Kite v. Campbell

• Decision Date: 09 May 1983
• Citation: 142 Cal.App.3d 793,191 Cal.Rptr. 363
• Court: California Court of Appeals Court of Appeals
• Parties: Deborah Lynn KITE By and Through her Guardian ad Litem Shiela R. BLACK, Plaintiff and Appellant, v. Norman CAMPBELL, M.D., Defendant and Respondent. Civ. 64787.

Page 363

191 Cal.Rptr. 363

142 Cal.App.3d 793

Deborah Lynn KITE By and Through her Guardian ad Litem Shiela R. BLACK, Plaintiff and Appellant, v. Norman CAMPBELL, M.D., Defendant and Respondent.

Civ. 64787.

Court of Appeal, Second District, Division 5, California.

May 9, 1983.

Law Offices of Samuel Shore, James R. McGrath, Los Angeles, for plaintiff and appellant.

Warren & Burleigh, Irvine, Horvitz & Greines, Ellis J. Horvitz, S. Thomas Todd, Encino, for defendant and respondent Campbell.

FEINERMAN, Presiding Justice.

In this case we are asked to determine the constitutionality of Code of Civil Procedure section 340.5, the medical malpractice statute of limitations, as it applies to a minor plaintiff. We find that (1) the statute is constitutional, (2) it creates a three-year statute of limitations period during which a minor may bring suit for medical malpractice, and (3) it incorporates common law tolling provisions for minors.

Plaintiff appeals from an order of dismissal following an order sustaining a general demurrer to her second amended complaint

without leave to amend. We reverse the judgment of the lower court and allow plaintiff another opportunity to amend her complaint.

STATEMENT OF FACTS

Plaintiff, Deborah Lynn Kite (Deborah), was born on September 24, 1965. From the date of her birth, she came under the care of defendant physicians Doctor Norman Campbell (Campbell) and Doctor Arnold Wong (Wong). ¹ Deborah was born with meningomyelocele, a hernial protrusion of a part of the spinal cord and its membranes. Within months of her birth, her condition was intensified by communicating hydrocephalus, a condition characterized by abnormal accumulation of fluid in the cranial vault, accompanied by enlargement of the head, prominence of the forehead, atrophy of the brain, mental deterioration, and convulsions. Obviously, plaintiff required more than the usual amount of medical attention and treatment from the time of her birth.

On November 20, 1972, Deborah contracted mumps. She was treated by Doctor Denver Reed because her regular physicians were unavailable. By December 4, 1972, Deborah had developed complications from the disease which led to partial blindness. She later became totally blind.

Deborah filed suit against Doctor Reed in 1976, alleging that her blindness was the result of Doctor Reed's negligent treatment. As part of her preparation for the suit against Doctor Reed, plaintiff, through her attorneys and medical consultants, reviewed pertinent medical records but found no suggestion of negligence on Campbell's part. By 1979 it was apparent that Deborah's blindness was permanent. Her attorneys then further investigated the "complications and effects of contracting mumps." They consulted a second medical expert who alerted them, in August of 1980, to Campbell's purported negligence in failing to inoculate Deborah against mumps. Deborah filed her complaint against Campbell on September 23, 1980. A settlement with Doctor Reed was negotiated in July 1981.

The gravamen of Deborah's complaint against Doctor Campbell is set forth in her second amended complaint as follows:

"Sheila R. Black, the mother and Guardian ad Litem of DEBORAH LYNN KITE was aware that DEBORAH LYNN KITE was receiving immunization throughout the regular course of care rendered by her pediatrician [Campbell], however Sheila R. Black was unaware that all of the immunizations which are required to be given according to the standard of practice were not given to her daughter, including the vaccination for mumps. Sheila R. Black assumed that the complete immunizations were given to her daughter in accordance with the standard of practice, and did not become aware of the fact that this was not done by defendants, until August, 1980, when it was discovered that the defendants and each of them failed to properly immunize her daughter with the mumps vaccination."

DISCUSSION

Code of Civil Procedure section 340.5 states in pertinent part as follows: "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."

Deborah challenges the constitutionality of Code of Civil Procedure section 340.5, claiming it denies to her equal protection of the law as guaranteed by the United States and California Constitutions. She argues that she and other minor victims of tortious conduct by health care providers must bring suit within three years while other minor tort victims can wait until they are 19 years of age to bring suit under Code of Civil Procedure section 352.

Deborah asserts that minor plaintiffs suing for damage for medical malpractice belong to a "suspect class" and that a strict scrutiny standard of review, requiring that the challenged legislation be upheld only if it is necessary for furtherance of a compelling state interest, be applied. Plaintiff's justification for this designation of minors as a "suspect class" is based on language in Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Cal.2d 599, 602, 68 Cal.Rptr. 297, 440 P.2d 497, in which the court upheld Code of Civil Procedure section 352, finding that nothing in Government Code section 945.6 abrogated section 352, and finding that the statute effectuated a long recognized principle that, "children are to be protected during their minority from the destruction of their rights by the running of the statute of limitations." ²

This concern with the protection of minors does not make minors a "suspect class." Suspect classes are those groups saddled with such disabilities, or subject to such a history of purposeful, unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. (San Antonio Independent School District v. Rodriguez (1973) 411 U.S. 1, 28, 93 S.Ct. 1278, 1293, 36 L.Ed.2d 16.) Traditionally, the members of a "suspect class" are the victims of discrimination brought about by a "suspect classification." Included in this category are discriminatory classifications based upon race (Loving v. Virginia (1967) 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010), alienage (Truax v. Raich (1915) 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131), and sex (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17, 95 Cal.Rptr. 329, 485 P.2d 529). The classification of minors is common in such fields as compulsory education, employment, and liability for criminal acts. (See In re Spencer (1906) 149 Cal. 396, 401, 86 P. 896; People v. Walton (1945) 70 Cal.App.2d Supp. 862, 867, 161 P.2d 498.) However, these classifications do not discriminate against minors; they discriminate in favor of minors and implement the interest of the state in the well-being of youth. (Ginsberg v. New York (1968) 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195.)

The strict scrutiny standard is also invoked when a fundamental right guaranteed by the constitution has been threatened, such as the right to vote or the right to pursue a lawful occupation. (Weber v. City Council (1973) 9 Cal.3d 950, 958-959, 109 Cal.Rptr. 553, 513 P.2d 601.) The right to sue for negligently inflicted injuries has been specifically held not to constitute a fundamental right. (Brown v. Merlo (1973) 8 Cal.3d 855, 862, fn. 2, 106 Cal.Rptr. 388, 506 P.2d 212.) Thus, we apply "the familiar rational-relationship test, which is used to test the constitutionality of economic regulations." (American Bank & Trust Co. v. Community Hospital (1983) 33 Cal.3d 674, 686, 190 Cal.Rptr. 371, 660 P.2d 829.)

Code of Civil Procedure section 340.5 was amended to its present form in 1975 as part of the Medical Injury Compensation Reform Act (MICRA). MICRA was enacted after the Legislature had been called by the Governor into a second extraordinary session to deal with the problem of the rising costs to health care providers of medical malpractice insurance, a problem which threatened to endanger the health of the general public. (Proclamation by the Governor, Stats.1975, 2d Ex.Sess. 1975-76, p. 3947) The Legislature responded by enacting MICRA. In so doing it stated: "The Legislature finds and declares that there is a major health care crises in the State of California attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system, severe hardships for the medically indigent, a denial of access for the economically marginal, and depletion of physicians such as to substantially worsen the quality of health care available to citizens of this state." (Preamble to MICRA, Stats.1975, 2d Ex.Sess. 1975-76, ch. 2, § 12.5, p. 4007.) As part of an attempt to control insurance costs, the Legislature changed the statute of limitations applicable to minors in malpractice suits directed against health care providers. The Legislature's obvious purpose was to control malpractice...