Theriault v. Hoag Memorial hospital Presbyterian

Filed 6/1/07 Theriault v. Hoag Memorial hospital Presbyterian CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from a judgment of the Superior Court of Orange County, Clay M. Smith, Judge. Affirmed.

Law Offices of Lee A. Wood and Raymond E. Brown for Plaintiff and Appellant.

Cassel Malm Fagundes, Joseph H. Fagundes, Floyd W. Cranmore; DAntony, Doyle & Moore and Geoffrey T. Moore for Defendant and Respondent.

* * *

Introduction

While a patient at Hoag Memorial Hospital Presbyterian (Hoag), John Theriault was moved from a gurney to a hospital bed by hospital attendants. At the time, Theriault had a Foley catheter inserted in his urethra, which ran to a collection bag attached to the gurney. Theriault claims that by moving him from the gurney without disconnecting the collection bag, the attendants caused him damage. Theriault sued Hoag for medical negligence, negligence, and medical battery. The trial court granted Hoags motion for summary judgment, and Theriault appealed. We affirm.

The trial court correctly determined the causes of action for medical negligence and negligence were barred by the statute of limitations in Code of Civil Procedure section 340.5. (All further statutory references are to the Code of Civil Procedure.) Applying statutory and California Supreme Court authority, we conclude (1) the complaint was filed more than one year after Theriault discovered his injuries were the result of some wrongdoing, and (2) the running of the statute of limitations was not tolled.

The trial court also correctly determined that Theriault could not prove a cause of action for medical battery, in light of his written consent to admission and treatment. Theriaults transfer from the gurney to the hospital bed was a necessary and anticipated part of his treatment, and thus was within the scope of the consent.

Statement of Facts

On April 10, 2003, Theriault underwent a prostatectomy at Hoag. After the procedure, a 30‑cc Foley catheter was placed in Theriaults urethra. Theriault was placed on a gurney, and a collection bag running from the Foley catheter was attached to the gurney. Two hospital attendants transported him via the gurney from a recovery room to a hospital room. The attendants moved Theriault from the gurney to a hospital bed without first detaching the collection bag from the gurney. He felt a dramatic yanking on the Foley catheter, resulting in severe pain.

On August 11, 2003, Theriault wrote a letter to Hoag, regarding pain and other complications he had experienced following the gurney incident. The letter described the incident, including the fact it result[ed] in horrendous pain and trauma. The letter closed, [m]alpractice litigation would not be a desirable option. However, I need to notify you officially of this incident/accident and how it has affected me healthwise and financially. Hoag responded in writing on August 29, 2003, through an employee in its patient relations administration group: As you may be aware, some of your complications you are experiencing could be related to your surgical procedure and healing process. [] In review of your medical record, I have not seen any documentation to correlate with the concerns in your letter. However, I am furthering my investigation and will be following up with the staff in question directly. Theriault declared he interpreted this letter as saying the gurney incident didnt happen.

Theriault wrote a second letter to Hoag on April 9, 2004. In that letter, Theriault wrote, [o]n August 11, 2003, I wrote to you to officially notify you of a negligent medical incident that occurred in my hospital room at Hoag Hospital on April 10, 2003. [] . . . [] Please consider this letter a claim in the amount of $55,000 for the incontinence expenses from the time of my surgery and continuing to the final year of my life expectancy.

Hoags director of risk management services responded in writing on April 14, 2004: In review of previous correspondence in this matter, I see that on August 22, 2003 we received a letter from you in which you claimed an incident occurred at the April 2003 admission when you were transferred from a gurney to a hospital bed post prostatectomy. You stated that the transporters did not move the foley catheter from gurney to bed, causing you to experience pain. [] . . . [] A second review of your medical record has now been completed for the admission in question. There is no charting that indicates any problems or issues with the catheter or urination other than those to be expected post operatively. Based on this review, and having no information to the contrary, I am unable to substantiate your claim and therefore must deny compensation. [] If you have any medical records in which a physician has documented anything that would substantiate your claim that your ongoing problems are directly associated with the foley incident, you should copy them to my attention immediately and I will again review your concerns.

In October 2004, Theriault went to another doctor, who determined Theriaults continuing problems with incontinence, urgency, and impotence were related to a stricture caused by the Foley catheter incident.

Procedural History

On December 9, 2004, Theriaults counsel sent Hoag a 90‑day letter pursuant to section 364, informing Hoag of Theriaults intention to file a lawsuit against it. Theriault filed his complaint on March 9, 2005, asserting three causes of action: (1) medical negligence, (2) negligence, and (3) medical battery. Each cause of action was based on the same facts that following Theriaults prostatectomy, he was moved from a gurney to a hospital bed by Hoag employees, who failed to first remove the collection bag attached to Theriaults Foley catheter, causing injury and damage to Theriault.

Hoag filed a motion for summary judgment and/or summary adjudication. The trial court granted the motion. The courts tentative ruling, which became the order of the court following a hearing, reads in relevant part as follows: The Court concludes that CCP 340.5 sets forth the applicable statute of limitations. Plaintiffs claim for medical negligence and the purported claim for general negligence both arise out of the rendering of professional services of Defendant and are therefore subject to CCP 340.5. See, Bellamy v. Superior Court, 50 Cal.App.4th 797, 806 (1996). [] Accordingly, Plaintiff was required to commence this action on the earlier of (i) three years from the date of injury, or (ii) one year from the date on which Plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the injury. [] In this case, it is apparent that Plaintiff discovered the injury on or before [A]ugust 11, 2003, the date of his first letter to Defendant. That letter confirms his awareness of both the injury itself and the allegedly negligent cause thereof. This letter is more than sufficient to trigger the commencement of the statute of limitations. See, Knowles v. Superior Court, 118 Cal.App.4th 1290 (2004). Finally, the Court finds that Defendants written response to Plaintiff does not constitute grounds for the tolling of the statute of limitations. The motion is therefore granted as to the first and second causes of action. [] Plaintiffs third cause of action is for medical battery. The 4th District Court of Appeal has recently reiterated that the battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. [] In this case, no reasonable trier of fact could conclude from the evidence presented, that Defendants employees contacted Plaintiffs body in a manner that was outside of the scope of consent. Even Plaintiffs own declaration simply describes that the employees merely transported Plaintiff from the gurney to the hospital bed. It is possible that they did so in a negligent fashion, but this cause of action is not for negligence; it is for battery, an intentional harmful or offensive contact. On the record in this matter, it cannot be seriously disputed that the employees contact with Plaintiff was within the scope of his consent to the medical procedure. Thus, even if the physical contact was performed negligently, it did not constitute a battery. [] Accordingly, the motion is granted as to the third cause of action. (Italics omitted.)

On May 1, 2006, the court entered an order granting the motion for summary judgment, and entered judgment in favor of Hoag and against Theriault. Theriault timely appealed.

Discussion

I.

Standard of Review

A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial courts decision de novo, considering all of the evidence the parties offered in connection with the motion . . . and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . . [Citations.] (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476‑477; see Code Civ. Proc., 437c, subd. (p)(2).)

II.

The trial court correctly determined there were no triable issues of material factas to whether Theriaults negligence claims were barred by the applicable statute of limitations, and whether tolling applied.

Claims for professional negligence against a hospital must be filed within one year after the plaintiff discovers, or reasonably should have discovered, the injury, or within three years after the injury occurs, whichever occurs first. 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. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. ( 340.5.)

This statutory limitations period applies to Theriaults claims for medical negligence and negligence, since professional negligence is defined as a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital. ( 340.5, subd. (2); see Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 805‑809.)[1]

Hoag contends the negligence claims are barred by the statute of limitations because they were not filed within one year after Theriault discovered his injury. What constitutes discovery of the injury for purposes of section 340.5? Under the discovery rule, the statute of limitationsbegins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. As we said in Sanchez [v. SouthHooverHospital (1976) 18 Cal.3d 93] and reiterated in Gutierrez [v. Mofid (1985) 39 Cal.3d 892], the limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry . . . . [Citations.] 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, 1110‑1111, fn. omitted.)

Where the uncontradicted facts are susceptible of only one legitimate inference, the trial court may resolve a statute of limitations issue on summary judgment. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1112.)

Theriaults August 11, 2003 letter stated the gurney incident/accident affected Theriault healthwise and financially. The letter also threatened malpractice litigation. It is clear that as of August 11, 2003, Theriault suspected he had been injured and his injury was caused by wrongdoing; he therefore had an incentive to sue as of that date. (See Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at pp. 1110‑1111.) Theriaults letter of April 9, 2004 makes clear that as of August 11, 2003, Theriault believed the gurney incident was a negligent medical incident. There are no triable issues of material fact that could have defeated summary judgment.

This conclusion is reinforced by Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1294, in which the defendant doctor in a medical malpractice case moved for summary judgment on the ground the plaintiffs (the patients wife and children) failed to file their lawsuit within one year after discovering their claims. The trial court denied the motion, and the defendant sought writ relief from the appellate

court. (Ibid.) The appellate court granted the petition and directed the trial court to grant the motion. (Id. at p. 1304.) On November 20, 2000, the doctor performed renal arterial stenting to treat the patients renal stenosis. (Id. at p. 1293.) On November 21, two other doctors performed surgery to repair the patients abdominal aortic aneurysm. (Ibid.) The patient died November 24, while still hospitalized. (Ibid.) The plaintiffs filed a wrongful death action against the defendant on November 6, 2002. (Id. at p. 1294.) The plaintiffs admitted that shortly after the patients death, they each suspect[ed] . . . that someone ha[d] done something wrong to cause his death. (Id. at p. 1298.) The appellate court concluded the limitations period was triggered when the plaintiffs suspected medical negligence, rather than when their investigation premised upon that suspicion led them to suspect that [the defendant] had been negligent. (Id. at p. 1301.) Similarly, here, the statute of limitations was triggered when Theriault suspected medical negligence. That suspicion is demonstrated by Theriaults August 11, 2003 letter.

Theriault argues that even if the limitations period began to run when he sent the August 11, 2003 letter, it was tolled as a result of Hoags response to that letter on August 29. While a patient remains under the care of a physician, the patient may rely on the physicians professional skill and judgment. Indeed, because of the nature of the physician-patient relationship, the patient has little choice but to do so. (Sanchez v. South Hoover Hospital, supra, 18 Cal.3d 93, 102.) Therefore, during 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. [Citations.] (Ibid.; see Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1393.)[2]

This tolling doctrine, however, cannot stop the running of the one‑year discovery statute of limitations in section 340.5; it applies only to the three‑year limitations period. As stated by the California Supreme Court: However, we are impressed by the fact that to apply the tolling provision to the one‑year period would produce a result seemingly at odds with common sense. Under such a construction, the mere fact of nondisclosure by the physician would suspend indefinitely the period within which plaintiff might elect to bring an action, and this even though the plaintiff (1) had actually discovered the basis of his action by other means, or (2) could have done so by the exercise of reasonable diligence. In effect, not one but two, elements would always be necessary in order to trigger the running of the one‑year period: discovery (actual or constructive) by the patient and disclosure by the doctor even if the former was, in a particular case, not dependent upon the latter. The mere statement of the proposition argues against its acceptance. (Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at p. 98.) Although Sanchez v. South Hoover Hospital interpreted the former version of section 340.5,[3] its analysis and conclusion have long been held equally applicable to the current language of section 340.5 on this point. (Graham v. Hansen (1982) 128 Cal.App.3d 965, 974‑975.)

Therefore, the trial court correctly decided Theriaults causes of action for professional negligence were barred by the statute of limitations, and the limitations period was not tolled by Hoags response to Theriaults August 11 letter.

III.

The trial court correctly determined there were no triable issues of material fact as to whether Theriault could state a claim for medical battery because Theriaults transfer from the gurney to the hospital bed was within the scope of his consent to admission and treatment at Hoag.

The trial court granted Hoags motion for summary judgment as to Theriaults claim for medical battery because the actions of the Hoag employees were within the scope of Theriaults consent to treatment. To establish a claim for civil battery, the plaintiff must prove: (1) the defendant intentionally acted in a way which resulted in a harmful or offensive contact with the plaintiff; (2) the plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to the plaintiff. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.)

Theriault consented to be admitted to the hospital and to undergo the prostatectomy. Theriaults consent extended to all reasonable and necessary actions by Hoags employees in furtherance of the prostatectomy, including but not limited to his transfer from the recovery room to the hospital room on a gurney, and the transfer from the gurney to the hospital bed. (See generally Piedra v. Dugan, supra, 123 Cal.App.4th at pp. 1496‑1497.)

Theriaults claim under these circumstances was based in negligence, not battery. The battery theory should be reserved for those circumstances when a doctor

performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence. (Cobbs v. Grant (1972) 8 Cal.3d 229, 240‑241.)

Theriaults declaration in opposition to Hoags motion for summary judgment included, in relevant part, the following statement: Although I consented to the radical prostatectomy, I did not consent and would not have consented to having the attendants attempt to move me to a hospital bed without detaching the night bag from the gurney. The actions of the attendants in attempting to move me appeared voluntary and intentional and exceeded the bounds of my consent. This declaration does not change our conclusion. Theriault consented to the prostatectomy, which consent included necessary actions such as the transfer from the gurney to the hospital bed. Theriault did not consent to the transfer being performed in a negligent manner, which roots his claim in negligence, not battery. That the action of the attendants was voluntary and intentional is consistent with the movement of a patient from the transporting gurney to the stationary hospital bed, and does not convert the action into one for medical battery.

The trial court correctly determined Theriault could not prove a claim for medical battery, and it was therefore appropriate for the court to grant Hoags motion for summary judgment.

Disposition

The judgment is affirmed. Respondent to recover costs on appeal.

FYBEL, J.

WE CONCUR:

OLEARY, ACTING P. J.

IKOLA, J.

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[1] Hoag argued in its motion for summary judgment and argues on appeal that Theriaults medical battery claim is also subject to the statute of limitations in section 340.5. The language of the statute, however, is clearly limited to negligent, not intentional, acts and omissions. Hoag cites cases which arise under the Medical Injury Compensation Reform Act, but which do not address the applicable statutes of limitations. (See, e.g., Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191; Looney v. Superior Court (1993) 16 Cal.App.4th 521, 527‑528.) Theriaults medical battery claim was subject to the two-year statute of limitations specified by section 335.1.

[2] In his declaration in opposition to the motion for summary judgment, Theriault stated, I have been a patient of Hoag Hospital since at least 1984. At the time that I received the [August 29, 2003] letter from Hoag Hospital, I was still treating at that institution. In fact, I have presented to Hoag Hospital for treatment since receiving the letter from Karen Hanson in August 2003. Theriault provided no more specific information regarding his dates of treatment at Hoag. We need not determine whether any fiduciary relationship between a hospital and patient continued between the time of Theriaults hospitalization and the time he presented . . . for treatment to toll the statute of limitations, because, as noted post, the one‑year time period cannot be tolled.

[3] Former section 340.5 read, [i]n an action for injury or death against a physician or surgeon, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatrist, licensed psychologist, osteopath, chiropractor, clinical laboratory bioanalyst, clinical laboratory technologist, veterinarian, or a licensed hospital as the employer of any such person, based upon such persons alleged professional negligence, or for rendering professional services without consent, or for error or omission in such persons practice, four 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 first occurs. This time limitation shall be tolled for any period during which such person has failed to disclose any act, error, or omission upon which such action is based and which is known or through the use of reasonable diligence should have been known to him.