Segura v. Brundage

• Decision Date: 27 March 1979
• Citation: 153 Cal.Rptr. 777,91 Cal.App.3d 19
• Parties: Martin J. SEGURA, a minor by Jose L. Segura, Father and guardian ad litem, Plaintiffs and Appellants, v. Franklin BRUNDAGE, M.D., and A. J. DeGasis, M.D., Defendants and Respondents. Civ. 53064.
• Court: California Court of Appeals Court of Appeals

Page 777

153 Cal.Rptr. 777

91 Cal.App.3d 19

Martin J. SEGURA, a minor by Jose L. Segura, Father and guardian ad litem, Plaintiffs and Appellants, v. Franklin BRUNDAGE, M.D., and A. J. DeGasis, M.D., Defendants and Respondents.

Civ. 53064.

Court of Appeal, Second District, Division 3, California.

March 27, 1979.

Thomas T. Anderson, James W. Parkinson and Steven J. Weinberg, Indio, for plaintiffs and appellants.

Kirtland & Packard, and Robert C. Baker, Los Angeles, for defendants and respondents.

POTTER, Acting Presiding Justice.

Plaintiff, Martin J. Segura, appeals from the summary judgment in favor of defendants Franklin Brundage, M.D., and A. J. DeGasis, M.D., in his action for damages for personal injuries allegedly caused by their medical malpractice. The complaint, filed July 19, 1974, alleged that defendants were employed "as said plaintiff's physicians to treat said plaintiff professionally and specifically, said treatment was to accomplish the birth of plaintiff MARTIN J. SEGURA." The time of the alleged services was stated as "from and after Dec(ember) 23, 1966," thus disclosing that the suit was not commenced until more than six years after plaintiff's birth.

Defendants demurred to the complaint upon the ground that it disclosed the plaintiff's injuries were prenatal and that the action was therefore barred by the provisions of Civil Code section 29. ¹ The demurrer was sustained with leave to amend. Plaintiff filed a first amended complaint which sought to avoid the bar of Civil Code section 29 by alleging that his parents were "unaware of the cause and nature of the injury sustained" by virtue of defendants' failure to advise them "of the facts surrounding the negligent, unskillful, and erroneous treatment giving rise to the injury . . . ."

The sufficiency of the allegations of the amended complaint to toll the operation of section 29 was challenged by a second demurrer upon the grounds that (1) the bar of Civil Code section 29 is not subject to being tolled by nondiscovery, and (2) in any event, the amended complaint does not state "when the parents allegedly became aware of the alleged negligent and erroneous treatment." Defendants cited no authority for the proposition stated in ground (2), though ample such authority was available to them. ² As a result, the demurrer was overruled, and defendants answered.

Defendants' motion for summary judgment was filed May 27, 1977. It was accompanied by a memorandum of points and authorities attaching excerpts from the deposition testimony of Merrill Martin Becker, M.D., and of Frankie Lee Mott. The notice, however, also referred to and based the motion upon "the pleadings and records on file herein, the deposition testimony of MERRILL MARTIN BECKER, M.D., and FRANKIE LEE MOTT, and the Memorandum of Points and Authorities in support thereof, . . ." At the time this reference was made, the deposition of Merrill Martin Becker, M.D., was on file with the court, having been filed May 24, 1977. No affidavits or declarations were filed by defendants in support of the motion. An examination of the deposition of Dr. Becker ³ discloses that it contains a full statement of his qualifications as a board certified physician and surgeon specializing in obstetrics and gynecology. Such examination also discloses that he stated his unequivocal medical opinion that "if, in fact, there was damage to the child, that that damage was caused . . . during the course of the birth of the child." A full statement of the doctor's reasons for this opinion was also given. This testimony of Dr. Becker was relied upon by defendants to establish that the applicable statute of limitations was Civil Code section 29.

Excerpts from the deposition of Frankie Lee Mott were relied upon only to show that Mott had no present recollection of plaintiff's postnatal condition and the treatment given him at the hospital.

Plaintiff did not file any written opposition to the motion for summary judgment. The court minutes do reflect the attendance of plaintiff's counsel at the oral hearing which was not reported. The order sustaining the motion recited:

"Motion granted. A review of all papers filed herein establishes there are no triable issues of material fact existing as to these parties; that the action of plaintiff has no merit as to these moving defendants and moving parties are entitled to judgment as matter of law.

"Counsel for moving party to give notice and prepare judgment."

Thereafter, on July 6, 1977, a summary judgment in favor of defendants was entered.

Contentions

Plaintiff contends that the summary judgment was erroneously granted because defendant's showing did not eliminate all issues of fact bearing upon the applicability and operation of Civil Code section 29, and in particular that (1) defendants did not adequately demonstrate that plaintiff's suit was for prenatal injuries, and (2) defendants made no showing whatever on the pleaded issue of delayed discovery tolling commencement of the statutory period.

Defendants contend that the uncontradicted testimony of Dr. Becker establishes that plaintiff's suit is for prenatal injuries and that no genuine issue as to deferred discovery appears because (1) the six-year period established by Civil Code section 29 is not subject to being tolled by belated discovery, and (2) plaintiff did not, in any event, make any showing of belated discovery.

Discussion

Summary

Defendants showed by uncontradicted evidence that plaintiff's claim was for prenatal injuries; consequently, the applicable statute of limitations is Civil Code section 29. However, contrary to defendants' contention, the six-year limitation of said section is, in malpractice cases, tolled until the plaintiff's parents either discover or, in the exercise of reasonable diligence should discover, the negligent cause of his injury. In order to be entitled to a summary judgment, defendants were required to make a showing that there was no genuine issue of fact with respect to discovery. They failed to do so; consequently, the judgment must be reversed.

The Action Was for Prenatal Injuries and Subject to the Limitation of Civil Code Section 29

There was no genuine issue as to the nature of plaintiff's action. Both the original and the amended complaint alleged that the services rendered by defendants were "specifically . . . to accomplish the birth of plaintiff." Though conceivably a doctor so employed could have negligently caused injury to plaintiff after the birth was completed, the deposition testimony of Dr. Becker flatly negated this possibility. Plaintiff made no attempt to controvert this showing. The opinion was competent opinion evidence by a fully qualified expert with a full statement of his reasons. The fact that defendants chose to excerpt and to attach to their points and authorities only a portion of this testimony did not limit the effect of the general reliance on such depositions stated in the motion.

We, therefore, conclude that the applicable statute of limitations was Civil Code section 29.

The Six-Year Limitation of Civil Code Section 29 is Subject to Being Tolled by Delayed Discovery

Defendants claim that the six-year limitation stated in Civil Code section 29 is absolute. They acknowledge that Myers v. Stevenson (1954) 125 Cal.App.2d 399, 270 P.2d 885, reached a contrary conclusion but construe Olivas v. Weiner (1954) 127 Cal.App.2d 597, 274 P.2d 476, as supporting their position and distinguish Myers on the basis that in that case the doctor-patient relationship continued during the period of nondiscovery.

The decision in Myers is not questioned by Olivas and cannot be construed as narrowly as defendants contend. It is true that in Myers the doctor-patient relationship had continued to a date within six years of the filing, and this was noted as one basis for the ruling. In this respect, the court cited Huysman v. Kirsch (1936) 6 Cal.2d 302, 312, 57 P.2d 908 and said (125 Cal.App.2d at pp. 401-402, 270 P.2d at p. 887):

"The cases uniformly since this decision have followed the rule that while the physician-patient relation continues the plaintiff is not ordinarily put on notice of the negligent conduct of the physician upon whose skill, judgment and advice he continues to rely. (Trombley v. Kolts, 29 Cal.App.2d 699 (85 P.2d 541); Petrucci v. Heidenreich, 43 Cal.App.2d 561 (111 P.2d 421); Ehlen v. Burrows, 51 Cal.App.2d 141 (124 P.2d 82); Greninger v. Fischer, 81 Cal.App.2d 549 (184 P.2d 694).) If this rule is applicable to the six year limitation of section 29, Civil Code, the allegation that defendant Stevenson continued to treat plaintiff 'until on or about . . . May, 1946,' with the further allegation of lack of knowledge of the cause of plaintiff's injuries during that period would bring the action as to defendant Stevenson fairly within this rule."

However, much more was said on the subject of delayed discovery; the court added (Id., at p. 402, 270 P.2d at p. 887):

"It is a Further settled rule in malpractice cases that the statute of limitations only starts to run from the date of discovery of, or the date when by the exercise of reasonable diligence the plaintiff should have discovered, the wrongful act. (Huysman v. Kirsch, supra, 6 Cal.2d 302, 57 P.2d 908; Costa v. Regents of University of California, 116 Cal.App.2d 445 (254 P.2d 85); Agnew v. Larson, 82 Cal.App.2d 176 (185 P.2d 851); Bowman v. McPheeters, 77 Cal.App.2d 795 (176 P.2d 745); Pellett v. Sonotone Corp., 55 Cal.App.2d 158 (130 P.2d 181); Faith v. Erhart, 52 Cal.App.2d 228 (126 P.2d 151).) This rule has just been reaffirmed by the Supreme Court in Stafford v. Schultz, 42 Cal.2d 767 (270 P.2d 1) (opinion filed May 11, 1954)." (Emphasis added.)

The court further explained that this rule is applicable to an infant and refers to "the lack of knowledge of, and discovery by, the parents . . . ." (Id., at p. 403, 270 P.2d at p. 887.) More significantly, the court carefully...