Duncan v. Spivak
| Decision Date | 06 December 2001 |
| Docket Number | No. F034907.,F034907. |
| Citation | 114 Cal.Rptr.2d 166,94 Cal.App.4th 245 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Russell DUNCAN, Plaintiff and Appellant, v. Yemelyan SPIVAK, Defendant and Respondent. Shari Duncan, Plaintiff and Appellant, v. Yemelyan Spivak, Defendant and Respondent. |
Rouhani, Michael Richter; and Carl A. Mounteer, Monterey, for Plaintiffs and Appellants.
McCormick, Barstow, Sheppard, Wayte & Carruth, Mario L. Beltramo, Jr., and Patrick M. Martucci, Fresno, for Defendant and Respondent.
Plaintiffs and appellants Russell Duncan (Duncan) and Shari Duncan (Mrs. Duncan) (collectively the Duncans) appeal from the judgment entered after the trial court granted summary judgment in favor of defendant and respondent Yemelyan Spivak, M.D. (Spivak). Duncan contends the trial court erred in concluding the one-year limitations period set forth in Code of Civil Procedure section 340.51 rendered his medical malpractice claim time-barred. As more fully explained below, section 340.5 sets forth a three-year and a one-year limitations period. The statute provides in pertinent part that regardless of the three-year limitation period, "... the time for the commencement of action shall be ... one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first." Section 340.5 goes on to exclude from its limitation periods any claim in which the plaintiff can show "the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person."
In the first part of this opinion we conclude that a staple used during Duncan's hernia surgery is not a "foreign body" and thus Duncan's claim is not tolled by the foreign body exception set forth above. However, we are also called on to decide whether Duncan's claim nevertheless escapes section 340.5's one-year limitations period because, despite his diligent attempts to do so, he was unable to discover the negligent cause of his injury. For the reasons set forth herein, we conclude section 340.5 does not necessarily bar a claim filed more than one year after a plaintiff "suspects" medical negligence and serves a notice of intent to sue when that plaintiff subsequently receives medical advice allaying those suspicions. In our view, such facts merely raise a question of fact, appropriately resolved by a jury, regarding what constitutes "discovery of the injury" and "reasonable diligence" that should result in discovery. The dissent concludes that the filing of a notice of intent to sue will in every case constitute "discovery" of an injury as a matter of law.
We set forth this summary of our holding at the outset in order to clearly convey the exact nature of what we decide here: whether, as a matter of law, a plaintiff "discovered or through the use of reasonable diligence should have discovered" the negligent cause of his injury when he experiences post-surgery pain, suspects professional negligence, consults an attorney who files a notice of intent to sue, but is subsequently unable to support his lay suspicion of negligence with medical fact despite numerous consultations with doctors and even an additional surgery. We conclude he does not "discover" his injury within the meaning of section 340.5 under such circumstances. Thus, the facts alleged by Duncan do not, as a matter of law, require the legal conclusion that the one-year limitations period expired prior to initiation of the action.
We further conclude Duncan has alleged facts that would support a finding he was "diligent" within the meaning of the statute. For the reasons stated herein, we reject respondent's and the dissent's position that a mere suspicion of professional negligence triggers the one-year limitations period under section 340.5 regardless of diligence. We further reject respondent's and the dissent's position that the initiation of a notice of intent to sue under the specific alleged facts of this case triggers the one-year limitations period as a matter of law. As this matter is before us on summary judgment we, of course, do not decide whether the facts alleged actually constitute diligence such that the limitations period is tolled, but rather leave that factual conclusion to the trier of fact.
While at work, Duncan experienced pain in the lower right groin, near the right scrotum, and was taken to an emergency room in Corcoran. There he was seen by both an emergency room physician and a surgeon, Dr. Schuster. Both doctors diagnosed Duncan's injury as a "groin pull." When Duncan continued to have severe burning pain, Duncan consulted with Dr. Sherwin, a family doctor, who diagnosed Duncan with a hernia and referred him to a surgeon, Dr. Spivak. Spivak also diagnosed Duncan with a hernia and recommended a laparoscopic hernia repair.
On October 16, 1996, Spivak performed a right, laparoscopic, inguinal hernia repair on Duncan at Central Valley General Hospital in Hanford. As part of the repair procedure, Spivak affixed surgical mesh to Duncan's abdominal wall using several surgical staples. Spivak stated in his supplemental declaration that the surgical staples were purposefully placed in Duncan's abdominal cavity with the intent they remain there permanently; he therefore concluded they served a therapeutic purpose as a fixation device.
Following the surgery, Duncan was taken to the surgical recovery room where, upon arousing from the anesthesia, he immediately experienced heightened pain in areas of his body that were previously asymptomatic, namely, his right hip, inner thigh and groin, and numbness in his upper right leg. These symptoms, which resembled an "electrical shock" coupled with numbness, were not present before the hernia repair surgery and, in fact, were far different from the complaints which prompted Duncan to seek medical treatment in the first place. Before the surgery, Duncan only felt pain in his right groin area, which would spread to the stomach area, causing an upset stomach. He would also experience discomfort when he had a bowel movement.
Duncan asked an attending nurse about these new symptoms and was told not to worry, because it was "part of the surgery." During a postoperative examination on October 23, 1996, Spivak affirmed what the nurse had said. Five days later, when Duncan saw Spivak for a follow-up examination, his pain had become worse— he experienced numbing in the outer thigh and a "burning" sensation down the inner thigh. At that time, Spivak advised Duncan that the pain "would go away in time" and told him to go back to work. No follow-up appointment was scheduled.
In late October 1996, Duncan returned to his job as a construction worker. By this time, his pain was "a lot worse" than before the surgery, and he was ingesting large doses of pain relief medication just to get through the workday. Increasing pain caused Duncan to seek the advice of a neurologist, Dr. Richard Pantera, on December 3, 1996. Dr. Pantera was unsure what was causing Duncan's pain and said they may need to do exploratory surgery. Dr. Pantera told Duncan the pain might be related to the hernia repair surgery, "but he wasn't sure." As a preliminary measure, Dr. Pantera placed Duncan on additional medication to see if the pain would resolve.
On December 11, 1996, Duncan saw Spivak's partner, Dr. Schuster, about his continuing pain and was prescribed Ultram, a muscle-relaxant. Dr. Schuster purportedly advised Duncan that the symptoms he was experiencing were a nerve problem, which could be corrected by a course of injections to "kill the nerve." Dissatisfied with Dr. Schuster's answer and proposed course of treatment, Duncan decided to stop treating with Spivak's office. Duncan did not return to Spivak's office after December 11,1996.
In February 1997, Duncan telephoned two different attorneys to inquire about his "status," to ask what he ought to do about his pain, and to determine what his rights were. One of these attorneys was David Drexler of Sherman Oaks, a plaintiffs medical malpractice attorney, whom Duncan authorized to obtain and review his medical records to "see what was wrong."2 On February 18, 1997, Mr. Drexler sent Spivak a notice of intention to commence a legal action based on professional negligence on Duncan's behalf in accordance with section 364.3
Meanwhile, on February 24, 1997, Duncan saw another physician, Dr. Gregory Rhodes, regarding his ongoing complaints. Dr. Rhodes advised Duncan that "something was wrong," and that he needed exploratory surgery. Dr. Rhodes therefore referred Duncan to Dr. Edward L. Felix, a specialist in laparoscopic surgery. Duncan initially testified in his deposition that at that time he was unaware that something was wrong, that he did not know that Spivak had done anything wrong, but he "just knew [he] was in a lot of pain." Duncan testified later in his deposition, however, that Drs. Pantera and Rhodes thought he needed exploratory surgery because "something was wrong."
On March 27, 1997, Dr. Felix performed exploratory laparoscopic surgery. Dr. Felix discovered that "a portion of [Duncan's] inferior lateral mesh rolled up, forming a firm hard ridge with scar tissue around that ridge which was entrapping the genital branch of the genital femoral nerve." Dr. Felix looked for a staple that might be irritating a nerve, but found none. Although Dr. Felix corrected the problem that he had discovered, Duncan's complaints persisted without any improvement whatsoever.
On April 3, 1997, Dr. Felix saw Duncan for a postoperative appointment. Duncan told Dr. Felix he still had a fair amount of pain but Dr. Felix told him that was not unusual. During a postoperative visit on May 12, 1997, Duncan was still complaining of pain...
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