Ramirez v. County of Los Angeles

Filed 8/29/06 Ramirez v. County of Los Angeles CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, William F. Highberger, Judge. Reversed.

Law Offices of Manuel Hidalgo, Manuel Hidalgo and Rolando Hidalgo for Plaintiffs and Appellants.

Pollak, Vida & Fisher, Girard Fisher, Daniel P. Barer; Law Offices of David J. Weiss, David J. Weiss and Mark J. Habeeb for Defendants and Respondents.

______________________________

Plaintiff Teresa Ramirez underwent surgery to remove a tumor on her spine. Afterward, she could not walk, a common side effect of the surgery. The doctor told her she was fine, and, with physical therapy, she would walk again. Ramirez had a second surgery to correct a problem, a spinal leak, caused by the first surgery. Still, she could not walk but was told again that she was doing well and that physical therapy would enable her to walk.

After several months of physical therapy with no signs of improvement, Ramirez filed this action against a county medical center and her doctors, alleging medical malpractice. Defendants moved for summary judgment, arguing they did not commit malpractice, and, alternatively, the action was barred by the statute of limitations. The trial court granted the motion, ruling that the action was time-barred.

We conclude the trial court erred. Because defendants assured Ramirez that she was doing fine and would recover with physical therapy, neither she nor a reasonable person in her position would have suspected wrongdoing. We therefore reverse.

I

BACKGROUND

For purposes of our review, we accept as true the following facts and reasonable inferences supported by plaintiffs’ evidence and defendants’ undisputed evidence. (See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178-179.)

On November 11, 2001, Ramirez, then 49 years old, went to County of Los Angeles-University of Southern California Medical Center (County-USC), complaining of severe lower back pain, radiating to her lower extremities. A magnetic resonance image test (MRI) revealed a large hemorrhaging mass with expansion into the spinal cord. The diagnosis was myxopapillary ependymoma, a type of spinal tumor.

Ramirez was told the risks and benefits of surgery. A surgeon at County-USC told Ramirez that the operation would not affect her ability to walk. Doctors also said that if the surgery did not “come out right,” she would be able to walk again “with therapy and time.” According to defense counsel, Ramirez signed consent forms which stated that one of the risks of surgery was permanent difficulty in walking or ambulating. Ramirez did not recall signing the consent forms. There was a significant surgical risk of permanent or temporary neurological weakness given Ramirez’s type of ependymoma. A majority of surgical patients need extensive physical therapy to optimize recovery from that weakness.

On one occasion, Ramirez asked if the surgery was dangerous and was told “it wasn’t because it was outside the nerve and they weren’t going to move anything in there.” On another occasion, an interpreter for a doctor told Ramirez that the surgery was dangerous, but the doctor “was going to do whatever possible not to damage [her] spine.”

On January 3, 2002, Ramirez underwent surgery at County-USC. Dr. Larry Khoo performed the surgery, assisted by Dr. Anthony Kim. The attending physician was Dr. Thomas Chen. After the operation, Ramirez believed that the surgery “didn’t turn out okay” because she could not get up or sustain herself. She talked to Dr. Khoo, who said she was going to be fine and would be able to walk. She asked another doctor at County-USC, Dr. Rice, about her condition. He said that “with therapy [she] was going to be able to walk.” Dr. Rice also told Ramirez “not to worry about it, that with time [she] was going to walk.” Two to three days after the surgery, Ramirez was transferred to Rancho Los Amigos National Rehabilitation Center for therapy.

Within a couple of weeks of the surgery, Dr. Rice told Ramirez she needed to return to County-USC for additional surgery to repair a leak of cerebrospinal fluid. Dr. Rice said the first surgery “had not come out right,” and there was a “little hole” that had not been “closed correctly.”

On or about January 20, 2002, Ramirez underwent surgery at County-USC to repair the leak. Dr. Khoo performed the surgery, assisted by Drs. Kim and Reiss.[1] Thereafter, Dr. Rice told Ramirez that the hole had closed well, there would not be any problems, and, with time and rehabilitation, she would be able to walk again. A week later, Ramirez’s condition had stabilized, and she was transferred back to the rehabilitation center for further management.

Ramirez continued with her therapy, which included the use of weight machines, a bicycle, and physical exercises. The treatment at the center was very good. Ramirez did not know why she was still unable to walk. In or around April 2002, she was released from the center but continued receiving therapy on an outpatient basis either there or elsewhere for several more months, at least through January 2003.

At some point before Ramirez completed her outpatient therapy, she returned to County-USC for an MRI. While there, a doctor told her that during the January 3, 2002 surgery, “they had moved a nerve or something.” Ramirez now believes this is what prevents her from walking.

On April 30, 2003, Ramirez filed an administrative claim with the County of Los Angeles, alleging negligence on the part of County-USC, Khoo, Kim, and Chen, beginning with her surgery on January 3, 2002, and continuing thereafter. The claim alleged negligent assessment, diagnosis, care, and treatment, including surgery and postoperative rehabilitation. The claim was denied on May 28, 2003.

On November 25, 2003, Ramirez and her husband, Refugio, filed this action against the County of Los Angeles, Khoo, Kim, and Chen. Ramirez alleged a cause of action for medical malpractice arising out of the January 3, 2002 surgery; Refugio alleged loss of consortium. Defendants answered the complaint, generally denying all material allegations. (See Code Civ. Proc., § 431.30, subd. (d).)

On November 4, 2004, defendants filed a motion for summary judgment, contending that (1) defendants had not committed malpractice as a matter of law, and (2) the suit was barred by the statute of limitations. The moving papers were supported with declarations and other evidence. Dr. Lawrence Marshall, a neurosurgeon, stated in a declaration that based on his education, training, experience, and review of Ramirez’s medical records, he believed that defendants had met the applicable standard of care in the community in caring for and treating Ramirez. With respect to the statute of limitations issue, defendants relied primarily on a declaration of counsel with attached exhibits. They did not rely on Ramirez’s deposition testimony.

Plaintiffs filed opposition papers, including the declarations of two physicians and portions of Ramirez’s deposition testimony. In his declaration, Dr. Kenneth Nudleman, a neurologist, discussed the “somatosensory evoked potential” (SSEP) readings taken during Ramirez’s first surgery. They showed that during the operation, the spinal cord sustained periods of “alarming” physiological dysfunction. The readings were reported to the surgeon, Dr. Khoo, who nonetheless continued with the surgery. Dr. Richard Brown, a neurosurgeon, opined in a declaration that Drs. Khoo, Kim, and Chen were negligent in going forward with the surgery after learning of the “abnormal SSEPs.” On the statute of limitations issue, plaintiffs relied in part on excerpts from Ramirez’s deposition concerning what she knew or suspected about her condition.

In their reply, defendants supported their statute of limitations argument by relying on excerpts from Ramirez’s deposition. Defendants also lodged the deposition transcripts with the trial court.

The motion was heard on March 24, 2005. The trial court granted the motion, concluding that the action was time-barred. The court cited 70 pages of Ramirez’s deposition, most of which were not cited by the parties. Judgment was duly entered. Plaintiffs appealed.

II

DISCUSSION

A motion for summary judgment must be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

“‘”A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action]. . . . In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court. . . . We must determine whether the facts as shown by the parties give rise to a triable issue of material fact. . . . [T]he moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.”’” (Huntington Memorial Hospital v. Superior Court (2005) 131 Cal.App.4th 893, 901.)

We examine the evidence that was before the trial court, whether by way of the moving papers, the opposition, or the reply. (See Code Civ. Proc., § 437c, subd. (c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 749-751.) We view the evidence and the reasonable inferences therefrom in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

The county is a public entity covered by the Government Tort Claims Act (Gov. Code, § 810 et seq.; all further statutory references are to the Government Code unless otherwise indicated). The individual defendants, as employees of county, are also covered by the act. (See Adler v. Los Angeles Unified School Dist. (1979) 98 Cal.App.3d 280, 286; § 950.2.) “The purpose of the [Government] Tort Claims Act . . . is to provide the public entity [with] sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. . . . Submission of a claim to a public entity pursuant to [the act] is a condition precedent to [an] action and the failure to present the claim bars the action.” (Paramount Unified School Dist. v. Teachers Assn. of Paramount (1994) 26 Cal.App.4th 1371, 1387, citations omitted.)

As a prerequisite to filing suit, the act requires that a claim for personal injury be presented to the appropriate public entity no later than six months after the accrual of the cause of action. (§§ 905, 911.2, 945.4; Ocean Services Corp. v. Ventura Port Dist. (1993) 15 Cal.App.4th 1762, 1775.) “Accrual” is the date on which the cause of action would have accrued for the purpose of commencing the statute of limitations in an action between private litigants. (§ 901.) The public entity has 45 days within which to issue a written disposition. (§§ 912.4, 913.) The claimant must file a civil action within six months after the public agency issues its decision. (§ 945.6.)

An action against a health care provider for professional negligence must be commenced within either 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. (Code Civ. Proc., § 340.5.) “The term ‘injury’ means both the plaintiff’s physical condition and its negligent cause; thus, once a plaintiff knows, or by reasonable diligence should have known, he or she has been harmed through professional negligence, the one-year limitations period begins to run.” (Jefferson v. County of Kern (2002) 98 Cal.App.4th 606, 610.)

“A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ . . . Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. . . . Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807, citations omitted.) “[A]ccrual of a cause of action [is] contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause.” (Id. at p. 808.)

“A 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, and therefore an incentive to sue, 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.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.)

“This rule sets forth two alternate tests for triggering the limitations period: (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. . . . The first to occur under these two tests begins the limitations period.” (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391, citation omitted.)

“Although the subjective prong of the discovery rule requires merely a suspicion ‘”that someone has done something wrong” to [her]’ . . . , a patient ‘is fully entitled to rely upon the physician’s professional skill and judgment while under his care, and has little choice but to do so.’ . . . While this reliance may not be justified if the patient actually suspects wrongdoing . . . , this suspicion must be meaningful by having some effect on the patient’s ongoing relationship with her doctor.” (Kitzig v. Nordquist, supra, 81 Cal.App.4th at p. 1393, citations omitted.) “[D]uring the continuance of this professional relationship, which is fiduciary in nature, the degree of diligence required of a patient in ferreting out and learning of the negligent causes of his condition is diminished.” (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102.) But the limitations period commences if the patient discovers the claim notwithstanding a physician’s continuing efforts to conceal his wrongdoing. (Id. at p. 99.)

“‘The best medical treatment sometimes fails, or requires long and difficult recuperation, or produces bad side effects.’ . . . ‘The mere fact that an operation does not produce hoped-for results does not signify negligence and will not cause commencement of the statutory period.’” (Kitzig v. Nordquist, supra, 81 Cal.App.4th at pp. 1391-1392, citation omitted; accord, Unjian v. Berman (1989) 208 Cal.App.3d 881, 885-886.)

“Thus, even if a patient is unhappy with his condition, he may not suspect he has been wronged. Lacking medical knowledge, he may reasonably rely upon his negligent physician’s soothing disclaimers. . . . [O]ne often has no prompt means of learning that he has been hurt by professional negligence.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 899.) The limitations period does not begin to run where the “patient[] believed the doctors’ explanations that [she] would improve.” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 824.)[2]

In the complaint, Ramirez alleges that defendants’ negligence occurred on January 3, 2002, the date of her first surgery. She filed her administrative claim with the County of Los Angeles on April 30, 2003. Her cause of action therefore had to accrue on or after October 30, 2002, to be timely.

First, defendants contend Ramirez suspected them of wrongdoing within a few days after the first surgery, when, unable to walk, she thought the operation “didn’t turn out okay.” We question whether this sentiment constituted suspicion of wrongdoing rather than disappointment over the outcome of the surgery. But either way, Ramirez asked Drs. Khoo and Rice about her condition and was told not to worry; she would be able to walk after undergoing physical therapy. Further, most patients have to participate in extensive therapy to regain their strength after surgery of this type. It would be anomalous to conclude that Ramirez suspected, or should have suspected, wrongdoing based on a common side effect of the operation.

Second, Ramirez returned to County-USC in less than a month to have a spinal leak repaired. Before the operation, Dr. Rice told her that the leak was caused by a failure to close a “little hole” “correctly” during the first surgery. Ramirez did not attribute her inability to walk -- the basis of this lawsuit -- to the leak. And, once again, after the operation, Dr. Rice assured Ramirez that there were no problems, and she would be able to walk after completing therapy.

Finally, during Ramirez’s first follow-up visit to County-USC after she was discharged from the rehabilitation center, a doctor told her that “they had moved a nerve or something” during the first surgery. Ramirez now believes this to be the cause of her inability to walk. The record is unclear, however, as to when this conversation occurred. We do not have the benefit of a separate statement on this point because, as mentioned, defendants’ moving papers did not rely on Ramirez’s deposition testimony. Nor does defendants’ appellate brief indicate the date. Instead, the brief cites pages in volume 2 of Ramirez’s deposition transcript (lodged with this court) and states in a parenthetical that those pages establish the “timing of [the] visit.” The cited pages contain a statement by defense counsel that Ramirez left the rehabilitation center in April 2002. This is not evidence.

Nevertheless, our independent review of the deposition shows that Ramirez was discharged from the center sometime in April 2002. An exact date is not given.[3] Further, Ramirez was asked if her first follow-up visit to County-USC was less than six months after she left the center. She replied, “I think so, less.” Given that Ramirez left the center in April 2002, she would have returned to County-USC, at the latest, in October 2002. Assuming further that Ramirez should have suspected wrongdoing upon hearing the doctor’s statement about the “moved nerve,” she had six months thereafter -- sometime in April 2003 -- to file an administrative claim with the county. She filed her claim on April 30, 2003. Under this analysis, the claim could have been timely filed, perhaps by only a day or two.

In any event, we cannot conclude as a matter of law that the doctor’s statement about the moved nerve caused Ramirez immediately to suspect that she had been the victim of wrongdoing. In deposition, Ramirez testified to the effect that she eventually suspected that the doctors had committed malpractice during the first surgery because (1) they told her she would be able to walk after undergoing physical therapy, (2) the therapy she received at the rehabilitation center was very good, and (3) after months of inpatient and outpatient therapy -- through at least January 2003 -- she was still unable to walk. Viewing the evidence most favorably to Ramirez, she did not suspect defendants of wrongdoing until, at the earliest, when she completed therapy in January 2003, well within six months of filing her administrative claim. We will not assume that Ramirez was, as a matter of law, a pessimist.

Nor would a reasonable person have thought differently. A patient who has been told from the start that physical therapy will enable her to walk again, and who is still undergoing therapy, may not think she has been wronged just because she hears that the surgeon “moved a nerve” when operating on a tumor near her spine. To suspect wrongdoing in the midst of the therapy -- to think that her condition is essentially permanent no matter what she does -- would be at odds with the physically demanding treatment she has been undergoing for several months and which she has yet to finish. We think a reasonable patient could continue to focus on therapy as the solution to the problem rather than begin to blame her doctors for causing the problem in the first place.

Accordingly, defendants did not establish that plaintiffs’ complaint is barred by the statute of limitations. Summary judgment should have been denied.

III

DISPOSITION

The judgment is reversed. Appellants are entitled to costs on appeal.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

I concur:

ROTHSCHILD, J.

I concur in the judgment only.

VOGEL, J.

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[1] Ramirez’s deposition testimony suggests that Dr. Reiss and Dr. Rice are the same person. The parties do not comment on the matter.

[2] The same principles apply to the accrual of Refugio’s cause of action for loss of consortium. (See Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1438.)

[3] Ramirez testified she returned to the center (after discharge from County-USC following the second surgery) for a period of two and one-half months “[m]ore or less.”