Bispo v. Burton

• Decision Date: 17 July 1978
• Citation: 147 Cal.Rptr. 442,82 Cal.App.3d 824
• Court: California Court of Appeals Court of Appeals
• Parties: Patricia R. BISPO, Plaintiff and Appellant, v. Leonard E. BURTON, M.D., Defendant and Respondent. Civ. 51825.

Page 442

147 Cal.Rptr. 442

82 Cal.App.3d 824

Patricia R. BISPO, Plaintiff and Appellant, v. Leonard E. BURTON, M.D., Defendant and Respondent.

Civ. 51825.

Court of Appeal, Second District, Division 2, California.

July 17, 1978.

Richard M. Hawkins by Mark A. O'Connell, Newport Beach, for plaintiff and appellant.

Bonne, Jones, Bridges, Mueller & O'Keefe, Jerrie S. Weiss, Los Angeles, for defendant and respondent.

ROTH, Presiding Justice.

This appeal is from summary judgment against appellant on March 16, 1977 ¹ predicated on the ground that appellant's action for medical negligence (malpractice) against respondent filed April 14, 1975 was barred by the time limitations contained in Code of Civil Procedure section 340.5.

The facts are undisputed.

Appellant was respondent's patient from September 11, 1961 until early 1971. In July, 1970, appellant was hospitalized with a fractured left hip. Surgeries were performed by respondent in connection therewith in July and October of 1970; appellant was discharged from the hospital December 31 of the same year and respondent's last contact with her consisted of a postoperative visit on February 8, 1971. In May, 1974, appellant's left leg being found non-viable was surgically removed at the UCLA Medical Center.

From its inception in 1970 and until substantially amended in 1975, Code of Civil Procedure section 340.5 provided:

"In an action for injury or death against a physician or surgeon, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatrist, licensed psychologist, osteopath, chiropractor, clinical laboratory bioanalyst, clinical laboratory technologist, veterinarian, or a licensed hospital as the employer of any such person, based upon such person's alleged professional negligence, or for rendering professional services without consent, or for error or omission in such person's practice (the statute of limitation is), four 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 first occurs. This time limitation shall be tolled for any period during which such person has failed to disclose any act, error, or omission upon which such action is based and which is known or through the use of reasonable diligence should have been known to him."

It is conceded the present action turns upon the proper construction of this statute. In making our construction, we are bound by the reasoning contained in Larcher v. Wanless (1976), 18 Cal.3d 646, 135 Cal.Rptr. 75, 557 P.2d 507 and in Sanchez v. South Hoover Hospital (1976), 18 Cal.3d 93, 132 Cal.Rptr. 657, 553 P.2d 1129. Larcher analyzed and construed the application of section 340.5 in a case involving wrongful death. The Larcher court discussed the meaning of the word "injury" as used in the statute and fixed manifest "injury" as distinguished from "wrongful act" as the event which starts the running of the overall four-year limitation period and the event of discovery, actual or presumptive, as the commencement date of the one-year statute of limitation. The court observed:

"Defendants seem to argue from the premise that the undiluted purpose of section 340.5 was to lower malpractice insurance rates by enabling insurers to reduce the amount of reserves they need maintain to meet potential claims. They urge that because a statute of limitations in wrongful death actions which extinguishes a large number of claims before they accrue might substantially curtail malpractice exposure, the legislation should be construed in conformity with that end.

"(4) But section 340.5 evinces no such single-minded purpose. Instead, as originally worded, the statute appears to have been a compromise between concern over the extended exposure of medical practitioners to malpractice liability and a desire not to bar potentially worthy plaintiffs from court before they have a fair chance to bring suit. The Legislature declined to adopt other proposals before it which held out the promise of substantially greater reductions in malpractice exposure and necessary insurance reserves. Thus the Legislature did not date the limitation period from the 'alleged wrongful act,' as provided in one proposal. (Assem. Bill No. 135 (1969 Reg.Sess.).) (5) Instead, the limitation period was tied to 'injury,' a word of art which might refer to an event occurring some time after the commission of a 'wrongful act.'¹¹

11 Thus the word 'injury,' as used section 340.5 to denote the start of the four-year limitation period, seems clearly to refer to the damaging effect of the alleged wrongful act and not to the act itself. As we noted in Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 852, 491 P.2d 433, 436, 'The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm not yet realized does not suffice to create a cause of action for negligence.' Budd was an attorney malpractice case, but its rationale seems equally applicable to medical malpractice. Until the patient 'suffers appreciable harm' as a consequence of the alleged act of malpractice, he cannot establish a cause of action. ' "It follows that the statute of limitations does not begin to run against a negligence action until some damage has occurred. " ' (Id. at p. 201, 98 Cal.Rptr. at p. 852, 491 P.2d at p. 436, quoting from Prosser, Law of Torts (4th ed. 1971) § 30, p. 144; see also Huysman v. Kirsch (1936) supra, 6 Cal.2d 302, 309, 57 P.2d 908; Davies v. Krasna (1975) 14 Cal.3d 502, 513, 121 Cal.Rptr. 705, 535 P.2d 1161.)"

"However, as with other medical malpractice actions, the Legislature sought to limit the length of time for which the discovery rule could perpetuate the possibility of suit by providing an alternative, overall four-year limitation period beginning with the date of that 'injury.'¹⁴

14 It is to be presumed, of course, that the Legislature intended the word 'injury' to have the same meaning in the parallel four-year and one-year limitation periods of the statute. Moreover, 'injury' as used the four-year provision is to be construed in light of the same precedents which give meaning to the word as it appears in the one-year provision."

(Larcher v. Wanless, 18 Cal.3d 646, 655-56, 658, 135 Cal.Rptr. 75, 80, 557 P.2d 507, 512.)

Similarly, in Sanchez, while concluding the one-year limitation of section 340.5 is governed by a plaintiff's actual or constructive awareness while the four-year limitation is contingent upon lack of a defendant's concealment, the court reasoned:

"In fact, the word 'injury' had come to be used in the cases to denote both a person's physical condition and its 'negligent cause.' (E. g., Stafford v. Shultz, supra, 42 Cal.2d (767) at pp. 776-777, 270 P.2d 1; Mock v. Santa Monica Hospital, supra, 187 Cal.App.2d (57) at p. 64, 9 Cal.Rptr. 555.) We think that the Legislature in enacting section 340.5 intended no more than to adopt the prior 'discovery' rule, and that the word 'injury' retained, in the context used, the broad meaning the courts had previously given to it."

(Sanchez v. South Hoover Hospital, 18 Cal.3d 93, 99, 132 Cal.Rptr. 657, 661, 553 P.2d 1129, 1133.)

Thus under Larcher and Sanchez, supra, the inception of the limitation periods set out in section 340.5 embraces not only discovery in the case of the one-year period and disclosure in the case of the four-year period but also the fact of injury with respect to both periods. ² This being the case, and since injury and the wrongful act which caused it are separate legal concepts and are not in every instance simultaneous, it is not true that the passage of four years since the last treatment of a patient by a physician necessarily fixes the event of injury and thus requires the patient's malpractice action to fail.

Neither Larcher nor Sanchez addressed the particular issue presented by the case at bench, to wit: the precise point at which a plaintiff in a medical malpractice action for personal injury is "injured" to the extent that the four-year limitation period begins to run.

True, in both Larcher and Sanchez there is considerable discussion concerning the meaning of the word "injury." That discussion, however, must be analyzed in the context of the issue with which the court was dealing in each case.

If one were to simply lift the language from those cases concerning the definition of injury and apply it without analysis to all situations, the result would render the four-year limitation meaningless. It must be presumed that the Legislature did not engage in an idle or meaningless act when it inserted an overall four-year cutoff in these types of actions.

The tenor of Sanchez was a circumscription of plaintiff's right to pursue an action for personal injury in a medical malpractice case. The holding of Sanchez was simply that the "one year from discovery" limitation period was not tolled by concealment on the part of the defendant.

The holding of Larcher was that in wrongful death actions based on medical malpractice the "one year discovery" period commenced to run on the death of the patient and was not shortened by the fact that the "injury " was discovered prior to death.

For our purposes here, the key holding of both Sanchez and Larcher is that "injury" is not synonymous with "wrongful act." The most apt description of the concept is found in a footnote at 18 Cal.3d at page 656, 135 Cal.Rptr. at page 80, 557 P.2d at page 512, of Larcher, supra, where it is stated that the word "injury" refers to "damaging effect of the alleged wrongful act" and that until plaintiff "suffers appreciable harm" he cannot...