Opinion
A147545
05-17-2018
MELANESIA LEWIS et al., Plaintiffs and Appellants, v. DENNIS O'CONNELL et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. CIVMSC1201861)
Plaintiffs Melanesia Lewis (Ms. Lewis) and her husband Charles Lewis appeal from an order granting the motion of Dennis O'Connell and Abigail Goetz to quash service of a third amended complaint in this personal injury action. O'Connell and Goetz were physician assistants employed by Ms. Lewis's physicians at the time of her treatment at Sutter Delta Medical Center. By the third amended complaint, the Lewises sought to name O'Connell and Goetz (collectively the PAs) well after the time the applicable statute of limitations would have run on claims against them, unless the amendment is deemed to relate back to the filing of the original complaint under Code of Civil Procedure section 474. We conclude it does not relate back. We therefore affirm.
All further unspecified statutory references are to the Code of Civil Procedure.
I. FACTUAL BACKGROUND
Prior to May 2011, Ms. Lewis occasionally suffered migraines. In May 2011, her migraines became significantly worse. As a result, she and her husband, Charles Lewis, visited the emergency department at Sutter Delta Medical Center on May 2, May 3, and May 6, 2011. PA O'Connell treated her on May 3, and PA Goetz treated her on May 6. During these visits, no health care provider ordered diagnostic studies (i.e., a CT scan) to determine why Ms. Lewis was experiencing headaches. On May 14, 2011, Ms. Lewis suffered a brain aneurysm.
On July 30, 2012, the Lewises filed a complaint alleging medical malpractice, naming various defendants known to them at that time. After a series of demurrers, on May 29, 2013, the Lewises filed the operative Third Amended Complaint. The Lewises did not name the PAs in the initial complaint or in any amended complaint. They did, however, name 100 Doe defendants under section 474.
In November 2014, the Lewises deposed two individuals identified as persons most knowledgeable on behalf of Sutter Delta Medical Center. The deponents stated that PAs in the emergency room of Sutter Delta Medical Center can work autonomously, originating orders for medical imaging studies without the signature of their supervising physician. The Lewises contend that, based on the testimony offered by these deponents, "it was discovered that a cause of action may lie against [the PAs] due to the possibility that" they made the decision not to perform any medical imaging studies on Ms. Lewis without first seeking the advice of their supervising physician.
A few months later, in March 2015, nearly four years after Ms. Lewis's brain aneurysm, the Lewises filed an amendment to their third amended complaint naming "Abigail Goetz, P.A." as "DOE 52" and "Dennis O'Connell, P.A." as "DOE 53." The PAs both filed motions to quash on the grounds that, as to them, the complaint was not filed within the statute of limitations timeframe set forth in section 340.5 and section 335.1, and that the provision for extending the statutory deadline pursuant to section 474 did not apply.
The trial court granted the motions to quash, ruling the Lewises would not be permitted to amend their complaint to name these "Does" pursuant to section 474 because they had actual knowledge of the PAs' identities at the time the initial complaint was filed. The court also found the Lewises' claim they did not know or have reason to know the PAs were permitted to render care without the supervision of a physician was "feigned" ignorance of the PAs' identities. This timely appeal followed.
II. DISCUSSION
A. Parties' Contentions
The Lewises contend the motions to quash were improperly granted for two reasons: (1) The statute of limitations did not begin to run until the depositions took place in November 2014, and in any case, (2) their proposed amendment related back to the filing of the original complaint, which named the PAs as Doe defendants. They claim it was not until these depositions that the Lewises discovered the PAs may have been permitted to act autonomously, making the decision not to conduct an imaging study without discussing the matter with their supervisors first. This discovery prompted them to substitute O'Connell and Goetz for "Doe" defendants on March 18, 2015. For their part, the PAs argue the Doe amendments are ineffective because the Lewises knew the identities of the PAs and their involvement in Ms. Lewis's care, thus disallowing the application of section 474.
B. Statute of Limitations
Section 340.5 states in pertinent part, "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 some circumstances, an amended complaint can relate back to the original filing date. This exception to the general rule is codified in section 474, which reads in pertinent part, "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly[.]"
Here, the Lewises argue the statute of limitations did not commence until the November 2014 depositions. They cite Tresemer v. Barke (1978) 86 Cal.App.3d 656 (Tresemer) for the proposition that the one-year statute of limitations commences not when the plaintiff merely discovers the harm caused by the alleged wrongful act, but when the plaintiff discovers malpractice. In Tresemer, however, the facts differ from those presented here. There, plaintiff alleged damages sustained from the insertion of a Dalkon Shield intrauterine contraceptive device. (Id. at p. 661.) Plaintiff alleged that she did not discover the cause of her injury until almost three years after the insertion of the Dalkon Shield, and that the doctor who inserted the device had failed to warn her that it was a health hazard when he discovered that fact after its insertion. (Id. at pp. 665, 669.) The Dalkon Shield intrauterine device was eventually withdrawn from the market. (Id. at p. 667.) The appellate court found that nothing in defendant's moving papers contradicted plaintiff's allegation as to when she first discovered the cause of her injuries and no due diligence could have aided an earlier discovery. (Id. at p. 665.) The Court of Appeal held, "Although generally a personal injury claim accrues and the period of limitations commences when the wrongful act takes place, an exception is presented when the pathological effect occurs without perceptible trauma and the victim is 'blamelessly ignorant' of the cause of injury. In such case the [statute of limitations] does not begin to run until the person knows or, by the exercise of reasonable diligence, should have discovered the cause of injury." (Id. at p. 663.)
In Zambrano v. Dorough (1986) 179 Cal.App.3d 169, 172 (Zambrano), a case that applies Tresemer, the court stated under section 340.5, "injury is not synonymous with wrongful act; rather, injury is a word of art which refers to the damaging effect of the wrongful act and not the act itself." (Ibid., citing Tresemer, supra, 86 Cal.App.3d at p. 665.) In Zambrano, plaintiff patient suffered a ruptured tubal pregnancy three weeks after an apparent negligent misdiagnosis by defendant doctor. (Id. at p. 171.) Later, plaintiff learned a total hysterectomy was necessary and that it was possibly related to defendant's previous misdiagnosis. (Ibid.) The Court of Appeal reversed the dismissal of a malpractice claim on the grounds that plaintiff should be permitted to seek damages for loss of her reproductive capacity because that injury was of a different type than the damages she suffered from the misdiagnosis. Plaintiff's cause of action for the discomfort and distress caused by the misdiagnosis was separate from and independent of her right to have children, the court explained. Thus, the statute of limitations did not bar her cause of action for the loss of her reproductive capacity as she filed within one year of learning of the necessity of the hysterectomy and its possible link to defendant's negligence. (Id. at p. 174.)
See also Bispo v. Burton (1978) 82 Cal.App.3d 824, 828, footnote 11 (the word "injury," as used in section 340.5 "seems clearly to refer to the damaging effect of the alleged wrongful act and not to the act itself").
Under Tresemer and Zambrano, the day of Ms. Lewis's injury and the day she discovered it were one and the same. The injury here was the brain aneurysm, and given the nature of brain aneurysms, its discovery was also on the day it happened. Not only was the harm at issue here known to Ms. Lewis before the running of the statute of limitations, but the cause of the harm was known to her as well. The alleged wrongful act was the failure of the PAs to order a CT scan, a wrongful act far different from the insertion of a latently dangerous contraceptive device in Tresemer. The Lewises here knew about the failure to order a CT scan long before they named the PAs in March 2015. For example, their First Amended Complaint, filed September 4, 2012, states the "medical staff failed to provide plaintiff . . . LEWIS with any diagnostic testing . . . ." It is this wrongful act the Lewises allege caused Ms. Lewis's brain aneurysm. As the Lewises state in their opening brief, "As a result of defendants' conduct, Melanesia Lewis' brain aneurysm went undiagnosed," and it ultimately ruptured on May 14, 2011.
The "perceptible trauma" and "damaging effect" here was the aneurysm, and the complaints show the Lewises were not " 'blamelessly ignorant' " of its cause. (See Tresemer, supra, 86 Cal.App.3d at pp. 663, 665; Zambrano, supra, 179 Cal.App.3d at pp. 172-173.) Nothing in the November 2014 depositions revealed this causal link for the first time. The depositions revealed not the wrongdoing (i.e., failure to order a CT scan), but rather triggered a realization on the part of plaintiffs' counsel that PAs could be liable for the wrongdoing because of the scope of their authority. There is no reason that legal conclusion could not have been drawn when the original complaint was filed. Thus, pursuant to section 340.5, the time for the commencement of the applicable limitations began on the day of the injury/aneurysm, May 14, 2011.
See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111("A plaintiff need not be aware of the specific 'facts' necessary to establish the claim . . . Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.").
C. The Exception: Section 474
1. General Requirements for Statute to Apply
An amended complaint that adds a new defendant generally does not relate back to the date of filing the original complaint for purposes of the statute of limitations. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) But section 474, as mentioned above, allows the substitution of a new defendant for a fictitious Doe defendant named in the original complaint. (Ibid.) If the requirements of section 474 are satisfied, even if such substitution occurs after the statute of limitations has expired, the amended pleading is deemed filed as of the date the original complaint was filed. (Ibid.) For section 474 to apply, the plaintiff must have been genuinely ignorant of the defendant's identity at the time he or she filed the original complaint. (Id. at p. 177.) Omitting the defendant's name in the original complaint must be a consequence of real ignorance and not merely a means of evading the requirements of section 474. (Ibid.)
2. Definition of "Ignorant"
"The phrase 'ignorant of the name of a defendant' is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant." (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.) Despite the use of a fictitious name and despite a plaintiff's knowledge of the defendant's actual identity (that is, his or her name), he or she is "ignorant" within the meaning of the statute if he or she lacks knowledge of that person's connection with the case or with plaintiff's injuries. (Ibid.) Overall, " 'the pivotal question in this regard is, "did the plaintiff know facts?" not "did plaintiff know or believe that [he or she] had a cause of action based on those facts?" ' " (Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1465 (Hazel), quoting Scherer v. Mark (1976) 64 Cal.App.3d 834, 841.)
Being "ignorant" may include a situation where the plaintiff knew the name of the defendant " 'and all the facts but was unaware that the law gave him a cause of action against the fictitiously named defendant and discovered that right by reason of decisions rendered after the commencement of the action . . . .' " (Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88 (Marasco).) In Marasco, plaintiff filed her suit for wrongful death from a three-car accident. (Id. at p. 84.) She named a number of defendants fictitiously pursuant to section 474. While the case was pending, the California Supreme Court held a Vehicle Code section unconstitutional in Brown v. Merlo (1973) 8 Cal.3d 855, 882 (Brown), the same Vehicle Code section that had originally barred plaintiff's claim against defendant. After Brown, plaintiff amended her complaint to name defendant driver. (Id. at p. 85.) The issue before the Marasco court was whether the amendment substituting the defendant driver as a named defendant related back to the filing date of the original complaint, thereby defeating the statute of limitations bar. (Ibid.) The court held that it did relate back because section 474 is not to be interpreted literally. (Id. at p. 88.) Moreover, plaintiff's original complaint was sufficient based on the case law and statutes existing at that time. (Id. at pp. 88-89.) The court's ultimate holding was conjunctive: A plaintiff must be unaware of a law that would give rise to a cause of action and that right became available through a subsequent court ruling.
Marasco is distinguishable. The Lewises emphasize repeatedly they did not know the PAs had the freedom to work "autonomously." While not explicit on its face, this argument suggests the Lewises were not aware there was a legal theory available to them under which the PAs could be held liable. At first glance, Marasco would appear to support the position they take here. If they did not know PAs had such independent ("autonomous") authority, then perhaps they were unaware the law gave them a cause of action against the PAs. But because the Marasco rule is conjunctive, a mistake of law is not enough. For the Marasco rule to apply, there would have to be a ruling or change in decisional law after the date the original complaint was filed. There is no evidence that anything like this happened here. The Lewises' apparent mistake of law does not satisfy the "ignorant" requirement of section 474.
Dover v. Sadowinski (1983) 147 Cal.App.3d 113 is instructive. There, the plaintiff widower filed a complaint against several named and unnamed defendants that alleged defendants negligently caused the death of plaintiff's wife. Plaintiff did not initially name defendant physician as a defendant, nor did he refer to him by name in the body of the complaint. Approximately 19 months later, plaintiff served a copy of the complaint on defendant with a Doe amendment naming the physician, accompanied by a declaration from plaintiff's attorney declaring that plaintiff had been ignorant of defendant's true name at the time the complaint was filed. (Id. at pp. 115-116.) The court held that plaintiff was not ignorant because the physician's name appeared throughout the medical chart. The physician also performed the physical on the patient, wrote the physician progress notes, and signed the discharge summary. There was also uncontradicted evidence that the physician spoke to the plaintiff several times during his wife's hospitalization and informed the plaintiff that he was the doctor in charge of plaintiff's wife's care. (Id. at pp. 116-117.) Similarly, here, the Lewises directly interacted with the PAs, and the PAs' names appear on multiple medical records , including their names and signatures on the discharge instructions on the day each PA respectively treated Ms. Lewis.
Another analogous case is Hazel, where plaintiff brought a dental malpractice action for injuries suffered as a result of tooth extractions performed without antibiotics. (Hazel, supra, 201 Cal.App.3d at pp. 1461-1462.) Plaintiff named as a defendant the dentist in charge of the practice, who performed the first seven extractions, and later substituted as a Doe defendant a second associate dentist who performed the remaining six extractions. (Ibid.) The second defendant dentist was successful in getting a judgment in his favor based on the argument that the statute of limitations had passed. (Id. at pp. 1462-1463.) Plaintiff claimed that he did not know that the second dentist was the associate of the first one until later, after he received the supervising dentist's answers to interrogatories. (Id. at p. 1465.) The court held that plaintiff was not ignorant because he knew defendant's name, knew defendant did not give him antibiotics, and knew defendant's role in the dental extractions upon which the malpractice action was based. (Id. at p. 1463.) This was sufficient to answer the " 'pivotal question' " of whether " ' "plaintiff kn[e]w facts" ' " giving him a cause of action against the associate dentist. (Id. at p. 1465.) As a result, the court found it unnecessary to decide whether the professional relationship of the defendants was an element of plaintiff's cause of action against the associate because the record showed plaintiff knew of this relationship on the day the extractions were performed. (Ibid.)
The Lewises did not have to know or believe they had a cause of action based on the factual circumstances. They had to know the " ' "facts" ' " involved and nothing more. (Hazel, supra, 201 Cal.App.3d at p. 1465; original italics.) They had that knowledge here. They were aware of the PAs' connection with Ms. Lewis's injury; they knew the hospital staff with whom they interacted; and they knew the PAs did not order CT scans. Like the plaintiff in Hazel, the Lewises here were also aware of the professional relationship between the PAs and their supervising physicians. These things can all be discerned from the medical records and the discharge instructions, which contain both PAs' signatures, the supervising physicians' names, and Ms. Lewis's or her husband's signature.
Last, the Lewises cite California Code of Regulations, Title 16, section 1399.545(f), which states in pertinent part, "The supervising physician has continuing responsibility to follow the progress of the patient and to make sure that the physician assistant does not function autonomously." They argue the PAs did not inform the Lewises during their emergency room visits that they (the PAs) were autonomously providing care without requesting input from their supervising physicians with respect to whether they should order CT tests. Without knowing this, the Lewises filed suit against those physicians they understood to have been responsible for Ms. Lewis's care. For their part, the PAs cite California Code of Regulations, Title 16, section 1399.541, which states in pertinent part, "[A] physician assistant may . . . [¶] . . . [¶] (b) Order or transmit an order for x-ray, other studies, therapeutic diets, physical therapy . . . ." (Italics added.) They contend the Lewises failed to name them as defendants because they misunderstood the law and that this alone does not warrant an application of section 474.
Regardless of who is right about the proper interpretation of these regulations, we think the PAs have the better of the argument when it comes to section 474. The Lewises' claim of unawareness of the PAs' autonomous authority suggests they have been ignorant of potential compliance issues with respect to the regulations they now cite, but not that they were ignorant of the facts surrounding their emergency room visits, which immediately preceded Ms. Lewis's brain aneurysm. Thus, they may have been mistaken about the legal relationship between the PAs and their supervising physicians, but they knew about the professional relationship between them (i.e., that a team of people carried out various professional functions in the emergency room and that that team included the PAs). Knowledge of the law is not part of the " 'pivotal question' " asked in Hazel. (Hazel, supra, 201 Cal.App.3d at p. 1465.) Because the Lewises knew the PAs' names and their roles in the emergency room visits upon which the malpractice action was based, they may not avail themselves of the relation-back doctrine under section 474.
III. DISPOSITION
The judgment is affirmed. Respondents shall recover costs.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Smith, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------