Hazel v. Hewlett

• Decision Date: 10 June 1988
• Docket Number: No. B029329,B029329
• Citation: 201 Cal.App.3d 1458,247 Cal.Rptr. 723
• Court: California Court of Appeals Court of Appeals
• Parties: Rex F. HAZEL, Plaintiff and Appellant, v. Edmond HEWLETT, D.D.S., Defendant and Respondent.

Page 723

247 Cal.Rptr. 723

201 Cal.App.3d 1458

Rex F. HAZEL, Plaintiff and Appellant, v. Edmond HEWLETT, D.D.S., Defendant and Respondent.

No. B029329.

Court of Appeal, Second District, Division 7, California.

June 10, 1988.

Tuohey & Prasse, Conrad G. Tuohey and Bonnie Gail Birnbaum, for plaintiff and appellant

Rigg and Dean, Marilyn Bonetati and Thomas G. Wianecki, for defendant and respondent.

LILLIE, Presiding Justice.

In this dental malpractice action plaintiff, Rex Hazel, appeals from judgment entered in favor of defendant Edmond Hewlett, D.D.S. and against plaintiff after the trial court sustained defendant's affirmative defense of the statute of limitations.

FACTUAL AND PROCEDURAL BACKGROUND

In June 1983 plaintiff went to the offices of Carl Stasiewicz, D.D.S. for dental treatment. Dr. Stasiewicz determined that it was necessary to extract 13 of plaintiff's teeth and he extracted 7 of them during plaintiff's next two visits. On the last of these visits Dr. Stasiewicz told plaintiff the remaining extractions would be performed by Dr. Edmond Hewlett. When plaintiff went to the offices of Dr. Stasiewicz on August 5, 1983, Dr. Hewlett introduced himself to plaintiff by name and then performed the remaining six extractions. On plaintiff's initial visit he completed a medical questionnaire form wherein he indicated that he had had rheumatic fever. Despite this information neither Dr. Stasiewicz nor Dr. Hewlett administered antibiotics to plaintiff in the course of the extractions. Within two weeks after completion of his dental work, plaintiff experienced total loss of appetite, listlessness and general ill health. Plaintiff consulted a physician, Dr. David Hamm. On September 26, 1983, Dr. Hamm had plaintiff admitted to the hospital where he remained until October 19, 1983. On October 1, 1983, Dr. Hamm informed plaintiff he was suffering from subacute bacterial endocarditis (SBE) which the doctor defined as "bacteria in the bloodstream that lodges on your heart." Also on October 1, 1983, Dr. Hamm told plaintiff that in his opinion plaintiff's SBE was caused by extensive dental extractions without antibiotic coverage, the administration of antibiotics being necessary in plaintiff's case because of his history of rheumatic fever.

On August 27, 1984, plaintiff served Dr. Stasiewicz with notice of intention to sue health care provider. (Code Civ.Proc., § 364.) ¹ On December 11, 1984, plaintiff filed suit for dental malpractice naming as defendants Dr. Stasiewicz and Does 1 through 100. The complaint alleged that defendants negligently treated plaintiff in Following trial on Hewlett's defense of the statute of limitations the court issued a statement of decision which included the following determinations: On October 1, 1983, Dr. Hamm told plaintiff he should have received antibiotic coverage before, during and after the dental extractions and that the lack of such coverage caused the SBE from which he suffered. On October 1, 1983, plaintiff believed he was a victim of dental negligence and malpractice, knew defendant Hewlett was one of the dentists who performed the extractions, and thought Hewlett as well as defendant Stasiewicz was negligent. Accordingly, the one-year statute of limitations of section 340.5 began to run October 1, 1983. Hewlett was not named in plaintiff's verified complaint, filed December 11, 1984, and in any event the one-year statute of limitations applicable to the cause of action against him expired October 1, 1984. Even if service of notice of intention to sue on defendant Stasiewicz added 90 days to the one-year statute of limitations for causes of action against fictitiously named defendants, under section 474 naming Hewlett in place of a Doe defendant did not relate back to the filing of the original complaint because when it was filed plaintiff knew both Hewlett's name and his role in the dental extractions upon which the malpractice action was based.

that they failed to prescribe the appropriate antibiotics before, during and after their treatment of plaintiff; as a result of such negligence plaintiff contracted SBE. On July 8, 1985, plaintiff amended the complaint to name Dr. Hewlett in place of Doe 51. Dr. Hewlett answered the amended complaint alleging as an affirmative defense that the action is barred by the statute of limitations set forth in section 340.5. Pursuant to motion by Hewlett, the court ordered that the matter be bifurcated for trial with the issue of the statute of limitations to be tried prior to the issues of liability and damages. (§ 597.5) ²

Judgment was entered in favor of defendant Hewlett and against plaintiff. Plaintiff appeals from the judgment. ³

DISCUSSION

Under section 340.5, a medical malpractice action must be brought within three years after the date of injury or one year after the plaintiff discovered or should have discovered the injury, whichever occurs first. ( Braham v. Sorenson (1981) 119 Cal.App.3d 367, 370, 174 Cal.Rptr. 39.) The term "injury," as used in section 340.5, means both a person's physical condition and its negligent cause. ( Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896, 218 Cal.Rptr. 313, 705 P.2d 886.) Because section 364 requires a 90-day notice before commencement of an action based on professional negligence of a health care provider, it serves to stay the suit and triggers section 356 which mandates that the 90-day period specified in section 364 be excluded from calculation of the time limited. ⁴

                ( Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 52, 222 Cal.Rptr. 713.)   These 90 days are added to the one-year statutory time.  ( Ibid.)  As the trial court found, the one-year statute of limitations commenced to run October 1, 1983, when plaintiff learned his SBE was caused by negligent failure to provide antibiotic coverage for the dental extractions.  On August 27, 1984, plaintiff served notice of intention to sue on Dr. Stasiewicz.  Accordingly, the one-year statute of limitations, which normally would have expired on October 1, 1984, was extended by 90 days, to December 30, 1984.  Plaintiff's complaint was filed December 11, 1984, within the extended statutory period.  Section 364 includes the following provision:  "(e) The provisions of this [201 Cal.App.3d 1464] section shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name, as provided in Section 474."   This language means that the 90-day notice need not be given to Doe defendants before amending the complaint to name them, not that suit against Doe defendants must be commenced within one year after the plaintiff's discovery of his cause of action.  ( Grimm v. Thayer (1987) 188 Cal.App.3d 866, 869-871, 233 Cal.Rptr. 687.)   Accordingly, plaintiff's complaint was timely filed as against the Doe defendants named therein as well as Dr. Stasiewicz, the specifically named defendant served with notice of intention to sue.  ( Ibid.)
                

The remaining question is whether amendment of the complaint to name Dr. Hewlett in place of Doe 51 related back to the date of filing of the complaint, thus defeating the bar of the statute of limitations.

Section 474 provides in pertinent part: "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly...." When a complaint sets forth a cause of action against a defendant designated by a fictitious name and his true name thereafter is discovered and substituted by amendment, he is considered a party to the action from its commencement so that the statute of limitations stops running as of the date the original complaint was filed. ( Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 599, 15 Cal.Rptr. 817, 364 P.2d 681; Cooper v. Jevne (1976) 56 Cal.App.3d 860, 873, 128 Cal.Rptr. 724.) For this rule to apply, it is necessary that the plaintiff actually be ignorant of the name or identity of the fictitiously named defendant at the time the complaint is filed. ( Streicher v. Tommy's Electric Co. (1985) 164 Cal.App.3d 876, 882, 211 Cal.Rptr. 22; Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1035, fn. 6, 201 Cal.Rptr. 715.) The phrase "when the plaintiff is ignorant of the name of a defendant" in section 474 has not been interpreted literally. It includes situations where the plaintiff " 'knew the identity of the person but was ignorant of the facts giving him a cause of action against the person [citations], or knew the name and all the facts but was unaware that the law gave him a cause of action against the fictitiously named defendant and discovered that right by reason of decisions rendered after the commencement of the action. [Citation.]' " ( Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88, 145 Cal.Rptr. 843, 578 P.2d 90, quoting Barnes v. Wilson (1974) 40 Cal.App.3d 199, 205, 114 Cal.Rptr. 839.) "The lack of knowledge of the true name of a defendant, however, must be 'real and not feigned.' [Citation.] A plaintiff must actually be ignorant of the facts giving him a cause of action against a defendant. 'Ignorance of the facts is the critical issue....' [Citations.]" ( Munoz v. Purdy (1979) 91 Cal.App.3d 942, 947, 154 Cal.Rptr. 472.) "The pivotal question in this regard is 'did plaintiff know facts ?' not 'did plaintiff know or believe that [he] had a cause of action based on those facts?' [Citation.]" ( Scherer v. Mark (1976) 64 Cal.App.3d 834, 841, 135 Cal.Rptr. 90; original emphasis.) The question of the plaintiff's The trial court impliedly resolved the question of good faith against plaintiff. That determination is supported by the following evidence: On August 5, 1983, Dr. Hewlett introduced himself by name...