Marriage & Family Center v. Superior Court

• Decision Date: 27 March 1991
• Docket Number: No. D013269,D013269
• Citation: 279 Cal.Rptr. 475,228 Cal.App.3d 1647
• Court: California Court of Appeals Court of Appeals
• Parties: MARRIAGE AND FAMILY CENTER, et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; Caroline De POTTEL, Real Party in Interest.

Page 475

279 Cal.Rptr. 475

228 Cal.App.3d 1647

MARRIAGE AND FAMILY CENTER, et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent Caroline De POTTEL, Real Party in Interest.

No. D013269.

Court of Appeal, Fourth District, Division 1, California.

March 27, 1991.

As Modified April 25, 1991.

Jaret, Caudill & Kuehn, James C. Chaney and Jayne F. Monahan, for petitioners.

No appearance for respondent.

David D. Miller, for real party in interest.

FROEHLICH, Associate Justice.

Charles E. Hansen (Dr. Hansen) and Susan Hansen, who are medical practitioners, and their medical business association, Marriage and Family Center (Center) (hereinafter collectively defendants), sought summary judgment based upon the contention that the complaint filed by Caroline De Pottel (hereinafter plaintiff) ¹ for medical malpractice was clearly barred by the special statute of limitations provisions of CODE OF CIVIL PROCEDURE SECTION 340.5². The trial court denied the motion, finding a triable issue of fact to be the time of occurrence of the effective damage such as to trigger commencement of the statute. Defendants' petition for review is authorized by Code of Civil Procedure section 437c, subdivision (l ). (See also Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 468, 210 Cal.Rptr. 545.)

The denial or granting of a motion for summary judgment does not involve exercise of discretion. If the pleadings and evidence before the court demonstrate that there is no triable issue of fact, the denial of the motion is an error in law. (Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 266, 83 Cal.Rptr. 237.) We therefore review the pleadings, moving and responding papers presented to the trial court in order to determine whether they establish the existence of the triable issue of fact found by the trial court.

FACTS

Plaintiff's injuries are psychological and emotional, resulting from improper treatment received by her from personnel of the Center. The entire thrust of Center's summary judgment motion is the bar of the statute of limitations. There is no dispute, therefore, at this stage in the proceedings, as to the facts of plaintiff's mistreatment, and we accept them as asserted by plaintiff. The controlling facts are derived from detailed medical reports made by plaintiff's presently treating psychiatrist, Dr. Morris. Dr. Morris commenced his treatment of plaintiff in April of 1985, and the record of his treatment and diagnosis is contained in a letter report to the Patient Management System dated May 24, 1985, and a letter report to the Board of Medical Quality Assurance dated April 7, 1989. It is to be noted that neither of these reports was prepared for purposes of litigation, and the 1985 report was prepared some years before the complaint was filed. In that these reports are not in any way controverted, they constitute prima facie substantial evidence; because of their timing and nature we are inclined to accord them perhaps more than usual credibility. ³

Plaintiff was sexually abused by her father when she was a child. This experience caused her to be emotionally traumatized, and she became highly vulnerable to subsequent sexual exploitation and abuse by other men. She sought treatment, as a young adult, for her depressive neurosis. Her first encounter with a therapist resulted in their engaging in sexual intercourse. She later sought treatment at the Center, retaining the services of Dr. Hansen, and again was induced to have sexual intercourse with her therapist. This conduct is described by Dr. Morris as "sexual abuse," characterized by him as unethical, ⁴ and identified as a contributing cause to plaintiff's continued emotional difficulties. Treatment by a successor psychiatrist was beneficial, and plaintiff recovered to some extent from her "repression memories of her sexual abuse by her father, her first therapist, H., [and Dr. Hansen]," but she could file no complaint at that time because "she felt too guilty and irrationally responsible for these experiences."

When Dr. Morris first commenced treating plaintiff in 1985 he reported her sexual abuse by her father, Dr. H., and Dr. Hansen, and described the emotional damage which had resulted to plaintiff. She was "very frightened by being in therapy again." Her capacity to function effectively in her job was "diminished because of ... repressed memories of her sexual abuse." She was vulnerable to crying spells and episodes of anxiety. Dr. Morris reported that plaintiff was intelligent with clear thought processes and without delusional thinking, and that she had insight into her problems, but that "this insight has not protected her from repeating the trauma in sexual relations with [two] previous therapists." Dr. Morris predicted that because of the "degree of character pathology and preexisting trauma," plaintiff's future necessary treatment would be measured in years, not months.

The complaint was filed in July of 1989. The malpractice of the defendants was perpetrated sometime in 1981. Dr. Morris initially diagnosed and treated plaintiff in April and May of 1985. Plaintiff contends as to the defense of the statute of limitations that although she was well aware of the sexual incidents at the time they occurred and was cognizant of her subsequent traumatized emotional state, she was unable to "realize that not only had she been injured, but that [d]efendant Hansen was the cause of her injury." Dr. Morris, in his 1989 report, explains that throughout his four years of treatment of plaintiff she had become increasingly aware of Dr. Hansen's betrayal of trust, but "only ... relatively recently [had she] been able to see these events more objectively, leading to her decision to file this complaint and to explore the possibility of personal injury litigation...." ⁵

THE LAW AND APPLICATION TO THIS CASE

All parties acknowledge that all of the defendants are "health care providers." The statute of limitations for actions against a health care provider for professional negligence is contained in section 340.5, which in relevant part reads 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...."

There is no contention by the plaintiff that any of the three tolling exceptions of the statute applies: i.e., this is not a "foreign body" case, there was no intentional concealment of anything by Dr. Hansen, and there is no allegation of any actionable fraud or misrepresentation on his part.

The one-year period commences to run not simply when the plaintiff is or should be aware of her injury, but also requires that she understand the negligent cause of the injury. (See Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759, 199 Cal.Rptr. 816.) There is some evidence tending to establish that plaintiff, although well aware of her injured psychological state, was not able personally to relate that problem with the actions of Dr. Hansen until sometime in 1989, within one year of the date of her complaint. Summary adjudication on the basis of the one-year statute cannot, therefore, be achieved.

We turn to the three-year statute. Previous appellate analysis of the history of section 340.5 gives insight into the purpose of the three-year statute. The original one-year statute was judicially interpreted as not commencing to run until the plaintiff discovered (or reasonably should have discovered) not only the injury but its negligent cause. Under this rule the running of the statute could be deferred indefinitely. The amendments which eventually resulted in our present statute were designed to put an outside cap on the commencements of actions for medical malpractice, to be measured from the date of the injury, regardless of whether or when the plaintiff discovered its negligent cause. (The history of the section is set forth in Larcher v. Wanless (1976) 18 Cal.3d 646, 654-656, 135 Cal.Rptr. 75, 557 P.2d 507; Brown v. Bleiberg (1982) 32 Cal.3d 426, 431-433, 186 Cal.Rptr. 228, 651 P.2d 815; Steingart v. White (1988) 198 Cal.App.3d 406, 411-412, 243 Cal.Rptr. 678.)

The key determination in application of the three-year statute is the date of "injury." The Supreme Court in Larcher v. Wanless, supra, 18 Cal.3d at pages 655, 656, and footnote 11, 135 Cal.Rptr. 75, 557 P.2d 507, noted that "injury" is a word of art which refers to the damaging effect of the negligence rather than the act of negligence itself, and thus often refers to "an event occurring some time after the commission of a 'wrongful act.' " The Supreme Court subsequently elaborated, stating that a plaintiff's injury occurs "at the point at which 'appreciable harm' was first manifested." (Brown v. Bleiberg, supra, 32 Cal.3d at p. 437, fn. 8, 186 Cal.Rptr. 228, 651 P.2d 815; see also Bispo v. Burton (1978) 82 Cal.App.3d 824, 831, 147 Cal.Rptr. 442.)

It is the definition of the concept of "manifestation" of an injury which has given the courts of appeal, in our opinion, difficulties. It is, of course, an elementary proposition that a cause of action does not arise until "damage" is suffered. (See Prosser & Keeton on Torts (5th ed. 1984) § 30, pp. 165-167.) It would be difficult to conceive, in the usual case, of damage being suffered without an awareness on the part of the damaged person. The word "manifest" as used by our courts indeed suggests not only actual damage but that...