Gutierrez v. Mofid

Decision Date26 September 1985
Citation705 P.2d 886,39 Cal.3d 892,218 Cal.Rptr. 313
CourtCalifornia Supreme Court
Parties, 705 P.2d 886, 54 USLW 2192 Lina GUTIERREZ, Plaintiff and Appellant, v. Massoud MOFID, et al., Defendants and Respondents. L.A. 31922.

Leonard Sacks, Encino, Jean Corey, Venice, Al Schallau, Rancho Palos Verdes, Robert E. Cartwright, San Francisco, Wylie A. Aitken, Santa Ana, Harlan Arnold, Beverly Hills, Glen T. Bashore, North Fork, Ray Bourhis, San Francisco, Richard D. Bridgman, Oakland, Edwin Train Caldwell, San Francisco, David S. Casey, Jr., San Diego, Victoria De Goff, Berkeley, Douglas K. deVries, Sacramento, H. Greig Fowler, San Francisco, Sanford M. Gage, Beverly Hills, Ian Herzog, Los Angeles, G. Dana Hobart, Marina Del Rey, Stanley K. Jacobs, Los Angeles, Harvey R. Levine, San Diego, John C. McCarthy, Claremont, Timothy W. Peach, San Bernardino, Robert H. Sulnick, Los Angeles, Arne Werchick, Sausalito, and Stephen I. Zetterberg, Claremont, as amici curiae on behalf of plaintiff and appellant.

Morgan, Wenzel & McNicholas, Walter M. Yoka, Hill, Genson, Even, Crandall & Wade, Randolph M. Even, William R. Lowe and William F. Zulch, Los Angeles, for defendants and respondents.

Greines, Martin, Stein & Richland, Alan G. Martin, Martin Stein and Timothy T. Coates, Beverly Hills, as amici curiae on behalf of defendants and respondents.

GRODIN, Justice.

A medical malpractice action must be commenced within one year after the patient "discovers, or through the use of reasonable diligence should have discovered" his "injury." (Code Civ.Proc., § 340.5.) 1 Is the time of "discovery" postponed when a suspicious patient consults an attorney who advises that there is no legal remedy? We conclude that it is not. We will therefore affirm the summary judgment in favor of these malpractice defendants.


Plaintiff entered defendant White Memorial Medical Center (the hospital) in December 1978 with a pain in her right side. On December 22, surgery was performed for the condition. Plaintiff alleges she gave consent only to an exploratory operation to remove a tumor or her appendix. When she awoke, however, she learned to her horror that the doctors (defendants Mofid and Tsai) had done a complete hysterectomy.

In her deposition, plaintiff declared that she communicated her distress to many members of the staff throughout her stay at the hospital. She felt consistently that the doctors had done something wrong to her by failing to warn her in advance that the operation might end her ability to conceive. When Dr. Matsumura, a hospital physician, told her "they had done that [removed her reproductive organs] because if the other tumor came out, I would have a 50 percent possibility of dying," she responded that "I would have waited up to 99 percent, I would have taken that risk."

Plaintiff continued to be upset after her release on December 27, 1978. In January 1979, a Dr. Charavastra told her she could sue and recommended she do so as a release from her "angerness." In February 1979, another physician, Dr. Perez, told her that the surgery had been "too much," and she "knew" this was so. A psychiatrist, Dr. Beton, said the doctors should have asked her first if she wanted them to perform a hysterectomy.

In April 1979, plaintiff consulted a firm of malpractice attorneys. The lawyer who interviewed her told her there was "no provable malpractice."

Nonetheless, friends persisted in urging her to sue so she could obtain money to adopt a child. In June or July 1979, plaintiff went to Mexico to visit her family; they reinforced this advice. Plaintiff still had it in her mind to file an action for "revenge" against the doctors and "so they wouldn't do the same to another person." In November 1980, plaintiff consulted a second firm of lawyers, and this suit was filed on November 21 of that year.


Section 340.5 provides that the time for commencement of an action for injury or death based on alleged professional negligence by a health care provider "shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever [time period expires] first." The three-year period is tolled "(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." The statute makes clear, however, that the one-year period is not similarly extended. Thus, regardless of extenuating circumstances, the patient must bring his suit within one year after he discovers, or should have discovered, his "injury." (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 100-101, 132 Cal.Rptr. 657, 553 P.2d 1129.)

In Sanchez, supra, we indicated that by common law tradition, the term "injury," as used in section 340.5, means both "a person's physical condition and its 'negligent cause.' " (P. 99, 132 Cal.Rptr. 657, 553 P.2d 1129, citing Stafford v. Shultz (1954) 42 Cal.2d 767, 776-777, 270 P.2d 1; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64, 9 Cal.Rptr. 555; see also Brown v. Bleiberg (1982) 32 Cal.3d 426, 433-435, 186 Cal.Rptr. 228, 651 P.2d 815; italics in original.) Thus, once a patient knows, or by reasonable diligence should have known, that he has been harmed through professional negligence, he has one year to bring his suit.

The patient is charged with "presumptive" knowledge of his negligent injury, and the statute commences to run, once he has " 'notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation....' " (Sanchez, supra, 18 Cal.3d at p. 101, 132 Cal.Rptr. 657, 553 P.2d 1129, quoting 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 339, p. 1181 [citing numerous cases]; italics added by Sanchez.) Thus, when the patient's "reasonably founded suspicions [have been aroused]," and she has actually "become alerted to the necessity for investigation and pursuit of her remedies," the one-year period for suit begins. (18 Cal.3d at p. 102, 132 Cal.Rptr. 657, 553 P.2d 1129.)

The evidence on summary judgment makes clear, and plaintiff concedes for purposes of argument, that she both knew of her injury and suspected malpractice almost immediately after the operation. In her deposition, she indicated that the doctors had described a simple operation for appendicitis or a tumor; the hysterectomy from which she awoke far exceeded her understanding or consent. She was not satisfied with the explanation offered by Dr. Matsumura. When she left the hospital in late December 1978, she felt the surgeons had "done something wrong" to her. In January 1979, another physician, Dr. Charavastra, advised her to sue, and in February Dr. Perez told her she had been given "too much" surgery. Her devastation at the loss of her ability to conceive fueled her incentive to investigate. She consulted an attorney precisely because she wished to explore her legal remedies. Under Sanchez, plaintiff was clearly on "presumptive" notice of her claim at the time she saw the lawyer, and the one-year period had therefore started. (18 Cal.3d at pp. 101-103, 132 Cal.Rptr. 657, 553 P.2d 1129.)

Plaintiff argues, however, that her prompt consultation with an attorney prevented her from learning the "negligent cause" of her condition--a necessary element of discovery of her "injury"--since the lawyer told her she had no legal claim. Because she was entitled to rely on the lawyer's advice, she urges, she had satisfied the duty of diligent inquiry imposed by her initial suspicions and had lost "the opportunity to obtain knowledge from sources open to [her] investigation." (Id., at p. 101, 132 Cal.Rptr. 657, 553 P.2d 1129.) Plaintiff suggests that the one-year limitations period began to run only when she was advised by a second lawyer that she had a basis for suit after all. Her assertions are supported by one Court of Appeal decision, Jones v. Queen of the Valley Hospital (1979) 90 Cal.App.3d 700, 703, 153 Cal.Rptr. 662.

However, the uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim. (E.g., Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 875, 191 Cal.Rptr. 619, 663 P.2d 177 [fraud or mistake in contract; applying §§ 337, subd. 3, 338, subd. 4]; Sanchez, supra, 18 Cal.3d at p. 99, 132 Cal.Rptr. 657, 553 P.2d 1129 [medical malpractice; physical condition and negligent cause ]; Davies v. Krasna (1975) 14 Cal.3d 502, 512, 121 Cal.Rptr. 705, 535 P.2d 1161 [stating general rule]; Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 190, 98 Cal.Rptr. 837, 491 P.2d 421 [legal malpractice; "all material facts essential to show the elements of that cause of action"; see now § 340.6]; Huysman v. Kirsch (1936) 6 Cal.2d 302, 312, 57 P.2d 908 [medical malpractice; ignorance of negligent cause of injury].) It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action. Thus, if one has suffered appreciable harm and knows or suspects that professional blundering is its cause, the fact that an attorney has not yet advised him does not postpone commencement of the limitations period. (Graham v. Hansen (1982) 128 Cal.App.3d 965, 972, 974, 180 Cal.Rptr. 604; McGee v. Weinberg (1979) 97 Cal.App.3d 798, 802-803, 159 Cal.Rptr. 86; Gray v. Reeves (1977) 76 Cal.App.3d 567, 576-577, 142 Cal.Rptr. 716; DeVault v. Logan (1963) 223 Cal.App.2d 802, 809, 36 Cal.Rptr. 145.)

Aside from Jones, supra, there is little authority on the issue whether discouraging advice from an attorney can affect the...

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