|
In Garabet v. Superior Court (Boghosian) (June 14, 2007) 07 C.D.O.S.
6879, the California Court of Appeal, Second Appellate District
issued a writ of mandate at the request of defendant physicians
after their motions for summary judgment were denied by the trial
court. Defendants argued that plaintiff’s action for medical
malpractice was barred by both the one-year and three-year statutes
of limitations embodied in CCP section 340.5; the appellate court
agreed, issued a writ and directed the trial court to grant
defendants’ summary judgment motions and enter summary judgment in
their favor.
Plaintiff Ara Boghosian first visited defendants Antoine Garabet,
M.D. and Laser Eye Medical Office on July 21, 1998 to determine
whether he was a good candidate for lasik eye surgery. Defendants
examined him and informed him he had astigmatism and myopia and
recommended he go forward with the eye surgery.
On August 8, 1998, the patient had lasik surgery on both eyes. Dr.
Garabet performed the surgery and also obtained the patient’s
consent for the procedure; the patient signed a detailed informed
consent form before the surgery. The informed consent the patient
received included warnings that he could continue to experience
problems—including a worsening of his vision—in one or both eyes, he
could develop halos around light, as well as increased sensitivity
to light, among other things. Lack of informed consent was not
alleged by plaintiff in his lawsuit.
Shortly after the surgery (within weeks) the patient began to have a
number of symptoms, including cloudy and blurred vision and loss of
visual acuity in both eyes. The court observed that “[o]ver time,
many of these problems remained constant or worsened. Boghosian told
defendants of these problems. Defendants at times told Boghosian
there was nothing to be concerned about, many lasik patients
experienced similar symptoms, and the symptoms were normal. Based on
these assurances, Boghosian was of the ‘impression that [his]
procedure was not successful.’” (Emphasis added.)
Until his last visit with defendants on April 25, 2001, Boghosian
continued to treat with defendants. At that point he had decided to
wear corrective lenses and not have surgery. He did not seek care
from an eye doctor again until July of 2004, when he reported to a
new eye doctor that his vision had “taken a turn for the worse in
the prior year.” Subsequent to this visit, Boghosian was fitted for
contact lenses, which caused him considerable discomfort. He
contended that during this time frame he believed the reason he was
having problems with his vision was that he had astigmatism, and did
not “attribute any of the visual problems [he] was experiencing to
be the result of any wrongdoing on [defendants’] part.”
However, on July 18, 2005, Boghosian saw Dr. James Saltz who told
him “that his vision problems were caused by the surgery.” (Emphasis
added.) In Dr. Saltz’s opinion, Boghosian was not a good surgical
candidate for lasik in the first place.
On October 11, 2005, Boghosian served defendants with a CCP section
364 notice of intent to sue, and on January 9, 2006 he filed a
complaint alleging medical malpractice against defendants. Though
Boghosian’s surgery had occurred almost 7 ½ years earlier, and he
had last seen defendants in 2001, he contended his action was not
barred by the statute of limitations because “a period of one
calendar year had not yet elapsed from the date [he]first learned or
reasonably should have known the fact that his injuries and damages
complained of…were a legal result of the negligent acts or omissions
on the part of Defendants; and, further, that a period of three
years has not yet elapsed since the manifestation of this injury,
which occurred on or about July 18, 2005.” Boghosian contended that
his injury did not become manifest until Dr. Saltz expressed the
opinion that the defendants were negligent in their treatment of
him.
The trial court agreed with plaintiff and denied defendants’ motions
for summary judgment on the grounds that Boghosian had “provided
facts sufficient to establish triable issues of material fact as to
the date the action accrued.” Specifically, the court felt plaintiff
provided enough responsive evidence about the “date of injury” to
defeat a summary judgment motion. Defendants then sought the writ
which this court issued.
The appellate court observed that the “word ‘injury’ signifies both
the negligent cause and the damaging effect of the alleged wrongful
act and not the act itself.” Therefore, the actual date of the
surgery, in and of itself, is not necessarily the date used to fix
the “date of injury” for purposes of CCP section 340.5.
Here, the patient suffered—and was aware of—the “damaging effects
almost immediately after the August 18, 1998, lasik surgery. Weeks
after the surgery, plaintiff complained to defendants about cloudy
vision, dryness, double vision, and loss of visual acuity and
sharpness in both eyes. These complaints were repeated to defendants
through April 2001, when plaintiff last saw defendants.” The court
felt that plaintiff’s damages were readily apparent to him within
weeks after his surgery; the plaintiff’s awareness of the damages
and his suspicion that the damages were related to the surgery was
virtually immediate and not delayed or hidden. In granting the writ
and directing the trial court to grant defendants’ summary judgment
motions, the appellate court said plaintiff should have brought his
lawsuit “within three years of the time he first experienced these
side effects, i.e., within three years of experiencing appreciable
harm in 1998. He did not so do as the lawsuit was not filed until
January 9, 2006.”
Because Boghosian did not allege intentional concealment, fraud or
lack of informed consent, his action was barred because he was
almost immediately aware of the “manifestations of his injury” after
the surgery. “Irrespective of the one-year provision of [Code of
Civil Procedure] section 340.5, its three year provision ‘provides
an outer limit which terminates all malpractice liability and it
commences to run when the patient is aware of the physical
manifestations of [his] injury without regard to awareness of the
negligent cause.’” The court thereby rejected any contention that
plaintiff did not know there was malpractice until Dr. Saltz told
him there had been malpractice, over seven years after the surgery
which plaintiff quickly suspected “was not successful.”
This is a good decision for defendants and is a step away from some
other recent decisions that have given plaintiffs great leeway in
arguing that the statutory time period should not begin to run until
the patient is told by a physician or expert witness about the
negligent cause, despite the patient’s longtime suspicion or
awareness that something was not right or had gone wrong with the
treatment by a health care provider. [Compare Kitzig v. Nordquist
(2000) 81 Cal.App.4th 1384, where the court held that even though
the plaintiff suspected something was wrong with the care she had
received from her dentist (she had a hole in her sinus through which
food would travel and come out of her nose as she ate) and even
consulted with a second treater while her care with the defendant
continued, neither the patient’s suspicions nor her consultation
with another treater triggered the limitations period as a matter of
law.] When taking the deposition of a plaintiff in anticipation of
filing a motion for summary judgment on a statute of limitations
basis, under Garabet it will be important to frame and define the
“manifestation of the injury” for purposes of fixing the time that
triggers the statute of limitations, and knowing that it is not
necessarily the date of the alleged wrongful act.
Back to Recent
Decisions Page
|
