Brown v. Northridge Emer. Med. Group

Filed 3/8/07 Brown v. Northridge Emer. Med. Group CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Howard J. Schwab, Judge. Affirmed.

Peter T. Brown and Associates and Duane R. Folke for Plaintiffs and Appellants.

Ryan Datomi & Flores, Richard J. Ryan and Dawn Cushman for Defendants and Respondents.

__________________________

INTRODUCTION

Plaintiffs and appellants Peter and Paula Brown filed a complaint for medical malpractice and loss of consortium in April 2003. Over a year later, in October 2004, they substituted defendants and respondents Dr. Ann McKittrick and Northridge Emergency Medical Group (NEMG) in as previously-named Doe defendants. Dr. McKittrick and NEMG moved for summary judgment on the ground, among others, that the one-year statute of limitations in Code of Civil Procedure section 340.5 barred the action against them. The trial court, holding that the October 2004 amendment naming Dr. McKittrick and NEMG as defendants did not relate back to the April 2003 original complaint, granted summary judgment in defendants favor. The Browns appealed. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

On February 10, 2002, Peter Brown fell from a ladder and injured his right leg. About 11:20 a.m., he arrived at Northridge Hospital Medical Center. Dr. McKittrick, an emergency room physician, saw him at 11:50 a.m., and she ordered knee, cervical spine, and chest x-rays. About one hour later, Dr. McKittrick asked that the on-call physician at Facey Medical Group, where Brown was a patient, be contacted. She also ordered a trauma consult and antibiotics. Dr. McKittrick diagnosed a right tibial plateau fracture and a fracture of the right fibula. Her plan was to admit Brown for care by an orthopedic surgeon.

Dr. Nick Mashour, Facey Medical Groups admitting physician, called Dr. McKittrick. He asked her to call Dr. Darakjian, an orthopedic surgeon. When Dr. McKittrick was unable to reach Dr. Darakjian, she spoke again to Dr. Mashour, who then had Brown admitted to the hospital and transferred to an inpatient unit at almost 6:00 p.m.

The next day, February 11, Dr. Gregg Sobeck performed fasciotomies on Browns right leg. Brown was discharged from the hospital on February 22. He returned to the hospital on April 6 with redness, swelling, and drainage in his right leg. He had an infectious disease consultation, which revealed osteomyelitis with infected orthopedic hardware and possible gout. On April 9, Dr. Sobeck removed all of the orthopedic hardware previously placed. Brown was discharged from the hospital on April 13.

II. Procedural background.

A. The complaint.

On January 2, 2003, the Browns served notices to sue under Code of Civil Procedure section 364.^[1] They filed a complaint for negligence and loss of consortium on April 18, 2003, naming Dr. Gregg Sobeck and Northridge Hospital as defendants. Over a year later, on October 7, 2004, the Browns substituted Dr. McKittrick and NEMG in as previously-named Doe defendants. Dr. McKittrick and NEMG answered the complaint, asserting, among others, a statute of limitations defense under section 340.5.

B. Dr. McKittrick and NEMG move for summary judgment.

Dr. McKittrick and NEMG filed a joint motion for summary judgment. They moved on the ground that the one-year limitation period in section 340.5 barred the Browns claims.^[2] They contended that the Browns October 7, 2004 amendment substituting them in as Doe defendants did not relate back to the original filing of the complaint. Dr. McKittrick and NEMG argued that their identities were known to the Browns at the time they filed their complaint in April 2003. They relied on Dr. McKittricks testimony that when she saw Peter Brown on February 10, 2002, she introduced herself by name and that she was wearing an identification badge with her name on it. She was also identified in medical records.

Moreover, the Browns admitted they knew, no later than December 2002, that emergency personnel were responsible for their injuries. Specifically, between August 2002, and November 2002, the Browns sought numerous surgical consultations with orthopedic specialty surgeons. In December 2002, their family doctor and friend, Dr. Morris Mesler, told them (1) something had gone terribly wrong with the emergency care he [Peter Brown] received at Northridge Hospital, (2) Mr. Brown should have received surgery from a trauma surgeon within six hours from his injury, (3) there was too long a delay between his arrival and the surgery, and (4) the emergency personnel were deficient in contacting an on-call doctor, and (5) the emergency personnel should have transported Mr. Brown to a facility where he could get surgery timely. Dr. Mesler also told the Browns that Peter Brown should have been put on a prophylactic antibiotic.

C. The Browns opposition to the motion for summary judgment.

In opposition to the summary judgment motion, the Browns argued that the statute of limitations did not bar their action against Dr. McKittrick and NEMG. The Browns were unaware of their identities and culpability for the Browns injuries until November 2003. Although he recalled being treated by a female physician, Peter Brown had no independent recollection of her name at the time of his deposition. The Browns were unaware of Dr. McKittricks negligence until November 5, 2003, when Northridge Hospital Medical Center served a discovery response identifying her as a treating physician. The Browns thought that suing Northridge Hospital would put an umbrella to cover all the participants in my healthcare treatment.^[3]

D. The trial courts ruling.

The trial court granted Dr. McKittricks and NEMGs motion on the ground that the one-year statute of limitations barred the action.^[4]

Judgment was entered on July 28, 2005. This appeal followed.

DISCUSSION

I. Standard of review.

The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.] (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Thus, summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. ( 437c, subd. (c).) A defendant moving for summary judgment meets its burden of showing there is no merit to a cause of action if that party shows that one or more elements of the cause of action cannot be established or there is a complete defense to the cause of action. ( 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar, supra, at p. 849.) If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.

On appeal from a summary judgment, we make an independent assessment of the correctness of the trial courts ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.] (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.) We construe an opposing plaintiffs evidence liberally and a moving defendants evidence strictly, and we resolve any doubts in plaintiffs favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

Whether a plaintiffs action is barred by the applicable statute of limitations is usually a factual issue to be decided by a trier of fact. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.) However, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. [Citation.] (Ibid.; see also Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487.)

II. The Browns action against Dr. McKittrick and NEMG is barred by the one-year statute of limitations in section 340.5.

Under section 340.5, a medical malpractice action must be brought within three years after the date of injury or one year after the plaintiff discovered or should have discovered the injury, whichever occurs first. [Citation.] (Davis v. Marin (2000) 80 Cal.App.4th 380, 385.) Here, the Browns contend that section 340.5 does not bar their suit against Dr. McKittrick and NEMG. Although they state four reasons on appeal why their suit is timely,^[5]the gist of their argument appears to be that they did not know that Dr. McKittrick and NEMG were one of the sources of the malfeasance when they filed their original complaint in April 2003. Only after the complaint was filed and after discovery commenced did they learn that Dr. McKittrick and NEMG contributed to their injuries. Because they did not know that these defendants were one of the sources of malfeasance until November 2003, the defendants were timely named in October 2004.

To support their contention that Dr. McKittrick and NEMG were timely named, the Browns rely on Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797 (Fox), which concerns the delayed discovery rule. The plaintiff in Fox filed a medical malpractice action after she suffered complications from a gastric bypass surgery. (Id. at p. 802.) Over a year after the plaintiff filed her complaint, she took a doctors deposition, which revealed that during her surgery a stapler was used that had, on previous occasions, caused injuries similar to plaintiffs. (Id. at p. 804.) The plaintiff then filed an amended complaint, which added the staplers manufacturer as a named defendant and added a products liability cause of action. The trial court sustained the manufacturers demurrer without leave to amend on statute of limitations grounds. Fox, however, held that the plaintiff could allege facts to show that her cause of action against the manufacturer was timely under the discovery rule. That rule postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Id. at p. 807.) [I]f a plaintiffs reasonable and diligent investigation discloses only one kind of wrongdoing when the injury was actually caused by tortious conduct of a wholly different sort, the discovery rule postpones accrual of the statute of limitations on the newly discovered claim. (Id. at p. 813.)

Fox has no application to this case. The Browns sued for medical malpractice and loss of consortium in April 2003, and they originally named Dr. Gregg Sobeck, Northridge Hospital, and Does 1-100 as defendants. Thereafter, discovery identified additional defendants. Namely, discovery served in November 2003 stated, [T]he medical records reveal that the following physicians participated in, or where [sic] contacted regarding, Plaintiff Peter Browns care during his admission of February 10-22, 2002: Ann McKittrick, M.D., c/o Northridge Emergency Medical Group, 18300 Roscoe Blvd., Northridge, California, 91328. By virtue of this discovery response, the Browns claim they first became aware of Dr. McKittricks and NEMGs existence. It was then through deposition testimony in April 2004 (although the Browns do not clearly identify what testimony) that they learned Dr. McKittrick and NEMG were partly responsible for their injuries. The Browns therefore amended their complaint in October 2004.

This amendment, however, merely substituted Dr. McKittrick and NEMG in as previously-named Doe defendants. It did not, unlike the amended complaint in Fox, state a new cause of action. Rather, the Browns knew that that they had medical malpractice and loss of consortium claims almost immediately after Peter Browns surgery in February 2002, as it is undisputed that they investigated from February to November 2002 the medical care he received. Unlike the plaintiff in Fox, they did not, discover tortious conduct of a wholly different sort[.] (Fox, supra, 35 Cal.4th at p. 813.) All that discovery allegedly revealed to the Browns was the names of defendants involved in the same tortious conduct that was at issue in the original complaint, i.e., medical malpractice. But a failure to discover or have reason to discover the identity of a defendant does not postpone the accrual of a cause of action. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399; accord, Fox, supra, at p. 807.) Therefore, the Browns medical malpractice and loss of consortium claims against these defendants began to accrue before April 2003, when they filed their original complaint.

Hence, the October 2004 amendment naming Dr. McKittrick and Northridge is timely only if it relates back to the original complaint under section 474. Section 474 provides, in part: When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended according; . . . Under section 474, [a] plaintiff ignorant of the identity of a party responsible for damages may name that person in a fictitious capacity, a Doe defendant, and that time limit prescribed by the applicable statute of limitations is extended as to the unknown defendant. . . . [Citation.] (Balon v. Drost (1993) 20 Cal.App.4th 483, 487 (Balon).) For an amendment to relate back under section 474, the plaintiff must have been genuinely ignorant of the defendants identity at the time plaintiff filed the original complaint. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177 (Woo).) The lack of knowledge of the true name of the defendant . . . must be real and not feigned. [Citation.] . . . Ignorance of the facts is the critical issue, and whether it be due to misinformation or negligence is not relevant. [Citations.] [Citations.] (Balon, supra, at p. 488.)

In Balon, supra, 20 Cal.App.4th 483, the plaintiff and Hurley were involved in a car accident. Hurley did not own the car he was driving. Hurley wrote his identifying information on a piece of paper, but plaintiff lost it. Shortly before the statute of limitations ran, plaintiffs attorney filed a complaint against the cars owner and fictitiously named defendants. Two weeks after filing the complaint, plaintiffs attorney obtained Hurleys name from an accident report and filed an amended complaint under section 474 to substitute Hurley as a fictitiously-named defendant.

The court held that section 474 imposed on the plaintiff no duty of inquiry to discover or investigate Hurleys identity before filing the complaint. Rather, a plaintiff may act unreasonably in failing to ascertain a defendants name and still claim the benefit of section 474. (Balon, supra, 20 Cal.App.4th at p. 489.) The court found that the record indicated that plaintiff didnt know Hurleys identity when she filed her complaint. (Ibid.) It also noted that Hurley was named a mere two weeks after the original complaint was filed, which indicated that the plaintiff had no design to use section 474 for a purpose beyond its intended one. (Id. at p. 490.) The court therefore held that the amendment naming Hurley related back to the original complaint, and the statute of limitations did not bar the amendment.

Under similar circumstances, the court in Woo, supra, 75 Cal.App.4th 169, disagreed with Balon. The plaintiff in Woo was told in April 1996 that Dr. Woo had misinterpreted her mammogram, causing a biopsy specimen to be incorrectly removed. (Id. at p. 174.) When the plaintiff filed her complaint in May 1997, however, she did not name Dr. Woo. She did not name him until February 1998, arguing that the amendment related back to the original complaint. The plaintiff testified that although she knew Woos identity, she forgot his name at the time she filed the complaint in April 1997. She remembered it after conferring with her attorney and reviewing medical records in November 1997. (Id. at p. 178.)

The court held that the amendment to name Woo as a defendant did not relate back. In so holding, the court noted two significant differences between its case and Balon. First, the amendment in Balon was made without delay after the plaintiffs attorney made an immediate attempt to identify the new defendant. Second, Woo disagreed with Balon insofar as Balon equated a claimed memory lapse with the actual ignorance requirement under section 474. (Woo, supra, 75 Cal.App.4th at p. 180.) The court said, [W]hen the plaintiff had actual knowledge of the defendants identity prior to filing a complaint, but has forgotten the defendants identity at the time of filing the complaint, the plaintiff must review readily available information that discloses the defendants identity to invoke the section 474 relation-back doctrine; otherwise, the plaintiff is not in good faith using section 474. A requirement of reviewing readily available information is not a significant burden, is not inconsistent with the cases that impose no duty of inquiry on plaintiffs who never knew the defendants identity, and assures the good faith of plaintiffs who seek to use the section 474 relation-back doctrine. (Ibid.)

This case is closer to the facts in Woo than those in Balon,^[6]and we therefore conclude that the Browns failed to raise a triable issue of material fact that they did not know Dr. McKittricks and NEMGs identities when they filed their complaint in April 2003. Specifically, it is undisputed that the Browns knew, just months after Peter Brown fell in February 2002, that emergency personnel were partly responsible for their injuries. Between February and November 2002, the Browns were told that (1) something had gone terribly wrong with the emergency care he received at Northridge Hospital, (2) Mr. Brown should have received surgery from a trauma surgeon within six hours from his injury, (3) there was too long a delay between his arrival and the surgery, and (4) the emergency personnel were deficient in contacting an on-call doctor, and (5) the emergency personnel should have transported Mr. Brown to a facility where he could get surgery timely. The Browns also knew that one of the personnel who treated Peter Brown was a woman. At his deposition, Peter Brown said he recalled a female physician attending to him and he described her. Moreover, the Browns did not dispute that Dr. McKittrick introduced herself by name on February 10, 2002 in the emergency room.

Peter Brown did say at his deposition that he did not recall Dr. McKittrick identifying herself as the emergency room doctor and that he had no independent recollection of the doctors name. This is not the same, however, as an express statement or testimony, set forth in either a declaration or in the separate statement of undisputed facts, that, at the time the Browns filed their original complaint in April 2003, they were ignorant of or forgot Dr. McKittricks and NEMGs identities. Indeed, what the Browns stated in their declarations submitted in opposition to the summary judgment motion was they were unaware of Dr. McKittricks negligence until November 5, 2003 and that it was only through subsequent investigation and discovery responses and depositions taken did I become aware that Dr. McKittrick and Northridge Emergency Medical Group were negligent. (Italics added.) Thus, unlike the situation in either Woo or Balon there is no clear statement that the plaintiffs forgot or were actually ignorant of the defendants names until November 2003.

Moreover, the lengthy delay between the time the Browns claimed they discovered defendants names in November 2003 and the time they amended their complaint in October 2004 also undermines their contention that their lack of knowledge of these defendants names was real and not feigned. The Browns nonetheless offer two explanations for this delay of one year between the claimed discovery of defendants identities and the October 2004 amendment.

First, they imply they were somehow impeded from discovering Dr. McKittricks and NEMGs identities. Northridge Hospitalwhich is not a party to this appealobjected to discovery propounded soon after the complaint was filed in April 2003. The Browns moved to compel responses. The motion was denied, and they were sanctioned. Then, on November 5, 2003, a codefendant served a discovery response, which stated, in part, [T]he medical records reveal that the following physicians participated in, or where [sic] contacted regarding, Plaintiff Peter Browns care during his admission of February 10-22, 2002: Ann McKittrick, M.D., c/o Northridge Emergency Medical Group, 18300 Roscoe Blvd., Northridge, California, 91328. The Browns argue that this response did not clearly identify either Dr. McKittrick or NEMG because it was ambiguous in that it did not clearly state that Dr. McKittrick was not employed by Northridge Hospital, only stating c/o Northridge Emergency Medical Group. It did not clearly state that [NEMG] was a separate entity from Northridge Hospital.

This discovery response was not ambiguous, insofar as it clearly identified Dr. McKittrick and NEMG. Even under Balons liberal rule imposing no duty of inquiry on a plaintiff to discover the name of a defendant he or she has forgotten, this discovery response certainly obligated the Browns to investigate Dr. McKittricks and NEMGs identities and part in Peter Browns medical care. It is unclear, therefore, why it took almost one more year from the date of the discovery response for the Browns to file their amendment naming Dr. McKittrick and NEMG as defendants. And, in any event, the Browns do not dispute that before they filed the complaint in April 2003, either Peter Browns law office or his doctor obtained his medical chart. Dr. McKittricks identity is clearly reflected in those documents. Therefore, under the rule articulated in Woo, defendants identities were readily accessible before litigation even began.

Second, the Browns try to explain the lengthy delay in identifying Dr. McKittrick and NEMG as defendants by stating that they didnt know these defendants contributed to their injury until April 2004. This explanation contradicts the Browns concession they knew that emergency personnel caused their injuries at the time the original complaint was filed in April 2003. They knew the identities of that emergency personnelDr. McKittrick and NEMGno later than November 2003. Yet, they waited almost one more year to name them as defendants. Therefore, this explanation similarly does not show that the Browns ignorance of defendants identities was real and not feigned.

We conclude that the trial court properly found that the Browns action against Dr. McKittrick and NEMG is barred by section 340.5. Because we agree that the trial court properly granted summary judgment on the statute of limitations issue, we need not reach any other ground raised in the summary judgment motion.

DISPOSITION

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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

^[2] They also moved on the grounds that they met the standard of care, and they did not cause the Browns injuries. Dr. Larry J. Baraff, who is board certified in emergency medicine, filed a declaration in support of the motion on those issues. He stated that Dr. McKittrick and NEMG complied with the community standard of care and, to a reasonable degree of medical probability, no act or omission by them was a factor in causing any injury to Peter Brown. He explained that Dr. McKittrick properly and correctly assessed and stabilized Brown; properly determined he needed admission to the hospital and an orthopedic consultation; properly contacted a doctor from Browns medical group to arrange for inpatient admission and to advise him of the patients condition; and properly ordered and administered antibiotics. The standard of care did not obligate Dr. McKittrick or NEMG to choose an orthopedic surgeon or to ensure that an orthopedic surgeon from Browns medical group was available.

^[3] Dr. Bruce Wapen also submitted a declaration in support of the Browns opposition. He stated that the usual and customary hospital protocol for handling a situation where an on-call physician who is needed emergently does not respond is for the hospital to call every 5-to-10 minutes, set a time limit for that physician to respond, if the physician doesnt respond then call the chief of that department or chief of staff or administrator, and if a physician cant be found then transfer the patient to another facility that can provide the needed service. Dr. McKittrick and NEMG fell below the standard of care by failing timely to provide Peter Brown with an orthopedic specialist. It is below the standard of care to allow a compound, comminuted fracture to go for 20 hours without surgical intervention. The delay in surgical consultation and intervention caused Browns wound infection, compartment syndrome, the second surgery, and increased pain and suffering.

Dr. McKittrick and NEMG filed evidentiary objections, which included objections to Dr. Wapens declaration. The trial court did not rule on any objections.

^[4] The court did not reach standard of care and causation issues, although it said that there probably was a triable issue of material fact.

^[5] First, the trial court improperly applied section 340.5. Second, the trial court failed to recognize that section 474 is the controlling statute as it pertains to the amendments naming Dr. McKittrick and NEMG as defendants. Third, the trial court erred in granting summary judgment. Fourth, the trial court failed to apply Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797.

^[6] The Browns do not discuss either Woo or Balon on appeal.