Katz v. Children's Hosp. of Orange County, 92-56393

• Decision Date: 26 July 1994
• Docket Number: No. 92-56393,92-56393
• Citation: 28 F.3d 1520
• Parties: Richard KATZ, Esq., As Guardian Ad Litem for S.S., a Minor, Plaintiff-Appellant, v. CHILDREN'S HOSPITAL OF ORANGE COUNTY; American Red Cross; Doe Blood Bank, and Does 1 through 100, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1520

28 F.3d 1520

Richard KATZ, Esq., As Guardian Ad Litem for S.S., a Minor Plaintiff-Appellant, v. CHILDREN'S HOSPITAL OF ORANGE COUNTY; American Red Cross Doe Blood Bank, and Does 1 through 100 Defendants-Appellees.

No. 92-56393.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 2, 1994.

Decided June 29, 1994.

As Amended July 26, 1994.

Martin M. Berman, Berman, Katz & Weiss, Encino, CA, for plaintiff-appellant.

Richard L. Hasen, Horvitz & Levy, Encino, CA, and Larry T. Pleiss, Madory, Booth, Zell & Pleiss, Tustin, CA, for defendant-appellee Children's Hosp. of Orange County.

Laurie A. Plessala, Arnold & Porter, Los Angeles, CA for defendant-appellee American Red Cross.

Appeal from the United States District Court for the Central District of California.

Before: D.W. NELSON, REINHARDT, and BRUNETTI, Circuit Judges.

D.W. NELSON, Circuit Judge:

In this case, we must decide a difficult question: under California law, at what point does a cause of action accrue, and what is the appropriate limitations period, for a medical malpractice action brought by a minor infected with the HIV virus?

Factual and Procedural Background

In December 1983, at the age of four years and three months, the appellant in this case, known as minor "S.S." ("Appellant"), received a blood transfusion at the Children's Hospital of Orange County ("Children's Hospital"). The blood had been supplied by the American Red Cross ("the Red Cross"). On or about August 18, 1988, when Appellant was almost nine years old, a blood test revealed that he had been infected with the HIV virus. The record in this case contains no other details concerning Appellant's medical history. On June 25, 1991, two years and ten months later, Appellant served a notice of intention to institute a suit for "medical malpractice" against the Red Cross pursuant to California Code of Civil Procedure section 364. ¹ A complaint was filed in the Superior Court of Orange County on October 7, 1991, naming as defendants the Red Cross, Children's Hospital, and several as of yet unnamed individuals and one unnamed blood bank ("Appellees"). The complaint alleged that Children's Hospital, acting through several unnamed employees, committed medical malpractice by negligently transfusing Appellant with HIV-tainted blood. ² Appellant also maintained that the Red Cross and Children's Hospital, as well as the unnamed blood bank and several unnamed individual defendants, acted negligently by failing to employ adequate screening procedures for detecting the HIV virus from blood donors.

Appellees then removed the case to federal court based upon the presence of the Red Cross as a party. See American Nat'l Red Cross v. S.G. & A.E., --- U.S. ----, ----, 112 S.Ct. 2465, 2567, 120 L.Ed.2d 201 (1992); 36 U.S.C. Sec. 2 (1988). In January 1992, the Red Cross filed a motion for summary judgment, contending that Appellant's action was barred by the statute of limitations contained in California Code of Civil Procedure section 340.5. ³ Children's Hospital filed a motion to dismiss for failure to state a claim on the same basis and subsequently joined in Red Cross's summary judgment motion.

After ordering supplemental briefing, the district court, on September 25, 1992, granted Appellees' motion for summary judgment. ⁴ Noting that the plain language of section 340.5 provides that a cause of action for professional negligence against a health care provider brought by a minor "shall be commenced within three years from the date of the alleged wrongful act," and that the alleged wrongful act, the transfusion, occurred in 1983, the court concluded that "[p]laintiff served his notice of intent to sue long after the statute of limitations had expired." ⁵ The district court further held inapplicable the provision of section 340.5 that tolls the statute based upon the presence of a "foreign body, which has no therapeutic or diagnostic purpose or effect." Assuming arguendo the HIV virus so qualified, the court held that the provision "only tolls the statute for one year" from discovery of the foreign body. Consequently, the district court concluded that "plaintiff's complaint was filed beyond the statutory period" and was "barred as a matter of law." Appellant filed a timely notice of appeal. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

Discussion

I. Contentions of the Parties

Appellant argues that the district court erred for two reasons. First, he contends that the California courts, having concluded section 340.5's "wrongful act" point of accrual for a minor's medical malpractice action violates equal protection principles, would read the statute to require a minor to file a medical malpractice action within three years from the date of the discovery of the negligent cause of an injury. Because the date of discovery of the HIV infection in this case, August 18, 1988, was within three years of the filing of the section 364 notice, Appellant contends that his complaint was timely. Second, he maintains that the district court erred in its application of the "foreign body" exception because California law makes clear that, when this tolling provision applies to a minor, the appropriate limitations period is not reduced to one year, as found by the district court, but remains three years. In addition, he contends that the HIV virus is a "foreign body" within the meaning of the statute.

The appellees disagree with Appellant's contentions, but each for a different reason. Red Cross argues that the district court correctly applied section 340.5 as written. In the alternative, Red Cross asserts that, if this reading of the statute raises constitutional difficulties, then the statute must be construed so that adults and minors are subject to the same limitation and accrual periods. Because an adult's action would have been barred one year after "discovery" of the injury's negligent cause, Red Cross contends that the statute ran in August 1989, one year after the blood test revealed Appellant's infection with the HIV virus.

Children's Hospital offers yet a third view of how the statute should be construed. It agrees with Appellant that the California courts have held that the "wrongful act" accrual date for minors violates equal protection principles, but maintains that the correct accrual date is not the date at which the asserted negligence was discovered, but instead is the date on which the injury caused by the wrongful act first was manifested. Taking the "injury" date as the appropriate accrual event, Children's Hospital contends that summary judgment must be upheld because the record contains no evidence concerning when an injury that stemmed from the HIV infection (as distinguished from the point at which HIV was identified as the cause of such an injury) first was detected. ⁶

We agree with appellee Children's Hospital, for the reasons discussed below, that the California courts, having already determined that the "wrongful act" point of accrual for minors violates equal protection principles, would hold that an "injury" point of accrual should apply instead. We conclude, however, that the district court's grant of summary judgment cannot be upheld.

II. The California Courts Would Hold that Section 340.5 Requires a Minor to Bring a Claim within Three

Years from "Injury"

A. Section 340.5

As revised in 1975, section 340.5 of the California Code of Civil Procedure provides:

In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action 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 occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (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. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.

Cal.Civ.Proc.Code Sec. 340.5 (Deering 1991) (numbering of sentences added).

Prior to section 340.5's enactment, medical malpractice actions were governed by the one-year limitation period set forth in section 340(3). See Larcher v. Wanless, 18 Cal.3d 646, 135 Cal.Rptr. 75, 79, 557 P.2d 507, 511 (1976); Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908, 910 (1936); Cal.Civ.Proc.Code Sec. 340(3) (Deering 1991). Although section 340(3) contains no triggering event, the California courts read into it the "common-law discovery rule"--that " '[i]n a suit for malpractice the statute of limitations commences to run when the plaintiff discovers the injury and its negligent cause or through the exercise of reasonable diligence should have discovered it.' " Larcher, 135 Cal.Rptr. at 79, 557 P.2d at 511 (quoting Whitfield v. Roth, 10 Cal.3d 874, 112 Cal.Rptr. 540, 548, 519 P.2d 588, 596 (1974)); see also Sanchez v. South Hoover Hosp., 18 Cal.3d 93, 132 Cal.Rptr. 657, 660, 553 P.2d 1129, 1132 (1976). Medical malpractice claims brought by minors also were subject to the one-year limitation period running from discovery. See, e.g., Wozniak v. Peninsula Hosp., 1 Cal.App.3d 716, 722-23, 82 Cal.Rptr. 84 (1969). Minors received, however, the additional protection of having the statute tolled during their minority. See ...