Notturno v. San AntonioCommunityHospital

Filed 4/6/07 Notturno v. San Antonio Community Hospital CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Paul M. Bryant, Jr., Judge. Affirmed.

Mathew & George, Abraham Mathew and Jacob George for Plaintiff and Appellant.

Snyder, Walker & Mann, Jeffrey A. Walker and Hanlen J. Chang for Defendant and Respondent David Daniels, M.D.

Davis, Grass, Goldstein & Housouer and John E. Nuelle for Defendant and Respondent San Antonio Community Hospital.

I. INTRODUCTION

Barbara Notturno sued David Daniels, M.D. and San Antonio Community Hospital (SACH) for the wrongful death of her son, John Notturno. Dr. Daniels and SACH each moved for summary judgment on the ground that the action was not commenced within the one-year limitations period provided in Code of Civil Procedure section 340.5.^[1] The court granted the motions and entered judgment in their favor. We affirm.

II. SUMMARY OF facts

In the controlling pleading, plaintiff alleges the following facts. John went to SACH for treatment of flu-like symptoms on January 27, 2003. Dr. Daniels and SACH advised John that he would have to be admitted to the hospital because of fluid buildup in his lungs. The next day, Dr. Daniels and SACH diagnosed John as having an infection causing buildup of fluid and the formation of a pus pocket on his lungs. Chest tubes were placed in Johns lungs to drain fluid from his lungs. On January 31, 2003, John coded (an apparent reference to a cardiac arrest). Defendants failed to timely respond to the code. Defendants told plaintiff that Johns heart had stopped due to the infection in his lungs. According to Dr. Daniels, the infection was out of control and could not be stopped. John went into a coma. He died on May 13, 2003. Johns death was caused by, among other things, the improper placement of the tubes in Johns lungs and the failure to timely respond to the code. In late January 2004, plaintiff first learned of the improper placement of the tubes in Johns chest, and that the improper placement may have caused Johns death.

Although Dr. Daniels and SACH moved separately for summary judgment, the evidence relied upon by both defendants, and the evidence relied upon by plaintiff in opposition, is, with one exception noted below, substantially identical. The decedent, John, presented to the SACH emergency room on January 27, 2003, for flu-like symptoms, and was admitted to SACH the following day. On January 31, 2003, John coded and went into a coma. Dr. Daniels met with plaintiff and her son Joseph. Joseph had been a paramedic from 1988 to 1991. At the time of Johns illness and death, Joseph was working as an automobile mechanic.

Dr. Daniels explained to plaintiff and Joseph that Johns infection was out of control and could not be stopped. Dr. Daniels went over the medical records with Joseph. In her deposition, plaintiff testified that during this meeting neither she nor Joseph were suspicious of any wrongdoing. She simply believed that Johns infection had taken off, and it had got out of control.

Three or four days after the meeting with Dr. Daniels, Joseph told plaintiff that he thought that SACH was too slow in getting to John after the cardiac arrest, and that he was going to look into [SACHs] response to Johns code. Joseph did not tell her the basis for his belief that SACH was slow in getting to John. She believed, however, that he got this idea from reading the medical records.

Plaintiff and Joseph submitted declarations in support of plaintiffs opposition to the motions for summary judgment. Plaintiff states that Joseph never told her that Dr. Daniels or SACH had done anything improper or wrong. Joseph declared that he told his mother he was going to look into SACHs response relative to Johns code, and that he did not tell his mother he thought SACH did anything improper.

John was transferred to Kindred Hospital on February 19, 2003. The next day, Monica Wickman, a social worker with Kindred Hospital, met with plaintiff and Joseph. Wickman made the following note in Johns medical records: LCSW met w/ mother and son, Joe who requested info re: obtaining medical records from SACH. I educated them on process and offered to write letter attesting to pts inability to sign release. Family wants entire chart as they are taking issue w/ pts anoxic event and allegedly slow response to intubation after code blue. I will draft letter for mother to pick up tomorrow. She is next-of-kin. Son, Joe is a paramedic.

At her deposition, Wickman could not initially recall this meeting. Later, her memory refreshed and she recalled that Joseph said that SACHs response to Johns cardiac arrest was slow based upon a comparison of his response time as a paramedic relative to what took place in [SACH]. Plaintiff was in the room at that time, an active participant in the meeting, and at least listening to what Joseph was saying and agreeing with him. Wickman understood that plaintiff wanted Johns chart because they were taking issue with the anoxic event and felt that SACH was slow to respond to the intubation after the code.

Plaintiff testified in her deposition that she did not really remember any meetings with social workers or social services at Kindred Hospital, but they could have occurred. Relative to this initial meeting, plaintiff recalled that Joseph met with a person at Kindred Hospital and that she might have been present. Joseph, not her, might have discussed obtaining the medical records during this meeting. She did not discuss with Joseph why he wanted the records.

The same day, February 20, 2003 (apparently after the meeting with plaintiff and Joseph), Wickman prepared a letter for plaintiff stating that John did not have the capacity to sign a medical release of information. Wickman testified that plaintiff picked up this letter the following day. Wickman understood that plaintiff took the letter to SACH to get the medical records.

On April 10, 2003, plaintiff and her daughter, Ginger, met with Wickman at Kindred Hospital.^[2] Wickman made the following note in Johns medical record: Mother and her dtr, Ginger met w/ LCSW. They asked about conservatorship to manage pts financial affairs and to obtain medical records from SACH. I re-educated wife re: her legal standing as next-of-kin ‑‑ even in the absence of any POA. She and her dtr were going to appear in person at SACH to try again after mothers attempts to access the record in recent past failed. . . . At her deposition, Wickman testified that the meeting was an emotional visit; she said that plaintiff was dissatisfied about the treatment John had received at SACH, and frustrated that they were not able to get Johns medical records. She recalled that both plaintiff and Ginger spoke with her about wanting to retrieve Johns medical records from SACH, and that plaintiff told her that she had gone to SACH to get the records, but was unable to get them. Based upon what plaintiff and Ginger said, Wickman understood that they had connected the treatment John received at SACH and his comatose condition.

Plaintiff testified that she does not remember having a conversation with any individual from Kindred Hospital when Ginger was present, and that she does not remember talking with any of her children about requesting records from SACH.

Wickman testified that eight days later, on April 18, she left a phone message for plaintiff asking whether plaintiff was able to obtain the medical records from SACH. Three days later, plaintiff called Wickman and told her that she did not go to get the records. Plaintiff testified that she does not remember any telephone conversations with any of the staff at Kindred Hospital.

John never came out of his coma. He died on May 13, 2003, at the age of 49.

Joseph declared that after Johns death he told his mother that he did not think that SACH or Dr. Daniels had done anything improper. Plaintiff declared that until she communicated with her attorney in January 2004, she always believed what Dr. Daniels had told her ‑‑ that John died because of an infection that was out of control.

Plaintiff filed the initial complaint in this case on January 7, 2005.

The trial court granted both of the motions for summary judgment. At the hearing on SACHs motion, the court explained its ruling: SACH has established that Notturno was on reasonable inquiry notice by February of 2003. At that point, Joseph Notturno had stated that he thought there was a possible slow response to the code blue. This fact was communicated to his mother, the plaintiff in this action. Even though she may not have understood the medical terms, it is clear that when told there was a slow response, that is enough to put her on reasonable inquiry notice to find out if the slow response was linked to the decedents condition. Because plaintiff did not file her original complaint until January of 2005, this action is barred by the statute of limitations.

III. ANALYSIS

Summary judgment is proper where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. ( 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) When, as here, the moving parties are defendants, they bear the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. [Citation.] (Ibid.) On appeal, our review is de novo, and we independently review the record before the trial court. (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 652.) The trial courts stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale. (Kids Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)

Dr. Daniels and SACH based their motions for summary judgment on the ground that plaintiff failed to commence this action within the one-year limitations period provided by section 340.5. This section provides, in pertinent 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. We are concerned in this case with the one-year limitations period.

The resolution of the statute of limitations issue is normally a question of fact; however, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.) The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is heavier than the burden to show one or more elements of the plaintiffs cause of action cannot be established. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) If the moving party satisfies its initial burden of producing evidence of the nonexistence of any triable issue of material fact, the burden of production shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851.) Summary judgment is proper where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. ( 437c, subd. (c).)

Dr. Daniels asserts initially that the injury occurred when John died and that plaintiffs original complaint was filed nearly 18 months later. Because the complaint was filed more than one year after Johns death, he contends plaintiff is time-barred as a matter of law from pursuing any causes of action based on medical negligence. The term injury under section 340.5, however, means both the physical condition or, in the case of a wrongful death action, the death of the patient, and the negligent cause of the condition or death. (See Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295 [injury means both a persons physical condition and its negligent cause]; Kleefeld v. Superior Court (1994) 25 Cal.App.4th 1680, 1684 [The date of injury in a wrongful death cause of action is the date of death].) Johns death, by itself, does not necessarily suggest negligence by the defendants. (Cf. Unjian v. Berman (1989) 208 Cal.App.3d 881, 885.)

The commencement of the one-year limitations period under section 340.5 depends upon the application of the discovery rule. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1109.) Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing . . . . (Id. at p. 1110.) There are two alternative tests for triggering the limitations period under this rule: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing. [Citation.] The first to occur under these two tests begins the limitations period. (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.) We believe the evidence presented demonstrates the nonexistence of a triable issue in that plaintiff had an actual suspicion that the injury was caused by wrongdoing approximately two years before the filing of the complaint.

Under the subjective, or actual suspicion, test, a plaintiff discovers her cause of action when she suspects negligence: Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects . . . that her injury was caused by wrongdoing . . . . plaintiff need not be aware of the specific facts necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, . . . she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her. [Citation.] (Knowles v. Superior Court, supra, 118 Cal.App.4th at p. 1296, quoting Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at pp. 1110-1111.) It is a plaintiffs suspicion of negligence, rather than an experts opinion, that triggers the limitation period. (Knowles v. Superior Court, supra, at p. 1300.)

Facts presented at the motions for summary judgment to support the proposition that plaintiff had a suspicion of wrongdoing relative to the death of John are: (1) Joseph told her a few days after they both met with Dr. Daniels that Joseph felt SACH was too slow relative to the code; (2) plaintiff felt that Joseph got this idea from reading the medical records; (3) on February 20, 2003, Joseph and plaintiff met with Wickman, who noted in her records and testified that the family wanted Johns entire chart because they were dissatisfied with the treatment John received; plaintiff was an active participant in the meeting; (4) on April 20, 2003, plaintiff and her daughter met with Wickman; this meeting was emotional, and plaintiff expressed dissatisfaction with the treatment John received at SACH; and (5) during the April 10 meeting and in a subsequent phone call, plaintiff discussed with Wickman the problems plaintiff was having getting the medical records.

In opposition to these facts, the record contains the deposition testimony of plaintiff, and her and Josephs declarations. In her deposition, plaintiff acknowledged that Joseph told her that SACH was too slow in responding to the code. More importantly, however, she did not factually rebut any of Wickmans testimony relative to plaintiff expressing dissatisfaction with the treatment John received at SACH and that plaintiff was attempting to get the medical records. In her deposition, plaintiff indicated that she did not remember any meetings with social workers at Kindred Hospital, but did not deny that they could have occurred. She testified that if she was present at a meeting with Joseph, it was Joseph that did the talking. She did not deny Wickmans testimony that she was nevertheless listening to Joseph and actively participated in the meeting. Relative to the second meeting on April 10, plaintiff testified that she does not remember having any conversation with an individual from Kindred Hospital when Ginger was present. Plaintiffs failure to recall these meetings does not rebut the records affirmative showing that the meetings occurred and that plaintiff expressed dissatisfaction with Johns treatment at SACH and a related desire to obtain the medical records. (See FEC v. Toledano (9th Cir. 2002) 317 F.3d 939, 949-950.) Such evidence demonstrates an actual suspicion of wrongdoing sufficient to commence the limitations period under section 340.5.

The opposing declarations state that Joseph never told plaintiff that Dr. Daniels or SACH did anything wrong and that plaintiff always believed Dr. Daniels until she communicated with her attorney in January 2004. Even if we accept these statements, they still do not create a triable issue of fact. Plaintiff simply states that Dr. Daniels told her that the infection got out of hand and she believed him. While this may be true, it does not rebut facts demonstrating that between mid-February and late April, 2003, she had an actual suspicion that malpractice occurred. (See Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860 [a party cannot create a triable issue of fact by way of a self-serving declaration, contrary to earlier discovery responses].) The undisputed facts demonstrate that by April 2003, at the latest, plaintiff entertained an actual suspicion that wrongdoing occurred during her sons hospitalization at SACH.^[3] So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1111.) Accordingly, summary judgment was proper.

Plaintiff relies heavily on Unjian v. Berman, supra, 208 Cal.App.3d 881, for the proposition that when a patient is being treated by a physician and the physician provides an explanation for an occurrence that is inconsistent with negligence, the diligence required of the plaintiff to learn of the physicians negligence is diminished. We do not disagree with this point. However, it does not aid plaintiff here. Initially, Dr. Danielss explanation that the infection got out of control was not necessarily inconsistent with medical negligence. Additionally, John was transferred out of SACH to Kindred Hospital in February 2003. There is no evidence that after Johns transfer, Dr. Daniels or SACH had any involvement with Johns care. Any benefit to plaintiff of Unjians diminished diligence rule expired at that time. The meetings with Wickman, which provide the strongest evidence that plaintiff was suspicious of wrongdoing, took place after Johns transfer to Kindred Hospital, and well over one year before the lawsuit was filed in January 2005. Thus, even if a diminished degree of diligence applied while John was under the care of Dr. Daniels and SACH, the statute of limitations began to run by no later than February or April 2003.

IV. Disposition

The judgments are affirmed. Respondents to recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Hollenhorst

J.

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^[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2] In its motion for summary judgment, SACH relied upon evidence of the April 10, 2003, meeting. Daniels did not.

^[3] The appellants appendix contains objections by plaintiff to Dr. Danielss evidence. Also present are objections by Dr. Daniels to plaintiffs evidence. Neither the reporters transcript included in the record on appeal nor the appellants appendix contain the courts evidentiary rulings. At page 2 of the reporters transcript, the court states, As relates to the objections that I previously ruled on nothing has changed. Those rejections are to remain the same. Because we do not know how the court ruled and neither party has alleged any error relative to the rulings, we have considered all of the evidence submitted.