Filosa v. Alagappan
| Decision Date | 21 December 2020 |
| Docket Number | A156412 |
| Citation | 273 Cal.Rptr.3d 731,59 Cal.App.5th 772 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Michael FILOSA, Plaintiff and Appellant, v. Ravi ALAGAPPAN et al., Defendants and Respondents. |
Law Offices of Tiffany J. Gates, Tiffany J. Gates, Santa Rosa; Walkup, Melodia, Kelly & Schoenberger, Michael A. Kelly and Valerie N. Rose, San Francisco, for Plaintiff and Appellant.
Cole Pedroza LLP, Kenneth R. Pedroza, Cassidy C. Davenport, San Marino; and Donnelly, Nelson, Depolo, Murray & Efremsky, Vanessa L. Efremsky, Walnut Creek, for Defendants and Respondents.
In this medical malpractice action, plaintiff Michael Filosa alleges defendants Ravi Alagappan and Bay Radiology San Ramon negligently failed to diagnose a brain tumor when he underwent an MRI in 2010.1
The trial court granted summary judgment to defendants on the ground Filosa's complaint, filed in 2016, is barred by the statute of limitations. (Cod. Civ. Proc., § 340.5.)2 We conclude there is a triable issue of fact as to the date of both Filosa's injury and his discovery of the injury, and accordingly we shall reverse the judgment.
Evidence in the summary judgment record establishes the following facts. Filosa began to complain of headaches in 2004 or 2005, and over a period of years they became steadily worse. By 2010, the headaches were constant. Filosa described them as involving a feeling of pressure or constant discomfort—"on a scale of 1 to 10, that was like a 5 all the time" and then would "spike up based upon acute episodes." In 2010 during one such "acute episode," he suffered blind spots, blurry vision, and twitching of his left eyelid and lip, and his doctor ordered an MRI.
The MRI took place in September 2010 at Insight Imaging. Dr. Alagappan, a radiologist, interpreted the results, and did not detect any abnormalities.
Filosa's headaches continued to worsen after 2010. Specifically, Filosa testified, between 2010 and 2014 the headaches continued to become "more intense, more debilitating, and more different types," sometimes involving pulsing, sometimes throbbing, and sometimes sharp pain.
During this same period, Filosa faced other challenges. In April 2011, Filosa separated from his wife, who had recently been diagnosed with mental health issues, and assumed full custody of his three daughters. He reported to a doctor that he felt overwhelmed, that he woke in the middle of the night with his mind racing, that when he awoke in the morning he did not feel refreshed, and that he had trouble concentrating. In June of the same year, he reported that his depression was getting worse, that he had low energy, he had difficulty focusing and concentrating, and his job performance was poor. He was seeing a mental health professional and began taking antidepressants, which brought some relief.
Filosa's symptoms affected his performance at work, and he took two medical leaves of absence, one in July 2011, and one in early 2012. Many days he was also late arriving at work or left work early. His medical records indicate that he was receiving treatment for depression at the time of the 2011 leave of absence and that the 2012 leave of absence was due to stress and anxiety. He described the symptoms that left him unable to perform in 2012 and 2013 as including "brain fog—[for] lack of [a] better word—severe headaches and migraines, a myriad of different types of headaches that were both debilitating as well as scary, such as the feeling of ... electric shock through my brain or a lighting bolt, ... [and] constant pressure [in my head], like it felt like it was going to explode from physical pressure." He also described experiencing vision problems, eye strain, extreme fatigue, and an inability to concentrate. Filosa's employer demoted him for performance problems in October 2012, although his salary remained the same. Filosa was concerned that, due to his headaches, fatigue, grogginess, and vision problems, he was not able to do his job as effectively as he had done previously. He was put on a performance plan and given the opportunity to improve his work performance sometime in 2013.
Filosa's medical records show that in July 2013 he was feeling "[r]un down" in the afternoons, and he continued to experience depression.
Concerned about his symptoms, Filosa asked a doctor around 2013 whether he might have a brain tumor. He described the inquiry as "a macro observation or question, just a shot in the dark." His doctor dismissed the suggestion, saying nothing in Filosa's blood work indicated he had cancer and that he had already had an MRI that was negative. The doctor suggested the symptoms might be caused by Filosa's marital problems and resulting stress.
Filosa testified that in late 2014, his headaches were sometimes incapacitating, and he again raised the possibility of a tumor with a doctor. He was referred to a neurologist, whom he saw in November of that year. The medical record from the appointment at which he received the referral described Filosa's last year as "pretty healthy" and noted that he had had "a lot of headaches, for many years," which Filosa's mental health care provider thought might be the result of concussions from playing football years earlier.
Filosa underwent brain imaging at Bay Radiology San Ramon, and was told on December 8, 2014 that the results of this test showed a cyst or a tumor in his brain. A re-review of the 2010 MRI imaging then showed a "relatively subtle" mass, which had increased by 2014. Filosa underwent surgery to resect the mass, which caused adverse physical effects.
Filosa served a notice of his intent to bring an action against defendants on November 16, 2015. He then filed this action on March 3, 2016, alleging a single cause of action for medical negligence based on the failure to diagnose the brain mass at the time of his 2010 MRI.
Defendants moved for summary judgment, which the trial court granted on the ground the action is barred by the statute of limitations. Filosa appeals from the ensuing judgment.
We review the grant of summary judgment de novo and decide independently whether the parties have met their burdens and whether there are triable issues of material fact. ( Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484, 71 Cal.Rptr.3d 714.) The defendant has the initial burden on summary judgment to show that undisputed facts establish an affirmative defense. ( Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1188, 209 Cal.Rptr.3d 332 ( Drexler ).) Once the defendant meets that burden, the burden shifts to the plaintiff to show a triable issue of material fact regarding the defense. ( Jessen , at pp. 1484–1485, 71 Cal.Rptr.3d 714.) We review the evidence in the light most favorable to the plaintiff. ( Id . at p. 1485, 71 Cal.Rptr.3d 714.) Although application of the statute of limitations is normally a question of fact, the question becomes one of law when the evidence is susceptible of only one reasonable conclusion. ( Brewer v. Remington (2020) 46 Cal.App.5th 14, 28, 259 Cal.Rptr.3d 510 ( Brewer ).)
The limitations period for medical malpractice actions is found in section 340.5, which provides that Filosa does not contend any of these tolling provisions apply here; thus, to avoid the bar of the statute of limitation, his action must have been brought on the earlier date of three years after his injury or one year after he discovered the injury, plus 90 days under section 364, subdivision (d).3 ( Doe v. Doe 1 (2012) 208 Cal.App.4th 1185, 1193, 146 Cal.Rptr.3d 215.)
The resolution of this case depends crucially on the date of Filosa's injury. The term "injury" for purposes of section 340.5 ( Brewer , supra , 46 Cal.App.5th at p. 24, 259 Cal.Rptr.3d 510.) An injury manifests when damage is "evidenced in some significant fashion; when the damage has clearly surfaced and is noticeable." ( Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1203, 67 Cal.Rptr.2d 573.) Because the three-year limitations period accrues at the time of injury, it is the surfacing of appreciable harm that marks the beginning of the three-year period.
For purposes of the one-year period, discovery of the injury means the plaintiff has discovered "both his or her injury and its negligent cause." ( Drexler , supra , 4 Cal.App.5th at p. 1189, 209 Cal.Rptr.3d 332.) The plaintiff ( Brewer , supra , 46 Cal.App.5th at p. 24, 259 Cal.Rptr.3d 510.)
The situation before us here is somewhat unusual, in that the harm allegedly was the result of defendants’ negligent failure to diagnose a hidden condition in existence at the time of his 2010 MRI. "When a plaintiff brings a malpractice action based on the defendant's failure to diagnose ... a latent, progressive condition, identification of the ‘injury’ is more difficult" than in the common case of a health care provider performing...
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