Scott v. Barte

Filed 6/26/08 Scott v. Barte CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Robert Warren Scott, Jr. appeals a summary judgment entered in favor of Doctors Lorna Barte and Jerry R. Bruns. We affirm. (Code Civ. Proc., 437c, subd. (o)(2).)[1]

FACTS AND PROCEDURAL HISTORY

On August 23, 2006, Scott, in propria persona, filed an action for professional negligence against Doctors Barte and Bruns (hereinafter "Barte"), St. John's Regional Medical Center, and others, for negligent diagnosis and treatment rendered during May through September, 2003. Scott alleges that the defendants misdiagnosed his illness as psychosis and schizophrenia.

On April 30, 2007, Barte filed a motion for summary judgment, contending that the one-year limitations period of section 340.5 precludes Scott's action. Scott's deposition testimony and declaration submitted in response to the summary judgment motion established this:

During June, 2003, Scott was hospitalized at St. John's Medical Center and diagnosed by Barte and other treating physicians as suffering from schizophrenia. The diagnosis rested upon Scott's obsession and delusions regarding his diet. Scott did not believe that he was mentally ill, however, and had a "high suspicion" that the physicians had not diagnosed him properly. He informed Barte and the other physicians that their diagnosis was mistaken. In mid-2003, Scott wrote upon his medical records that he disputed their diagnosis.

On October 30, 2003, Scott began to "gather[] evidence" prior to filing a lawsuit. Near the end of 2003 or the beginning of 2004, he consulted an attorney. Scott also resumed consuming a "fresh raw organically grown water-based perennial fruit" diet. After two years and two months of heeding this regime, Scott returned to a healthy state.

On March 30, 2006, he consulted a physician who informed him that defendants had misdiagnosed him in 2003, and they were negligent in so doing. Scott waited until August 23, 2006, to bring this lawsuit "[b]ecause [he] had to gather evidence and gain support of people and regain credibility." He declared that "the only way [he] could prove [his] lack of mental illness was to prove that [his] ideas about what [he] should and should not eat were rational and correct for [him]."

Scott also conceded that Barte's statement of six undisputed facts are true. These include the facts that in June 2003, Scott suspected his diagnosis of mental illness was incorrect and so informed his treating physicians.

At the hearing upon Barte's summary judgment motion, an attorney who was "not making a general appearance," requested to argue on behalf of Scott. The trial court denied the request, and granted summary judgment in favor of Barte. Scott's appeal followed.

DISCUSSION

Scott argues that the one-year limitations period does not commence to run until an investigation discloses facts sufficient to support a cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808-809 ["discovery rule" requires plaintiff who suspects wrongdoing to conduct reasonable investigation of causes of his injury; limitations period commences to run when reasonable investigation reveals factual basis for his cause of action].) He contends that public policy requires suspension of the limitations period until he obtained evidence of the wrongdoing. (e.g., Artal v. Allen (2003) 111 Cal.App.4th 273 [limitations period for medical malpractice arising from negligent intubation does not commence to run until patient discovers the negligent cause of her injury through exploratory surgery]; Steingart v. White (1988) 198 Cal.App.3d 406, 416 [limitations period arising from failure to diagnose breast cancer did not commence to run until patient received later diagnosis of breast cancer].) Scott adds that the issue when a plaintiff discovered his injury or should have discovered his injury is a question of fact. (Costa v. Regents ofUniv. of California (1953) 116 Cal.App.2d 445, 455.) He also points out that the legislative intent in enacting the limitations period is to balance the rights of plaintiffs and defendants.

In our review of an order granting summary judgment, we independently examine the record to determine whether triable issues of fact exist. (Wiener v. Southcoast Childcare Centers,Inc. (2004) 32 Cal.4th 1138, 1142 [standard of review].) In performing our task, we view the evidence most favorably to plaintiff and resolve any evidentiary doubts or ambiguities in his favor. (Ibid.)

Section 340.5 provides that a plaintiff must file a medical malpractice action within three years of 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." Thus the limitations period commences to run when plaintiff suspects or should suspect that he has been wronged. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111-1114.)

Here Scott admitted that in June, 2003, he strongly suspected that he had been misdiagnosed. He wrote a notation upon his medical records stating that he disputed the diagnosis. By October, 2003, he began gathering evidence and shortly thereafter, consulted an attorney. He waited until August, 2006, however, to file his malpractice action. Although resolution of the statute of limitations is normally a factual question, "where the uncontradicted facts . . . are susceptible of only one legitimate inference, summary judgment is proper." (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1112.

When Scott left the hospital in the summer of 2003, he knew that he had been misdiagnosed by Doctors Barte and others, his treating physicians. He is incorrect that the limitations period was tolled thereafter while he challenged the diagnosis through a special diet. Moreover, the limitations period is not tolled "until another healthcare provider confirms or diagnoses the existence of negligence." (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1394, fn. 3.)

The trial court did not deny Scott due process of law by refusing to allow an attorney, not of record, to present argument at the hearing. Moreover, the trial court's order states that although Scott was present in the courtroom, he did not appear before the court when the matter was called.

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

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Ken W. Riley, Judge

Superior Court County of Ventura

______________________________

Malcolm Tator for Plaintiff and Appellant.

La Follette, Johnson, De Haas, Fesler & Ames, Don Fesler, Lawrence A. Greenfield and David J. Ozeran for Defendants and Respondents.

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[1] All further statutory references are to the Code of Civil Procedure.