Lucas v. Somberg

Filed 8/8/06 Lucas v. Somberg CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Leon S. Kaplan, Judge. Affirmed in part and reversed in part and remanded.

The Law Offices of Alan Goldberg and Alan M. Goldberg for Plaintiff and Appellant.

La Follette, Johnson, De Haas, Fesler & Ames, Don Fesler, David J. Reinard and David J. Ozeran for Defendant and Respondent.

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Plaintiff and appellant Paul Lucas appeals from a judgment entered in favor of defendant and respondent Mark Somberg, D.C. (Dr. Somberg) following the trial court's grant of summary judgment. Appellant sued Dr. Somberg for negligence after he received burns and permanent scars from an electrical stimulator used by Dr. Somberg and appellant's preexisting injury worsened. The trial court granted summary judgment on the grounds that the undisputed evidence showed: (1) the applicable one-year statute of limitations barred any claim related to the burns; and (2) Dr. Somberg complied with the standard of care in treating appellant's preexisting back injury. Appellant contends that material issues of fact exist concerning whether he discovered his injury more than one year before he filed suit and whether Dr. Somberg acted within the standard of care.

With respect to the statute of limitations issue, we conclude that a triable issue of fact exists as to when appellant reasonably should have discovered the nature of his injury. While the limitations period commences to run when a plaintiff has notice or information of circumstances to put a reasonable person on inquiry, the evidence showed that appellant did inquire about the nature of his injury and was told by Dr. Somberg that his burns would heal without scars if he applied salve and ointment. On the basis of these facts, Dr. Somberg did not meet his burden to show there is no triable issue of material fact as to the reasonableness of appellant's delayed discovery of his injury. Because appellant inquired about his condition and was given an explanation that there would be no resulting scars, the question of his reasonable diligence in discovering his permanent scarring is one of fact. On the other hand, we conclude that appellant's failure to submit an expert declaration averring that Dr. Somberg acted within the standard of care requires that summary adjudication be granted as to any claim that Dr. Somberg's treatment exacerbated appellant's original injury.

FACTUAL AND PROCEDURAL BACKGROUND

On October 4, 2002, appellant first met with Dr. Somberg, a licensed chiropractor. Appellant complained of pain in his spine and left shoulder. Dr. Somberg treated him, using both manual chiropractic manipulations and electrical stimulation. Appellant visited Dr. Somberg three more times--October 25, November 8 and November 11, 2002. During the October 25 visit, appellant was burned by the electrical stimulation pads; Dr. Somberg's assistant had turned the stimulator pad machine on very high and had left appellant unattended for a long period of time. Thereafter, Dr. Somberg and his assistant informed appellant that the resulting burns would heal without scarring if appellant continued to apply salve and ointment to the burns until they healed. Appellant followed these instructions for the next six months. In October 2003, appellant saw plastic surgeon Harry Marshak, M.D., who informed him that the scars resulting from the burns were permanent and that any attempt to remove them would only exacerbate the scarring.

On November 13, 2003, appellant served a notice of intent to commence action against Dr. Somberg in accordance with Code of Civil Procedure section 364.^[1]

On February 11, 2004, appellant filed a complaint alleging a single cause of action for medical malpractice against Dr. Somberg. In pertinent part, appellant alleged that he â€