Erickson v. Wesley
Filed 4/25/06 Erickson v. Wesley CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| SUSAN L. ERICKSON et al., Plaintiffs and Appellants, v. GEORGE WESLEY, Defendant and Respondent. | G035396 (Super. Ct. No. 04CC03499) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Randell L. Wilkinson, Judge. Reversed.
The Cifarelli Law Firm, Philip C. Cifarelli and Dawn M. Smith for Plaintiffs and Appellants.
La Follette, Johnson, De Haas, Fesler & Ames and Nancy H. McCoy for Defendant and Respondent.
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Introduction
A husband and wife sued the wife's doctor for medical negligence, alleging the wife suffered injuries as a result of the doctor's wrongdoing. The husband also sued the doctor for loss of consortium. The defendant doctor moved for summary judgment or, in the alternative, summary adjudication. The trial court granted summary judgment in the defendant doctor's favor, concluding the statute of limitations on both claims expired before an amended complaint naming the doctor was filed. We conclude the court was correct in its analysis of the claim for loss of consortium, but incorrect regarding the claim for medical negligence.
Code of Civil Procedure section 364 requires that before initiating a lawsuit for medical negligence, a plaintiff must provide 90 days' notice to the defendant. (All further statutory references are to the Code of Civil Procedure.) In this case, the wife sent such a notice, which by law tolled the statute of limitations on the medical negligence claim. When the lawsuit was filed, it did not name the doctor as a defendant; the doctor was sued as a Doe defendant, so as not to violate section 364. This is an accepted procedure under the circumstances of this case. The complaint was amended to name the doctor as a defendant within the tolled limitations period. The medical negligence claim was therefore timely filed, and the trial court erred in granting summary judgment on the first cause of action for medical negligence.
The second cause of action for loss of consortium must be analyzed differently, however. The section 364 notice did not mention the claim for loss of consortium, and the notice cannot be read so broadly as to include such a separate, independent claim. The statute of limitations on that claim was therefore not tolled. The amendment to name the defendant doctor was not made within the limitations period, and that claim was therefore not timely filed. The trial court correctly determined the second cause of action was barred by the statute of limitations.
Therefore, we reverse the judgment, and direct the trial court to grant the motion for summary adjudication on the second cause of action for loss of consortium.
Statement of Facts
On February 27, 2003, Dr. George Wesley performed coronary angioplasty and stenting on Susan L. Erickson at St. Joseph Hospital in Orange, California. Mrs. Erickson was discharged from the hospital on February 28. At home that same day, she experienced severe pain in her right lower abdomen and dizziness, and passed out. She was immediately taken to Corona Regional Medical Center. During surgery on March 1, 2003, doctors at Corona Regional discovered Mrs. Erickson had suffered a laceration of her right external iliac artery.
On January 9, 2004, Mrs. Erickson served a notice of intention to commence action on Dr. Wesley via certified mail, pursuant to section 364. An identical letter was sent to Dr. Wesley on January 20, 2004.
On March 1, 2004, the Ericksons filed a complaint against St. Joseph Hospital, â€
