Drexler v. Petersen
| Citation | 209 Cal.Rptr.3d 332,4 Cal.App.5th 1181 |
| Decision Date | 31 October 2016 |
| Docket Number | B259375 |
| Parties | Steve B. DREXLER, Plaintiff and Appellant, v. David J. PETERSEN, et al., Defendants and Respondents. |
| Court | California Court of Appeals |
Katchko, Vitiello & Karikomi and Michael T. Karikomi, Los Angeles, for Plaintiff and Appellant.
Ryan Datomi, Richard J. Ryan, Fresno, Jeffrey T. Whitney and Dawn Cushman, Glendale, for Defendants and Respondents.
Code of Civil Procedure section 340.51
provides that a plaintiff in an action for medical malpractice must file the action within three years of 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. We hold that, when the plaintiff in a medical malpractice action alleges the defendant health care provider misdiagnosed or failed to diagnose a preexisting disease or condition, there is no injury for purposes of section 340.5
until the plaintiff first experiences appreciable harm as a result of the misdiagnosis, which is when the plaintiff first becomes aware that a preexisting disease or condition has developed into a more serious one.
Steve Drexler filed this medical malpractice action against Dr. David Petersen, a primary care physician, Dr. Craig German, a neurologist, and their employer, HealthCare Partners Medical Group, Inc., alleging that Dr. Petersen and Dr. German negligently misdiagnosed the cause of his headaches. When finally an emergency room doctor correctly diagnosed a brain tumor
as the cause of the headaches, Drexler needed emergency surgery. By that time, the tumor had grown so large that surgeons had to sever Drexler's cranial nerves to remove it, which caused Drexler loss of vision in his left eye, deafness in his left ear, facial paralysis, loss of musculature and strength, depression, and sexual dysfunction.
The trial court granted a motion by all three defendants for summary judgment on the ground that section 340.5
barred Drexler's action. Because there are disputed issues of material fact regarding whether Drexler discovered his injury within the meaning of section 340.5 more than one year before he filed this action, we reverse.
In December 2006 Drexler consulted Dr. Petersen about headaches he had been experiencing for a month.2 Dr. Petersen diagnosed Drexler with tension headaches.
In January 2007 Drexler returned to Dr. Petersen, still complaining of headaches on the right side of his head and neck. Dr. Petersen again diagnosed Drexler with tension headaches and prescribed pain medication.
In September 2007 Drexler again consulted Dr. Petersen regarding pain on the back and sides of his head. Dr. Petersen told Drexler that tension was still causing his headaches and to keep taking the prescribed pain medication.
In November 2007 Drexler returned yet again to Dr. Petersen, complaining of daily headaches that began with occipital (back of the head) pain. He told Dr. Petersen the headaches improved with massage and physical therapy. Dr. Petersen ordered more pain medication and referred Drexler to physical therapy.
In November 2009 members of Drexler's family called Dr. Petersen and informed him they were taking Drexler to the emergency room because Drexler's head and neck pain was so severe he could not lift his arms. The family members also told Dr. Petersen that they wanted Drexler to have a magnetic resonance imaging
study (MRI) “of the muscle” and that Drexler “knows it is a muscle.” Dr. Petersen explained that an MRI “is not useful for muscle pain.” Dr. Petersen later spoke with Drexler and noted that the “pain remain[ed] occipital and in the trapezius distribution to the shoulder,” and that Drexler's statement “ ‘Can't move shoulders' means his muscles hurt, not that he has neuro weakness.” Dr. Petersen continued to prescribe pain medication and physical therapy, advised Drexler to continue seeing a chiropractor, and added acupuncture to Drexler's treatment. In response to Drexler's statement “I need an MRI,” Dr. Petersen wrote,
A few months later, on January 30, 2010, Drexler returned to Petersen for “neck pain.” Dr. Petersen's records reflect that Drexler reported, “It's a muscle,” while pointing to his trapezius. When Drexler asked why he felt pain in the back of his head if the problem was in his trapezius muscle, Dr. Petersen “explained the attachments again and how neck muscle tension classically causes pain in the occiput.” Drexler also reported that he was experiencing pain radiating down his right arm and numbness in his fourth and fifth fingers, although Drexler could not remember when he started experiencing the tingling in his hands. Dr. Petersen reported: “Pain is muscular, reproducible with palpation of trapezius muscle and neck movement, does not involve the head other than occiput, so an MRI of his head
is not indicated. He wants an MRI of his trapezius, but that is not likely to reveal anything that would alter the treatment.” Dr. Petersen prescribed continued use of pain medication and referred Drexler to “pain management.” In addition, because Drexler “complain[ed] of intermittent para[e]sthesia [tingling in extremities] in right ulnar nerve distribution, and since he [was] convinced he need[ed] an MRI, [Dr. Petersen] defer[red] to neurology in this regard.”
On February 10, 2010 Drexler consulted Dr. German, a neurologist, for “headaches” and “right arm tingling.” Drexler told Dr. German that the tingling in his fingers and pain in his right arm began four or five years earlier when he “suffered some trauma to the arm while attempting to change a tire,” and that a subsequent car accident caused additional injury to the arm. Dr. German diagnosed Drexler with carpal tunnel syndrome
as a “likely explanation for shoulder pain and par[a]esthesia” and a “tension-type headache ” probably resulting from “medication overuse.” Dr. German prescribed various medications for pain and inflammation and advised him to wear wrist splints at night for six to eight weeks.
On March 3, 2010 Dr. German performed an “NCS/EMG” (electromyogram
nerve conduction study ), an electrical test of nerves and muscles to identify the source of the tingling. Dr. German diagnosed Drexler with “ulnar nerve entrapment at elbow ” and advised him to “stop putting pressure on his elbows.” Dr. German explained to Drexler that the problem with his elbow was separate from his headaches, the pain medication was for the headaches, and if he did not want to take the medication he should follow up with his primary care physician.
On May 20, 2010 Drexler called Dr. Petersen about “severe headaches” he had been suffering “off and on” for three years and complained he was “not getting the treatment that he should be getting.” Drexler again reported pain in his trapezius, occiput, and shoulder, and again stated he thought it was muscular. Dr. Petersen told him to take the pain medications and referred him to a pain management specialist, Dr. Imad Rasool.
On October 22, 2010 Drexler returned to Dr. Petersen with the same neck pain and occipital headache. The medical records state, “Same exaggerated urgency to the problem, stating how much it affects his life, how it is nearly impossible to function, how he can't sleep or go out socially.” Dr. Petersen continued to diagnose a “tension-type headache
” and “cervicalgia” (neck pain). Dr. Petersen gave Drexler an injection of pain medicine, referred him to pain management, and “explained again that more diagnostic tests [were] not needed.”
On January 15, 2011 Drexler consulted with Dr. Petersen for the last time. Dr. Petersen saw Drexler as a “hallway consult,” and Drexler reported that “he finally used the referral to pain management, and his pain [was] greatly improved.” The medical records indicate that Dr. Rasool conducted an MRI of Drexler's neck and diagnosed him with “multi-level disk disease,” which Dr. Petersen noted was “common in many necks and often seen incidentally on MRI.” Dr. Petersen noted that Drexler should continue with Dr. Rasool for musculoskeletal neck pain and follow up with Dr. Petersen as needed.
During the time Drexler treated with Dr. Petersen, and briefly treated with Dr. German, he did not seek any other medical treatment. Drexler testified at his deposition, however, that he never believed that his headaches were due to tension and stress, or that a problem with the muscles in his neck or shoulders caused the headaches. Drexler testified that, after the first few visits, he did not think Dr. Petersen properly diagnosed his headaches, he thought Dr. German's diagnosis of carpal tunnel syndrome
was “a joke,” and at no time was he ever satisfied with the medical treatment he received from Dr. Petersen or Dr. German. He testified that he nevertheless continued to trust Dr. Petersen: Yet Drexler was sufficiently dissatisfied with his treatment by Dr. Petersen that on January 15, 2011, the day of the “hallway” consultation, Drexler obtained his medical records so he could consult with an attorney about whether he could sue Dr. Petersen for malpractice. The attorney told Drexler “he didn't think [Drexler] had a case.”3 Drexler did not see another primary care physician until the fall of 2012.
In October 2012 Drexler went to Olive View Medical Center complaining of headaches and diplopia
(double vision). Doctors there scheduled an MRI...
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