Brown v. Bleiberg

• Decision Date: 27 September 1982
• Citation: 186 Cal.Rptr. 228,32 Cal.3d 426,651 P.2d 815
• Court: California Supreme Court
• Parties: , 651 P.2d 815 Leonia BROWN, Plaintiff and Appellant, v. Leon BLEIBERG, et al., Defendants and Respondents. L.A. 31531.

Page 228

186 Cal.Rptr. 228

32 Cal.3d 426, 651 P.2d 815

Leonia BROWN, Plaintiff and Appellant, v. Leon BLEIBERG, et al., Defendants and Respondents.

L.A. 31531.

Supreme Court of California In Bank.

Sept. 27, 1982.

Sanford M. Gage, Beverly Hills, for plaintiff and appellant.

Wood, Tucker & Ward, Bonelli, Wood & Heib, Glen E. Tucker, Stanley M. Sapiro, Encino, Hagenbaugh & Murphy and Neil Gunny, Los Angeles, for defendants and respondents.

REYNOSO, Justice.

We interpret provisions of the statute of limitation dealing with medical malpractice. In the case at bench, we reverse a summary judgment in favor of a podiatrist and a physician despite the passage of over 12 years since the plaintiff's injury. Although the delay in this case was extreme, a triable issue of fact exists whether the doctors' alleged affirmative concealment of the true nature of the surgery prevented plaintiff from discovering that the injury resulted from the defendants' tortious conduct in performing an unnecessary operation. We cannot say as a matter of law that plaintiff's reliance on what they told her was unreasonable.

1. The facts and proceedings below.

Plaintiff Leonia Brown appeals from a summary judgment entered against her in a medical malpractice action and in favor of defendants Dr. Leon Bleiberg, a licensed podiatrist, and Dr. Joseph Green, a physician. The basis for the grant of summary judgment was that plaintiff's claim, which arose out of surgery performed on her in 1965, was barred by the statute of limitations. Plaintiff contends that her cause of action did not accrue until June 1978, when she was advised by a podiatrist to whom her lawyer referred her that portions of the bones of her feet had been removed which should not have been. She challenges the trial court's implicit conclusion that, as a matter of law, she either knew or should have known of the injury to her foot and its negligent cause over a year before she commenced the present action, on June 21, 1978.

The factual background begins in June or July 1965. Plaintiff complained of foot pain to her family physician, Dr. John Zane (a named but unserved defendant), who referred her to defendant Bleiberg. Bleiberg informed her that she needed surgery to remove some corns. The operation was performed at Mid-City Hospital in July 1965. Defendant Green was the attending anaesthesiologist; before the operation he spoke to plaintiff reassuring her that she "had nothing to worry about" and that he had often seen Bleiberg perform such foot surgery.

After the surgery, plaintiff was in great pain and observed that her feet were "all cut up ...." Bleiberg assured her that nothing was amiss, that he had found and removed "a whole lot of little tumors and they were going to be painful." After her discharge from the hospital she continued under Bleiberg's care, going to his clinic every other day for therapy. During this time she was making continual complaints to him about the pain in her feet, and was taking codeine pills for two or three months after the operation. Bleiberg gave her no further explanation than the removal of the tumors, but assured her that "it would be all right." She continued to see him until he moved, sometime before the end of 1965. She remained in Dr. Zane's care until he, too, moved away in 1972.

Plaintiff's deposition testimony and answers to interrogatories were offered by Bleiberg in support of his motion for summary judgment. Her feet never improved. They splayed when she walked; she felt she walked "like a duck." If she had occasion to stand for any prolonged period, she was often unable to walk the next day. This has kept her from working. Her friends ridiculed her "ugly" feet and asked her, "Who was the doctor who cut you up?" Plaintiff's niece, a registered nurse, urged her on more than one occasion between 1965 and 1974 to have her feet "checked" by a doctor.

Plaintiff did not consult a physician about her foot problems; she "just had it in mind that they were going to be all right." Two or three years after the operation, her welfare caseworker referred her to a doctor for a "checkup." He asked her why her feet were "cut up like that." When she replied that she had had some corns removed, he asked why "they had to do all that to take a corn off?" Plaintiff said she did not remember. In 1975, she had another occasion to see a doctor when, due to weakness in her foot, she fell and broke her ankle and had to be hospitalized. She told the doctor who treated her that she had had problems walking, on and off, since the surgery. The record does not show his response.

In June 1978, plaintiff heard through a family member about another person who had had similar foot surgery performed by Dr. Bleiberg and subsequently sued him for malpractice. The relative urged plaintiff to contact the lawyer representing the other patient. She promptly did so, and was referred by him to a podiatrist who examined her and advised her that "the operation performed upon [her] was not a procedure to remove tumors but was a procedure that removed portions of the bones of the feet." She filed suit on June 21, 1978.

Plaintiff also testified in her deposition that she had an 11th-grade education, and had taken a 9-month adult education course in practical nursing in 1959 at a high school. She acted as an assistant school nurse in connection with the training, but, according to her declaration in opposition to the motion for summary judgment, she received "no hospital training or in service instruction." Further, she declared: "This background did not qualify me to diagnose my foot condition but probably conditioned me to be more accepting of the doctor's diagnosis and explanation for the condition of my feet since I basically had trust and confidence in them."

2. The statutes of limitations.

The applicable statutes of limitations here are Code of Civil Procedure sections 340, subdivision 3 (governing a variety of actions for personal injuries, including battery) and 340.5 (governing actions for "professional negligence"). ¹

Section 340 prescribes a one-year limitations period. Prior to the enactment of section 340.5 in 1970, the limitations period for all medical malpractice actions was the one-year term provided by section 340, subdivision 3, which applies generally to actions for personal injury or death. It was established, though, that the limitations period did not commence until the plaintiff actually discovered his injury and its negligent cause or could, in the exercise of reasonable diligence, have discovered them. Thus, commencement of the running of the statute might be deferred indefinitely. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 96-97, 132 Cal.Rptr. 657, 553 P.2d 1129; see also Whitfield v. Roth (1974) 10 Cal.3d 874, 885, 519 P.2d 588; Stafford v. Shultz (1954) 42 Cal.2d 767, 776, 270 P.2d 1; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64, 9 Cal.Rptr. 555.)

Repeated efforts to modify this "open-ended" discovery doctrine culminated in the enactment in 1970 of Code of Civil Procedure section 340.5, which governs actions based on "professional negligence" by "health care provider[s]." As enacted, the statute retained the former one-year limitations period, but circumscribed it with an outside period of four years from the date of plaintiff's "injury," irrespective of whether its negligent cause had or should have been discovered. ² At the same time, the Legislature reflected a concern about the fairness of applying the four-year period to a plaintiff whose failure to discover his cause of action stemmed from the failure of the health care provider to fulfill a fiduciary obligation to disclose errors and omissions. Thus, the enactment also provided that the four-year period was " 'tolled for any period during which [the treating physician or hospital] ... 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.' " (Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at pp. 95-98, 132 Cal.Rptr. 657, 553 P.2d 1129.)

In 1975, section 340.5 was amended to shorten the outside limitations period to three years. There were other substantial changes, including some restriction of the scope of the tolling provision: "... 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...."

We consider the effect on plaintiff's action of the one-year limitations periods provided both in section 340, subdivision 3, and section 340.5 in the next part of this opinion. In the succeeding part, we treat the three- and four-year outside periods prescribed by 340.5, which affect only the negligence causes of action.

3. The one-year period.

Plaintiff contends that there is a triable issue of fact whether she was prevented from becoming aware of the tortious cause of her foot problems following the operation by defendant Bleiberg's misrepresentations as to the nature and necessity of the operation.

In her declaration in opposition to defendant Bleiberg's motion for summary judgment, plaintiff asserted that Bleiberg and Zane reassured her after the operation that it was "necessary" to remove some tumors from her feet and she "accepted their explanation." Further, "[b]ecause I trusted and had confidence in Dr. Zane and also Dr. Bleiberg, I believed their explanation that the reason I had painful and unattractive feet was due to the existence of 'tumors' in the feet which had to be removed at surgery.... Although other persons suggested that I seek other medical care and did ridicule the appearance of my feet, I was satisfied by the explanations concerning the treatment and...