Brodehl v. Becker

• Citation: 227 Cal.App.3d 1016,251 Cal.Rptr. 577
• Court: California Court of Appeals
• Decision Date: 21 September 1988
• Parties: Previously published at 227 Cal.App.3d 1016 227 Cal.App.3d 1016 Tyrone J. BRODEHL, Plaintiff and Appellant, v. Donald L. BECKER et al., Defendants and Respondents. Civ. C000502.

Page 577

251 Cal.Rptr. 577

Previously published at 227 Cal.App.3d 1016

227 Cal.App.3d 1016

Tyrone J. BRODEHL, Plaintiff and Appellant, v. Donald L. BECKER et al., Defendants and Respondents.

Civ. C000502.

Court of Appeal, Third District, California.

Sept. 21, 1988.

Rehearing Denied Oct. 19, 1988.

Review Granted Dec. 15, 1988.

[227 Cal.App.3d 1018] Gary G. Johnson, Sacramento, for plaintiff and appellant.

Kroloff, Belcher, Smart, Perry & Christopherson and Velma Lim, Stockton, Diehl, Steinheimer, Riggio, Haydel & Mordaunt, Kevin M. Seibert and Joseph W. Diehl, Stockton, for defendants and respondents.

DEEGAN, Associate Justice. ^*

In this case we hold the limitations period applicable to a plaintiff who gives notice of intent to sue a health care provider for professional negligence within the last 90 days of the one year period, ¹ is one year

                plus 180 days from the date the notice is given (Code Civ.Proc., §§ 356, 364, 340.5). 2  Because the trial court granted summary judgment in favor of defendants based upon an improper calculation of the limitations period, we will reverse the judgment
                

FACTUAL AND PROCEDURAL BACKGROUND

Only a brief summary of the facts is necessary. Plaintiff Tyrone Brodehl was admitted to the emergency room at Lodi Memorial Hospital on June 20, 1983, after complaining of severe stomach pain. The attending physician, Dr. Becker, failed to discover plaintiff had appendicitis. Plaintiff was transferred to San Joaquin General Hospital on June 21, 1983, and underwent exploratory surgery on June 23, 1983, which revealed a perforated appendix requiring an appendectomy. Upon awakening, plaintiff overheard doctors discussing that he had a ruptured appendix.

On July 2, 1983, plaintiff again underwent surgery as he was "eviscerating" through the incision. In deposition testimony plaintiff stated he concluded malpractice had occurred at that time.

On June 14, 1984, plaintiff gave a 90-day notice of intent to sue defendants as required by section 364, subdivision (a). Plaintiff filed his complaint on October 9, 1984, one year 108 days after the June 23, 1983 appendectomy and one year 99 days after the July 2, 1983 surgery for evisceration.

Defendants moved for summary judgment on the ground that plaintiff's claim was barred by the statute of limitations as the complaint had been filed more than 1 year 90 days after the date plaintiff knew or should have known of the alleged malpractice. Plaintiff did not challenge this interpretation of the applicable limitations period. Instead plaintiff opposed the summary judgment motions by asserting he did not discover he had a potential malpractice claim until approximately July 19, 1983, when he consulted an attorney. Claiming in his declaration that he was heavily sedated during his hospitalization, plaintiff asserted it was a question of fact whether he discovered the malpractice within the statutory period.

The trial court granted the summary judgment motions, finding there was no triable issue of fact regarding plaintiff's discovery of the cause of action since he admitted in deposition testimony that he actually discovered the alleged malpractice on July 2, 1983. The court further found plaintiff should have discovered the alleged malpractice on the date of the appendectomy and that, using either date, the complaint was untimely as it was filed more than one year 90 days from the date of injury. This appeal followed.

DISCUSSION

Plaintiff contends the trial court erred in granting defendant's summary judgment motion for two reasons: (1) a genuine issue of fact exists as to when the statute of limitations began to run and (2) the complaint was timely filed under the proper calculation of the statute of limitations. Preliminarily, we note plaintiff's latter contention was not presented to the trial court and thus constitutes a new theory on appeal. Generally, a party is not permitted on appeal to change the theory of his or her case. (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, §§ 316-323, pp. 327-334.) There are, however, exceptions to the rule. A party may change the theory of the case if the new issue involves solely a question of law. (Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1113, 203 Cal.Rptr. 388.) "[A]n appellate court may allow an appellant to assert a new theory of the case on appeal where the facts were clearly put at issue at trial and are undisputed on appeal. (Citation.)" (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879, 242 Cal.Rptr. 184.) In this case the new issue on appeal involves the statutory construction of sections 364 and 356, which is a legal question. We therefore consider the issue. Moreover, our resolution of this issue is dispositive Plaintiff contends the trial court erred in calculating the statute of limitations. Relying on Gomez v. Valley View Sanitorium (1978) 87 Cal.App.3d 507, 151 Cal.Rptr. 97, plaintiff contends the interplay of sections 356 and 364 with section 340.5 operated to extend the statute of limitations 180 days after June 14, 1984, the date he served his notice of intent to sue defendants. He argues his complaint was timely even if the commencement of the statutory period is calculated from the earliest date asserted by the defendants. To understand plaintiff's argument, one must examine the language of these three statutes.

hence, we do not discuss the merits of plaintiff's first contention.

Section 340.5 provides: "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...." (Emphasis added.) The limitation period begins to run on the date of plaintiff's "injury." "Injury" means the date a plaintiff discovers the harm caused by the alleged negligence, which is not necessarily the date of the negligent act or omission. (Larcher v. Wanless (1976) 18 Cal.3d 646, 655-656, 135 Cal.Rptr. 75, 557 P.2d 507.)

Section 364 provides in relevant part: "(a) No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action. [p] (d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice...." (Emphasis added.)

Section 356 provides: "When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action." (Emphasis added.)

The question of the correct interplay of these three statutes in cases in which notice of intent to sue is given within the last 90 days of the one year period has been answered differently in three appellate districts. The issue has not been resolved by our Supreme Court.

A review of those cases discussing the applicability of section 356 to medical malpractice suits discloses that all appellate courts have concluded the 90-day notice requirement of section 364, subdivision (a) is a "statutory prohibition" against filing suit within the meaning of section 356. (See Grimm v. Thayer (1987) 188 Cal.App.3d 866, 233 Cal.Rptr. 687; Gilbertson v. Osman (1986) 185 Cal.App.3d 308, 229 Cal.Rptr. 627; Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 222 Cal.Rptr. 713; Paxton v. Chapman General Hospital, Inc. (1986) 186 Cal.App.3d 110, 230 Cal.Rptr. 355; Banfield v. Sierra View Local Dist. Hospital (1981) 124 Cal.App.3d 444, 177 Cal.Rptr. 290; Braham v. Sorenson (1981) 119 Cal.App.3d 367, 174 Cal.Rptr. 39; Gomez v. Valley View Sanitorium, supra, 87 Cal.App.3d 507, 151 Cal.Rptr. 97.) "The rationale is that the statute does not run during the time the plaintiff is legally prevented from taking action to protect his rights; ..." ( Banfield v. Sierra View Local Dist. Hospital, supra, 124 Cal.App.3d at p. 456, 177 Cal.Rptr. 290.) Thus, "the time of the continuance of the ... prohibition is not part of the time limited for the commencement of the action." ( § 356) ³

We agree that the "tolling" provisions of section 356 apply to medical malpractice suits subject to the notice requirement. A contrary finding would create situations in which plaintiffs who gave notice during the last 90 days of the one year period would be precluded from filing suit at all. This is so because while section 364, subdivision (d) extends the statute of limitations 90 days from the date notice is filed for those who give notice within the last 90 days of the one year period, nevertheless, the plaintiff is precluded from filing suit during those same 90 days pursuant to section 364, subdivision (a). The only way to give effect to subdivision (d) is to apply some kind of tolling provisions.

However, because the 90-day extension of subdivision (d) is coextensive with the 90-day prohibition against filing suit set out in subdivision (a), the tolling provisions of section 356 offer no relief to the plaintiff who files notice within the last 90 days of the one year period if the tolling runs concurrently with the extension. Only a few decisions squarely address this problem. ⁴ A careful review of the opinions discloses the courts have devised two interpretations of the statutes in question. One line of cases holds the applicable limitations period is always one year plus 90 days from the date of injury; the other concludes the applicable limitations period varies but is the sum of one year plus 180 days from the date of service of notice of intention to commence the action. After examining these two theories, we are persuaded that the latter is the correct interpretation.

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