Charles Franzen vs Santa Barbara Cottage Hospital et al
Case No: 18CV03174
Hearing Date: Fri Aug 30, 2019 9:30

Nature of Proceedings: Motion for Summary Judgment

TENTATIVE RULING:

(1) For the reasons set forth herein, the motion of defendant Tamir H. Keshen, M.D., for summary judgment is denied.

(2) On its own motion pursuant to California Rules of Court, rule 2.30, the court orders plaintiff’s counsel, attorney Brian K. O’Connor, to show cause, on September 20, 2019, why reasonable monetary sanctions of up to $1,500 shall not be imposed for violation of California Rules of Court, rules 3.1350(f)(2), (f)(3) and 3.1113(k) by counsel’s failure to file an opposition separate statement with required contents in the proper format and filing papers with the required citations. Plaintiff’s counsel shall file his response to this order to show cause on or before September 11, 2019.

Background:

Plaintiff Charles Franzen, a minor, filed his complaint in the present action on June 25, 2018, alleging one cause of action for negligence against defendant Tamir Keshen, M.D., based upon Dr. Keshen’s surgical removal of plaintiff’s infusaport on June 2, 2014. (Defendant Keshen’s Separate Statement [DSS], undisputed fact 1.) (Note: In opposition to Dr. Keshen’s separate statement, plaintiff filed an opposition separate statement which states: “In response to the 12 Undisputed Facts presented by Defendant; Plaintiff agrees all facts are undisputed except Defendant’s statement in number 11, ‘despite the lack of medical necessity indicated to remove it’. This statement is not in the supporting evidence referenced by Defendant.” (Plaintiff’s Opposition Separate Statement [PSS], p. 1.) Plaintiff’s failure to follow the formatting requirements of the Rules of Court is further discussed below. Notwithstanding the failure to follow the formatting requirements, the court considers the substance of the opposition separate statement in analyzing the motion.)

The plaintiff has Hemophilia B, and as a result had the subject infusaport implanted when he was 18 months old. The infusaport which was implanted in the plaintiff was a therapeutic device intended to assist plaintiff’s mother in infusing plaintiff with the clotting factor he needed to treat his hemophilia. (DSS, undisputed fact 2.) The infusaport was intended to remain implanted in plaintiff’s body indefinitely, but when plaintiff was 9 years old he wanted to have the infusaport removed, although there was no medical necessity to remove it. (DSS, undisputed fact 3.)

Dr. Keshen, a pediatric surgeon, was consulted to perform the procedure, with his first contact with the plaintiff being on the day of the procedure. (DSS, undisputed fact 4.) Immediately following the procedure, while in the recovery room, plaintiff complained to his parents that he believed a portion of the infusaport remained in his body. (DSS, undisputed fact 5.) Plaintiff complained to his parents approximately once or twice a week over the course of the next three years that he felt as if the infusaport was still in his body. (DSS, undisputed fact 6.) Plaintiff’s continuous complaints about the pain and discomfort were so frequent that plaintiff’s mother confirmed she was “always aware there was an issue there with it.” (DSS, undisputed fact 7.)

Due to plaintiff’s hemophilia, his parents were always diligent in reporting any of plaintiff’s complaints of pain to a physician. However, plaintiff’s parents did not report plaintiff’s continuous complaints of pain and discomfort following the June 2, 2014, procedure until June 28, 2017. (DSS, undisputed fact 8.)

Upon presentation, Dr. Keshen immediately examined plaintiff and opined that the lesion might be evidence of a small retained piece of the port, or a foreign body reaction to the removal of the port, and he therefore ordered an ultrasound to help him confirm the cause of plaintiff’s complaints. (DSS, undisputed fact 9.) Dr. Keshen recommended that if the cause of plaintiff’s complaints was a retained piece of the infusaport, that it be surgically removed. (Ibid.) The following day, June 29, 2017, the ultrasound which Dr. Keshen ordered identified a small hypoechoic lesion which was presumed to demonstrate that a small (approximately 1 cm) piece of the infusaport did indeed remain in plaintiff’s body. (DSS, undisputed fact 10.)

Plaintiff did not return to Dr. Keshen to have the piece removed, as his mother chose to have the piece removed at the Children’s Hospital in Los Angeles in December 2017. (DSS, fact 11 [undisputed as to this portion].) According to Dr. Keshen, there was a lack of medical necessity indicated to remove the piece. (DSS, fact 10.) According to plaintiff, there is no support in the evidence cited for this position on a lack of medical necessity.

There is no evidence, or allegation, that plaintiff’s parents and Dr. Keshen colluded, intentionally, concealed facts, or committed fraud, in relation to the plaintiff’s delay in filing the present action. (DSS, undisputed fact 12.)

According to plaintiff, Dr. Keshen breached the standard of medical care by failing to remove the port and catheter completely at the time of the June 2, 2014, surgery. (PSS, fact 1; Padilla decl., p. 1.) The sole purpose of the June 2, 2014, surgical procedure was to remove the infusaport entirely. (Ibid.) There is no acceptable medical reason mentioned in the records to have left a portion of the infusaport. (Ibid.)

Plaintiff mentioned on numerous occasions during medical appointments at Children’s Hospital in Los Angeles and Cottage Hospital Children’s Clinic, that he felt there was still something in his chest. (PSS, fact 2; Franzen decl., p. 1.) Medical providers told plaintiff, “there is nothing in there” or you are probably feeling scar tissue. (Ibid.) Melissa Franzen, plaintiff’s mother was present during each of these appointments. (Ibid.)

On June 14, 2019, Dr. Keshen filed this motion for summary judgment asserting that the complaint is barred by the statute of limitations.

The motion is opposed by plaintiff.

Analysis:

(1) Motion for Summary Judgment

“The motion for summary judgment shall be granted 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. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

“A defendant … 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. 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. The plaintiff … shall not rely upon the 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 or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

Dr. Keshen asserts that the statute of limitations, specifically, Code of Civil Procedure section 340.5, bars plaintiff’s claim. “In an action for injury or death against a health care provider based upon such person’s 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. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.” (Code Civ. Proc., § 340.5.)

There is no dispute that the alleged initiating act of malpractice occurred on June 2, 2014, when Dr. Keshen failed to remove the entirety of the infusaport and instead left a piece of the infusaport inside plaintiff. There is also no dispute that plaintiff was then, and is now, a minor. Three years from the date of the injury was June 2, 2017. The complaint was filed on June 25, 2018, more than three years from the date of the injury. Dr. Keshen therefore meets his initial burden on summary judgment that the statute of limitations has run.

In opposition, plaintiff asserts that the three year time period was tolled by the presence of a foreign body which has no therapeutic or diagnostic purpose or effect in the person of the injured person. The undisputed facts show that a piece of the infusaport was left in the person of plaintiff. Dr. Keshen asserts that the foreign body tolling provision does not apply, citing Maher v. County of Alameda (2014) 223 Cal.App.4th 1340 (Maher).

In Maher, surgeons implanted a biliary stent in the plaintiff during emergency abdominal surgery in 1996. (Maher, supra, 223 Cal.App.4th at p. 1344.) The plaintiff was unaware of the stent’s placement until it was discovered and removed in 2010 after the plaintiff sought treatment for abdominal pain. (Ibid.) In 2011, within a year of the removal, the plaintiff filed a complaint against the health care providers who treated the plaintiff in 1996 and 1997 for medical malpractice in not timely removing the stent or informing the plaintiff of its placement and the fact that it was designed to be temporary. (Ibid.) The trial court sustained the demurrer of the defendants on the grounds of the statute of limitations. (Ibid.)

The Maher court reversed the trial court’s judgment for the defendants. (Maher, supra, 223 Cal.App.4th at p. 1344.) The Maher court reviewed Code of Civil Procedure section 340.5 and summarized its holding as follows:

“In sum, we concur with Ashworth [v. Memorial Hospital (1988) 206 Cal.App.3d 1046 (Ashworth)] that (1) Huysman [v. Kirsch (1936) 6 Cal.2d 302 (Huysman)] established California’s common law foreign object tolling rule; (2) MICRA codified this exception; and (3) the ‘no therapeutic or diagnostic purpose or effect’ qualification in section 340.5 means the foreign body exception does not apply to objects and substances intended to be permanently implanted, but items temporarily placed in the body as part of a procedure and meant to be removed at a later time do come within it. Defendants point to no legislative history or authority suggesting the Legislature intended to abrogate Huysman by adopting the ‘therapeutic or diagnostic purpose or effect’ language in section 340.5. In our view, Huysman is still good law and is factually on point with the case before us. We therefore hold that [the plaintiff’s] negligence claims should not have been dismissed under section 340.5.” (Maher, supra, 223 Cal.App.4th at p. 1352.)

With respect to the “no therapeutic or diagnostic purpose or effect” language, Maher elaborated:

“Ashworth goes on to observe the statute ‘added only one qualification,’ that the foreign body ‘have no “therapeutic purpose or effect.” ’ [Citation.] But as to this language, Ashworth states: ‘[T]his requirement can be satisfied even if the foreign body had such a purpose or effect when originally placed in the patient’s body. It is enough the foreign body was not removed after it had ceased having this therapeutic purpose or effect. Otherwise the nine-inch drainage hose left in the patient in Huysman and all the other sponges, pins, needles, and similar objects left in patients in the paradigm “foreign body” cases would not qualify for the “foreign body” exception. For, in nearly all these cases, the tube or sponge or other object indeed had a “therapeutic purpose or effect” at the time it was inserted into the patient’s body…. But the continued presence of these items for weeks, months or years after the wound was closed had no therapeutic value. At some point these articles only represented a threat of injury. Sensibly, after enactment of section 340.5 the “foreign body” rule still applies to “foreign bodies” even though they had a “therapeutic purpose or effect” at the time they were placed in the patient so long as it can be shown they were allowed to remain there too long.’ [Citation.]” (Maher, supra, 223 Cal.App.4th at p. 1351.)

Applying the principles of Maher to the undisputed facts and evidence here, there is at least a triable issue of fact that the remaining piece of the infusaport was a “foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.” The evidence, viewed most favorably to the plaintiff, shows that the purpose of the June 2, 2014, surgery was to remove the entirety of the infusaport. The evidence shows that there was no therapeutic or diagnostic purpose or effect of leaving the remaining piece. Thus, for purposes of this motion, the presence of remainder of the infusaport constitutes a basis for tolling the statute of limitations under section 340.5.

Dr. Keshen further argues that even if the infusaport constituted a foreign body under section 340.5 for purposes of tolling, the parents were on notice of the potential issue from the 2014 procedure and so the one-year statute applies to bar the action. “It is said the statutory ‘foreign body’ exception only tolls the three-year outside limitation period and not the one-year ‘discovery’ period. [Citation.] What this means, of course, is that the ‘foreign body’ exception in section 340.5 lifts the three-year outside limit entirely if a non-therapeutic ‘foreign body’ has been left inside a patient. It gives that patient an unlimited time to discover or to use reasonable diligence to discover the presence of the ‘foreign body.’ But once the patient discovers or through reasonable diligence would have discovered the ‘foreign body’ and its role in her injury she only has one year to file her lawsuit against the practitioners responsible for leaving the ‘foreign body’ inside her. That is, the patient is not free to completely ignore the statute of limitations just because she finds out her doctor left something inside her body which is causing her harm. She must still act within one year of her discovery the ‘foreign body’ exists and is the negligent cause of her injury.” (Ashworth, supra, 206 Cal.App.3d at p. 1058.)

“The one-year limitation period of section 340.5 is a codification of the discovery rule, under which a cause of action accrues when the plaintiff is aware, or reasonably should be aware, of ‘injury,’ a term of art which means ‘both the negligent cause and the damaging effect of the alleged wrongful act.’ [Citations.]” (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290.) There is no dispute under the facts presented in this motion that plaintiff, through his parents, did not actually know of the negligent cause of his injury. The only issue is whether plaintiff “through the use of reasonable diligence should have discovered[] the injury.” Plaintiff has provided evidence that creates a triable issue of fact as to whether reasonable diligence should have discovered the negligent cause of the injury. Plaintiff provides evidence that plaintiff mentioned that he felt there was still something in his chest post-2014 procedure on numerous occasions to medical providers, who repeatedly responded that there was nothing in there and that plaintiff was probably feeling scar tissue. (PSS, fact 2 and evidence cited.) The mentioning of the issue is evidence of reasonable diligence. There is thus a triable issue of fact as to whether through use of reasonable diligence plaintiff should have discovered the negligent cause of the injury earlier.

Considering the evidence most favorably to the plaintiff, the negligent cause was first discovered on June 28, 2017, and this action was filed within one year, on June 25, 2018. There are thus triable issues of material fact as to whether the statute of limitations defense applies to bar this action. Accordingly, Dr. Keshen’s motion for summary judgment will be denied.

(2) Violation of Rules of Court

The format used by plaintiff in the opposition separate statement violates California Rules of Court, rule 3.1350(f)(2), which requires that the opposition separate statement must be in the designated two-column format and “[o]n the right side of the page, directly opposite the recitation of the moving party’s statement of material facts and supporting evidence, the response must unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’” No recitation of the moving party’s statement of material facts is provided, requiring the court to review both separate statements in order to ascertain what facts in the moving papers are undisputed and what facts are disputed. This failure to follow the format requirement defeats the purpose of the format to “ ‘permit trial courts to expeditiously review complex motions for … summary judgment to determine quickly and efficiently whether material facts are disputed.’ [Citations.]” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 72.)

The court also notes that both the memorandum in opposition and the opposition separate statement fail to provide paragraph or line number references. “All references to exhibits or declarations in supporting or opposing papers must reference the number or letter of the exhibit, the specific page, and, if applicable, the paragraph or line number.” (Cal. Rules of Court, rule 3.1113(k).) “Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, rule 3.1350(f)(3).) Part of this citation problem stems from the fact that the declarations in opposition do not contain paragraph numbers or other useful points of reference. The failure to provide this type of information requires the court to search entire documents in order to find supporting information.

The court determined not to exercise its discretion to strike the separate statement as non-complying with the rules. However, because these rule violations have an actual negative effect upon the court and other parties, the court will set an order to show cause why monetary sanctions should not be imposed for violation of these rules. (See Cal. Rules of Court, rule 2.30.)