Cole v. MarshallMedicalCenter

Filed 6/1/07 Cole v. Marshall Medical Center CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(El Dorado)

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Plaintiff James Cole filed his complaint in propria persona for malpractice against Marshall Medical Center (Hospital) and a physician, Rajiv Pathak, in February 2005. The defendants moved successfully for summary judgment on the ground (among others) that the action is time-barred. The plaintiff filed his timely appeals in propria persona from the subsequent entry of judgment in favor of each defendant. We have consolidated the appeals solely for purposes of consideration and argument. We shall affirm.

Scope Of Review

Summary judgment provides a court with a procedure to examine pleadings to determine whether a trial is truly necessary to resolve the dispute between the parties. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844 (Aguilar).)

Under the historic paradigm for our de novo review of a motion for summary judgment (Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 734-735), we first identify the material issues as framed in the pleadings. If the movant has established A prima facie entitlement to judgment in its behalf on these issues, we consider whether the opponent has produced evidence creating a factual conflict with respect to one of these issues that can be resolved only at a trial. (Ibid.)

Pleadings

Given the ground of our disposition of this appeal, the pertinent allegations of the complaint are few. After a car accident on May 14, 2000, the plaintiff was taken to defendant Hospitals emergency room, where he was admitted for treatment. A day after his discharge, the plaintiff returned, complaining of pain, weakness, and numbness in his leg. Defendant Pathak examined him and concluded there was aggravation of preexisting spinal problems. The plaintiff returned to the emergency room about a month later complaining of pain on his left side and nausea from the pain medications. The emergency room sent him home with an antinausea medication.

In December 2000, the plaintiff experienced a stroke and returned to the emergency room. Defendant Pathak was not involved in his treatment.

In June 2002, the plaintiff returned to the emergency room and was admitted with symptoms of a possible stroke. Defendant Pathak examined the plaintiff. He concluded the symptoms were the result of hypertension; other than recommending an alteration in the plaintiffs medications, he believed the plaintiff was stable enough for discharge.

In August 2002, the plaintiff experienced a heart attack. Defendant Hospital admitted him, and then later transferred him to Sutter Memorial Hospital. During his stay at defendant Hospital, the plaintiff learned that medical personnel believed he might have suffered a stroke at the time of his car accident and his heart condition might be related to the accident as well.

The plaintiff underwent more diagnostic tests at defendant Hospital in October 2002. The results were not disseminated to the plaintiff or his cardiologist. The plaintiff did not learn of them until October 2004. The plaintiffs wife had a consultation with defendant Pathak shortly afterward regarding the results of the tests. Defendant Pathak referred the plaintiffs wife to other medical personnel for answers. The plaintiff was unable thereafter to secure an appointment with defendant Pathak. The plaintiff is on a waiting list for treatment in Sacramento (but may seek emergency treatment if necessary).

The February 2005 complaint alleged causes of action for medical malpractice, intentional and negligent infliction of emotional distress, and defendant Pathaks abandonment of the plaintiffs care. The trial court sustained a demurrer to the theory of intentional infliction of emotional distress.^[2] However, it found the complaint on its face did not establish that the remaining theories were time-barred, and overruled that ground of the demurrer as a result.^[3]

Defense Evidence

The defendants separately moved for summary judgment. We combine the facts adduced in both motions.

In addition to providing a factual basis for the allegations we have already summarized, the defendants produced the following facts from the plaintiffs deposition. The plaintiff had never experienced a stroke, nor had he had any etiology for strokes, before his car accident. Therefore, as early as his December 2000 treatment for the stroke he suspected that it was related to the accident, but it was up to [his] attorney to prove that proper medical treatment would have prevented the December 2000 stroke. When he was readmitted in August 2002 with his heart attack, he claimed that the cardiologist (who had treated him after the accident) admitted to him that he had failed to diagnose the connection between the accident and the heart attack and the strokes. Although the plaintiff asserted a passive approach to the management of his medical condition, it did cross [his] mind that a missed diagnosis had led to his problems with strokes and his heart. Finally, he admitted that in May 2003, he had directed his attorney to send a notice of his intent to file a malpractice action against the defendants (Code Civ. Proc.,  364) because he suspected that they had done something wrong during the course of their treatment of him from the May 2000 accident through August 2002.

Plaintiffs Evidence

The plaintiff did not dispute the truth of the facts that are central to the issue of the limitations period.^[4] As far as evidence to counter the evidence of the defendants, he submitted the cardiologists April 2003 deposition (describing the manner in which the doctor believed the accident contributed to the strokes--injuries to the heart muscle caused circulating clots--but not the heart attack), the declaration of his wife (asserting that his neurological damage . . . causes him to interpret questions and answer questions . . . perhaps out of context and therefore resulted in errors in his responses at his deposition), his remark at the outset of his deposition that the attorneys should not try to trick him because of his brain damage, and alleged documentation of inadequacies on the part of defendant Hospital in treating cardiac and stroke patients that had not been provided to him before he filed his complaint. He also argued that the complaint was based on events occurring through November 2004, but did not produce any evidence of malpractice after the May 2003 notice to the defendants other than defendant Pathaks refusal to treat the plaintiff in November 2004.

Discussion

I

A plaintiff ordinarily has no more than three years from the occurrence of personal injuries in which to file an action for medical malpractice. (Code Civ. Proc.,  340.5.) This statute contains only three bases for extending the three-year period; none other may apply.^[5] (Young v. Haines (1986) 41 Cal.3d 883, 893.) Within those three years, once a plaintiffs suspicions are aroused (or should be aroused) about the need to investigate if facts exist to prove that the personal injuries were the result of medical negligence, a one-year period in which to file an action begins running. (Barber v. Superior Court (1991) 234 Cal.App.3d 1076, 1082-1083 (Barber).) The three tolling provisions in the statute do not apply to this one-year period. (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896 (Gutierrez); Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046, 1057-1058 [upon discovery of foreign body plaintiff must bring action within one year; section 340.5s tolling exception extends only three-year maximum and does not entitle plaintiff to disregard limitations period entirely].) However, general principles of tolling may extend the one-year period within the three-year maximum. (Belton v. Bowers Ambulance Service (1999) 20 Cal.4th 928, 934; Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94, 101-104.)

In the present case, it is undisputed that the plaintiff had decided to sue the defendants (and presumably had concluded that there must have been some negligent cause of his condition, since we assume he was not initiating frivolous litigation) no later than May 2003. This required him to file a complaint no later than May 2004. (Cf. Hirschman v. Saxon (1966) 246 Cal.App.2d 589, 592 [sending letter stating dissatisfaction with treatment and suggesting plaintiff will report doctor to administrative agency commences one-year period to file suit].) Absent tolling, the February 2005 complaint was consequently untimely.^[6]

The plaintiff asserts that the concealment of the results of the October 2002 diagnostic tests and the other information purportedly attesting to the inadequacies of the defendants in treating stroke and cardiac patients delayed his discovery of facts putting him on notice of purported negligence on their part. However, this alleged concealment did not deter him from concluding that he should bring action against the defendants. Indeed, by April 2003 his attorney was already in possession of the cardiologists deposition opinion that the accident was a cause of the strokes as a result of damage to his heart that should have been detected in May 2000. Whatever the probative value of the additional evidence, it relates only to proof of the plaintiffs case, not an awareness of a potential actionable wrong (a distinction the plaintiff does not appreciate). Once there is a suspicion of wrongdoing, a plaintiff must decide whether to bring an action to vindicate this suspicion, or sit on his rights. (Henry v. Clifford (1995) 32 Cal.App.4th 315, 323.) The plaintiff therefore fails to establish any causal connection between this alleged concealment of facts and the failure to file a timely complaint.

Moreover, only affirmative misrepresentations that there is a nonnegligent cause of the injuries will toll the running of the limitations period under the statute; a failure to disclose facts that could prove negligence is insufficient, especially where a plaintiffs suspicions are already aroused. (Barber, supra, 234 Cal.App.3d at p. 1083; Trantafello v. Medical Center of Tarzana (1986) 182 Cal.App.3d 315, 320-321 & fn. 4 [tolling for intentional concealment based on rationale that the defendants false representations prevent the plaintiff from bringing the action before the period of limitations has run].)

The plaintiff also asserts that he continued as a patient of the defendants until he received the previously unavailable evidence, which tolled the limitations period until he filed his complaint. The rationale underlying this theory of tolling is the fiduciary relationship between the doctor and the patient, which can lull a patients suspicions. (Gutierrez, supra, 39 Cal.3d at p. 899; Wells Fargo Bank v. Superior Court (1977) 74 Cal.App.3d 890, 896-897; cf. Beane v. Paulsen (1993) 21 Cal.App.4th 89, 99 [attorney malpractice].) As Wells Fargo points out, the proper focus is on the point where the patients reliance on the doctors expertise ceases because the patient has discovered facts sufficient to arouse suspicions of malpractice. (Wells Fargo, supra, 74 Cal.App.3d at p. 898; Unjian v. Berman (1989) 208 Cal.App.3d 881, 885; 3 Witkin, Cal. Procedure (4th ed. 1996) Actions,  538, p. 679 [it is a rare case where reliance does not end at this point]). Again, once the plaintiff decided to give notice of his intent to file an action against his health-care providers, he cannot reasonably claim after this point that they continued in this status (in the absence of any facts which might support such a theory).

In argument on the motion in the trial court, the plaintiff suggested that he was not aware of his attorneys failure to file a complaint until August 2004, when the plaintiff obtained the case files. He now attempts to assert the inadequacies of his attorney as a basis for tolling the limitations period. However, A legal malpractice suit is the traditional means of resolving allegations that an attorneys misconduct caused a claim to become barred by the statue of limitations. (Gutierrez, supra, 39 Cal.3d at p. 900.) A defendant should not be deprived of the benefit of the statute of limitations as a result of the conduct of a third party. (Ibid.) Attorney neglect is not a ground for relief from failure to comply with the statute of limitations generally (Castro v. Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th 927) or in the specific context of malpractice (Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1561, 1563).

Finally, the plaintiff cites the principle of equitable tolling invoked in Elkins v. Derby (1974) 12 Cal.3d 410. This is inapposite to the present case, applying only if a plaintiff has a choice of venues in which to pursue a claim, tolling the limitations period in one venue while the plaintiff diligently pursues relief in another. (3 Witkin, Cal. Procedure, supra, Actions,  670, pp. 858-859; Balloon v. Superior Court (1995) 39 Cal.App.4th 1116, 1122.) Plaintiff Cole was not pursuing his claims for personal injuries against the defendants in any administrative venue or in another jurisdiction. Equitable tolling therefore does not have any application. (Balloon, supra, at p. 1122; Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 434.)

The plaintiff did not produce any facts in opposition to the defendants motions that excuse the failure to file a complaint more than one year after instructing his attorney to notify the defendants of his intent to sue. The trial court consequently was correct in granting summary judgment on any theory premised on medical malpractice on this ground, and we do not need to consider the substantive bases for its ruling as a result.

II

This leaves the plaintiffs claim that defendant Pathak abandoned him. He contends the defendant did not follow proper protocols for ending a relationship with a patient who is still in need of care and cannot find a new physician. Neither the plaintiff nor defendant Pathak cite any authority involving this cause of action (other than a pattern jury instruction that defendant Pathak invokes).

The relationship between patient and doctor continues until the parties mutually consent to end it, the patient dismisses the doctor, or the doctor gives due notice of an intent to terminate and an ample opportunity for the patient to secure a substitute. (3 Levy et al., California Torts (2006) Liability of Physicians,  31.42, p. 31-69; Payton v. Weaver (1982) 131 Cal.App.3d 38, 45 (Payton).) Patient abandonment is a form of medical malpractice; abandonment of a case by a physician without sufficient notice or adequate excuse is a dereliction of duty, and if injury results therefrom, the physician may be held liable in damages. (Annot., Liability of Physician Who Abandons Case (1958) 57 A.L.R.2d 432, 440.)^[7]

The plaintiff fails to provide any authority that a doctor put on notice of a patients intent to sue for malpractice must continue to treat that patient or be liable independently to the patient for ceasing to provide care. Whether we consider this action on the plaintiffs part as either the equivalent of an express ending of the relationship (as in the context of the commencement of the limitations period) or as an adequate excuse for defendant Pathak to bring an end to the relationship without further duty to the patient, this came to pass by May 2003. The limitations period for this type of malpractice therefore had expired by the time of the filing of the complaint in February 2005. The plaintiff cannot set the clock running again through attempting afterward to obtain treatment from his adversary.^[8]

III

The plaintiff adverts to procedural errors that he claims require us to reverse the judgment. None of these have merit.

He first asserts in his briefs on appeal that he did not recall filing a legal case against Judge Proud prior to his appointment to the bench on a debt that the latter owed him, in which the plaintiff prevailed. He claims that Judge Proud should have recused himself. This claim (which the defendants ignore in their briefs) not only comes too late (People v. Barbera (1999) 70 Cal.App.4th 541, 547-549, 552 [disqualification for cause]; County of San Diego v. State of California (1997) 15 Cal.4th 68, 110 [peremptory disqualification]), but also is not of any real consequence to the plaintiff because we review a motion for summary judgment independently on appeal without any reliance on the ruling of the trial judge.

He next asserts that the reporters transcript misidentifies the attorney present for defendant Hospital. The attorney who argued the motion is not of any consequence to our review of the ruling.

Finally, he suggests that the trial court erred in setting oral argument on defendant Pathaks motion (the plaintiff requesting it upon receipt of the courts tentative ruling) for the same day, and in failing to grant a continuance to allow him to obtain additional affidavits in opposition. (Code Civ. Proc.,  437c, subd. (h).) As to the former contention, a lay litigant is held to the same standards as an attorney. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) As a trial court has substantial discretion in regulating the timing and content of oral argument on a motion (Brannon v. Superior Court (2004) 114 Cal.App.4th 1203, 1211), counsel must be prepared to argue their motions when they appear in court to request argument, absent good cause. The plaintiff does not identify any place in the record where he either objected to oral argument taking place on the same day as his request or asserted good cause for delaying it. He has therefore forfeited this issue on appeal. As for the latter claim, a court abuses its discretion in denying a request for a continuance to obtain additional affidavits in opposition only where counsel files a declaration establishing that there are facts essential to oppose the motion for summary judgment, these facts are likely to exist, and there is good cause why these facts have not been produced previously. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) Putting aside the failure of the plaintiff to file any such declaration, the sole issue on which he requested an opportunity in the trial court to obtain additional affidavits was in connection with his wifes contacts with defendant Pathak in the fall of 2004;^[9]the trial court indicated it would accept the facts as she represented them in her argument on behalf of her husband (which the court allowed in light of the plaintiffs difficulty in communicating). As these facts are not essential to oppose the determinative basis of the ruling--the May 2003 notice of intent to sue--the trial court did not abuse its discretion in declining to grant a continuance to obtain affidavits on this or any other issue.

Disposition

The judgment is affirmed. Defendants are awarded costs of appeal.

DAVIS, Acting P.J.

We concur:

RAYE , J.

HULL, J.

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^[1] We have amended the case title in this appeal to reflect the actual name of the defendant (erroneously listed as Marshall Hospital in the complaint and notice of appeal).

^[2] The plaintiff does not discuss this theory of liability on appeal. We deem it abandoned. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)

^[3] For the benefit of the plaintiff, we note that this ruling does not have any bearing on the motion for summary judgment because parties cannot rely only on the allegations of their pleading in opposing the motion but must instead establish facts. (Aquilar, supra, 25 Cal.4th at p. 849.)

^[4] He admitted the truth of most of the statement of undisputed facts of defendant Hospital, but disputed those of defendant Pathak in a format making it exceedingly difficult to follow. The shortcomings of the latter opposition ultimately are not material, as none of it relates to the determinative fact of the May 2003 notice.

^[5] Giving the plaintiff the benefit of the doubt, we will assume all his injuries stem from the entire course of treatment from the defendants, and the filing of his complaint as a result was within three years from the end of his treatment in 2002.

^[6] We therefore do not have any occasion to decide whether the evidence establishes the arousal of the plaintiffs suspicions on any earlier date.

^[7] It may be a basis for a writ of mandate against the abandoning physician as well (see Payton, supra, 131 Cal.App.3d at pp. 42-43, 44-45 [declining, however, to issue writ]), but the complaint does not include anything that seeks such relief. It can also be a ground for professional disciplinary procedures (Hongsathavij v. Queen of Angels etc. MedicalCenter (1998) 62 Cal.App.4th 1123, 1138-1139), which is not implicated in the present case.

^[8] We therefore do not need to decide whether the relationship had continued past defendant Pathaks last contacts with the plaintiff in 2002, or whether the alternative care available to the plaintiff discharged defendant Pathaks responsibility to him upon ending the relationship.

^[9] His briefing on appeal does not identify any particular facts as to which additional affidavits were essential.