Wozniak v. Peninsula Hospital

Decision Date14 November 1969
Citation82 Cal.Rptr. 84,1 Cal.App.3d 716
PartiesChristine Ann WOZNIAK, a minor, by and through her Guardian ad Litem, Adam Wozniak, Plaintiff and Appellant, v. PENINSULA HOSPITAL, Defendant and Respondent. Civ. 25778.
CourtCalifornia Court of Appeals Court of Appeals

Raymond E. Bright, San Francisco, for plaintiff-appellant.

Ropers, Majeski & Phelps, Redwood City, for defendant-respondent.

HAROLD C. BROWN, Associate Justice.

This is an appeal from a summary judgment awarded respondent hospital, a public entity, in an action filed on behalf of Christine Wozniak (age two years) who claimed personal injuries as a result of negligent hospital and medical care. 1

The trial court determined that appellant did not file a claim against the respondent Peninsula Hospital within the 100 days following the Accrual of her cause of action (Gov.Code, § 911.2) 2 and after the denial of her claim and application to file a late claim further failed to apply to the court for relief pursuant to the provisions of Government Code section 946.6. 3 The determination that the appellant did not timely file a claim necessarily was based upon a finding by the trial court as to time of accrual of the cause of action.

The court fixed March 19, 1966, as the date Christine's parents were made aware of the negligence of respondent hospital. The claim was filed on December 7, 1966. Therefore, more than the 100 days prescribed in Government Code section 911.2 had elapsed. The award of summary judgment followed. The Wozniaks contend that it was not until November of 1966 that they had reason to believe the negligence of respondent hospital may have contributed to Christine's condition, and the December filing of a claim on her behalf was well within the time limitations of the Government Code. The principal question presented therefore in considering the propriety of the award of the summary judgment is whether the facts as set forth in the pleadings and declarations of the parties present a triable issue as to when Christine's cause of action accrued.

The facts: On August 31, 1965, appellant Christine Wozniak, who was then two years old, underwent an operation at respondent hospital to correct a crossed eye. Other than the eye condition she was a normal, healthy child. During the operation she suffered a cardiac arrest resulting in extensive brain and nerve damage. She remained in respondent hospital until December 8, 1965. After discharge from the hospital, she continued to receive medical care independent of respondent hospital. On March 19, 1966, a nurse engaged to give therapy treatments to her legs informed the Wozniaks that Christine's legs might not be in the condition they were in if respondent hospital had given her passive physical therapy sooner.

On November 30, 1966, the Wozniaks consulted a lawyer about the bill they had received from respondent hospital and were informed of the possibility that they had a claim for negligence, and that as the Peninsula Hospital was a public entity, it was necessary to file a claim under the provisions of the Government Code. Thereafter on December 7, 1966, a claim was executed by the Wozniaks and filed with the hospital authorities. Accompanying the claim was an application to the hospital for permission to file a late claim.

The claim itself and application for permission to file the late claim set forth reasons for not filing the claim at an earlier time, i.e., that the claimant, Christine Ann Wozniak, was a minor during the entire 100-day period prescribed and was physically and mentally incapacitated during that period, and, further that applicants were unaware that said hospital was actionably negligent or that the injury was the result of that negligence, and because they believed they might be able to work Christine's legs back into condition, they did nothing more concerning Peninsula Hospital.

The Wozniaks state in their declaration in opposition to the motion for summary judgment that they were not informed by anyone from respondent hospital or anyone else as to what specifically happened during the operation. There is nothing in the record to indicate that respondent hospital or the attending physician ever furnished the Wozniaks with any hospital or medical reports concerning the operation and care of appellant, or why permanent brain and nerve damage should result from an operation to correct a crossed eye.

The record before us also does not contain the report of the proceedings by the Peninsula Hospital in considering the claim and the application for permission to file a late claim against the hospital. However, both parties concede that the claim against the hospital and the application for permission to file a late claim were denied by respondent hospital board's action, but no notice of denial was given appellant, as required by Government Code section 913. The claim was therefore deemed denied 45 days thereafter on January 21, 1967, under the provisions of section 911.6(a) of the Government Code.

It is to be noted that the provisions of section 911.6 make it mandatory on the public entity to grant the application for the filing of a late claim where it is shown that the person who sustained the injury filed the claim within a reasonable time (not to exceed one year) and was a minor during all of the 100-day period of time specified in section 911.2 for the filing of claims. The Government Code also requires that written notice of the public entity's action on the application for filing of the late claim be given to the applicant. (Gov.Code, § 911.8.) Failure of the board to act results in a denial 45 days after the application is presented. (Gov.Code, § 911.6(a).)

If the public entity refuses to permit a late claim to be filed after a showing that claimant was a minor during the 100-day statutory period, then section 946.6 4 permits the claimant to petition the superior court at any time not to exceed six months to be relieved of the proscription for failing to file a claim. (Gov.Code, § 946.6(b).) It is mandatory for the court to grant the application upon the same showing required for petitioning the public entity for permission to file a late claim (§ 946.6(c)), i.e., that the person who sustained the alleged injury made application within a reasonable time not to exceed one year and was a minor during all of the time specified in section 911.2 (the 100-day period following the accrual of the cause of action).

For reasons which have not been made apparent, Christine's parents did not petition the superior court within the six-months period under section 946.6 after her claim and application to file a late claim were denied. Respondent concedes that if a timely application had been made to the court that permission would have been granted to appellant to file the action by reason of the mandatory provisions of section 946.6.

On April 10, 1967, appellant (by her guardian ad litem) filed her complaint in the superior court for damages claiming negligent care and treatment by respondent hospital and the attending physician.

The respondent hospital thereafter on July 28, 1967, moved the court for a summary judgment. This motion was based upon the claim that the facts revealed that the cause of action accrued in March of 1966 when the Wozniaks were informed by the therapist that the hospital was negligent in its failure to give therapy, and that as the claim was not filed until December of 1966, more than 100 days, as specified in section 911.2, had elapsed since the accrual of the cause of action.

On August 17, 1967, after the expiration of the six-months period provided in Government Code section 946.6(b), the Wozniaks petitioned the court for permission to name respondent hospital as a party defendant.

The trial court on November 27, 1967, determined that the cause of action accrued on March 19, 1966, and that the appellant had failed to file the claim as required by section 911.2 or to apply to the court for the relief as provided in section 946.6. The court awarded a summary judgment in favor of respondent and denied appellant's motion to name respondent hospital as a defendant.

In deciding whether a triable issue exists relative to the date of the accrual of the cause of action, it must first be decided whether the trial court erred in accepting March 19, 1966, as the date when the Wozniaks reasonably should have known that a cause of action existed against respondent hospital.

The law to be applied in summary judgment is well settled. The court in Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785 said: 'The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits (or evidence obtained by discovery proceedings) in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. * * *' (See also Wilson v. Bittick, 63 Cal.2d 30, 34--35, 45 Cal.Rptr. 31, 403 P.2d 159; Rowland v....

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