Garlock v. Cole

• Decision Date: 09 January 1962
• Citation: 18 Cal.Rptr. 393,199 Cal.App.2d 11
• Court: California Court of Appeals Court of Appeals
• Parties: Irvin GARLOCK, Plaintiff and Appellant, v. Fenwick COLE, H. T. Hinman, individually and dba Lewiston Clinic, and Lewiston Clinic, a copartnership, Defendants and Respondents. Civ. 10172.

Page 393

18 Cal.Rptr. 393

199 Cal.App.2d 11

Irvin GARLOCK, Plaintiff and Appellant, v. Fenwick COLE, H. T. Hinman, individually and dba Lewiston Clinic, and Lewiston Clinic, a copartnership, Defendants and Respondents.

Civ. 10172.

District Court of Appeal, Third District, California.

Jan. 9, 1962.

Hearing Denied March 7, 1962.

Ted W. Isles, Sacramento, for appellant.

Daniel S. Carlton, Redding, for respondents Hinman and Lewiston Clinic.

Glenn D. Newton, Redding, for respondent Cole.

PIERCE, Justice.

Plaintiff appeals from a summary judgment for defendants in a malpractice action.

The sole question on appeal is whether any triable fact was before the trial court on the issue of the running of the one-year statute of limitations. (Code Civ.Proc. § 340, subd. 3.)

The issues framed by allegations of the complaint, substantially denied by the answers, were: That on November 27, 1957, respondent physicians so negligently injected a drug into appellant's left arm that it became permanently deformed; that respondents knew this but appellant did not and was kept ignorant of the nature and extent of the injury by representations of respondents that the arm would return to normal after the expiration of one year; that appellant, relying on these representations, returned after a year, as directed, and learned then from respondents that the injury was permanent but that a settlement would be made. Appellant alleges that he did not learn that respondents intended no settlement until July, 1959. Complaint was filed August 20, 1959.

The proceedings for summary judgment were on affidavit and counter-affidavit. Said affidavits, however, rely entirely on depositions for their factual source, one the deposition of appellant, Irvin D. Garlock, the other the deposition of one of respondents, Fenwick Earl Cole, M.D. These depositions, construing them most liberally, and resolving all doubts and contradictions in appellant's favor, as we are bound to do (Craig v. Earl, 194 A.C.A. 687, 690, 15 Cal.Rptr. 207), show the following:

On November 27, 1957, appellant, suffering from shingles, was referred by another physician to respondent Cole, a doctor of medicine, for treatment. Dr. Cole gave appellant two injections, one a mixture of vitamin B-12 and protomide, injected into the left arm.

The injection was to have been the first of a series for cure of the shingles. Within ten or fifteen minutes after the injection described appellant experienced a burning sensation in his arm and three fingers and the thumb of his left hand became numb and partially paralyzed. Two days later appellant saw Dr. Cole and complained of the condition of his left hand. Dr. Cole had his nurse give appellant a heat treatment. Approximately a week later appellant again saw Dr. Cole who again examined the hand and told appellant he wanted to have him examined by another physician, the respondent Dr. Hinman, with whom Dr. Cole was associated. This joint examination took place two days later and, according to appellant, the two doctors 'just kind of shook their heads and didn't know.' Dr. Hinman said he would like appellant to come back in a month and Dr. Cole said he would turn it over to Dr. Hinman. About a month later (January, 1958) Dr. Hinman again looked at appellant's hand and, according to appellant, 'he said there wasn't too much they would be able to do about it * * * that it would take about a year. He said that the nerves would grow about the thickness of a hair, and I can't remember for sure whether he said a week or ten days, or whatever it was. Anyhow, he said that is all the nerve would grow in that length of time, and he said it would take a year at least to see any improvement. He said there was nothing else you could do about it. * * * He just said it would take at least a year, and he says then to come back and he would take a look at it.'

Appellant did go back to these doctors as directed. In the meantime, in the spring of 1958, appellant having experienced some difficulty in his right shoulder, apparently unrelated to the shingles or the left arm injection, was referred by a physician other than respondents, to a Sacranmento physician, Dr. Petzold.

After Dr. Petzold had examined his right arm and shoulder, appellant mentioned that he was having trouble with his left hand and testified: 'I told him what had happened.' There were so many interruptions of the witness' account in his deposition of this visit to Dr. Petzold that it never became completely clear just what had occurred thereat. But it was clear that no X-rays were taken, no tests were made and that the observation of, and discussion regarding, the left hand were casual. Appellant related a statement to him by Dr. Petzold. During the conversation the doctor told him that he 'would just have to learn to live with it.'

Appellant did nothing further about his left hand until March of 1959 when he returned to Doctors Cole and Hinman who again looked at it. During the intervening period the cripped condition of appellant's left hand had continued and worsened. At the March visit Dr. Hinman said: 'Well, it is gone. * * * The only thing we can do is call the insurance company and try to get him a settlement.' Thereafter, at Dr. Cole's request, appellant was examined by a Dr. Adams who referred him to Dr. Petzold. Appellant refused hospitalization and, so far as the record shows, has had no further examination or care. This action, as stated above, was commenced in August, 1959.

The trial court, in ruling upon and granting the motion for summary judgment, took the position that 'the plaintiff was well aware of the fact that something was wrong immediately after receiving the injection * * * and if it be a fact that this was due to negligent treatment by the doctor, the cause of action arose then and was barred in one year'; that if not barred then it was barred within one year after appellant 'was informed by the doctor in Sacramento to the effect that his condition was apparently permanent.' The trial court saw no 'representations [by respondents] guaranteeing that he [appellant] would recover * * * but only that it might improve in about a year.'

In this statement we believe the trial court has erred both in the application of rules relating to summary judgments and by inaccurate and incomplete treatment of the law governing the statute of limitations in malpractice actions.

It is not the function of the court in passing upon a motion for summary judgment to weigh the evidence. Its role in such proceedings is not as a trier of facts. Ascertainment of triable issues, not determination thereof fixes the judicial function.

In Estate of Kelly, 178 Cal.App.2d 24, on pages 29, 30, 2 Cal.Rptr. 634 on page 637, it is said by the court (Shepard, J.):

'* * * In the last analysis, then, the primary duty of the trial court in passing on a motion for summary judgment is to discover whether or not there are presented by the affidavits any really triable issues, and not to pass on the issues themselves. (California Lettuce Growers v. Union Sugar Co., 45 Cal.2d 474, 488, 289 P.2d 785, 49 A.L.R.2d 496; Coyne v. Krempels, supra, 36 Cal.2d 257, 36 Cal.2d at page 260, 223 P.2d , at page 246.) In other words, as was said in Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62, 64, '* * * issue finding rather than issue determination is the pivot upon which the summary judgment law turns.''

The one-year statute of limitations (Code of Civil Procedure, § 340, subdivision 3) governs the action for malpractice. (Stafford v. Shultz, 42 Cal.2d 767, 775, 270 P.2d 1.) This is true even where, as here, the plaintiff alleges a cause of action for deceit in defendant's misrepresenting or withholding the nature and extent of the injury. (Tell v. Taylor, 191 A.C.A 260, 265, 12 Cal.Rptr. 648.) However, the statute does not commence to run until the plaintiff discovers his injury due to defendant's wrongful act or through the exercise of reasonable diligence should have...