Huggins v. Grewal Medical Associates

Filed 6/25/08 Huggins v. Grewal Medical Associates CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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James Huggins (Huggins), was diagnosed with prostate cancer in May 2001. His doctors thought the cancer had been detected at an early stage and was curable. But surgical removal of his prostate gland in July 2001 revealed that was not the case and that the cancer had spread to the point where his cancer was far more serious than it was first thought to be. Huggins sued, asserting his doctors failure to diagnose his disease during earlier examinations shortened his life span and necessitated more aggressive and expensive therapy than he would otherwise have required. Hugginss wife, plaintiff Lynn Huggins, joined these claims and also asserted a claim for loss of consortium. They filed their complaint on June 1, 2004, more than three years after the initial cancer diagnosis but less than three years after the surgery.

On these facts, the trial court concluded that the statute of limitations set forth in Code of Civil Procedure section 340.5 barred the complaint because it was filed in June 2004, more than three years after the initial May 2001 cancer diagnosis. (Unspecified section references that follow are to the Code of Civil Procedure.) The court therefore entered a directed verdict and judgment in favor of defendants Dr. Harpreet Grewal and Grewal Medical Associates, Inc., doing business as Tracy Medical Group.

While plaintiffs appeal was pending, Huggins died, apparently due to prostate cancer. The appeal is now being pursued solely by his widow, plaintiff Lynn Huggins. (For ease of discussion we sometimes refer to plaintiff and Huggins as plaintiffs.) She asserts that their complaint was timely because the statute did not begin to run until July 2001 when the surgery revealed the incurable nature of the cancer, which incurability could have been prevented by proper diagnosis of the cancer in an examination Huggins underwent in 1999. We agree and reverse the judgment.

Facts and Proceedings

Plaintiffs filed their complaint for medical malpractice and loss of consortium on June 1, 2004.

As trial was scheduled to begin in April 2006, defendants moved for a directed verdict, asserting plaintiffs claims were barred by the three-year statute of limitations. ( 340.5.) The parties stipulated to the following facts:

In May 2001, Huggins had a biopsy of his prostate gland. On May 16, 2001, Dr. Leidich told him that the results confirmed the presence of cancer in the right lobe of his prostate.

Later the same month, Huggins consulted with Dr. Terris, a urologist at the Veterans Administration Hospital in Palo Alto. Dr. Terris confirmed the diagnosis and believed the cancer to be contained within the right lobe of the prostate gland. She recommended that Huggins have his prostate surgically removed and she referred him to another urologist at Stanford.

Huggins saw this urologist, Dr. James Brooks, also in May 2001. Dr. Brooks recommended surgery to remove the prostate as the appropriate treatment. He believed that the cancer was contained and limited to the right lobe of the prostate gland.

On July 5, 2001, Dr. Brooks performed the recommended surgery. The subsequent pathology report revealed that the cancer was not contained but had spread outside the capsule and invaded the left lobe of the gland as well.

Stewart Tabak, attorney for the plaintiffs, also made the following offering of proof: Furthermore, Your Honor, as an offer of proof, I can represent to the Court that what first became apparent as a result of the July 2001 pathology, that pathology being the result of the surgery performed by Dr. Brooks to remove Huggins prostate gland, was that the cancer had spread outside the capsule and into both lobes, both the right as well as the left lobe of the prostate gland as a result of a delay in the diagnosis of Mr. Huggins prostate cancer.

Furthermore, I can represent and the offer of proof is that the failure to [diagnose] the presence of prostate cancer by defendant Dr. Grewal in April 1999 when he examined Mr. Huggins and performed whats called a DRE, a digital rectal exam, that that failure to [diagnose] the prostate cancer in April 1999 had the damaging affect -- and I want to make sure were clear it had the A-F-F-E-C-T, affect of allowing this underlying condition of prostate cancer to spread, a spread which then caused appreciable harm to plaintiff and took him from a curable disease patient to that of an incurable disease patient, and this would be testified to by Dr. Powell.

Furthermore, Dr. Powell would testify that prostate cancer is generally a very slow progressing cancer and that the delay between April 1999 and April 2001, when the first abnormality was noted by Dr. Grewal, that that was a substantial factor in allowing this prostate cancer to spread outside the capsule into the left lobe, that being the damaging effect, E-F-F-E-C-T, of the wrongful conduct of Dr. Grewal. That wrongful conduct and damaging effect thereof first becoming apparent in July 2001 following the Dr. Brooks surgery performed at Stanford.

Defendants did not object to or offer evidence to rebut the offer of proof which, under these circumstances, became tantamount to a further stipulation of fact.

Plaintiffs counsel, before the matter was submitted to the trial court for decision, stated [j]ust . . . to be perfectly clear on the record that his clients were asking the court to consider not only the stipulated facts just entered into, but also plaintiffs [sic] offer of proof and the representations that I just made.

The trial court, after taking all those matters into consideration, granted defendants motion for directed verdict and entered judgment in their favor, finding plaintiffs complaint untimely because it was filed more than three years after the initial May 2001 diagnosis of prostate cancer. This appeal followed.

Discussion

Section 340.5 outlines two time limitations for filing a medical malpractice action, providing in relevant part: In an action for injury or death against a health care provider based upon such persons alleged professional negligence, the time for the commencement of action shall be three 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 occurs first. (See generally McNall v. Summers (1994) 25 Cal.App.4th 1300, 1308 [describing these two limitations requirements].)

In their motion for directed verdict, defendants invoked only the three-year statute of limitations and did not raise any arguments concerning the one-year period. Our analysis is therefore similarly circumscribed.

Two interrelated issues lie at the heart of this appeal: what was plaintiffs injury and when did that injury manifest itself? The trial court concluded that the date of injury was May 2001, when defendants first diagnosed Hugginss prostate cancer. It therefore concluded that plaintiffs complaint, filed in June 2004, was untimely.

Plaintiff counters that the complaint was filed within the three-year limitations period because no injury occurred until July 2001, when doctors discovered that Hugginss cancer was far more advanced than they had previously believed. She emphasizes that the complaint seeks damages only for the aggravation and worsening of the cancer caused by the delay in diagnosis; she is not seeking damages for the cancer itself, nor is she suggesting that defendants somehow caused the disease.

The parties recognize that an injury is distinct from a wrongful act. That is, the statute of limitations does not necessarily begin to run when the wrongful act occurs. Rather, injury refers to the damaging effect of the alleged wrongful act and not to the act itself. . . . Until the patient suffers appreciable harm as a consequence of the alleged act of malpractice, he cannot establish a cause of action. (Larcher v. Wanless (1976) 18 Cal.3d 646, 656, fn. 11; accord Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 54; Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, 1545.)

The trial court concluded that Huggins was injured when he was first diagnosed with cancer in May 2001. But plaintiff is not seeking damages for Huggins having cancer. Indeed when Hugginss cancer was first diagnosed in May 2001, plaintiffs had no reason to believe that it should have been diagnosed earlier. Rather, as noted, the claimed damages relate exclusively to the aggravated condition resulting from the alleged failure to diagnose his disease in a timely manner. Before Hugginss surgery in July 2001, everyone (plaintiffs and the doctors) assumed that the cancer was encapsulated and treatable, and plaintiffs had no reason to assert any claim for negligence. While plaintiffs might have preferred that defendants had diagnosed the cancer earlier, no one thought there were any injuries caused by the failure to do so. If the cancer was contained and treatable, the end result was the same regardless of when the diagnosis was made.

Only when surgery was performed did doctors learn that the cancer was not in fact contained, but had spread and was no longer curable. It is this injury that forms the basis for this lawsuit. Again, plaintiffs claim focuses on the aggravation of the cancer caused by the alleged failure to diagnose.

The injury that triggers the three-year statute of limitations is the damaging effect of the wrongful act. (Wells Fargo Bank v. Superior Court (1977) 74 Cal.App.3d 890, 896, italics added.) Once the damaging effect of the alleged wrongful act is apparent, the statute is activated. (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762; see also Garabet v. Superior Court, supra, 151 Cal.App.4th at p. 1545.) Injury denotes both a persons physical condition and its negligent cause. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99.) There was no wrongful act associated with the initial diagnosis of cancer; only when it became apparent that the cancer had spread was there any ostensible reason to bring suit.

Defendants argument to the contrary, that it is the initial diagnosis of cancer that constitutes the injury, leads to untenable results. Under defendants theory, a patient would have to file suit for malpractice within three years of a disease being diagnosed, even if no legal injury is apparent and no wrongdoing is suspected, just to guard against subsequent events later suggesting that something negligent had occurred.

Defendants rely on Steingart v. White (1988) 198 Cal.App.3d 406, for the proposition that injury occurs when cancer is first diagnosed. In Steingart, the plaintiff repeatedly raised concerns about a lump in her breast, but her doctors reassured her that there was no problem, refused her request for a biopsy, and induced her to forego any treatment. (Id. at pp. 409-410.) Three years later, however, doctors diagnosed the plaintiff with Stage II breast cancer. (Id. at p. 410.) The question was whether the plaintiff was injured and the statute of limitations began to run when defendants negligently failed to diagnose the cancer or when the disease was finally diagnosed. The court concluded that the plaintiff was not injured until the diagnosis was made. (Id. at pp. 414-415.)

Here, there is no claim that the statute began to run when defendants first missed the diagnosis. And unlike the situation in Steingart, Huggins accepted the fact that he had prostate cancer and had no potentially actionable claim for damages until surgery revealed that his cancer was worse than suspected. Plaintiffs suit was limited to injuries caused by the delay in diagnosis: instead of having a treatable disease, Hugginss cancer was incurable.

Having defined the injury at issue in this case, we turn to the remaining question: was this lawsuit filed within three years of that injury as required by section 340.5?

[A] person is injured when the damaging effect of pathology first manifests itself regardless of any knowledge on plaintiffs part that it was negligently caused. (Bispo v. Burton (1978) 82 Cal.App.3d 824, 831.) Each case necessarily will turn on its own particular circumstance. It could well be that an injury or pathology will not manifest itself for some period after the last treatment by a physician. On the other hand, that injury or pathology may manifest itself and the patient will suffer known appreciable harm at a time prior to the ultimate result. In the latter case, the [three]-year period will start to run at the point at which the appreciable harm is first manifested. (Ibid.)

The parties argue at length about what role, if any, plaintiffs knowledge of the injury plays in determining when an injury has manifested itself. One court explained this issue as follows: It would be difficult to conceive, in the usual case, of damage being suffered without an awareness on the part of the damaged person. The word manifest as used by our courts indeed suggests not only actual damage but that the damage has made itself known in some outward fashion. []  This has given rise, in recent opinions, to a suggestion that for the three-year statute to commence not only must actual damage have been done, but plaintiff must have been made aware of the existence of the damage. (Marriage & Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1652-1653 (Marriage & Family Center).)

For example, in Hills v. Aronsohn, supra, 152 Cal.App.3d 753, the court stated that the statute begins to run the moment the plaintiff discovers the harm caused by the alleged negligence. (Id. at p. 762.) In Rose v. Fife (1989) 207 Cal.App.3d 760, the court commented that the three-year statute of limitations begins to run when the plaintiff discovers the harmful effect, i.e., the physical manifestation of the wrongful act. (Id. at p. 768.)

The Marriage & Family Center court disagreed with this suggestion that there is a correlation between manifestation of damage and a plaintiffs discovery of the damage. (228 Cal.App.3d at p. 1654.) We conclude that damage is manifested for purposes of commencing the three-year period when it has become evidenced in some significant fashion, whether or not the patient/plaintiff actually becomes aware of the injury. . . . [S]evere damage which does not show itself (hidden cancer, for instance) is not injury until it is found by diagnosis. It does not follow, however, that damage which has clearly surfaced and is noticeable is not injury until either the plaintiff or her physician recognizes it. (Ibid.)

Thus, in Marriage & Family Center, the court concluded that the statute of limitations began to run when a treating doctor became aware of the damage caused to the plaintiff by the sexual abuse committed by a prior therapist, even though the treating doctor did not advise the plaintiff of this connection until much later. (228 Cal.App.3d at pp. 1654-1655.)

Here, plaintiffs knowledge is immaterial to the running of the three-year statute of limitations. The question is not what plaintiffs knew when, but when Hugginss injury became manifested, that is, when it became evidenced in some significant fashion.

The stipulated facts establish that all of Hugginss doctors believed his cancer to be contained and treatable until surgery was performed. Only at that time, in July 2001, was the hidden condition manifested and doctors learned that the cancer had spread and was no longer curable.

Plaintiffs complaint was filed June 1, 2004, within the three-year limitations period required by section 340.5. The trial court erred in concluding otherwise.

Disposition

The judgment is reversed. Plaintiff is awarded her costs on appeal.

HULL, J.

We concur:

BLEASE , Acting P.J.

ROBIE , J.

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