| |
|
|
Recent decision on 1) availability of medical negligence statute
of limitations to unlicensed medical intern, and 2) duty of
plaintiff to use reasonable diligence to determine existence of
negligence by health care provider
(July 20, 2007) |
In Chosak v. Alameda County Medical Center (July 20, 2007) 07
C.D.O.S. 8574, the California Court of Appeal, First Appellate
District, held that the limitations period embodied in Code of Civil
Procedure section 340.5 applies to medical students practicing
medicine during their internship pursuant to a statutory exemption
to the state licensing requirements. The decision also holds that in
order for a plaintiff to maintain an action beyond the limitations
period because of delayed discovery, that plaintiff must establish
that she diligently attempted to determine whether her injury was
due to some negligence, or not. Here, because the court found
evidence that plaintiff 1) had doubts about the care she received
within months of the diagnosis she claimed was negligent, and 2) was
not reasonably diligent in “tracking down” the source of her
continued pain, it held she could not invoke a claim of delayed
discovery and her action was time-barred.
Plaintiff Eve Chosak went to Eastmont Wellness Center on June 5,
2003, for a routine eye examination. She was seen by optometry
student Lynn Valdez, who was not a licensed optometrist but was
performing her internship and seeing patients as part of her
training. While preparing the patient for her eye exam, Valdez
operated the controls on the examination chair which caused the
patient’s head to lower and her feet to rise. During this process,
the patient’s foot became trapped underneath the arm of an
examination device attached horizontally above plaintiff’s legs.
Because Valdez could not immediately release the chair, the patient
had to twist her foot loose from the chair, leaving her shoe wedged
between the chair and the device and her foot in pain.
After two weeks had passed and her foot was still sore, the
plaintiff went to the emergency department at Highland Hospital and
was seen by co-defendant Dr. Dhanak, who made the diagnosis of a
sprained ankle. Dhanak ignored the plaintiff’s requests for an x-ray
or other tests and ordered no additional testing or treatment. On
December 5, 2003, plaintiff filed a claim with the Alameda County
Medical Center, which oversees Highland Hospital. In it, she said
she was examined at Eastmont on the day of her injury, but was not
given a clear diagnosis and no tests were performed. She also stated
that two weeks later she went to the Highland ER where Dhanak told
her that “ankle sprains can take weeks to heal” and gave her some
literature regarding the care of ankle sprains. She claimed that
since that ER visit her foot condition worsened.
On March 10, 2005, plaintiff filed her medical negligence claim
against defendants, who responded with demurrers that were sustained
with leave to amend. After plaintiff amended her complaint,
defendant Dhanak demurred and attached plaintiff’s Highland Hospital
Claim form to her papers. Dr. Dhanak and Valdez demurred on the
grounds that the statute of limitations barred plaintiff’s actions
against them. The trial court sustained Valdez’s demurrer without
leave to amend, and gave plaintiff leave to amend the complaint as
to Dhanak. Plaintiff filed a second amended complaint which included
some additional allegations, including some statements about what
Dhanak had said to her that contradicted an earlier declaration of
plaintiff. This time, when Dhanak demurred, she attached not only
the claim form used earlier, but a declaration by plaintiff that
contradicted some of the allegations in the second amended
compliant. (Note that plaintiff did not object to the attachment of
documentary evidence to the demurrer). The trial court sustained the
demurrer to the second amended complaint without leave to amend and
plaintiff appealed.
Plaintiff challenged the dismissal of the action against Valdez on
the grounds that Valdez could not use the protection of the one-year
statute of limitations for medical malpractice actions contained in
CCP 340.5 because she was not a licensed health care practitioner at
the time of the accident. She contended her case against Dhanak
should not be dismissed because it did not accrue until March 2004
when she learned Dhanak may have misdiagnosed her injury.
With respect to the appeal of the dismissal of the case against
Valdez, the court went through a detailed discussion about statutory
interpretation, public policy and MICRA. It noted that CCP 340.5
contained a limitations period that applied to all medical
negligence actions against a variety of licensed health care
providers. Though as a medical student Valdez was not a “licensed”
health care provider, she was not practicing unlawfully; as an
optometry student, she was practicing pursuant to a statutory
licensing exemption that authorizes optometry students to practice
as part of their education. The court interpreted the Business and
Professions Code to broadly “cover any person authorized to practice
medicine under those licensing and certification statutes,
regardless of whether the person actually possesses a license or
certificate.” The court went on to say that in this situation, the
statutory language permits more than one reasonable interpretation:
It was reasonable for plaintiff to make her argument based on the
plain meaning of the statute, which restricts “health care provider”
to “persons licensed or certified” under state statute. But, the
position proffered by Valdez—that section 340.5(1) also includes
persons who are lawfully practicing pursuant to an exception to a
licensing requirement—was also reasonable. The court observed that
“exempting a person from licensing requirements gives him or her
‘permission or consent’ to practice on a par with an actual license”
and thus “the plain meaning of the words of subdivision (1) of
section 340.5 could refer not only to the granting of a license or
certificate but also more generally to the granting of legal
authorization to practice medicine. Either definition is equally
consonant with the nature and purpose of the statutes.”
Because the court found that section 340.5 was intended to cover all
medical malpractice actions, “it should be construed to cover all
actions against medical professionals operating lawfully under the
licensing and certification statutes, whether licensed or exempt.”
In this case of first impression, the court found that Valdez was
practicing lawfully under a statutory licensing exemption and
therefore she fell within the definition of health care provider of
CCP section 340.5, and affirmed the trial court’s dismissal of
plaintiff’s action against her.
As for plaintiff’s claim that she was entitled to invoke a longer
limitations period against Dr. Dhanak because of her delayed
discovery of Dhanak’s negligence, the court again disagreed and
affirmed the trial court’s dismissal. The appellate court found the
record did not support plaintiff’s claim. Rather, it found the
record showed that within in weeks of the injury, plaintiff “had
reason to suspect that [Dhanak’s] diagnosis was incorrect. At that
point, plaintiff was under a duty to perform a reasonable
investigation to determine the source of her continued pain and,
incidentally, whether Dhanak had diagnosed her injury properly.” The
court felt plaintiff did not meet her duty.
Plaintiff tried to argue that she actually sustained two
injuries—one at the time of the incident at the clinic, and the
second when the injury “became permanent’ at some point after the
initial trauma. Again, the court was unpersuaded. “Under the
discovery rule…the statute of limitations does not necessarily
accrue at the time any particular injury occurs, but ‘begins to run
when the plaintiff suspects or should suspect that…someone has done
something wrong to her.’ Plaintiff had reason to suspect that
something wrong had been done to her—that is, that her ankle injury
had been misdiagnosed as a sprain—when her ankle failed to heal
within a few weeks. It was then that her cause of action accrued,
regardless of when and how the consequences of that wrong later
became manifest.”
This ruling is good for defendants in several ways. First, it makes
clear that medical students practicing in California pursuant to a
statutory licensing exemption are covered by the statute of
limitations in CCP section 340.5 and, arguably, the MICRA statutes,
which are intended to apply to all medical negligence cases in
California. Second, the court’s discussion about the plaintiff’s
duty to use reasonable diligence to determine whether she has a
cause of action against a health care provider or not is also
useful. The court distinguishes two other decisions that found for
the plaintiff on the use of the delayed discovery aspect of 340.5 (Artal
v. Allen and Kitzig v. Nordquist) and gives defendants some good
language to use in cases where a claim of delayed discovery may be
at issue. |
|
 |
| |
|
