Porter v. Alameda Co. Medical Center

Filed 9/29/06 Porter v. Alameda Co. Medical Center CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Plaintiff Ronald R. Porter was treated after an automobile accident at Highland Hospital, a county-owned hospital in Oakland. A few days after his discharge from the hospital, still suffering pain, Porter was admitted to a second hospital and diagnosed with a perforated colon. At some unspecified time, Porter discussed his situation with other doctors and was told Highland Hospital was not at fault in failing to detect the colon perforation. More than two years after the accident, however, he consulted with a doctor who opined, to the contrary, that the hospital’s failure had violated the standard of care. Only after this consultation did Porter submit a claim for personal injury to the hospital. The claim was denied as untimely. Porter then sought leave to file a late claim from the trial court, arguing that accrual of his cause of action was tolled by the discovery rule. The trial court rejected the argument and denied the petition. We affirm.

I. BACKGROUND

On May 25, 2005, Porter filed with the superior court a petition for an order permitting a late claim against a governmental entity pursuant to Government Code[1] section 946.6. The petition alleged that Porter was admitted to Highland Hospital on February 6, 2002 for treatment of injuries suffered in an automobile accident and was discharged two days later. Continuing to experience abdominal pain, Porter was admitted to a second hospital five days after his discharge, where he was diagnosed as having a “perforated bowel following trauma.” The condition required “long term treatment,” requiring periodic hospital visits until late in the year 2004.

Despite the suggestive nature of the above events, Porter alleged that he “was without any knowledge of his medical condition or the nature and extent of the care or lack of care that he received at Highland Hospital until he received expert advice in October, 2004” that his condition “was as a result of the negligence and carelessness of his treating doctors at Highland Hospital.” Porter also alleged that he “was unable to obtain expert opinion, information and advice until October 2004” that the care at Highland Hospital was negligent “because of his disability and continuing medical care.” Finally, as required by such a petition, Porter alleged that he failed to file a claim sooner “through mistake, inadvertence, surprise or excusable neglect” because he “had no source of information from which he could have concluded that professional negligence had occurred.”

The petition also alleged that Porter had made a written application to defendant Alameda County Medical Center (Medical Center) for permission to file a late claim under section 911.4 on January 13, 2005.[2] The application was denied on February 25, 2005.

Porter submitted a declaration with his petition that did little more than reiterate the words of the petition, providing few evidentiary facts to support the conclusory allegations of the petition. The declaration did, however, add that (1) Porter “was in substantial pain and discomfort, requiring medication, hospitalization and frequent visits to the doctors . . . for a period of years” after the accident; and (2) during the period after his accident until October 2004, “when I inquired about my condition and whether it related to anything that happened at Highland Hospital . . . I was told there was no problem.” The declaration does not specify to whom or when he made such inquiries.

The Medical Center and two doctors, defendants Zachary Baldwin and Carlos Ramirez, opposed Porter’s petition. The only additional evidentiary material submitted by Porter in response to their opposition was a declaration from his attorney that, again, largely reiterated the allegations of the petition. In addition to information already in the record, counsel stated that Porter was not told his diagnosis while in the second hospital. In addition, the declaration identifies five doctors with whom Porter “communicated . . . on the question of whether or not there was a wrongful cause for his hospitalization . . . related to his care and treatment at Highland Hospital.” Counsel did not identify the qualifications of these doctors, the exact nature of the inquiries put to them, or the dates on which the inquiries were made. However, he did state that Porter was told by two of the doctors that he had no claim for malpractice because no perforation could be seen on the Highland Hospital X-rays and that the remaining three doctors “did not respond at all to the question of standard of care at Highland Hospital.” It was not until counsel himself retained a doctor in October 2004, that Porter “became aware” that he had been a victim of malpractice, presumably based on an opinion rendered by the newly-retained doctor. Included in the record is a form demonstrating that Porter requested a copy of his medical records in April 2002.

The trial court denied Porter’s petition. The court concluded that Porter’s claim was not tolled by the discovery rule because he “does not explain why he did not suspect wrongdoing at [the time of his hospital readmission], and he offers no facts to show that he was unable to conduct a reasonable investigation until October 2004.” Accordingly, the trial court concluded, the application was untimely under section 946.6, subdivision (c).

II. DISCUSSION

Porter claims that it was error to deny his application as untimely because the statute of limitations on his claim was tolled by the discovery rule until October 2004, when he was first informed by a medical professional that there was reason to believe Highland Hospital had acted negligently.

Because the Medical Center is a public entity, Porter was required to file a formal claim for damages before bringing suit for negligence. (§§ 905, 945.4; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240.) A claim related to personal injury must be filed “not later than six months after the accrual of the cause of action.” (§ 911.2, subd. (a).) For these purposes, “the accrual of a cause of action“ occurs on the same date the cause of action accrues under the applicable statute of limitations. (§ 901.)

Because Porter failed to file within the requisite six-month period, he was required to apply for leave to file a late claim, first with the Medical Center (§ 911.4, subd. (a)) and, failing that, the superior court. (§ 946.6.) Before the trial court could grant such relief, however, Porter was required to demonstrate that his section 911.4 application had been filed with the Medical Center “within a reasonable time not to exceed one year after the accrual of the cause of action.” (§§ 911.4, subd. (b), 946.6, subd. (c).) Failure to meet this time limit deprives the trial court of jurisdiction to grant relief under section 946.6. (County of Los Angeles v. Superior Court (2001) 91 Cal.App.4th 1303, 1314.) If, as the trial court concluded, Porter’s cause of action for malpractice accrued at or near the time of his injury in 2002, his application to the hospital, filed January 13, 2005, was irreparably untimely, and the trial court was required to deny his petition under section 946.6.

Our review of the denial of a petition under section 946.6 is ordinarily for abuse of discretion. (E.g., Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.) Because Porter’s allegations and evidence were uncontradicted by the Medical Center, however, the trial court’s ruling that the application was untimely was essentially one of law. It is generally accepted that “an order resting upon a ‘ “demonstrable error of law” ‘ constitutes an abuse of the court’s discretion.” (People v. Jennings (2005) 128 Cal.App.4th 42, 49.) Accordingly, we review the trial court’s ruling de novo for an error of law.

The statute of limitations normally accrues when a wrongful act is done or a wrongful result occurs. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) The discovery rule, an exception to this general rule, can delay accrual of a cause of action until after a plaintiff discovers, or has reason to discover, the cause of action. (Ibid.) For these purposes, a plaintiff “discovers” a cause of action when he or she at least suspects, or has reason to suspect, a factual basis for the cause of action--for example, the suspicion that the injury was caused by “wrongdoing.” Once suspicion or a basis for suspicion exists, a plaintiff is deemed to have discovered the cause of action, even if he or she lacks actual knowledge that a wrong occurred. (Ibid.; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.) Upon such discovery, the plaintiff must make an effort to learn the facts necessary to support a cause of action. (Norgart, at p. 398.)

Regarding the latter requirement, the Supreme Court subsequently summarized the law as follows: “[I]n order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light. In order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808-809 (Fox).)

Porter concedes that he suspected he may have been a victim of malpractice, but he does not specify the time at which he developed that suspicion. Because Porter makes no argument that reason for suspicion did not exist at the time of his re-admission to the hospital, we accept his allegation that “[m]y claims against [defendants] accrued on or about 02/06/2002 to 02/08/2002.” Accordingly, in the absence of evidence to support application of the discovery rule, Porter’s section 911.4 application was untimely.

The pleadings and proof submitted with plaintiff’s section 946.6 petition failed to demonstrate facts sufficient to invoke the discovery rule for at least two reasons. First, once Porter had grounds for suspicion, he was required to conduct a reasonable inquiry. In order to satisfy the legal time deadlines, he was required to undertake this reasonable investigation within either the six months provided by section 911.2, subdivision (a), or the one year provided by the applicable statute of limitations, Code of Civil Procedure section 340.5.[3] Although Porter claims to have discussed his condition with five separate doctors, he does not provide a date for any of those conversations. Accordingly, the only evidence provided of any act of investigation within the requisite time period is Porter’s request for a copy of his medical records in April 2002. This is simply not sufficient to demonstrate that he undertook a timely, reasonable investigation.[4]

Second, as noted in Fox, Porter was required to plead and submit evidence demonstrating that he “could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.” (Fox, supra, 35 Cal.4th at p. 809.) Porter’s fundamental argument for invoking the discovery rule is that he was “unable” to assert a claim prior to October 2004 because no medical professional had told him there were grounds for believing Highland Hospital had committed malpractice prior to that date. The argument misunderstands the requirements of the discovery rule. Porter was required to demonstrate not merely that he lacked evidence to assert a claim within the limitations period, but also that he was justifiably unable to locate such evidence during that time--that is, he could not reasonably have discovered the expert’s opinion within the year afforded him by the statute of limitations.[5] (Fox, supra, 35 Cal.4th at p. 809.)

Although Porter alleged that he “was unable to obtain the factual basis for a claim of malpractice against his treating doctors until a sixth doctor in October, 2004 gave him that basis,” he provided no facts to support this claim. There is no evidence to suggest that Porter’s injuries were so serious as to prevent him from investigating. The only evidence to support Porter’s claim in the petition that he was unable to obtain a favorable expert opinion before October 2004 “because of his disability and continuing medical care” is the statement that he “was in substantial pain and discomfort, requiring medication, hospitalization and frequent visits to the doctors . . . for a period of years” after the accident. This statement is simply too vague to demonstrate a level of disability that would have prevented Porter from undertaking an investigation. Nor did Porter provide evidence to suggest that reasonable diligence within the limitations period would not have located the professional who ultimately offered an opinion of malpractice. Indeed, other than the reference to his suffering, there is no evidence to explain Porter’s delay at all. Accordingly, there is no factual basis to support application of the discovery rule.

Because we affirm the trial court’s dismissal on the ground of untimeliness, we do not reach the question of Porter’s excusable neglect.

III. DISPOSITION

The judgment of the trial court is affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Stein, J.

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[1] All statutory references are to the Government Code unless otherwise indicated.

[2] The record does not contain any information about the relationship between Highland Hospital and the Medical Center. For purposes of this appeal, we assume merely that the Medical Center is a public entity and that it was responsible for any malpractice occurring at Highland Hospital. The Medical Center does not dispute such a characterization.

[3] For purposes of this case, we need not and do not decide between these two time periods.

[4] Alternatively, Porter could have provided evidence that he was justifiably unable to conduct the reasonable investigation in a timely manner. As discussed below, no such evidence was provided.

[5] Although Porter seems to suggest that he should be excused because other doctors had told him he did not have a factual basis for a malpractice claim, the Supreme Court has held that such misdirection, if misdirection it was, is irrelevant for purposes of the discovery rule. (See Gutierrez v. Mofid (1985) 39 Cal.3d 892, 900.) Regardless of the advice of other doctors, Porter was required to show that he could not reasonably have obtained the favorable opinion within the period of the statute of limitations.