Chavez v. Mandel

Filed 6/22/07 Chavez v. Mandel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, David T. McEachen, Judge. Reversed and remanded.

Barnes Crosby FitzGerald & Zeman, Bienert & Miller and Susann K. Narholm for Plaintiff and Appellant.

Peterson & Bradford, George E. Peterson, Michael A. Vacchi, Oliver Tomas and Avi Burkwitz for Defendant and Respondent.

* * *

Introduction

Brittney Chavez sued Dr. Richard A. Mandel for professional negligence, alleging she suffered third degree burns on her left cheek while undergoing facial reconstructive surgery he performed on July 23, 2002. She was a minor at the time of the surgery. On July 22, 2005, Chavez served a notice of intention to commence action pursuant to Code of Civil Procedure section 364, subdivision (a) (all further statutory references are to the Code of Civil Procedure). She filed her complaint against Mandel for professional negligence on October 24, 2005. The trial court sustained Mandels demurrer to the third amended complaint without leave to amend on the ground the lawsuit was untimely under the three-year statute of limitations of section 340.5. Chavez appealed from the resulting judgment.

We conclude the complaint is not time-barred on its face and therefore reverse and remand. The third amended complaint, the operative pleading, adequately alleged Mandel concealed the nature and cause of Chavezs injury until July 30, 2002. The three-year limitations period of section 340.5 was tolled for this period of alleged concealment, and was tolled for 90 days pursuant to section 364, subdivision (d) following service of Chavezs notice of intention to commence action letter on July 22, 2005. As a result, the allegations of the complaint, which we accept as true, establish the statute of limitations did not expire until October 28, 2005, four days after Chavez filed her lawsuit.

Allegations of the Complaint

Chavez alleged she suffered a third degree burn to her left cheek while undergoing facial surgery performed by Mandel on July 23, 2002. Chavez was a minor at the time of the operation and had reached the age of majority when the lawsuit was filed on October 24, 2005.

After the procedure, Mandel assured Chavezs parents that the surgery had gone well and that he did not foresee the tear to be a problem. During the postsurgical hospital stay, blood was suctioned from Chavezs throat as she vomited blood repeatedly. Chavez was discharged from the hospital on July 26, 2002, and soon thereafter experienced a sharp, stabbing pain in her mouth. When Chavez removed the bandages, she was horrified to find a two‑inch long by one‑quarter‑inch wide gash on her face. During a second follow-up visit with Mandel, on July 30, 2002, he told Chavez for the first time that she had sustained a burn, to her face, during the surgical procedure.

Mandel told Chavezs parents that she should be taken to a burn specialist. The specialist, Dr. Dubin, concluded that Chavezs scarring was a result of a third degree burn. Records show that Osteomed, the manufacturer of the surgical devices, concluded that Dr. Mandel had misused their medical device(s). Chavez was admitted to the University of California, Irvine Medical Center in May 2004, and was diagnosed with depressive and posttraumatic stress disorder. She incurred substantial medical expenses and her high school grades suffered.

Chavez alleged Mandel failed in his duty to perform to the standards that other members of their profession commonly possess. She alleged he failed to: (1) warn Chavez of the risk of burn; (2) test surgical devices in advance and to monitor their temperature during surgery; (3) perform the surgery without harm to Chavezs face; (4) prevent third degree burns from occurring; (5) recognize the severity of the harm; and (6) recognize the foreseeable nature of overheating in the event that Osteomed did not properly warn him. For those reasons, Chavez alleged that Mandel was professionally negligent.

Procedural History

On July 22, 2005, Chavezs attorney served a notice of intention to commence action (the notice of intent letter) pursuant to section 364, subdivision (a). The notice of intent letter was served on Mandel by Federal Express standard overnight shipping.

On October 24, 2005, Chavez filed her complaint for professional negligence against Mandel. She filed a first amended complaint four days later and filed the second amended complaint in November 2005. A third amended complaint was filed in July 2006. Mandel demurred to the third amended complaint, arguing that Chavezs cause of action for professional negligence was barred by the three‑year statute of limitations of section 340.5.

The trial court sustained the demurrer without leave to amend on the ground that the three-year statute of limitations of section 340.5 barred the complaint. Chavez timely appealed from the resulting judgment.

Standard of Review

We review de novo an order sustaining a demurrer without leave to amend. (Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1264.) We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation]. In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation]. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

Discussion

Chavez argues her complaint, filed on October 24, 2005, was timely because (1) the complaint adequately alleged Mandel concealed the nature and cause of her injury until July 30, 2002, and (2) the notice of intent letter, served on July 22, 2005, pursuant to section 364, subdivision (a) tolled the statute of limitations for 90 daysto October 20, 2005, at which point the statute of limitations revived and expired on October 28, 2005. We agree with this analysis.

I. The Third Amended Complaint Adequately Alleged Concealment, Tolling the Statute of Limitations.

Section 340.5 requires that an action by a minor for injury or death against a health care provider based upon such persons alleged professional negligence be commenced within three years from the date of the alleged wrongful act. The second sentence of section 340.5 states, [i]n 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. This tolling provision applies to minors. (Young v. Haines (1986) 41 Cal.3d 883, 901; Newman v. Burnett (1997) 54 Cal.App.4th 722, 727.)

In Brown v. Bleiberg (1982) 32 Cal.3d 426, 430, the plaintiff alleged that following foot surgery she suffered continual pain and her feet were cut up. The defendant surgeon assured the plaintiff that nothing was wrong and told her that she was in pain because during surgery he had found and removed a number of small tumors. (Ibid.) The defendant told the plaintiff, it would be all right and the pain would

lessen in time. (Ibid.) The Supreme Court concluded that [p]laintiffs factual claim that defendant [surgeon] misrepresented the nature of the operation he performed on her in order to conceal plaintiffs cause of action creates an issue for the trier of fact as to whether the four-year and three-year limitations periods were tolled until plaintiff discovered the negligent cause of her injury. (Id. at p. 437.) A trier of fact could reasonably conclude that, in light of the fiduciary relationship between plaintiff and [the defendant surgeon], plaintiff was justified in accepting his explanation for her condition following the operation. (Id. at p. 438.)

Chavez alleged Mandel affirmatively concealed his knowledge of her injury suffered during the surgery on July 23, 2002. She alleged: Upon completing the surgery Dr. Mandel informed the plaintiffs parents that the surgery had gone well. He also told them that he had noticed a slight tear to the plaintiffs cheek, explaining that i[t] was due to the fact that he had performed the surgery intra-orally; and stretched the plaintiffs mouth back to accommodate the medical devices. He then stated that he did not foresee the tear to be a problem. Chavez remained hospitalized under Mandels care until July 26, 2002. She experienced unexpected bleeding and sharp, stabbing pains in the lower left part of her mouth and cheek. When her bandages were removed for the first time, she was horrified to see the gash where she had felt the sharp, stabbing pain.

Chavez had a follow-up visit with Mandel on July 30, 2002. When he removed the bandages from her face, she noticed the painful scar on her face had grown worse in appearance. Chavez alleged: Later that day Dr. Mandel called by telephone to report, for the first time, that the injury to her face was actually a burn received from an instrument used during the surgery. He told Chavezs parents to take her to a burn specialist.

These allegations of concealment are similar to those in Brown v. Bleiberg, supra, 32 Cal.3d 426. Chavez alleged Mandel assured her the surgery had gone well and falsely represented the cause of her injury. Chavez was justified in relying on Mandels explanation for her condition because she remained under his care. Accordingly, the third amended complaint alleged facts tolling the statute of limitations.

II. Service of the Notice of Intent Letter Tolled the Statute of Limitations for an Additional 90 Days.

Section 364, subdivision (a) states: No action based upon the health care providers professional negligence may be commenced unless the defendant has been given at least 90 days prior notice of the intention to commence the action. Section 364, subdivision (d) states: If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.

When the plaintiffs attorney serves the notice under section 364, subdivision (a) in the final 90 days of the limitations period, subdivision (d) of section 364, tolls rather than extends the statute of limitations. (Woods v. Young (1991) 53 Cal.3d 315, 325‑326.) The plaintiff who gives the 90-day notice before the last 90 days of the 1-year limitations period can still bring the lawsuit after the 90-day period has elapsed because in that situation the 1‑year [now three‑year] statute of limitations will not have expired at the end of the 90-day waiting period. (Id. at p. 326.) The Supreme Court later applied the same tolling rule to the three-year limitations period of section 340.5. (Russell v. Stanford University Hospital (1997) 15 Cal.4th 783, 789.) Tolling commences when the notice of intent to sue is placed in the mail. (Silver v. McNamee (1999) 69 Cal.App.4th 269, 279‑282.)

For example, suppose the plaintiff mails the 90‑day notice under section 364, subdivision (a) 10 days before the expiration of the statute of limitations. Under

section 364, subdivision (d), the notice tolls the statute of limitations 90 days from the date of service. At the end of the 90‑day tolling period, the statute of limitations would resume for 10 days. The result is the plaintiff receives 90 days plus 10 days to file the lawsuit.

Mandel performed surgery on Chavez on July 23, 2002. The third amended complaint adequately alleged the statute of limitations was tolled for concealment until July 30, 2002. Based on that date, the three-year statute of limitations would have expired on July 30, 2005. Chavezs attorney served the notice of intent letter by overnight delivery on July 22, 2005, within 90 days of the expiration of the statute of limitations. Thus, the notice of intent letter tolled the statute of limitations for 90 daysfrom July 22 to October 20, 2005. On that date, the statute of limitations resumed for eight days and expired on October 28, 2005. Chavez filed this lawsuit against Mandel on October 24, 2005. Because the complaint was timely filed under a 90‑day tolling period, we need not address Chavezs contention that service by mail of the notice of intent letter extended that 90‑day tolling period by an additional two court days under section 1013, subdivision (c).

We express no opinion on the merit of the third amended complaint and its concealment allegations. But since the bar of the statute of limitations did not clearly and affirmatively appear on the face of the complaint (Marshall v. Gibson, Dunn & Crutcher, supra, 37 Cal.App.4th at p. 1403), the trial court erred by sustaining Mandels demurrer.

Disposition

The judgment is reversed and the matter remanded. Appellant to recover her costs incurred in this appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

OLEARY, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.