Gutierrez v. Mofid

¶1I dissent.

¶2Since 1979 Court of Appeal case law has been clear, as a matter of statutory interpretation, that the statute of limitations in medical malpractice cases run after one year only if the plaintiffs knew or reasonably should have known that the cause was actionable. (Jones v. Queen of the Valley Hospital (1979) 90 Cal.App.3d 700 [153 Cal.Rptr. 662].) The three-year statute is absolute. The Legislature, faced with that interpretation, made no change in the statute. The general rule of statutory construction is that, absent statutory change, the interpretation continues as good law. (See Slocum v. Bear Valley Irrigation Co. (1898) 122 Cal. 555, 556 [55 P. 403]; People v. Hallner (1954) 43 Cal.2d 715, 719 [277 P.2d 393]; Burt v. Scarborough (1961) 56 Cal.2d 817, 822 [17 Cal.Rptr. 146, 366 P.2d 498]; Fullerton v. State Water Resources Control Bd. (1979) 90 Cal.App.3d 590, 602 [153 Cal.Rptr. 518].) This is not an unalterable rule, of course. However, when the interpretation is reasonable it should not be supplanted by another reasonable interpretation from this court, absent a factor which tips the balance in favor of the new interpretation. Since the unanimous Court of Appeal opinion authored by Presiding Justice Kingsley properly followed the above rule of construction, I adopt the opinion as my own. It reads:

“Plaintiff has sued for damages based on a claim that defendant doctors, employed by defendant hospital, performed a hysterectomy on her without her knowledge or consent. The trial court granted summary judgment for the defendants on the ground of the statute of limitations. We reverse.

“Plaintiff was a patient in defendant hospital. On December 22, 1978, she was operated on by defendant doctors. Her claim is that she had consented to an operation for the removal of her appendix and a tumor but that, while she was under anesthesia, the doctors had also performed a complete hysterectomy.

*904“In April of 1979, she consulted a well-known firm of attorneys, professionally known as experts in the field of medical malpractice litigation, and was advised that she had no cause of action against the doctors or hospital. Plaintiff continued to feel distressed and angry over the extent of the operation and, finally, after much urging by friends, consulted her present counsel who, on November 21, 1980, filed the present action.

“Section 340.5 of the Code of Civil Procedure provides in pertinent part as follows:

“ ‘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 Jones v. Queen of the Valley Hospital (1979) 90 Cal.App.3d 700, we construed and applied that section in a case somewhat similar to the case at bench. In Jones, a child was misdiagnosed by defendant doctors as having only a case of flu, was given medicine and sent home. The child was worse the following morning, was returned to the hospital but died on that trip. It was later discovered that the child was suffering from meningococcemia, for which the simple treatment recommended was inappropriate. As here, parents consulted a firm of attorneys, who, after examining the hospital records, advised them that they had no cause of action. Again as here, the parents were unhappy over the advice, eventually consulted a second attorney, who filed a malpractice suit, but over a year after the misdiagnosis. We held that the statute did not begin to run until the injured person knew both of the medical error and knew, also, that the error was actionable.1 We can see no difference here.

“‘The Supreme Court denied hearing in Jones. Admittedly plaintiff knew the morning after the operation that a hysterectomy, to which she had not consented, had been performed. But she satisfied the requirement of investigation and was told that the operation, although not consented to, was not actionable. The rule of Jonesapplies here. The action is not barred by section 340.5.

“The judgment is reversed.” [End of opinion.]

¶3Since I agree with the conclusion of the Court of Appeal I, too, would reverse.

¶5I respectfully dissent. The majority conclude that plaintiff’s medical malpractice action is barred by Code of Civil Procedure section *905340.51 because it was not filed within a year of April 1979 when plaintiff was “advised by a physician to sue for her injuries and decided to consult an attorney for that purpose.” (Maj. opn., ante, at p. 902.) However, when plaintiff consulted the attorney she was told that she could not sue because there was no “provable malpractice.” In light of the attorney’s advice, plaintiff cannot be said to have discovered her injury and its “ ‘negligent cause’” in April of 1979. (See Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99 [132 Cal.Rptr. 657, 553 P.2d 1129].) Although the physician’s advice may have been “sufficient to place a reasonable person on inquiry as to the probability of actionable conduct on the part of defendants” (Graham v. Hansen (1982) 128 Cal.App.3d 965, 973 [180 Cal.Rptr. 604]), plaintiff’s subsequent discussions with the attorney nullified any “discovery” she may have made and convinced her that she had no cause of action.

¶6Plaintiff used reasonable diligence in an attempt to redress her grievances. (See § 340.5.) Upon receipt of information that raised a suspicion of negligence, she promptly sought legal advice. However, that legal advice hindered this otherwise diligent plaintiff from discovering her cause of action. Since plaintiff was, therefore, “blamelessly ignorant” of her cause of action (see maj. opn., ante, at p. 898), I see no reason to penalize her by depriving her of the right to seek compensation for her injuries.

¶7An injured party cannot and should not be expected to file a lawsuit that she has been told is meritless. This court should follow the precedent established in Jones v. Queen of the Valley Hospital (1979) 90 Cal.App.3d 700, 703 [153 Cal.Rptr. 662]. The one-year “discovery” statute of limitations found in section 340.5 should have been tolled once plaintiff was informed by her attorney that she “would not be able to sue.”

¶8The majority concede the logic of this position. (Maj. opn., ante, at p. 898.) They also admit that the refusal to take discouraging legal advice into account in determining the limitations period arguably “contravenes the proper purposes of the ‘constructive notice’ rule.” (Id.., at p. 898.)

¶9As the majority note, “[t]hat rule is premised on the notion that ‘the means of knowledge are the equivalent of knowledge. ’ It declines to reward the plaintiff for his ignorance in fact if he had ‘the opportunity to obtain knowledge from sources open to his investigation’ and should, by the exercise of ‘reasonable diligence,’ have obtained it.” (Ibid.) Similarly, a diligent plaintiff should not be penalized where the sources open to her investigation do not lead to the discovery of her cause of action but, instead, impede it.

¶10*906It is arguable that plaintiff received notice of the negligent cause of her injury when Dr. Perez told her in February of 1979 that the doctors had performed “too much” surgery. However, that notice was effectively negated by the attorney’s advice in April of 1979 that plaintiff would not be able to sue. Plaintiff was left without notice of the negligent cause of her injury. Therefore, the one-year “discovery” statute of limitations began to run in February of 1979 but was tolled from April of 1979 until November of 1980 when plaintiff was informed by her second attorney that she had a cause of action for medical malpractice.

¶11Plaintiff was injured in December of 1978. She filed her action in November of 1980, well within the three-year absolute limitations period of section 340.5. Since the discovery limitations period was tolled, plaintiff also satisfied the one-year discovery statute of limitations. Therefore, plaintiff’s action was timely filed.

¶12The majority recognize the harshness of their rule. However, they suggest that it is necessary to avoid grafting an implied exception, open-ended in nature, onto the absolute time bars imposed by other statutes. (Majority opn., ante, at p. 900, fn. 2.) Plaintiff does not argue for an open-ended exception. She concedes that the three-year absolute statute of limitations in section 340.5 should not be tolled upon an attorney’s advice not to sue. Nevertheless, the majority suggest that if discouraging legal advice were held to extend the one-year discovery period of limitations for medical malpractice, fairness would dictate that “those ‘absolute’ limitations periods not dependent on discovery” (majority opn., ante, at p. 900, fn. 2) should be similarly tolled. Since such statutes contain no outside limitations period, the result would be an unlimited extension.

¶13The majority’s fear is unfounded. The logic that supports extending a “discovery” period of limitations does not apply to an absolute limitations period fixed without reference to the plaintiff’s knowledge. A discovery period of limitations should be tolled after discouraging legal advice because such advice negates the conclusion that the injured party has discovered facts “sufficient to place a reasonable person on inquiry as to the probability of actionable conduct on the part of defendants.” (Graham v. Hansen, supra,128 Cal.App.3d at p. 973.) However, an absolute statute of limitations, like the three-year provision of section 340.5, runs from the date of injury and is not dependent upon or influenced by the plaintiff’s knowledge.

¶14The discovery limitations period was developed by the common law as an exception to the conventional, absolute statute of limitations. (Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at pp. 96-97.) It was applied to medical malpractice suits because a layperson “may not recognize the *907negligence of the professional when he sees it” and “often he will lack any opportunity to see it.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188 [98 Cal.Rptr. 837, 491 P.2d 421].) The discovery limitations period is a “modern adjustment,” reflecting a “concern for the practical needs of prospective plaintiffs.” (Davies v. Krasna (1975) 14 Cal.3d 502, 512 [121 Cal.Rptr. 705, 535 P.2d 1161].)

¶15However, the discovery limitations period was harshly criticized by the medical profession and its insurers because it left physicians under the perpetual threat of a malpractice suit, “regardless of the number of years that [had] elapsed since the patient was treated.” (Comment, A Four Year Statute of Limitations for Medical Malpractice Cases: Will Plaintiff’s Case be Barred? (1971) 2 Pacific L.J. 663, 668, hereafter Medical Malpractice.) In 1970 the Legislature responded by enacting section 340.5, which, in its present form, places an absolute limitations period of three years on a medical malpractice action. (See id., at pp. 667-670; § 340.5.) This limitations period applies regardless of the plaintiff’s failure to discover his or her injury and its negligent cause.

¶16By placing a cap on the otherwise open-ended discovery period of limitations, the Legislature balanced the injured plaintiff’s interest in compensation against the physician’s interest in being free of stale claims. (See ibid.) In essence, the Legislature determined that after three years, “‘the right to be free of stale claims . . . comes to prevail over the right to prosecute them’” (Wood v. Elling Corp. (1977) 20 Cal.3d 353, 362 [142 Cal.Rptr. 696, 572 P.2d 755]).

¶17The majority also argue that “[a] delayed limitations period encourages the professional tortfeasor to fulfill his ‘fiduciary duty of full disclosure.’” (Majority opn., ante, at p. 899.) According to the majority, this purpose is not furthered by extending the discovery limitations period when “plaintiff is dissuaded from suit by the conduct of a third person.” (Ibid.) This reasoning is unpersuasive. In light of the three-year absolute bar of section 340.5, the one-year discovery statute of limitations provides physicians with no incentive to reveal potential negligence to their patients.

¶18It is arguable that prior to enactment of section 340.5, a physician was “encouraged” to tell his patients of possible malpractice. Because the one-year discovery period was not subject to any absolute bar, a physician who made no disclosure faced the possibility of a lawsuit long after the alleged malpractice had occurred, as long as the patient had not discovered the negligence through another source. Therefore, in view of the hardship of defending a stale claim, a physician might have preferred to risk an imme*908diate lawsuit resulting from disclosure, rather than gamble that the patient would never discover the negligent cause of his or her injury.

¶19The situation was altered drastically when section 340.5 was enacted. Section 340.5 eliminated the open-ended feature of the one-year discovery limitations period and imposed an absolute statute of limitations on medical malpractice claims.2 This absolute limitations period applies regardless of plaintiff’s knowledge. Thus, the physician need not disclose his or her negligence in order to avoid the possibility that a suit will be filed many years after the alleged injury. Moreover, the advantage the physician gains by the suit being filed more promptly if disclosure is made, is outweighed by the possibility that, absent disclosure, the injured party may fail to discover his or her injury in time to file suit. Therefore, the one-year discovery limitations period no longer provides the physician with any incentive to disclose his or her negligence.

¶20To the extent that physicians are encouraged by section 340.5 to reveal their negligence, the incentive is provided by the tolling provision included in the statute, not by the one-year discovery limitations period. The tolling provision states that the three-year absolute limitations period will be tolled, inter alia, upon proof of fraud or “intentional concealment.”

¶21As originally proposed, section 340.5 did not address the physician’s failure to disclose his or her negligence. (See Medical Malpractice, supra, 2 Pacific L.J. at p. 669.) However, the Legislature apparently concluded that the statute, as proposed, did not provide sufficient incentive to disclose, “[interested parties argued that it would be manifestly unfair to apply the four-year limitations period resulting in an absolute cutoff date in those cases in which plaintiff’s failure to discover his cause of action within the statutory period stemmed from the failure of the health care provider to fulfill a fiduciary obligation to disclose errors and omissions. [Citation.] This argument was deemed persuasive and the proposed legislation was amended to provide for tolling . . . .” (Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at p. 98.)

¶22Since the one-year discovery limitations period does not encourage physicians to disclose their negligence, the propriety of tolling that period does not depend upon whether such tolling will encourage disclosure. Moreover, as this court noted in Sanchez v. South Hoover Hospital, “the treating physician is not always the only source from which knowledge comes, or from *909which suspicion arises, that a claim exists.” (18 Cal.3d at p. 100.) Similarly, the plaintiff’s inability to immediately discover his or her injury and its negligent cause does not always result from a failure to disclose. Discovery can be hindered by the layperson’s lack of expertise in medical matters and the nature of the injuries caused by medical malpractice. (See Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d at p. 188.)

¶23In light of these considerations, section 340.5 balances the “practical needs of prospective plaintiffs” against the “practical purpose that a statute of limitations serves in our legal system.” (Davies v. Krasna, supra,14 Cal.3d at p. 512; see majority opn., ante, at p. 899.) The statute delays the running of the limitations period until discovery, while at the same time imposing an absolute limitations period of three years. A rule that would toll the one-year discovery period upon an attorney’s advice that plaintiff has no cause of action is perfectly consistent with that statutory scheme.

¶24I would hold that plaintiff’s medical malpractice cause of action was tolled by her first attorney’s advice not to sue. It did not begin to run again until November of 1980 when plaintiff’s second attorney informed her that she had a cause of action for medical malpractice.

¶25Appellant’s petition for a rehearing was denied November 14, 1985. Bird, C. J., was of the opinion that the petition should be granted.