Robinson v. Kaiser Foundation Hospitals

• Decision Date: 17 May 1990
• Docket Number: No. B036320,B036320
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 228 Cal.App.3d 1575 228 Cal.App.3d 1575 Willie Mae ROBINSON and James Robinson, Plaintiffs and Appellants, v. KAISER FOUNDATION HOSPITALS, Southern California Permanente Medical Group, and Kaiser Foundation Health Plan, Inc., Defendants and Respondents.

Page 468

269 Cal.Rptr. 468

Previously published at 228 Cal.App.3d 1575

228 Cal.App.3d 1575

Willie Mae ROBINSON and James Robinson, Plaintiffs and Appellants, v. KAISER FOUNDATION HOSPITALS, Southern California Permanente Medical Group, and Kaiser Foundation Health Plan, Inc., Defendants and Respondents.

No. B036320.

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

May 17, 1990.

Review Granted Aug. 1, 1990.

Seaman & Dempsey and Sandra Tyson, Los Angeles, for plaintiffs and appellants.

Thelen, Marrin, Johnson & Bridges and David F. Berry, Los Angeles, for defendants and respondents.

JOHNSON, Associate Justice.

Plaintiffs James Robinson and Willie Mae Robinson appeal from summary judgment in favor of defendants Kaiser Foundation Hospitals, Southern California Permanente Medical Group, and Kaiser Foundation Health Plan, Inc., in appellants' wrongful death action. The trial court concluded appellants' action was time barred because it was commenced one year and one day after the death of appellants' son.

We hold the trial court erred in granting summary judgment because the one-year statute of limitations was extended 90 days when appellants sent their Code of Civil Procedure section 364 notice of intent to sue. ¹ The judgment is therefore reversed.

FACTS AND PROCEEDINGS BELOW

On February 18, 1984, Willie Mae Robinson brought her one-year-old son, Kenneth, to the emergency room at Kaiser Permanente Medical Center in Los Angeles. Kenneth was suffering from vomiting, diarrhea, an elevated temperature, and inability to eat. Mrs. Robinson was present while Kenneth was examined by the emergency room physician, Dr. Rizk. Mrs. Robinson felt the examination was improper and requested that Dr. Rizk call Kenneth's regular pediatrician, Dr. Karelitz, for assistance. Dr. Rizk allegedly became upset and refused to contact Dr. Karelitz. Dr. Rizk diagnosed a left ear infection and mild gastroenteritis and sent Kenneth home with a prescription for an antibiotic.

Kenneth's condition grew increasingly worse over the next 24 hours. He suffered from continual vomiting, a yellowish stool and was unable to keep his medication down. In addition, he became lethargic, grew limp, was unable to sit up, and his temperature rose dramatically. As a result, Mrs. Robinson returned with Kenneth the following day, February 19, 1984, and informed Dr. Rizk that Kenneth's condition was deteriorating. Dr. Rizk then examined Kenneth, took blood after some difficulty in locating a vein, and performed a lumbar puncture. During the course of the examination and treatment Kenneth's condition worsened.

Mrs. Robinson was present during the entire examination. She heard two male nurses tell Dr. Rizk several times he should have called for another doctor. These nurses also allegedly told Dr. Rizk within Mrs. Robinson's hearing that they felt Dr. Rizk did not know what he was doing. Dr. Rizk allegedly became angry and argumentative and refused to call another pediatrician.

While Mrs. Robinson watched from the doorway, Kenneth suffered a respiratory failure and died. Following the respiratory failure, a third nurse allegedly informed Mrs. Robinson that Kenneth would have lived if another pediatrician had been in charge of his care. The nurse allegedly indicated to Mrs. Robinson that Dr. Rizk had wasted too much time trying to insert an I.V. instead of sending for additional support.

Three days after Kenneth's death appellants consulted their attorney. At no time between Kenneth's death and retention of counsel were appellants provided with additional medical information regarding the cause of death. The death certificate and medical records were available on April 12, 1984, and May 4, 1984, respectively.

On November 19, 1984, appellants' attorney sent a 90-day "Notice of Intent to Sue" letter to respondents pursuant to section 364. Their action for wrongful death was filed on February 20, 1985, one year and one day after Kenneth's death.

Respondents moved for summary judgment arguing section 340.5's statute of limitations barred the action. The trial court granted respondents' motion for summary judgment and entry of judgment was filed on May 26, 1988. Appellants' motion for a new trial was denied. This appeal follows.

DISCUSSION

I. SECTION 340.5' S ONE-YEAR LIMITATIONS PERIOD COMMENCED RUNNING ON FEBRUARY 19, 1984.

Appellants argue section 340.5's statute of limitations did not commence running on February 19 because they were not aware of the cause of Kenneth's death at the time. ² Rather, it was not until they obtained the death certificate and medical records that appellants were in possession of sufficient data to determine the negligent cause of Kenneth's death. Appellants are partially correct.

We begin our analysis with a brief discussion of the standard of review. Summary judgment is a severe remedy which is to be granted with caution. (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266, 241 Cal.Rptr. 706.) Where a defendant moves for summary judgment, his motion will only be granted if his declarations and admissible evidence either establish a complete defense to the plaintiff's action or conclusively negate a necessary element of the plaintiff's case and demonstrate, under any cause of action, no material factual issue requires resolution by trial. (DeRosa v. Transamerica Title Ins. Co. (1989) 213 Cal.App.3d 1390, 1395, 262 Cal.Rptr. 370.) In examining the sufficiency of declarations filed in connection with a summary judgment motion, the declarations of a moving party are strictly construed and those opposing the motion are liberally construed. (Sheffield v. Eli Lilly & Co. (1983) 144 Cal.App.3d 583, 611, 192 Cal.Rptr. 870.)

Section 340.5's one-year period commences once a plaintiff knows, or by reasonable diligence should have known, that he was harmed through professional negligence. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923; Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896, 218 Cal.Rptr. 313, 705 P.2d 886.) A plaintiff is charged with presumptive knowledge of the negligent injury, and the statute commences, once he has " ' "notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation...." ' " (Gutierrez v. Mofid, supra, 39 Cal.3d at pp. 896-897, 218 Cal.Rptr. 313, 705 P.2d 886, original italics.) In other words, when a plaintiff's "reasonably founded suspicions [have been aroused]," and the plaintiff has "become alerted to the necessity for investigation and pursuit of her remedies ...," the one-year period begins. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102, 132 Cal.Rptr. 657, 553 P.2d 1129.)

Applying those principles here, we must conclude the trial court properly found the one-year statute of limitations commenced on February 19, 1984, as to Mrs. Robinson. The evidence was uncontroverted medical personnel informed Mrs. Robinson both before and immediately following Kenneth's death the treating physician had failed to properly care for her son and the death would not have occurred had another pediatrician been involved.

The fact Mrs. Robinson's suspicions were aroused is confirmed by the fact she sought legal advice three days later. There is no evidence in the record Mrs. Robinson obtained any additional information during these intervening three days which would have spurred her to seek legal advice. Thus, the evidence conclusively shows Mrs. Robinson's suspicions were aroused and she was put on inquiry that some wrongdoing had occurred during the treatment on February 19, 1984. Accordingly, the statute of limitations accrued that day for her.

The same cannot be said for Mr. Robinson. As appellants correctly argue, respondents presented no evidence to demonstrate he was put on notice of any possible wrongdoing until he visited the attorneys on February 23, 1987.

In a wrongful death action, each heir has a personal and separate cause of action against which the applicable statute of limitations will run. (Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 692, 36 Cal.Rptr. 321, 388 P.2d 353; Andersen v. Barton Memorial Hospital, Inc. (1985) 166 Cal.App.3d 678, 681, 212 Cal.Rptr. 626.) The fact that the statute of limitations might have barred Mrs. Robinson's cause of action has no effect on Mr. Robinson's claim.

In moving for summary judgment, it was respondents' burden to conclusively establish when the statute of limitations accrued as to Mr. Robinson. (DeRosa v. Transamerica Title Ins. Co., supra, 213 Cal.App.3d at p. 1395, 262 Cal.Rptr. 370.) They did not. Indeed, their motion and separate statement of undisputed facts focus solely upon Mrs. Robinson and what she knew.

Respondents now point to a clinic chart prepared by Dr. Rizk the day Kenneth died as evidence Mr. Robinson had notice of wrongdoing that same day. The chart states: "Permission to perform an autopsy was asked from the parents, who basically approved, but understandably were too upset to sign any papers today." Ignoring the obvious hearsay problem and the absence of any evidence indicating Mr. Robinson learned everything his wife did that day, there is a triable issue of fact concerning whether Mr. Robinson was at the hospital that day.

Respondents' separate statement of undisputed facts states Mrs. Robinson brought Kenneth to the hospital and was present during his treatment on February 19. The supporting evidence makes no mention of Mr. Robinson. Indeed, the evidence indicates only Mrs. Robinson was at the hospital. Thus, at the very least a triable issue exists concerning what Mr. Robinson learned and when.

However, as we explain below, this issue is somewhat academic since neither parent's cause of action is barred by the statute of limitations. Once appellants' attorney sent a notice of intent to sue, the statute of limitations was tolled 90 days. Thus, the...