Case Number: BC523108 Hearing Date: February 17, 2015 Dept: J
Re: Arnetta Poole v. Pomona Valley Hospital Medical Center, et al. (BC523108)

MOTION FOR SUMMARY JUDGMENT

Moving Party: Defendant Donald Barceloux, M.D.

Respondent: Plaintiff Arnetta Poole

POS: Moving OK; Opposing served by regular mail contrary to CCP §§ 437c(b)(2) and 1005(c)

Plaintiff alleges that the medical care and treatment she received from Defendants fell below the standard of care. Plaintiff commenced this action on 10/1/13, asserting a single cause of action for medical negligence.

A Jury Trial is set for 10/13/15.

Defendant Donald Barceloux, M.D. (“Dr. Barceloux”) moves pursuant to CCP § 437c, for an order granting summary judgment in favor of Dr. Barceloux and against Plaintiff Arnetta Poole. The motion is made on the grounds that Plaintiff’s cause of action for medical malpractice fails to raise a triable issue of material fact for the following reasons: (1) Plaintiff’s claims against Dr. Barceloux are barred by the one-year statute of limitations set forth in CCP § 340.5; (2) Dr. Barceloux’s care and treatment of Plaintiff was at all times commensurate with the applicable standard of care; and (3) to a reasonable degree of medical probability, nothing Dr. Barceloux did or did not do caused Plaintiff’s injuries.

A defendant moving for summary judgment must “show” that either one or more elements of the “cause of action … cannot be established,” or there is a complete defense to that cause of action. (CCP § 437c(p)(2).) Once the moving party has met the initial burden above, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of fact exists. (CCP § 437c(p)(2).)

STATUTE OF LIMITATIONS:

In “professional negligence” actions against a “health care provider,” the action must be commenced either (a) within three years after the date of the injury, or (b) one year after plaintiff discovers, or through reasonable diligence should have discovered, the injury, whichever occurs first. (CCP § 340.5.)

The one-year statute begins to run when “facts demonstrate plaintiff had information with respect to her injury and its cause sufficient to place a reasonable person on inquiry as to the probability of actionable conduct by the defendant.” (Graham v. Hansen (1982) 128 Cal.App.3d 965, 973.)

The plaintiff has reason to discover medical negligence when he or she “has reason at least to suspect a factual basis for its elements.” (Fox v. Ethicon Endo–Surgery, Inc. (2005) 35 Cal.4th 797, 807, citing from Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) It is not required that defendant show plaintiff knew of the specific facts constituting the wrongdoing; rather, 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. (Bernson v. Browning–Ferris Industries of Calif. (1994) 7 Cal.4th 926, 932.)

When a plaintiff reasonably should have discovered facts for purposes of accrual of a cause of action or application of the delayed discovery rule is ordinarily a question of fact. However, it may be decided as a matter of law only if the evidence can support only one reasonable conclusion. (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1252.)

Defendant moves for summary judgment on the ground that Plaintiff’s claim against Dr. Barceloux is barred by the one-year statute of limitations set forth in CCP § 340.5. Defendant submits the following evidence:

On December 22, 2011, Plaintiff presented to the emergency department at Pomona Valley Hospital and Medical Center (“PVHMC”) at 1810 hours. (DSS ¶ 1: Antelyes Decl. ¶ 10; Grogan Decl. ¶ 10; Exh. A, PVHMC Records, p. 48.) The supervising physician in the emergency department was Dr. Barceloux. (DSS ¶ 3: Antelyes Decl. ¶ 12; Grogan Decl. ¶ 12; Exh. A, PVHMC Records, p. 41.) Plaintiff reported that she had fallen in the parking lot of PVHMC and complained of bilateral knee pain and an inability to bear weight on her legs. (DSS ¶¶ 4 and 5; Antelyes Decl. ¶¶ 13 and 14; Grogan Decl. ¶¶ 13 and 14.) Mr. DeGuzman wrote Plaintiff an order for a wheelchair, and she was discharged at approximately 2100 hours in stable condition with a prescription for the pain medication Vicodin. (DSS ¶ 18: Antelyes Decl. ¶ 27; Grogan Decl. ¶ 27; Exh. A, PVHMC Records, p. 44.)

On February 13, 2012, Dr. Smith, an orthopedic surgeon, advised Plaintiff that the reason she could not walk was because she had suffered bilateral quadriceps tendon ruptures and would require surgery. (DSS ¶ 51: Grogan Decl. ¶ 62; Exh. E, Records from Dr. Smith, pp. 8-9.) Dr. Smith submitted a Request for Authorization for Medical Treatment to Plaintiff’s Workers’ Compensation claims administrator for permission to perform surgical “bilateral quadriceps tendon repair” and “bilateral knee arthroscopy.” (DSS ¶ 52: Grogan decl. ¶ 63; Exh. E, Records from Dr. Smith, p. 11.) Dr. Smith received written authorization to perform the procedures on February 21, 2012. (DSS ¶ 53: Grogan Decl. ¶ 64; Exhibit E, Records from Dr. Smith, p. 12.) However, a February 27, 2012 note states that Plaintiff “cancelled appointment to obtain second opinion.” (DSS ¶ 54: Grogan Decl. ¶ 65; Exh. E, Records from Dr. Smith, p. 14.)

On February 27, 2012, Plaintiff saw orthopedic surgeon Jerome Wall, M.D. (DSS ¶ 55: Grogan Decl. ¶ 66; Exh. F, Records from Dr. Wall, p. 170.) Plaintiff ultimately underwent bilateral quadriceps tendon repair surgeries with Dr. Wall at Riverside Community Hospital on February 29, 2012. (DSS ¶ 60: Grogan Decl. ¶ 71; Exh. G, Riverside Community Hospital Records, p. 27.) According to the history given by Plaintiff, she was told by Dr. Wall on February 27, 2012 that he “recommended surgery to both knees right away because I had been sitting in a wheelchair for two months. He said he was afraid the tendons would be too short as I had not been walking for two months.” (DSS ¶ 65: Exh. H, Records from Dr. Segil, p. 187.)

In February of 2013, Plaintiff specifically stated to psychiatrist Barbara Strong, M.D. that “what bothers me the most is that they discharged me from the emergency room at Pomona Valley Hospital without doing [an] MRI on me. If they had not delayed in operating on me I would be back to work by now.” (DSS ¶ 67: Exh. J, Records from Parthenia Medical Group, pp. 6 and 8.)

Plaintiff testified at her deposition that no one has ever told her that following her fall and subsequent surgery, she would recover 100% of her function. (DSS ¶ 68: Exh. I, Plaintiff’s Depo. 201:24-202:1.) Likewise, no one has ever told her that she will not recover 100% of her function. (DSS ¶ 69: Exh. I, Plaintiff’s Depo. 202:2-4.) In fact, no one has ever given Plaintiff any estimate of the extent of recovery she could be expected to make following her fall and subsequent surgery. (DSS ¶ 70: Exh. I, Plaintiff’s Depo. 202:5-7.)

Plaintiff also testified at her deposition, that she “discovered her injury” on November 13, 2013 because this was the date upon which Dr. Wall allegedly told her she “would not be able to return to [her] work as a neonatal nurse. (DSS ¶ 71: Exh. I, Plaintiff’s Depo. 202:21-203:13.)

Plaintiff commenced this action on October 1, 2013.

Defendant has met his initial burden. The evidence demonstrates that Plaintiff discovered or should have discovered her injury in February 2012, when she was told by orthopedic surgeons that she had suffered bilateral quadriceps tendon ruptures and underwent repair surgeries, and was informed that her condition may have worsened because she had been in a wheelchair for two months. However, Plaintiff did not file this action until October 1, 2013, a period of more than one year from the date that Plaintiff discovered or should have discovered her injuries. As such, this action is barred by the statute of limitations set forth in CCP § 340.5.

While Plaintiff appears to contend that she did not discover the extent of her damages until November 13, 2012, when she discovered that her injuries were permanent and debilitating, the applicable limitations period is not postponed by the fact additional damages, her inability to return to her previous occupation, were discovered on a later date. To hold otherwise would “revive” the statute of limitations every time plaintiff sustains new damages and would effectively allow plaintiff to “split” his or her cause of action. (Buttram v. Owens–Corning Fiberglass Corp. (1997) 16 Cal.4th 520, 531, fn. 4.)

Plaintiff failed to raise a triable issue of fact. Thus, the motion for summary judgment on this ground is granted.

[STANDARD OF CARE:

The duty owed by a medical provider is established by the standard of care followed by other medical providers in the same or similar community. “Expert evidence in a medical malpractice suit is conclusive as to the proof of the prevailing skill and learning in the locality and of the propriety of the particular conduct by the practitioner and in particular instances because such a standard and skill is not a matter of general knowledge and can only be supplied by expert testimony.” (Willard v. Hagemeister (1991) 121 Cal.App.3d 406, 412.) Where the moving party produces competent expert opinion declarations showing that there is no triable issue of fact on an essential element of the opposing party’s claim, the opposing party’s burden is to produce competent expert opinion declarations to the contrary. (Ochoa v. Pacific Gas & Elec. Co. (1998) 61 Cal.App.4th 1480, 1487.)

Defendant bears the initial burden of production upon summary judgment. Defendant produces the expert opinion of Roy Antelyes, M.D., an emergency medicine physician, and Thomas Grogan, M.D., an orthopedic surgery expert. Both Dr. Antelyes and Dr. Grogan are qualified experts. Dr. Antelyes opines that Defendant complied with the standard of care. (Antelyes Decl. ¶¶ 29-35.) Dr. Grogan opines that to a reasonable degree of medical certainty, no act or omission attributable to Dr. Barceloux caused Plaintiff’s alleged injury. (Grogan Decl. ¶¶ 72-78.)

Plaintiff, in opposition, produces the expert opinion of Jonathan D. Lawrence, a board certified emergency department physician, who opines that Defendants did not meet the standard of care in the diagnosis care and treatment of Plaintiff. (Lawrence Decl. ¶ 4.) Plaintiff also produces the expert opinion of Michael D. Smith, a board certified orthopedic surgeon, who opines that the failure of Dr. Barceloux to comply with the standard of care resulted in a delay in the diagnosis of Plaintiff’s bilateral quadriceps tendon injuries, and the late repair led to unsatisfactory recovery. (Smith Decl. ¶ 5.)

Plaintiff has produced evidence that supports a triable issue of material fact as to the standard of care. Thus, the motion for summary judgment on this ground alone would be denied.]