Unjian v. Berman

• Decision Date: 14 March 1989
• Docket Number: No. B032258,B032258
• Citation: 208 Cal.App.3d 881,256 Cal.Rptr. 478
• Court: California Court of Appeals Court of Appeals
• Parties: Samuel UNJIAN, Plaintiff and Appellant, v. Walter BERMAN, M.D., Defendant and Respondent.

Page 478

256 Cal.Rptr. 478

208 Cal.App.3d 881

Samuel UNJIAN, Plaintiff and Appellant, v. Walter BERMAN, M.D., Defendant and Respondent.

No. B032258.

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

March 14, 1989.

Review Denied May 23, 1989.

[208 Cal.App.3d 883] Bruce A. Friedman for plaintiff and appellant.

Schmid & Grogman and Susan H. Schmid and Michael H. Miller for defendant and respondent.

JOHNSON, Associate Justice.

Samuel Unjian brought this medical malpractice action against Dr. Berman alleging the face-lift Berman performed left Mr. Unjian with a worse face than before surgery. The trial court granted Berman's motion for summary judgment on statute of limitations grounds and dismissed the action. We reverse.

There is no dispute over the facts presented to the trial court. The question on appeal is whether those facts were sufficient to entitle Berman to a judgment of dismissal.

FACTS BEFORE THE TRIAL COURT

On November 23, 1982, Dr. Berman performed a face-lift on Mr. Unjian. The day before the operation Mr. Unjian executed an agreement to submit any dispute arising out of Dr. Berman's care and treatment to binding arbitration. On December 13, 1982, Mr. Unjian mailed Dr. Berman a written revocation of the arbitration agreement. Mr. Unjian was asked at his deposition why he mailed the revocation. He replied,

"A. The appearance of my furrows were there again after the normal swelling and what have you period of time was gone. I could see there was no improvement in my face. Actually, I felt even a little more gaunt; A [sic ] little more worse. But at least there was no--it looked worse. My face looked worse.

"Q. And because of that you felt that you should revoke the arbitration agreement?

"A. Yes."

The evidence at the hearing established Mr. Unjian remained in Dr. Berman's care until October 19, 1983. During the period "Q. Did you have an opinion at the time as to what caused the infection?

                between the surgery and the date Dr. Berman last saw Mr. Unjian, Mr. Unjian questioned Berman several times about the cause of the infection on his face.  Berman's notes for October 19, 1983, state, "Once again discussed possible suture reaction and approaches to same.  Possible old acne cysts."   At Berman's [208 Cal.App.3d 884] deposition the following colloquy took place
                

"A. No. But I told him it could have been the same thing I mentioned a few times to you, that it could be from his old acne."

Mr. Unjian filed this action on September 24, 1984.

DISCUSSION

A summary judgment is only proper when the moving party has established there are no triable issues of material fact and judgment must follow as a matter of law (Code Civ.Proc., § 340.5.). The unrebutted evidence presented by defendant must establish beyond dispute the plaintiff failed to bring his action within three years after the date of injury or one year after he discovered, or through the use of reasonable diligence should have discovered, the injury. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101, 132 Cal.Rptr. 657, 553 P.2d 1129.) Summary judgment cannot be granted on the basis of reasonable inferences deducible from the evidence if contradicted by other reasonable inferences. (Code Civ.Proc., § 437c, subd. (c); Gilbertson v. Osman (1986) 185 Cal.App.3d 308, 318, 229 Cal.Rptr. 627.)

Assuming the injury to Mr. Unjian occurred on November 23, 1982, the date of his surgery, his action, filed on September 24, 1984, was timely unless more than a year before he filed suit Mr. Unjian discovered, or should have discovered through reasonable diligence, both the injury and the negligent cause of the injury. (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759, 199 Cal.Rptr. 816.)

Dr. Berman contends Mr. Unjian knew of his injury and its negligent cause at least by December 13, 1982, the day Mr. Unjian sent the letter revoking the arbitration agreement. He bases this contention on Mr. Unjian's deposition testimony that after Dr. Berman's surgery his face looked worse and, because his face looked worse, he cancelled the arbitration agreement. For the reasons explained below we conclude these facts, even though not disputed, do not negate the existence of triable issues of fact on the question of discovery.

A. The "Worse Face" Scenario

Dr. Berman points to the allegation in the complaint he had guaranteed the surgery would lessen the furrows in Mr. Unjian's face and make it look much better. He then cites Mr. Unjian's deposition testimony after the bandages had been removed and the swelling had gone down the furrows were still there and "my face looked worse." Dr. Berman argues the obvious disparity between the result promised and the result achieved would put a reasonable person on notice "something had gone wrong."

The fact an operation did not produce the expected result would not necessarily suggest to the ordinary person the operation had been performed negligently. In Pink v. Slater (1955) 131 Cal.App.2d 816, 281 P.2d 272 the plaintiff employed the defendant doctor to remove scars from her face and nose. After the operation her appearance was worse than before and her face became infected. At trial plaintiff presented no medical testimony that there was negligence. Instead she relied on the doctrine of res ipsa loquitur. In affirming the judgment for defendant the court observed res ipsa loquitur would not apply in this case because it does not follow as a matter of common knowledge that the injury plaintiff suffered would not have occurred without negligence. (Id. at p. 818, 281 P.2d 272.)

Where, as here, the injury is obvious but there is nothing to connect that injury to defendant's negligence it cannot be said as a matter of law the plaintiff's failure to make an earlier discovery of fault was unreasonable. (Cf. Dujardin v In Fitzpatrick v. Marlowe (Tx.Civ.App.1977) 553 S.W.2d 190 plaintiff went to the defendant for removal of a small lump from her nose. After the first operation her nose swelled and the bump remained. Defendant performed a second operation which left the plaintiff with a dip in her nose instead of a bump. The court held these facts were not sufficient to establish discovery of defendant's negligence given evidence defendant had assured her application of cocoa butter and cortisone shots would correct the condition. The court noted because the doctor-patient relationship is one of trust and confidence the plaintiff was entitled to rely on defendant's statements until she came into possession of such facts or knowledge that would lead a prudent person to suspect otherwise. The fact plaintiff could see the result of the surgery on her face did not supply the requisite knowledge. Plaintiff "had no expertise concerning the treatment of her injury. She relied on [defendant's] statements promising future treatment and improvement." (Id. at p. 194.)

                Ventura County Gen. Hosp.  (1977) 69 Cal.App.3d 350, 358-359, 138 Cal.Rptr. 20.)   This is especially true in cases such as the one before us where the plaintiff continues under the doctor's care, does inquire about the cause of his apparent injury and is given an explanation calculated to allay any suspicion of negligence on the doctor's part
                

In Burns v. Bell (D.C.App.1979) 409 A.2d 614, as in the case before us, the plaintiff employed the defendant doctor to perform a face-lift. After the surgery plaintiff had "gross scars," numbness and a "pins-and-needles" sensation around the surgical area. Defendant assured her the scars would improve and the numbness would subside. When plaintiff filed suit some seven years later the defendant sought dismissal under the statute of limitations. Addressing the issue of discovery, the court stated:

"Appellee contends that the patient knew of her injury soon after the operation. It is argued that she could see for herself the condition of her face. This approach overlooks the fact that appellant may have relied upon appellee because she herself had no medical expertise and no other accurate way of knowing whether the assurances given her were reasonable. To require a patient to scrutinize to a fine degree the advice given by a treating physician, at the risk of losing his right to legal redress seems unwise. Thus the determination of when appellant should have reasonably discovered her injury under the instant circumstances is, in our view, a question of fact and should have been submitted to the trier of fact." (Id. at p. 617.)

In the case before us, Mr. Unjian could see the furrows were still in his face and could see the infection where the sutures had been. When he inquired about these he was told by Dr. Berman the infection was possibly caused by old acne cysts. A trier of fact could reasonably conclude that, in light of the fiduciary relationship between Mr. Unjian and Dr. Berman, Mr. Unjian was justified in accepting Berman's explanation for his condition following surgery. Thus, summary judgment was not justified on the basis that Mr. Unjian ended up with a worse face. (Cf. Brown v. Bleiberg (1982) 32 Cal.3d 426, 435-438, 186 Cal.Rptr. 228, 651 P.2d 815.)

Although we have found no California cases involving face-lifts, California law follows the same rationale as expressed in Fitzpatrick v. Marlowe and Burns v. Bell discussed supra. The leading case is Sanchez v. South Hoover Hospital, supra, in which the court described the diligence reasonably expected of the plaintiff while still under the defendant's care.

"[T]he patient is fully entitled to rely upon the physician's professional skill and judgment while under his care, and has little choice but to do so. It follows, accordingly, that during the continuance of this professional relationship, which is fiduciary in nature, the type of diligence required of a patient in ferreting out and learning of the negligent causes of his condition is diminished." (18 Cal.3d at p. 102, 132 Cal.Rptr. 657, 553 P.2d 1129.)

We note, however, the court in Sanchez went...