William Bryan vs. Sutter Memorial Hospital

Nature of Proceeding: Motion for Summary Judgment

Filed By: Lamb, Ronald R.

Defendant Sutter Memorial Hospital’s Motion for Summary Judgment is ruled upon as
follows.

Defendant’s request for judicial notice is granted.

Defendant’s objections to evidence are sustained.

This case alleging medical malpractice arises out of the death of Lorri A. Davis, the
daughter of Plaintiffs William and Mary Bryan, who are self-represented. Plaintiffs
allege that in May of 2009, decedent received a gastrectomy, duodenal switch,
cholecystectomy and appendectomy at St. Mary’s Hospital, performed by Dr. John
Rabkin. The purpose of the surgery was to treat Lorri Davis’ morbid obesity. Plaintiffs
allege that the surgery performed required lifelong nutritional follow-up.

On July 9, 2010, Lorri Davis was admitted to Defendant Sutter Memorial Hospital’s
facility after she fell and injured her ankle. Lorri Davis died on August 11, 2010. The
Coroner’s report issued in March of 2011 listed the cause of death as “multiple
complications related to severe nutritional deficiencies, due to
bariatric surgery with subtotal gastrectomy and duodenal switch procedure due to
morbid obesity.”

Defendant now moves for summary judgment on the ground that Plaintiffs’ action is
barred by the statute of limitations. This complaint was filed September 27, 2011. The
applicable statute of limitations for medical malpractice is three years from 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. (CCP 340.5)
The alternative test for the statute of limitations accruing in wrongful death is (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. (Jolly v Eli Lilly & Co.
(1988) 44 Cal.3d 1103, 1110 [. “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.”
Id. at p. 1111.]; Sanchez v. South Hoover Hospital, (1976) 18 Cal.3d 93, 99.)

Defendant presents evidence that Plaintiffs had knowledge of the alleged negligent
conduct no later than the date of Lorri Davis’ death on August 11, 2010. Defendant
presents evidence that on approximately July 24, 2010, two weeks after Lorri Davis’
admission to Sutter Memorial, Lorri was seen by Dr. Ann Gerhardt, a nutritionist, who
told Plaintiff Mary Bryan that Lorri was severely malnourished. (Def. Ex. D (M. Bryan
Depo.) 170:9-16, 213:18-20.) Defendant’s evidence also indicates that Dr. Gerhardt
told Mary Bryan that a nutritionist should have been called to see Lorri immediately
after she was admitted, and that Dr. Gerhardt would have been able to tell that Lorri
was malnourished. (Def. Ex. D (M. Bryan Depo.) 182:2-7.) Defendant also presents
evidence that Dr. Gerhardt told Mary Bryan that Lorri’s life would have been saved if Dr. Gerhardt had seen Lorri earlier. (Def. Ex. D (M. Bryan Depo.) 184:21-185:1.)
Defendant also presents evidence that William Bryan was aware of the cause of action
prior to Lorri’s death. Defendant’s evidence indicates that William Bryan was
imprisoned at the time of Lorri’s death. (Def. Ex. C (W. Bryan Depo.) 129:15:18.)
Defendant presents evidence that prior to Lorri’s death, William Bryan contacted a
social worker and requested that Lorri be moved out of Sutter Memorial Hospital,
which he believed was a “baby hospital.” (Def. Ex. C (W. Bryan Depo.) 149:20-150:6,
150:16-24.) Defendant presents evidence that William Bryan did not believe Lorri was
getting proper treatment at Sutter Memorial. (Def. Ex. C (W. Bryan Depo.) 151:5-6.)

Defendant contends this evidence is sufficient to demonstrate that Plaintiffs were
aware of the allegedly negligent treatment of Lorri no later than the date of her death
on August 11, 2010, and yet did not file their complaint in this action until over a year
later.

Defendant’s showing is sufficient to shift to Plaintiffs the burden of demonstrating the
existence of a triable issue of material fact (see generally Bush v. Parents Without
Partners (1993) 17 Cal. App. 4th 322, 326-327; Planned Parenthood v. City of Santa
Maria (1993) 16 Cal. App. 4th 685, 690.).

Plaintiffs present no evidence in opposition. However, Plaintiffs argue that they did not
know the cause of Lorri’s death until the autopsy report was released in March of
2011. Plaintiffs contend that they did not discover the alleged wrongdoing until they
reviewed the autopsy report. However, Plaintiffs do not dispute the evidence presented
by Defendant that they were aware of allegedly deficient treatment of Lorri prior to her
death.

“The date of injury in a wrongful death cause of action is the date of death.” (Kleefeld
v. Superior Court (1994) 25 Cal.App.4″‘ 1680, 1684.) Further, once a plaintiff has the
requisite suspicion of a claim, the statute of limitations commences to run and is not
tolled by efforts to learn more about the matter short of filing suit. “[R]egardless of
‘extenuating circumstances, the patient must bring his suit within one year after he
discovers, or should have discovered, his ‘injury.'” (Id., citing Gutierrez v. Mofid (1985)
39 Cal.3d 892, 896.)

Here, Defendant has presented undisputed evidence that Plaintiffs had “the requisite
suspicion of a claim” at the time of Lorri’s death. The statute of limitations is not tolled
by Plaintiffs’ efforts to learn more about the cause of action, such as obtaining an
autopsy report. Nor is absolute certainty as to cause required; the action must be
brought within one year after the plaintiff first
suffered appreciable harm and suspected, or a reasonable person would have
suspected, that someone had done something wrong. (Rose v. Fife (1989) 207
Cal.App.3d 760.)

Defendants have established that Plaintiffs’ claims for medical malpractice are barred
by the statute of limitation, summary judgment is granted.

The Court need not consider Defendant’s arguments related to causation.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312 and CCP §437c(g), and a judgment.