Hills v. Aronsohn

• Decision Date: 02 March 1984
• Citation: 152 Cal.App.3d 753,199 Cal.Rptr. 816
• Parties: Alys HILLS, Plaintiff and Appellant, v. Richard ARONSOHN, M.D., Defendant and Respondent. Civ. 68788.
• Court: California Court of Appeals

Page 816

199 Cal.Rptr. 816

152 Cal.App.3d 753

Alys HILLS, Plaintiff and Appellant, v. Richard ARONSOHN, M.D., Defendant and Respondent.

Civ. 68788.

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

March 2, 1984.

As Modified March 27, 1984.

Grayson, Gross, Friedman & Phillips and Saul Grayson and Mary C. Alden, Los Angeles, for plaintiff and appellant.

Roswell Bottum, and Joseph M. Hartley, Los Angeles, for defendant and respondent.

JOHNSON, Acting Presiding Justice.

INTRODUCTION

The trial court granted a motion for summary judgment on the ground this medical malpractice action was barred by the statute of limitations. This appeal raises the following two issues: first, whether the action is untimely as a matter of law under Code of Civil Procedure section 340.5; and second, whether the foreign body doctrine can apply where a patient received injections of liquid silicone so that the limitations period was tolled under the provisions of that statute. We agree with the trial court that the action was time barred. We accordingly affirm the judgment below.

I. Statement of Facts and Proceedings Below

Appellant, Alys Hills, received intra-breast silicone injections from respondent, Dr. Richard Aronsohn, between April and June 1966.

In March 1974, Ms. Hills noticed lumps and experienced soreness in her breasts. She consulted with Dr. Paul Kaufman to determine whether the lumps were malignant. Dr. Kaufman ordered a mammogram which was performed by Dr. Linsman.

On March 27, 1974, Dr. Linsman reported that the mammogram showed "numerous nodular and lacy densities ... [with] the typical appearance of what one sees following silicone injection." A second report to Dr. Kaufman one year later, on April 11, 1975, by Dr. Constantine Voyagis indicated that there was no change from the earlier mammogram.

The second mammogram report was followed by a physical examination on April 25, 1975, conducted by Dr. Eugene Worton. The record on appeal includes the medical records from that examination. Dr. Worton diagnosed Ms. Hills as suffering from silicone granulomatosis due to silicone injections. The doctor's records also reflect the following notation: "Recommendation: Surgery was discussed with the patient and the operative procedure was described to her in detail .... It was also explained that the operation is done to remove the silicone lumps ...."

Dr. Worton did not examine Ms. Hills again until January 6, 1977, approximately twenty-one months after the first examination. He wrote the following in his medical records: "The primary change since her last visit is that she feels that the lump in her right breast has gotten larger and also, that her breasts have become more uncomfortable than they were on the previous visit." Once again, Dr. Worton diagnosed Ms. Hills as having silicone granulomatosis and discussed the surgical procedures with her. He also indicated that he explained the surgery would be performed in two stages. The first stage would consist of a bilateral subcutaneous mastectomy. And the second stage would consist of breast reconstruction. Possible complications resulting from the surgery were also discussed.

Ms. Hills did undergo surgery shortly after this examination. The bilateral subcutaneous mastectomy was performed on February 28, 1977. The breast reconstruction was performed four days later on March 4, 1977.

Ms. Hills filed the instant suit against Dr. Aronsohn for damages for medical malpractice on March 1, 1978. ¹

On May 13, 1982, Dr. Aronsohn moved for summary judgment. (Code of Civ.Proc., § 437c.) He argued Ms. Hills' action was barred by Code of Civil Procedure section 340.5. That section requires medical malpractice actions to be filed within one year from the date a plaintiff discovers her injury. It further provides, however, that except for certain specified exceptions, the action is time barred unless it is also filed within three years from the date the injury was suffered.

On July 27, 1982, after opposition papers were filed, the court below granted the motion for summary judgment on the ground the action was time barred. Ms. Hills filed a timely notice of appeal.

II. Although the Action May Have Been Timely Under the One-Year Limitations Period of Section 340.5. It Was Time Barred as a Matter of Law Under the Three-Year Limitations Period.

All of the issues presented by this case involve interpretations of Code of Civil Procedure section 340.5. ² That section includes two prescriptive periods within which a medical malpractice litigant must bring her cause of action or lose her right to assert it. The first provision states that "the time for the commencement of action shall be three years after the date of injury ...." The second provision creates an alternative limitations period of "one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury ...." Lest it appear, however, that the action is timely if the requirements of only one of these provisions is satisfied, the statute further requires that the action be brought within the limitation period which "occurs first." To make it even more evident that a plaintiff must satisfy the requirements of both provisions, the statute further provides that "[i]n no event shall the time for commencement of legal action exceed three years ...." ³

On oral argument before this court both of the parties apparently assumed a plaintiff's action is timely if a plaintiff brings suit within either the one-year prescriptive period or the three-year prescriptive period. This is why we have stressed at the outset that section 340.5 establishes two hurdles, not one, to the timely maintenance of a medical malpractice claim. ⁴ Thus, if a malpractice litigant brings her action within three years from the date of injury she must still satisfy the one-year limitations period or the action is time barred. Conversely, if the action is properly brought within one year of reasonable discovery, the action is nevertheless barred if the three-year period is not also satisfied.

Ms. Hills first argues she was not aware until March 1977 that negligent silicone injections had caused her injury and hence her action was timely according to the one-year limitation period of section 340.5. Second, she argues her action is not barred by the three-year limitation period of that section on the ground that she suffered no injury until March 1977, when she underwent surgery for the mastectomy.

These arguments are based on varying definitions of the term "injury" as used in section 340.5 and thus, before proceeding to the merits of Ms. Hills' contentions, we consider the possible ways to interpret that term. In our view there are four possible ways in which the term injury might be defined. First, injury could be defined as the date on which the alleged negligent act occurred. Or, injury could refer to a time when the patient observes some significant physical manifestation of harm from the alleged negligence. Third, injury could be defined, by reference to the discovery rule, as the time at which a patient is aware of both the manifestation of her injury and its negligent cause. Finally, injury could refer to the date on which a patient suffers the ultimate harm of the alleged negligence.

A. The One-Year Limitations Period of Section 340.5 Does Not Commence to Run Until the Patient Is Reasonably Aware Not Only of the Physical Manifestation of Her Injury But the Negligent Cause As Well.

We first consider whether this action was timely according to the provisions of the one-year prescriptive period. We agree with Ms. Hills that a triable issue exists as to whether the action was timely under that provision for two reasons. First, a motion for summary judgment should not be granted where reasonable minds could draw different conclusions from the evidence presented. (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 665, 150 Cal.Rptr. 384.) And second, for the one-year limitations period to be activated not only must the patient be aware of her harm, but also she must be aware of the negligent cause of her harm. (Ibid.)

Here, a triable issue of fact exists as to the date Ms. Hills discovered, or reasonably could have discovered, the negligent cause of her injury. It is not apparent as a matter of law that Ms. Hills discovered the cause before she claims she did on March 4 1977, after her surgery was completed. ⁵ Neither is it apparent as a matter of law that through the exercise of diligence and reasonable care for her own health and welfare she could have discovered the negligent cause sooner.

Dr. Aronsohn claims Ms. Hills could have discovered silicone injections were the cause of the soreness and lumps in her breasts on March 27, 1974. On that date Dr. Linsman reported the lumps in her breasts were silicone deposits. Ms. Hills counters that the first time she was aware that negligent silicone deposits had caused her injury was on March 4, 1977, after the subcutaneous mastectomy was completed. Ms. Hills claims it was only after this surgery that the surgeon informed her these injuries were due to negligence.

The issue of when Ms. Hills could have discovered the negligent cause is unclear from the record. Whether she could have reasonably discovered the negligent cause of her injury without submitting to surgery is therefore an unknown quantity. It is possible that, as she apparently argues, a surgeon cannot detect that negligent, as opposed to non-negligent, silicone injections caused silicone granulomatosis without performing some type of exploratory surgery. If this is so, we cannot accept Dr. Aronsohn's position.

The malpractice litigant is required to diligently pursue her claim through discovery of the cause of her injury. And if she fails to do so she faces the prospect that the action will be time barred. Carrying Dr. Aronsohn's argument to its logical conclusion would mean that in...