| |
|
|
|
Recent decision on Doe amendments vacated and new opinion issued |
Last month I summarized the opinion in McOwen v. Grossman (June 28,
2007) C.D.O.S. 7738, in which the California Court of Appeal for the
Second Appellate District held the trial court erred in ruling 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 and the role he played in plaintiff’s
care 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 July 26, 2007, the appellate court vacated its June 28, 2007
decision and filed an amended opinion. The new citation for the
McOwen opinion is McOwen v. Grossman (July 26, 2007) 07 C.D.O.S.
8901. This opinion follows Dr. Grossman’s motion for rehearing; the
request for a rehearing was denied, but this amended opinion was
issued.
Briefly, the record showed that 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, Dr. Cossman, opined that if respondent had ordered an
angiogram 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.
The modified McOwen decision is essentially the same as the
original, though the court goes into a bit more detail to address
respondent’s contentions about what the appellant (and, by
extension, appellant’s experts) knew about him and when. The thrust
of respondent’s contentions was that, based on entries made in the
records by Dr. Grossman about the fact he explained to the appellant
the possibility of ordering an angiogram (the test Dr. Cossman said
he should have ordered) and why he was not going to order that test,
appellant’s own “experts must have deduced from these references the
totality of Dr. Cossman’s opinions” which allegedly formed the basis
for bringing in Dr. Grossman as a Doe. The court maintained that the
“record as presently constituted reflects that until Dr. Cossman
came along, no one offered Dr. Cossman’s [opinions]….” It found the
issue of whether Dr. Grossman erred by not ordering an angiogram was
in dispute and it is “not the function of a summary judgment to
resolve such an issue.” Because the court found no evidence—as
respondent suggested—that plaintiff’s experts or anyone else offered
the critical opinions offered by Dr. Cossman, it is a question of
fact whether appellant knew facts that indicated respondent ordered
the wrong test before the time of Dr. Cossman’s deposition.
It is interesting to compare and contrast this decision with the
recent opinion in Chosak v. Alameda County Medical Center, which I
summarized yesterday. Looking at these decisions side by side makes
it clear that a statute of limitations analysis cannot be used when
dealing with a Doe amendment issue, as the court stated in McOwen.
In Chosak (a statute of limitations case) the court determined the
plaintiff had not acted with reasonable diligence to name defendants
and file the complaint. In McOwen, on the other hand, the court said
the plaintiff did not have to show that he or she acted diligently
to identify who may have acted negligently: “reasonable diligence is
not germane to determining whether a Doe amendment was timely.”
Per McOwen, knowledge of a Doe defendant’s name, identity and role
in care at the time the complaint is filed will not be sufficient to
defeat a later CCP section 474 amendment; further, plaintiff has no
duty to investigate the possibility that known treaters acted
negligently. Though a plaintiff has an obligation to exercise
reasonable diligence when it comes to timely filing a complaint, he
has no duty to investigate the theory of liability for any given
treater who might end up being added as a Doe. If, at the time the
complaint was filed, 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 later as a Doe. 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 will succeed in light of McOwen. |
|
 |
| |
|
