the identity of the defendant does not postpone the accrual of a cause of action.” (Id. at p. 399, citing Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932.) This is because the identity of the defendant is not an element of any cause of action, and because a plaintiff who suspects wrongdoing “ ‘normally’ has ‘sufficient opportunity,’ within the ‘applicable limitations period,’ ‘to discover the identity’ of the [defendant].” (Norgart, supra, 21 Cal.4th at p. 399.)

The trial court’s ruling on a summary judgment motion is reviewed de novo. (Id. at p. 303.) We “must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law.” (Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 977.) “ ‘A defendant has the initial burden to show that undisputed facts support summary judgment based on the application of an affirmative defense’ ” like the statute of limitations. (Drexler v. Peterson (2016) 4 Cal.App.5th 1181, 1188.) Once the moving party carries its initial burden, we then decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Ibid.)

The parties agree the statute of limitations that applied to Doris likewise applies to Stanley as her successor in interest. (§ 366.1, subd. (b) [successor in interest must bring action within six months of decedent’s death or during the limitations period that would have applied had the decedent not died].) The parties also agree the one-year statute of limitations under section 340.5 applies to the action. Under section 340.5, a plaintiff must bring an action against a “health care provider based upon such person’s alleged professional negligence” within “three years after the date of the injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”

We conclude the undisputed facts establish the one-year statute of limitations period began to run, at the latest, in early November 2015. Accordingly, the notice of intent to sue and complaint were untimely. Doris knew she was injured when she lost vision in her left eye on October 21, 2014. Thereafter, she became aware her blindness was permanent and irreversible and that something had “gone off the rails” for this to occur. She learned the cause of her blindness, i.e., that she was misdiagnosed and was not given prednisone in a timely manner. Although Stanley testified he and Doris suspected only the lab company, not Brinton, their “failure to discover, or have reason to discover, the identity of the defendant [did] not postpone the accrual of a cause of action.” (Norgart, supra, 21 Cal.4th at p. 399.) Doris’ knowledge of her injury (blindness) and the cause of her injury (failure to diagnose with GCA and immediately treat with prednisone), coupled with the suspicion that some wrongdoing had occurred, triggered her duty to investigate. And, in fact, Stanley’s review of Doris’ medical records just a couple of months after her death—and still within the one-year limitations period—disclosed the true identity of the defendants (in Stanley’s view) and provided Stanley with the information necessary to file suit against them. (See id. at p. 398 [noting the “commonsense assumption” that a plaintiff who is aware of the elements of the cause of action will be able to discover the identity of a defendant within the limitations period].)

Stanley argues his deposition testimony was not entirely clear and therefore “fails to establish that Doris ever suspected wrongdoing caused her [blindness].” He asserts, for example, that he “mistakenly” used the word “we” instead of “I” during his deposition to attribute some of his own thoughts to his mother: “He mistakenly testified that, ‘after a while at some point, we realized—somebody told us—it was a doctor or someone—that had she been diagnosed correctly and had prednisone sooner, it would have stopped the vision loss.’ ” He asserts that what he meant to say is that a doctor told him (not him and Doris) that earlier treatment with prednisone would have saved her vision in her left eye. He argues a jury “could reasonably infer” from his deposition testimony as a whole and his declaration in opposition to the summary judgment motion that he “meant ‘I’ when he said ‘we,’ and that Doris was never told by anyone, a doctor or otherwise, that her vision could have been saved had she been diagnosed correctly by Brinton.” We disagree that Stanley’s deposition testimony was unclear. Rather, he unequivocally testified that he and his mother discussed the cause of her injury, including agreeing that something had “gone off the rails,” wondering why she was not given prednisone right away, and asking whether LabCorp, which did not have a good reputation, had “screw[ed] up.” We believe the only reasonable inference that can be drawn from the record is that, by November 2015 at the latest, both Stanley and Doris had the information necessary to place them on notice, and for the limitations period to begin.

Stanley argues the statute of limitations should nevertheless be tolled. First, he argues it should be tolled because of the doctor-patient relationship between Doris and Brinton. He relies on Brown v. Bleiberg (1982) 32 Cal.3d 426 (Brown) for this argument, but the case is inapposite. In Brown, the Supreme Court held there was a triable issue as to whether the plaintiff delayed filing suit based on a justifiable reliance on her doctor’s repeated reassurance that her condition would eventually heal. (Id. at p. 436.) Here, Stanley does not argue Brinton said or did anything that caused Doris to delay her investigation. Instead, he simply states that Doris “revered doctors” and never lost trust in Brinton. Moreover, in contrast to the Brown case in which the plaintiff continued to be treated by the defendant doctor for many years, Doris was seen by Brinton only twice in October 2014 and the last contact either she or Stanley had with him was in February 2015, when Brinton confirmed the blindness was permanent. Doris’ doctor-patient relationship with Brinton did not toll the statute of limitations.

Second, Stanley argues tolling is appropriate because Doris was “incapacitated” due to blindness. He relies on section 352 subdivision (a), which provides that the time to file an action is tolled for plaintiffs who are minors or lack the legal capacity to make decisions at the time of accrual of the cause of action. There is nothing in the record, however, to support his assertion that Doris lacked the legal capacity to bring suit. Instead, there is undisputed evidence that she had the mental capacity to discuss and analyze the cause of her blindness with Stanley until shortly before her death.

Third, Stanley argues “the equities in this case compel a jury’s determination as to whether Doris’ claims are time barred.” He cites Lewis v. Superior Court (Perret) (1985) 175 Cal.App.3d 366, 370, 372, in which the Court of Appeal held the statute of limitations was tolled where circumstances “effectively render[ed] timely commencement of action impossible” because a sole practitioner was hit by a car four days before the deadline to file an action on his client’s behalf and suffered severe, life-threatening injuries to his head and body that rendered him “mentally and physically” “totally disabled” for approximately one month. Defendants argue equitable tolling principles do not apply to the one-year statute of limitations under section 340.5. Assuming, without deciding, that equitable principles may be considered, we note the extreme circumstances in Lewis v. Superior Court (Perret) that prevented the plaintiff from filing suit are not present here.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal.

 

_________________________

Petrou, J.

WE CONCUR:

_________________________

Siggins, P.J.

_________________________

Jackson, J.

A156083/Rygh v. Brinton et al.