Thomas v. Kawesch
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
SHANNON THOMAS, Plaintiff and Appellant, v. GLENN A. KAWESCH et al., Defendants and Respondents. | D047504 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Luis R. Vargas, Judge. Reversed and remanded.
Shannon Thomas appeals a judgment entered after the superior court sustained challenges by defendants Glenn A. Kawesch, M.D. and
FACTUAL AND PROCEDURAL BACKGROUND
In accordance with the standards governing our review of the superior court's rulings on a demurrer and a motion for judgment on the pleadings, the following factual recitation is based on the allegations of Thomas's amended and second amended complaints (see Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 849).
In May 2000, Thomas consulted Kawesch for treatment of her farsightedness (hyperopia). Kawesch recommended LASIK surgery to correct Thomas's vision and represented to her that the surgery would involve the use of an approved Excimer laser, although in an " off label" manner, and that she was a good candidate for such surgery. After Kawesch performed the surgery, Thomas suffered a loss of her " best corrected visual acuity" in both eyes. Because such loss of acuity was a disclosed risk of LASIK eye surgery, however, Thomas did not know, or have any basis for suspecting, that Kawesch acted improperly in performing her surgery.
Thomas's loss of her best corrected visual acuity did not become debilitating until 2004, when she developed optic neuritis in her left eye and lost all useful vision from that eye; as a result, Thomas was entirely dependent on her right eye for vision and that eye could not be corrected so as to permit her to drive or accomplish other daily tasks. That same year, Thomas was contacted by another former patient of Kawesch's and discovered that Kawesch used a NIDEK laser, which was neither approved by the FDA, nor authorized by the laser's manufacturer, for use on farsighted patients. She also found out that, at the time of her surgery, Kawesch had illegal software that allowed him to use the NIDEK laser to perform surgery to correct hyperopia, but that the manufacturer had later removed the illegal software from Kawesch's office to prevent him from continuing to use the NIDEK laser for such procedures.
Thomas filed this action against Kawesch in August 2004, alleging causes of action for medical negligence, fraud and deceit, battery and unfair business practices. The court subsequently sustained Kawesch's demurrers to Thomas's battery and unfair business practice claims without leave to amend. It also sustained a demurrer to her fraud cause of action, in part based on the statute of limitations, with leave to amend.
Thereafter Thomas filed her second amended complaint, which continued to assert claims for medical negligence and fraud and deceit. Kawesch challenged Thomas's fraud cause of action by demurrer, arguing that her allegations were not sufficient to establish that it was timely brought for statute of limitations purposes or to plead fraud with specificity as required by law; he also contended that, as a matter of law, his use of the NIDEK laser for an " off label" purpose was legal. The court sustained the demurrer without leave to amend, holding that Thomas's allegations were not sufficient to establish her delayed discovery of her injuries and their allegedly negligent cause.
Kawesch filed an answer to Thomas's remaining claim for medical negligence, but later challenged the claim by a motion for judgment on the pleadings. The court concluded that the delayed discovery rule was inapplicable to a claim for medical malpractice and thus did not preserve the timeliness of Thomas's remaining cause of action. It thereafter entered judgment in Kawesch's favor. Thomas appeals.
DISCUSSION
1. The Medical Malpractice Claim
Code of Civil Procedure, section 340.5, provides:
" In an action for injury or death against a health care provider based upon such person's 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 [nontherapeutic, nondiagnostic] foreign body [in the injured person]." (See also see Jefferson v. County of Kern (2002) 98 Cal.App.4th 606, 610.)
Kawesch performed Thomas's surgery in May of 2000, but Thomas did not file this action until August 2004, more than four years later. Thomas argues that the action was nonetheless timely because her pleadings alleged facts showing that (A) the three-year statutory period (i) did not begin to run until 2004, when she first suffered appreciable harm, and (ii) was tolled until 2004 based on Kawesch's fraud and intentional concealment, and (B) the one-year statutory period did not begin to run until August 2004, when she first discovered the cause of her injury.
A. The Three-Year Statute of Limitations
i. Accrual: Appreciable Harm
The three-year statutory limitations period begins to run on the date of " injury." For the purposes of applying the statute, " injury" refers to the damaging effect of the negligence rather than the act of negligence itself and is deemed to occur when " appreciable harm" first manifests. (Larcher v. Wanless (1976) 18 Cal.3d 646, 655-656 and fn. 11; Brown v. Bleiberg (1982) 32 Cal.3d 426, 437, fn. 8; Bispo v. Burton (1978) 82 Cal.App.3d 824, 831.) Appreciable harm " manifests" for purposes of commencing the three-year period when damage " become[s] evidenced in some significant fashion," regardless of whether the plaintiff is actually aware of the injury. (Marriage & Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1654.)
While harm or damage that remains undetected might not be deemed to constitute appreciable harm until it is identified by diagnosis (see Steingart v. White (1988) 198 Cal.App.3d 406, 415 [where plaintiff was repeatedly told that her breast lump was nonthreatening, she did not suffer appreciable harm until years later, when the lump was diagnosed as cancerous]), harm or damage that has clearly surfaced and is noticeable will constitute " injury" for purposes of the three year statute even if the plaintiff does not recognize it as such. (Marriage & Family Center v. Superior Court, supra, 228 Cal.App.3d at p. 1654; see also Arrendondo v. Regents of University of California (2005) 131 Cal.App.4th 614, 619 [whether the plaintiff suspects the negligent cause of her harm is irrelevant in determining whether appreciable harm has manifested].)
Kawesch contends that Thomas suffered appreciable harm in May 2000 because she experienced an immediate loss of her " best corrected visual acuity" in both eyes as a result of the surgery. Thomas responds that her loss of visual acuity did not constitute appreciable harm because this was a disclosed risk of the surgery (i.e., it could occur without any negligence), to which she had consented. We agree that, although Thomas's loss of best corrected visual acuity apparently provides the basis for her damage claims, because such loss was a disclosed risk of LASIK surgery when performed on an appropriate candidate, it did not constitute appreciable harm sufficient to trigger the running of the three-year limitations period as to her claim that Kawesch performed that surgery despite the fact it was contraindicated for treating a farsighted patient. (Compare McNall v. Summers (1994) 25 Cal.App.4th 1300, 1310-1311 [plaintiff's serious and continuous memory loss after undergoing electroconvulsive therapy constituted appreciable harm triggering the accrual of the three-year limitations period]; Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762 [plaintiff's discovery of lumps and experience of soreness in her breasts constituted appreciable harm resulting from intrabreast silicone injections 8 years earlier].) Accordingly, Thomas's claim for medical negligence was not time-barred pursuant to the three-year limitations period and the court erred in sustaining Kawesch's demurrer on that basis.
ii. Tolling: Fraud or Intentional Concealment
Even if Thomas had suffered appreciable harm immediately as a result of the surgery, the three-year statutory period would not bar her medical malpractice claim if her allegations were sufficient to show fraud or concealment by Kawesch, because the law provides that the three-year limitations period is tolled where a defendant's false representation or intentional concealment prevents the plaintiff from bringing the action before the period of limitations has run. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 438; Bowman v. McPheeters (1947) 77 Cal.App.2d 795, 804.) This rule is based on principles of estoppel, that is, that a culpable defendant should not be permitted to profit from his own wrong, to the extent that it hinders an otherwise diligent plaintiff from discovering the basis for a claim. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99.) Accordingly, the statutory limitations period is tolled where the physician's affirmative conduct, occurring sometime within three years after the manifestation of appreciable harm, prevented the plaintiff from timely bringing suit. (Trantafello v. Medical Center of Tarzana (1986) 182 Cal.App.3d 315, 321; Bowman v. McPheeters, supra, 77 Cal.App.2d at p. 804; see Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 235.)
In accordance with these principles, the statutory limitations period has been tolled where a physician lied about the reason for medical treatment or the nature of the treatment performed. (See Hundley v. St. Francis Hospital (1958) 161 Cal.App.2d 800, 806-807 [intentional concealment where, after performing a more extensive surgery than the plaintiff had consented to, the doctor misrepresented that it was justified by " the pathology that he found" ]; Brown v. Bleiberg, supra, 32 Cal.3d at pp. 437-438 [when plaintiff complained about post-surgical pain in her feet and difficulty walking, podiatrist told her he had removed a number of small tumors; plaintiff filed a malpractice action 13 years later, after discovering that he had actually removed portions of her foot bones; summary judgment based on the statute of limitations reversed because there was a triable issue of fact as to whether the podiatrist's misrepresentations about the nature of the surgery prevented the plaintiff from filing suit].) A physician's post-injury misrepresentations as to the patient's condition or the cause of the injury has also been held to toll the statutory limitations period. (Bowman v. McPheeters, supra, 77 Cal.App.2d at pp. 797, 804 [period was tolled where plaintiff's arm became cancerous from x-rays taken by a doctor consulted to remove a steel sliver, where the doctor misrepresented to the plaintiff that the injury was a simple burn, and later steel poisoning, that would resolve on its own].)
Thomas's second amended complaint alleges Kawesch fraudulently represented to her that the laser used in the surgery was FDA-approved and that she was a good candidate for surgery using that type of laser, " albeit in an 'off label' manner." Kawesch argues that Thomas's allegations establish he accurately advised her of both the nature of the surgical procedure (involving the use of an Excimer laser in an " off label" manner) and the reason for it (correction of her farsightedness). However, this argument disregards Thomas's additional allegations that, despite Kawesch's earlier representations that she was a good candidate for the surgery, he failed to disclose that he was going to (and did) use a NIDEK laser in a manner for which the laser was neither authorized by the manufacturer nor approved by the FDA for treating Thomas's condition (farsightedness). Such allegations are sufficient to establish an independent fraud or concealment that would toll the limitations period.
B. The One-Year Statute of Limitations: Delayed Discovery
As noted above, the one-year limitations period begins to run once the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury and its negligent cause. (Code Civ. Proc., § 340.5; see Jefferson v. County of Kern (2002) 98 Cal.App.4th 606, 610.) During the continuance of the professional, fiduciary relationship between the physician and the patient, " the degree of diligence required of a patient in ferreting out and learning of the negligent causes of his condition is diminished." (Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at p. 102.) However, the limitations period
commences if the patient discovers the claim notwithstanding a physician's continuing efforts to conceal his wrongdoing. (Id. at p. 99.)
The first triggering event for the one-year limitations period involves a subjective test and will start the period running from the time that the plaintiff actually suspected her injury was caused by someone's wrongdoing. Here, Thomas's second amended complaint alleges that she did not become suspicious of any wrongdoing by Kawesch until shortly before this action was filed. Thus, under the first statutory triggering event, her action was not untimely.
The second triggering event for the one-year limitations period is based on an objective standard and will start the statutory period running once a reasonable person in the plaintiff's position would have suspected that her injury was caused by some type of wrongdoing. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 805; Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.) The rationale for this rule is that once a plaintiff has a suspicion of wrongdoing, she has an incentive to sue and " must decide whether to file suit or sit on her rights." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.) When such a suspicion exists, the plaintiff must go find the facts, which may include the identity of the person at fault for her injury; she cannot simply wait for the facts to find her before filing suit. (Ibid.)
Kawesch argues that Thomas knew all the essential facts, and thus should have reasonably suspected wrongdoing, just after the surgery, when it was clear that she had lost her best corrected visual acuity in both eyes. However, the mere fact that an operation does not produce hoped-for results will not necessarily signify negligence so as to commence the running of the statutory period. (Kitzig v. Nordquist, supra, 81 Cal.App.4th at pp. 1391-1392, citation omitted; accord, Unjian v. Berman (1989) 208 Cal.App.3d 881, 885-886.) In light of Thomas's allegations that the loss of best corrected visual acuity is a disclosed risk of a LASIK procedure, the mere fact that she was aware of such a loss of acuity immediately after the surgery does not establish that a reasonable person in her position would have suspected that her injury resulted from wrongdoing. " The best medical treatment sometimes fails, or requires long and difficult recuperation, or produces bad side effects [and] [t]hus even if a patient is unhappy with his condition, he may not suspect he has been wronged." (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 899; see Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 805; Dolan v. Borelli (1993) 13 Cal.App.4th 816, 824.)
Kawesch attempts to analogize the circumstances alleged here with those involved in Ehlen v. Burrows (1942) 51 Cal.App.2d 141. There, although the plaintiff consented to have four of her teeth surgically removed, her surgeon actually removed seven teeth. The plaintiff filed an action more than a year later and the trial court sustained the surgeon's demurrer to her claim for malpractice arising out of the removal of the excess teeth on statute of limitations grounds. The appellate court affirmed the trial court's ruling, noting that " the removal of these extra teeth must necessarily have been obvious to the plaintiff shortly after coming out from under the influence of the anesthetic." (Id. at p. 145.)
Ehlen is inapposite here as its underlying facts are completely unlike the circumstances alleged by Thomas. While the unauthorized removal of three additional teeth was an obvious indication of malpractice, the loss of visual acuity that was a disclosed risk of LASIK procedures generally was not.
For these reasons, we conclude that Thomas's malpractice claim was not barred by the one-year limitations period specified in Code of Civil Procedure section 340.5.
2. The Fraud Claim
A three-year statute of limitations in Code of Civil Procedure section 338, subdivision (d) applies to a cause of action for fraud. Pursuant to the statute, a fraud claim does not accrue, and thus the statute of limitations does not begin to run, " until the discovery, by the aggrieved party, of the facts constituting the fraud[.]" (Code Civ. Proc., § 338, subd. (d).) The purpose of this provision is to promote the resolution of claims on the merits and to prevent the limitations period from running even before the fraud victim is aware of the wrong perpetrated against him. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 421.) The limitations period begins to run at the time the aggrieved party discovers either the fraud or facts that would lead a reasonably prudent person to suspect fraud. (Ibid.)
The foregoing standards are similar to those applied in construing whether the three-year limitations period under Code of Civil Procedure section 340.5 is subject to tolling for fraud or intentional concealment. (Bowman v. McPheeters, supra, 77 Cal.App.2d at p. 798, citing Sears v. Rule (1945) 27 Cal.2d 131, 147.) (Contrary to Kawesch's contention, the California Supreme Court's decision in Samuels v. Mix (1999) 22 Cal.4th 1, which addressed only the issue of which party bears the burden of proof as to the one-year-from-discovery limitations period, does not overrule these authorities.) Using the same analysis applied under section 1(B) above, we conclude that Thomas has adequately alleged facts establishing a delayed discovery of the facts underlying her fraud cause of action and thus that the trial court erred in sustaining Kawesch's demurrer to that cause of action without leave to amend.
DISPOSITION
The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. Thomas is to recover her costs on appeal.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P.J.
McDONALD, J.
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