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In McOwen v. Grossman (June 28, 2007) 07 C.D.O.S. 7738, the
California Court of Appeal for the Second Appellate District held
that the trial court erred in ruling that the statute of limitations
barred a plaintiff from amending his complaint to add a physician as
a Doe defendant because the plaintiff knew the identity of the
physician at the time the original complaint was filed. The
appellate court held that the operative question is not whether the
plaintiff knew the name and identity of the Doe defendant at the
time the complaint was filed or within the limitations period, but
whether the plaintiff knew “facts that would cause a reasonable
person to believe that liability is probable.” In sum, the court
held that a “plaintiff can avail him- or herself of section 474 if
the plaintiff is ignorant of the facts that give rise to a cause of
action against a person who is otherwise known to the plaintiff.”
On February 1, 2003, plaintiff and appellant Kevin McOwen, a
diabetic, stepped on a nail but did not seek treatment for a couple
of days. He initially went to defendant Caremore Medical Group and
was treated by a nurse who prescribed ointment which McOwen
continued to use for several weeks. When it was apparent this
treatment was inadequate, McOwen saw respondent Mark Grossman, M.D,
a vascular surgeon; he saw respondent twice—March 20 and March 28,
2003—before respondent referred him to an infectious disease
specialist. Within several weeks after seeing the infectious disease
specialist, McOwen had his toe amputated; his leg was amputated in
July 2003. On March 25, 2004, McOwen filed his complaint for medical
negligence and named the clinic and its employee, the nurse,
defendants, along with multiple Does. Respondent’s deposition was
taken November 15, 2004. McOwen amended his complaint to name
Grossman a Doe defendant on August 8, 2005.
Grossman made a motion for summary judgment on the grounds that
appellant’s action against him was barred by the applicable statute
of limitations because McOwen knew who Grossman was and the fact
that Grossman had treated him at the time the original complaint was
filed. The trial court granted the motion, and McOwen timely
appealed.
McOwen contended that should be permitted to name Grossman as a Doe
because he did not learn of respondent’s potential liability until
March 7, 2005, when he received amended discovery responses from
Caremore that Grossman’s treatment “may have contributed to the
injuries sustained by plaintiff.” Apparently, the expert for
Caremore opined that if respondent had ordered different tests for
appellant, the patient’s leg may have been saved. On March 21, 2005,
the expert’s deposition was taken and he expressed the opinion that
Grossman’s treatment may have contributed to the injuries sustained
by plaintiff. In support of his effort to name Grossman a Doe
defendant, plaintiff stated in a declaration under penalty of
perjury that the “first time I was made aware of any facts that may
have raised a suspicion of wrongdoing with respect to [respondent]
was after the deposition of defendant CAREMORE MEDICAL GROUP and
PEGGY SALAZAR’S expert, David A. Cossman, M.D. Prior to that time,
no such facts were made aware to me [sic] concerning the same.”
Grossman was named a Doe defendant on August 8, 2005.
Though Grossman was able to persuade the trial court that his
summary judgment should be granted because the statute of
limitations barred plaintiff from naming him a Doe when his identity
and the fact he treated plaintiff were known to plaintiff at the
time the original complaint was filed, the court of appeal held it
was error to decide this issue based on the statute of limitations
rather than on the language of CCP section 474.
“The error in this case, as it was in Fuller v. Tucker, is in
identifying the issue in terms of the statute of limitations. The
issue, however, is not when the cause of action against the newly
named defendant accrued, i.e., whether the statue of limitations
bars the action against respondent. This cannot be the issue since
the complaint was filed within the statue of limitations and because
the complaint, as filed, named Doe defendants. The statue of
limitations is not at issue under these circumstances.” (Emphasis in
original.)
The court goes on to explain that section 474 “allows a plaintiff in
good faith to delay suing particular persons as named defendants
until he has knowledge of sufficient facts to cause a reasonable
person to believe liability is probable.” The court notes that the
fact plaintiff had the “means” to obtain knowledge about the Doe
defendant is “irrelevant”—a plaintiff does not have a “duty” under
section 474 “to go in search of facts she does not actually have at
the time she files her original pleading.” The court noted that
while “reasonable diligence may be material to the determination of
the accrual of a cause of action, reasonable diligence is not
germane to determining whether a Doe amendment was timely.”
(Emphasis in original.) Because the appellate court felt the trial
court imposed a duty on appellant to exercise due diligence in
determining whether he should have named respondent earlier than he
did was error, it reversed.
The court explained that it is a question of fact whether, at the
time of filing, “appellant knew of the theory under which respondent
could be liable” and said respondent’s contention that “appellant
knew of respondent, and of course also knew that respondent had
treated him in March 2003” did not matter when analyzing the
appropriateness of a Doe amendment. (Emphasis added.) The essential
question on a 474 motion in this case was whether appellant knew at
the time he filed his complaint that respondent ordered one test
when he should have ordered another. The court distinguished cases
cited by respondent (including Dover v. Sadowinski and Woo v.
Superior Court) and made it clear that mere knowledge of a Doe
defendant’s identity and role in treatment at the time of filing is
not enough to oppose a later Doe amendment on the basis it was
untimely. Where a “sworn statement by plaintiff claiming ignorance
is not contradicted by previous admissions or concessions [about
knowledge of a basis for a Doe defendant’s liability], the rule is
that facts alleged in the declaration opposing the [summary
judgment] motion must be accepted as true…”
This decision clearly states that knowledge of a Doe defendant’s
name, identity and role in care will not be sufficient to defeat a
later amendment on the basis that the statute of limitations bars
such an amendment. Further, it explains that while a plaintiff has
an obligation to timely file the complaint, he has no duty to
investigate the theory of liability for any given defendant. If a
plaintiff did not have a reasonable belief that the Doe defendant
bore some liability for the damages plaintiff allegedly sustained,
plaintiff will be permitted to bring that defendant in as a Doe.
This decision is worth reading if you have a case in which you are
representing a physician brought in late as a Doe—it makes it quite
clear that unless one can prove plaintiff knew the theory of
liability against a given defendant at the time the complaint was
filed, it is unlikely that a motion to bar the action against the
late-named defendant on the grounds of the statute of limitations
will succeed in light of McOwen.
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