Scherer v. Mark

• Decision Date: 14 December 1976
• Citation: 64 Cal.App.3d 834,135 Cal.Rptr. 90
• Court: California Court of Appeals Court of Appeals
• Parties: Emilie SCHERER, Plaintiff and Appellant, v. Howard L. MARK, M.D., Defendant and Respondent. Civ. 45815. * Civ. 45815.

Page 90

135 Cal.Rptr. 90

64 Cal.App.3d 834

Emilie SCHERER, Plaintiff and Appellant, v. Howard L. MARK, M.D., Defendant and Respondent.

Civ. 45815. ^*

Civ. 45815.

Court of Appeal, Second District, Division 2, California.

Dec. 14, 1976.

Cohen & Barak, Frederick Barak, Hollywood, for plaintiff and appellant.

Kirtland & Packard, Robert C. Baker, Los Angeles, for defendant and respondent.

BEACH, Associate Justice.

Plaintiff appeals from a summary judgment entered in favor of defendant Dr. Howard Mark. The motion for summary judgment was based on the action being barred by the statute of limitations (Calif.Code of Civil Procedure, § 340.5). ¹

Plaintiff allegedly was injured on or about October 23, 1971, while a patient at defendant Memorial Hospital of Southern California (Hospital). On June 14, 1972, she filed a complaint for personal injuries against Hospital and 'DOES I through XXX, inclusive.' It was alleged that 'each of the Defendants designated herein as a DOE is in some manner responsible for the events and happenings hereinafter alleged.' The complaint further alleged that defendants 'negligently and carelessly treated Plaintiff in that they failed to follow a standard of care in common practice . . . in the care and treatment of Plaintiff's condition' including watching over her while she was taking a bath and providing plaintiff with a safe place to take a bath, knowing that she was handicapped and under medication; that as a result she fell and was injured.

On December 5, 1973, an amendment was made to insert the name of Howard Mark. M.D., in the complaint for the fictitiously named DOE I. A general demurrer by defendant Mark was sustained with leave to file an amended complaint. Thereafter, on March 8, 1974, a first amended complaint was filed. The first cause of action was the same as that in the original complaint. A second cause of action, against Dr. Mark and DOES 26, 27 and 28, was added; plaintiff alleged 'defendants . . . so negligently prescribed instructions and drugs and bathroom privileges and related treatment and so negligently treated and cared for plaintiff in that plaintiff was caused to and did suffer . . . injuries and damages.' 'As a proximate result of plaintiff's reliance, confidence and trust reposed by plaintiff in said defendant physicians, plaintiff did not discover the negligent prescribing of drugs and negligent prescribing of instructions for her care and bathroom privileges until on or about November 6, 1973.'

An answer was filed to the first amended complaint on April 1, 1974. Dr. Mark alleged affirmative defenses of contributory negligence and the statute of limitations. The motion for summary judgment, based on the ground that the complaint is barred by the statute of limitations, was supported by Dr. Mark's declaration. He declared 'That pursuant to my instruction, the plaintiff, EMILIE SCHERER, was hospitalized at Memorial Hospital of Southern California on October 13, 1971 and discharged on October 23, 1971. That as early as October 29, 1971, I received a letter from an attorney of the law firm of Cohen & Barak requesting to look at medical records of the within plaintiff. That subsequent to 1971 I never saw the plaintiff . . . nor did I render any care or treatment to her.'

Frederick Barak, attorney for plaintiff, declared that he sent a letter to Dr. Mark on or about November 4, 1974. ² That letter advised Dr. Mark that Emilie Scherer sustained injuries as a 'result of a slip and fall accident' at Memorial Hospital and asked for a 'medical report . . . including your observations and the medical history with reference to the above fall.' According to Barak's declaration, 'This office did not receive the medical report from Dr. Mark as requested.' It was known that Dr. Mark had hospitalized plaintiff, and that he was not physically present in the hospital when the accident occurred. Only after 'the depositions of Aldhea Florence and Wilhelimina Leboff, taken November 6, 1973,' was 'a decision . . . made to amend the complaint and bring Dr. Mark in as a defendant.' The declaration contains an obvious nonsequitur, but purports to claim that 'the exact basis for the negligence of Dr. Mark did not become exactly apparent until the two depositions were (taken).'

The court granted Dr. Mark's motion for summary judgment.

CONTENTIONS ON APPEAL:

Appellant contends:

1. An amendment pursuant to section 474 is proper after a year has passed if the plaintiff knows of the identity of a defendant but was ignorant of facts giving rise to a cause of action.

2. The statute of limitations has been tolled by the failure of respondent to disclose acts or errors or omissions upon which appellant could state a cause of action.

3. The summary judgment should not have been granted because of two triable issues of fact: (1) when appellant knew or should have discovered the acts, errors or omissions of respondent, and (2) whether the statute of limitations has been tolled by respondent's failure to make disclosure.

4. The respondent as moving party on the motion for summary judgment did not sustain his substantive burden affirmatively to disprove a material allegation of plaintiff's complaint.

We reject appellant's contentions and we affirm the judgment.

DISCUSSION:

1. The Statute of Limitations.

The statute of limitations '(i)n an action for injury or death against a physician or surgeon . . . based upon such person's alleged professional negligence, . . . or for error or omission in such person's practice, (is) 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. This time limitation shall be tolled for any period during which such person 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.' (Section 340.5.) It is undisputed that plaintiff discovered the injury on the date of its occurrence. Thus the one year provision of the statute applies to her action.

2. The effect of the 'John Doe' amendment under section 474.

The original complaint was filed within one year of the date of the alleged injury. But Dr. Mark was not named in place of defendant DOE I until after the one-year period had passed, and the second cause of action in the first amended complaint was added still later. Nonetheless, plaintiff asserts that under section 474 the naming of Dr. Mark in place of JOHN DOE I resulted in Dr. Mark being a properly named defendant. Section 474 provides in pertinent part: 'When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, . . . and such defendant may be designated . . . by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; . . .' Plaintiff argues that the purpose of section 474 'is to enable plaintiff to commence suit in time to avoid the bar of the statute of limitations where he is ignorant of the identity of the defendant (and that) should be liberally construed to accomplish that purpose . . .' (Barnes v. Wilson, 40 Cal.App.3d 199, 203, 114 Cal.Rptr. 839, 842.)

At bench the original complaint alleged defendants 'negligently and carelessly treated Plaintiff in that they failed to follow a standard of care in common practice . . . in the care and treatment of plaintiff's condition' including watching over her while she was taking a bath and providing her with a safe place to take a bath. Thus, there were seemingly sufficient charging allegations against the hospital and its employees, the defendants who were named DOE. (Cf. Schroeter v. Lowers, 260 Cal.App.2d 695, 697, 67 Cal.Rptr. 270.)

Even though the original complaint correctly pleaded a cause of action against Unknown Does, plaintiff did not meet the statutory requirements of section 474 with reference to respondent, Dr. Mark. She was not ignorant of the true name or identity of Dr. Mark.

The undisputed facts ³ are that the defendant Mark was known to plaintiff at the time of the filing of her original complaint. She well knew her own doctor, that he directed her to the hospital and prepared for her admission. When filing her original complaint plaintiff alleged that the true names of all Doe defendants were unknown. The conclusion from these facts is that in her original complaint plaintiff intentionally omitted to name Dr. Mark as a defendant whether by his true name or fictitiously as a Doe. Nonetheless plaintiff's counsel purported to 'amend' the original complaint by using a prepared form wherein he declared: 'Upon filing the complaint herein, plaintiff being ignorant of the true name of a defendant, and having designated said defendant in the complaint by a fictitious name, to-wit: DOE I, and having discovered the true name of said defendant to be HOWARD MARK, M.D. hereby amends his complaint by inserting such true name in the place and stead of such fictitious name wherever it appears in said complaint.' These allegations were not true. Ignorance of the true name of the defendant should not be feigned. (Lipman v. Rice, 213 Cal.App.2d 474, 28 Cal.Rptr. 800, Schroeter v. Lowers, 260 Cal.App.2d 695, 67 Cal.Rptr. 270.) The words of section 474 are unequivocal.

Plaintiff seeks to escape the clear language of section 474 and the bar of the statute of limitations to her tardy, attempted 'John Doe amendment.' She relies on language of Barnes v. Wilson, 40 Cal.App.3d 199 at 205, 114 Cal.Rptr. 839 at 844 that 'The phrase 'When the plaintiff is ignorant of the name of a defendant' in Code of Civil Procedure section 474 has not been interpreted literally. The plaintiff is deemed 'ignorant of the name' if he knew the identity of the person but was ignorant of facts giving him a cause of action against the person . . .' We question the need to 'interpret' the...