Sanchez v. South Hoover Hospital

• Citation: 18 Cal.3d 93,553 P.2d 1129,132 Cal.Rptr. 657
• Court: United States State Supreme Court (California)
• Decision Date: 17 September 1976
• Parties: , 553 P.2d 1129 Agustina SANCHEZ, Plaintiff and Appellant, v. SOUTH HOOVER HOSPITAL et al., Defendants and Respondents. L.A. 30589.

Page 657

132 Cal.Rptr. 657

18 Cal.3d 93, 553 P.2d 1129

Agustina SANCHEZ, Plaintiff and Appellant, v. SOUTH HOOVER HOSPITAL et al., Defendants and Respondents.

L.A. 30589.

Supreme Court of California.

Sept. 17, 1976.

Manuel Lopez and Michael A. Petretta, Los Angeles, for plaintiff and appellant.

Kirtland & Packard, Harold J. Hunter, Jr., Richard P. Booth, Jr., and Robert E. Moore, Jr., Los Angeles, for defendants and respondents.

RICHARDSON, Justice.

We consider the application of the statute of limitations in medical malpractice actions and, particularly, construe section 340.5 of the Code of Civil Procedure as it read prior to September 24, 1975. That section then provided that the limitations period for actions founded in medical malpractice was 'four 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 first occurs.' The section further recited that '(t)his time limitation shall be tolled for any period during which (the treating physician or hospital) . . . has failed to disclose any act, error, or omission upon which such action is based and which is known or through the use of reasonable diligence should have been known to him.'

We will hold that this tolling provision applied only to the four-year and not to the one-year limitations period contained in the statute, concluding, therefore, that the trial court properly found plaintiff's action barred by the lapse of more than one year between the date when plaintiff either discovered, or 'through the use of reasonable diligence' should have discovered, her injury and the date of filing the complaint. We will thus affirm the summary judgment for defendants.

Under the professional care and attention of a physician, defendant Pilson, plaintiff entered defendant hospital around March 19 or 20, 1972 for the birth of her child. After a difficult two-day labor, during which plaintiff asserts that she was continuously restrained physically, her baby was stillborn following Pilson's performance of a Caesarian section on March 22.

Plaintiff remainded in the hospital post-surgically until March 30, during which time there was continuous drainage from the Caesarian incision, and plaintiff felt that her wound was not healing properly. On March 30, 1972, she was discharged from the hospital with a high fever, and she recalls that when she stood up, preparatory to leaving, 'many things' fell from her wound. She remembers that a hospital employee, observing her condition at that time, told her, 'They have done a mess with you.' Nonetheless, plaintiff never questioned Pilson about his treatment of her, nor did she discuss her condition with the hospital administration, although urged to do so by the employee.

Pilson, when advised of plaintiff's high temperature on the day of her departure from the hospital, told her to take aspirin and it would 'go away.' At this time, plaintiff was suspicious that defendants' negligence had caused both the stillbirth of her child and her own post-operative complications, and had tentatively decided to sue defendant. Following her discharge plaintiff had no further contact with either defendant.

Within two hours after leaving defendant hospital, plaintiff was taken by ambulance to Los Angeles County General Hospital, where she remained convalescent for most of April 1972. Plaintiff filed her malpractice complaint against Pilson and South Hoover on April 16, 1973. She appeals from a trial court order granting defendants' motion for summary judgment, which motion invoked the one-year 'discovery' limitations period of section 340.5.

Plaintiff contends that defendants, on their motion for summary judgment, bore the burden of demonstrating that no triable issue existed as to the running of the statute of limitations. Plaintiff further asserts that defendants did not sustain that burden since their supporting papers failed to negate the possibility that, within one year prior to commencement of the action, defendants had knowingly or negligently failed to disclose the facts on which the complaint is based. The validity of this argument depends at the outset upon the assumption that the statutory tolling provision for nondisclosure set forth in the prior version of section 340.5 applied to the one-year as well as to the four-year limitations period described therein. We will conclude that this assumption is incorrect.

We briefly trace portions of the background of section 340.5. Prior to the enactment of this statute in 1970, the limitations period for medical malpractice actions was the one-year term generally applicable to actions for personal injury or death, as provided in section 340, subdivision 3. Since Huysman v. Kirsch (1936) 6 Cal.2d 302, 312, 57 P.2d 908, however, it had been clear that the limitations period did not commence until the plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence. (See generally Whitfield v. Roth (1974) 10 Cal.3d 874, 885, 112 Cal.Rptr. 540, 519 P.2d 588; Stafford v. Shultz (1954) 42 Cal.2d 767, 776, 270 P.2d 1; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64, 9 Cal.Rptr. 555.) Thus, in many cases, commencement of the statute might be deferred indefinitely.

The rationale for this judicially created tolling rule has been variously described. Most frequently the rule was said to spring from the fiduciary and confidential relationship created between physician and patient the effect of which both compelled disclosure by the physician, on the one hand, and diminished the degree of diligence expected of the patient, on the other. (E.g., Stafford v. Shultz, supra, at pp. 777--778, 270 P.2d 1.) Another basis for the rule, originating in workers' compensation cases, has been the further assumption that, apart from the physician's disclosure, the patient had few other methods of discovering the nature of his abnormal condition and determining its negligent origin, if any. (E.g., Huysman v. Kirsch, supra, at p. 312, 57 P.2d 908.) Thus, it was commonly held that the statute did not run during the period the patient remained in the physician's care. (Myers v. Stevenson (1954) 125 Cal.App.2d 399, 401--402, 270 P.2d 885.) This corollary did not apply, however, in those cases in which there was evidence of the patient's actual discovery of the injury or a failure to discover through lack of due diligence under the circumstances. (Mock v. Santa Monica Hospital, supra, 187 Cal.App.2d 57, 64, 9 Cal.App. 555; Hundley v. St. Francis Hospital (1958) 161 Cal.App.2d 800, 806, 327 P.2d 131.) Repeated efforts to modify this 'open-ended' discovery doctrine were unavailing until 1970 when section 340.5 was enacted. (For an amplified discussion of the section's legislative history, see Comment (1971) 2 Pacific L.J. 663, 669--671, and discussion, Post.)

The principal technical argument supporting the application of the tolling provision to both four-year and one-year limitations periods is the ambiguity which arises from the inclusion in former section 340.5 of the cryptic phrase--'(t)his time limitation,' following recitation of both the four- and one-year statutory periods. Literally read, the phrase indeed lends some support to the premise that the one-year period was affected by the special tolling provision for concealment. Another troublesome feature is that the phrase is couched in the singular person and does not expressly refer to a particular antecedent phrase. These factors suggest a legislative intent either (1) to make no distinction between the two periods in applying the tolling provision or (2) to affect only the period to which the provision is more closely placed within the structure of the statute, namely, the one-year period.

However, we are impressed by the fact that to apply the tolling provision to the one-year period would produce a result seemingly at odds with common sense. Under such a construction, the mere fact of nondisclosure by the physician would suspend indefinitely the period within which plaintiff might elect to bring an action, and this even though the plaintiff (1) had Actually discovered the basis of his action by other means, or (2) could have done so by the exercise of reasonable diligence. In effect, not one but two, elements would always be necessary in order to trigger the running of the one-year period: 'discovery' (actual or constructive) by the patient And 'disclosure' by the doctor--even if the former was, in a particular case, not dependent upon the latter. The mere statement of the proposition argues against its acceptance.

As we have observed, courts have recognized both the physician's fiduciary duty of disclosure, and the frequent interrelationships between discovery and disclosure. The applicable decisional law, however, has rejected any notion that nondisclosure by defendant would toll the statute despite discovery by plaintiff. (Mock v. Santa Monica Hospital, supra, 187 Cal.App.2d 57, 64, 9 Cal.Rptr. 555; Hundley v. St. Francis Hospital, supra, 161 Cal.App.2d 800, 806, 327 P.2d 131.) Plaintiff's construction, accordingly, requires a conclusion that the Legislature in its adoption of former section 340.5 intended a major overhaul of prior case law.

The legislative history of this section suggests, however, a more modest purpose--that its drafters sought to retain the substance of the common law discovery rule, while modifying its 'open-ended' operation. As introduced, Senate Bill No. 362 (1970) Sess.), which ultimately became section 340.5, employed the language subsequently enacted, except that it contained no tolling provision. However, interested parties argued that it would be manifestly unfair to apply the four-year limitations period resulting in an absolute cutoff date in those cases in which plaintiff's failure to...