Drexler v. Petersen

In November 2009 members of Drexler’s family called Dr. Petersen and informed him they were taking Drexler to the emergency room because Drexler’s head and neck pain was so severe he could not lift his arms. The family members also told Dr. Petersen that they wanted Drexler to have a magnetic resonance imaging study (MRI) “of the muscle” and that Drexler “knows it is a muscle.” Dr. Petersen explained that an MRI “is not useful for muscle pain.” Dr. Petersen later spoke with Drexler and noted that the “pain remain[ed] occipital and in the trapezius distribution to the shoulder,” and that Drexler’s statement “ ‘Can’t move shoulders’ means his muscles hurt, not that he has neuro weakness.” Dr. Petersen continued to prescribe pain medication and physical therapy, advised Drexler to continue seeing a chiropractor, and added acupuncture to Drexler’s treatment. In response to Drexler’s statement “I need an MRI,” Dr. Petersen wrote, “Answer: MRI is a diagnostic tool most used by surgeons contemplating surgery. He has palpable tender muscle spasms. His headache is completely relieved when these resolve. The MRI will not add to his diagnosis. . . .”

A few months later, on January 30, 2010, Drexler returned to Petersen for “neck pain.” Dr. Petersen’s records reflect that Drexler reported, “It’s a muscle,” while pointing to his trapezius. When Drexler asked why he felt pain in the back of his head if the problem was in his trapezius muscle, Dr. Petersen “explained the attachments again and how neck muscle tension classically causes pain in the occiput.” Drexler also reported that he was experiencing pain radiating down his right arm and numbness in his fourth and fifth fingers, although Drexler could not remember when he started experiencing the tingling in his hands. Dr. Petersen reported: “Pain is muscular, reproducible with palpation of trapezius muscle and neck movement, does not involve the head other than occiput, so an MRI of his head is not indicated. He wants an MRI of his trapezius, but that is not likely to reveal anything that would alter the treatment.” Dr. Petersen prescribed continued use of pain medication and referred Drexler to “pain management.” In addition, because Drexler “complain[ed] of intermittent para[e]sthesia [tingling in extremities] in right ulnar nerve distribution, and since he [was] convinced he need[ed] an MRI, [Dr. Petersen] deferred] to neurology in this regard.”

On February 10, 2010, Drexler consulted Dr. German, a neurologist, for “headaches” and “right arm tingling.” Drexler told Dr. German that the

On March 3, 2010, Dr. German performed an NCS/EMG (electromyogram nerve conduction study), an electrical test of nerves and muscles to identify the source of the tingling. Dr. German diagnosed Drexler with “ulnar nerve entrapment at elbow” and advised him to “stop putting pressure on his elbows.” Dr. German explained to Drexler that the problem with his elbow was separate from his headaches, the pain medication was for the headaches, and if he did not want to take the medication he should follow up with his primary care physician.

On May 20, 2010, Drexler called Dr. Petersen about “severe headaches” he had been suffering “off and on” for three years and complained he was “not getting the treatment that he should be getting.” Drexler again reported pain in his trapezius, occiput, and shoulder, and again stated he thought it was muscular. Dr. Petersen told him to take the pain medications and referred him to a pain management specialist, Dr. Imad Rasool.

On October 22, 2010, Drexler returned to Dr. Petersen with the same neck pain and occipital headache. The medical records state, “Same exaggerated urgency to the problem, stating how much it affects his life, how it is nearly impossible to function, how he can’t sleep or go out socially.” Dr. Petersen continued to diagnose a “tension-type headache” and “cervicalgia” (neck pain). Dr. Petersen gave Drexler an injection of pain medicine, referred him to pain management, and “explained again that more diagnostic tests [were] not needed.”

On January 15, 2011, Drexler consulted with Dr. Petersen for the last time. Dr. Petersen saw Drexler as a “hallway consult,” and Drexler reported that “he finally used the referral to pain management, and his pain [was] greatly improved.” The medical records indicate that Dr. Rasool conducted an MRI of Drexler’s neck and diagnosed him with “multi-level disk disease,” which Dr. Petersen noted was “common in many necks and often seen incidentally on MRI.” Dr. Petersen noted that Drexler should continue with Dr. Rasool for musculoskeletal neck pain and follow up with Dr. Petersen as needed.

During the time Drexler treated with Dr. Petersen, and briefly treated with Dr. German, he did not seek any other medical treatment. Drexler testified at

On July 30, 2013, Drexler filed this action, alleging that Dr. Petersen and Dr. German negligently failed to diagnose, and delayed the diagnosis of, his brain tumor. The trial court granted defendants’ motion for summary judgment on the grounds that both the one-year and the three-year limitations periods in section 340.5 barred Drexler’s claim. The court ruled that the one-year statute of limitations barred Drexler’s medical malpractice claim against Dr. Petersen because Drexler had a suspicion of wrongdoing by January 15, 2011, when he ordered his medical records and consulted an attorney. The court ruled the one-year limitations period also barred his claim against Dr. German because the court found that Drexler had a suspicion of wrongdoing as early as March 2010, when Dr. German diagnosed him with carpal tunnel syndrome. The court also ruled that the three-year statute of limitations period barred Drexler’s claim against Dr. German because Drexler suffered an injury in March 2010, when Dr. German failed to diagnose Drexler’s brain tumor. Finally, the court ruled that Healthcare Partners was entitled to summary judgment because no claims remained against Dr. Petersen or Dr. German. Drexler timely appealed.

DISCUSSION

A. Standard of Review and General Law

“We review the trial court’s grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party as a matter of law.” (Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480 , 1484 [ 71 Cal.Rptr.3d 714 ]; see Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610 , 618 [ 101 Cal.Rptr.3d 2 , 218 P.3d 262 ].) “ ‘ “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ’ ” (Hampton v. County of San Diego (2015) 62 Cal.4th 340 , 347 [ 195 Cal.Rptr.3d 773 , 362 P.3d 417 ].)

“A defendant has the initial burden to show that undisputed facts support summary judgment based on the application of an affirmative defense.” (Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319 , 322 [ 121 Cal.Rptr.3d 330 ]; see Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th 632 , 637-638 [ 193 Cal.Rptr.3d 23 ].) “The statute of limitations operates in an action as an affirmative defense.” (Norgan v. Upjohn Co. (1999) 21 Cal.4th 383 , 396 [ 87 Cal.Rptr.2d 453 , 981 P.2d 79 ].) “ ‘[T]he question of when there has been a belated discovery of the cause of action, especially in malpractice cases, is essentially a question of fact,’ ” and “ ‘[i]t is only where

As noted, the trial court ruled that Drexler, having consulted an attorney in January 2011 to determine whether he could sue Dr. Petersen and Dr. German for malpractice, had a ‘“suspicion of wrongdoing” by that time. The fact that Drexler contemplated suing Dr. Petersen and Dr. German is strong evidence that Drexler suspected the doctors had not properly diagnosed or treated his headaches. (See Gutierrez v. Mofid, supra, 39 Cal.3d at p. 897 [facts that the plaintiff knew of her injury almost immediately after the operation and consulted a lawyer because she wanted to explore her legal remedies constituted constructive notice of her claim].) Even with the presence of such suspicions, however, the one-year and three-year limitations periods did not begin to run until Drexler discovered his injury—that is, became aware of additional, appreciable harm from his preexisting condition—and, with respect to the one-year limitations period, also had reason to believe that injury was caused by the wrongdoing of Dr. Petersen and Dr. German.

In most cases, the plaintiff discovers his or her injury prior to, or contemporaneously with, learning its negligent cause. As a result, ‘“[w]ith regard to the one-year limitation provision, the issue on appeal usually is whether the plaintiff actually suspected, or a reasonable person would have suspected, that the injury was caused by wrongdoing.” (Garabet v. Superior Court (2007) 151 Cal.App.4th 1538 , 1545 [ 60 Cal.Rptr.3d 800 ].) The issue in this appeal, however, is not whether Drexler had actual or constructive knowledge of the doctors’ alleged wrongdoing, but when Drexler discovered his injury.

1. The Definition of Injury Under Section 340.5

The word ‘“injury” in section 340.5 “refer[s] to the damaging effect of the alleged wrongful act and not to the act itself.” (Larcher v. Wattless, supra, 18 Cal.3d at p. 656, fn. 11.) Therefore, ‘“[t]he date of injury could be much later than the date of the wrongful act where the plaintiff suffers no physical harm until months or years after the wrongful act.” (Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46 , 54 [ 210 Cal.Rptr. 781 , 694 P.2d 1153 ].) The injury, however, is not necessarily the ultimate harm suffered, but instead occurs at ‘“the point at which ‘appreciable harm’ [is] first manifested.”

In many medical malpractice cases, the patient alleges that the health care provider has performed a procedure that caused some injury. In such cases, it is relatively easy to determine when both the injury and its cause occurred, whether the injury occurs immediately following the procedure or does not manifest itself until months or even years later. (See, e.g., Garabet v. Superior Court, supra, 151 Cal.App.4th at p. 1541 [plaintiff suffered cloudy vision, dryness in his eyes, and double vision within weeks of having LASIK surgery]; McNall v. Summers, supra, 25 Cal.App.4th at p. 1310 [plaintiff suffered memory loss soon after receiving electroconvulsive therapy]; Rose v. Fife (1989) 207 Cal.App.3d 760 , 769 [ 255 Cal.Rptr. 440 ] [plaintiff discovered injury from insertion of defective intrauterine device when she suffered pelvic infection many years later].)

When a patient experiences appreciable harm before the ultimate harm, that appreciable harm will start the limitations period. For example, in Hills, supra, 152 Cal.App.3d 753 , the plaintiff received silicone injections in her breasts from the defendant doctor in 1966. (Id. at p. 756.) In 1974, when the plaintiff noticed lumps and soreness, she consulted a second doctor who informed her that the lumps were “typical” after silicone injections. (Ibid.) In April 1975 a third doctor informed the plaintiff that she was suffering from “silicone granulomatosis due to silicone injections” and discussed the possibility of surgery to remove the silicone lumps. (Ibid.) Almost two years later, on January 6, 1977, the third doctor noted that the plaintiff “ ‘feels that the lump in her right breast has gotten larger and also, that her breasts have become more uncomfortable ....’” (Id. at pp. 756-757.) That doctor

2. Injury in a Case of Failure to Diagnose a Preexisting Latent Condition

When a plaintiff brings a malpractice action based on the defendant’s failure to diagnose, or misdiagnosis of, a latent, progressive condition, identification of the “injury” is more difficult. (See Raddatz v. U.S. (9th Cir. 1984) 750 F.2d 791 , 796 [“[w]hen a claim of malpractice is based on a failure to diagnose, warn, or treat a patient for a pre-existing injury, rather than affirmative conduct creating a new injury, ‘identification of both the injury and its cause may be more difficult for a patient’ ”].) Only one published case in California addresses the issue of when a plaintiff suffers appreciable harm in the context of misdiagnosis of a preexisting hidden condition. In Steingart v. White (1988) 198 Cal.App.3d 406 [ 243 Cal.Rptr. 678 ] (Steingart) the plaintiff noticed a lump in her breast, and in February 1982 the defendant doctor diagnosed the lump as fibrocystic disease, a benign condition. {Id. at p. 409.) The plaintiff believed the lump was “ ‘very nodule and hard,’ ” and she “ ‘had a feeling of cognitive dissonance’ ” about the diagnosis. {Id. at p. 410.) Because she had “ ‘some question in [her] mind’ ” about the diagnosis, she made an appointment with a second doctor a few months later. The second doctor ordered a mammogram, which was negative for cancer. {Ibid.) The negative result reassured the plaintiff that she did not have cancer. {Ibid.) In 1984 the plaintiff went to a third doctor, who ordered another mammogram. Again the results were negative. {Ibid.) In April 1985 the plaintiff “noticed a change in the contour of the upper outer quadrant of her right breast.” {Ibid.) The third doctor immediately referred the plaintiff to a fourth doctor, who performed a lumpectomy and informed the plaintiff that she had stage II breast cancer. {Ibid.)

The evidence Dr. Petersen and Dr. German submitted in support of their motion for summary judgment of a pre-October 2012 increase in symptoma-tology, including Drexler’s deposition testimony and the medical records, does not support the arguments they make on appeal. There is no evidence that Drexler’s headaches became worse or “more intense.” In fact, Dr. Petersen’s records reflect that Drexler’s headaches were not getting worse, but were “chronic,” “intermittent,” and lasted for four years. The medical records state that, as of October 22, 2010, Drexler reported the “same c/o [complaints of] neck pain and occipital headache” and the “same exaggerated urgency to the problem, stating how much it affects his life, how it is nearly impossible to function, how he can’t sleep or go out socially.”

There is also no evidence that prior to October 2012 Drexler’s shoulder pain, neck pain, and “neurological deficits” were related to his headaches or signs of a brain tumor. The evidence of Drexler’s arm and finger tingling, which he first reported to Dr. Petersen on January 30, 2010, does not show or support an inference that those symptoms were related to his headaches or indicative of a brain tumor. Drexler stated he could not recall when the tingling started, but he told Dr. German he thought they “started 4-5 years ago” after “he suffered some trauma to the arm while attempting to change a tire.” Dr. German told Drexler that the tingling in Drexler’s arm and fingers was unrelated to his headaches, and Dr. German’s March 2010 medical records reflect that the carpal tunnel syndrome affecting Drexler’s arm had nothing to do with his headaches. Nor do the medical records state or support an inference that Drexler’s neck and shoulder pain were new symptoms. Drexler complained of neck and shoulder pain in January 2007, November 2009, and throughout 2010, and he repeatedly requested an MRI of his shoulder. And Dr. Petersen concluded that the pain in Drexler’s trapezius muscle did “not involve the head other than [the] occiput.”

Dr. Petersen and Dr. German may yet prevail on their statute of limitations defense; they are just not entitled to prevail on summary judgment. For example, although Drexler concedes that he suffered appreciable harm by October 2012 when his condition worsened and he experienced new symptoms of double vision and unsteady gait, nothing in the record indicates what symptoms, if any, Drexler experienced between January 2011, when he stopped treatment with Dr. Petersen, and October 2012. His symptoms may have increased during that period, but there is no evidence in the record that they did. Nor is there any evidence that during this period Drexler consulted with any other health care professional who told him that he needed an MRI because his symptoms, although constant, had persisted for too long. (See Steingart, supra, 198 Cal.App.3d at p. 416; Augustine, supra, 704 F.2d at p. 1078.) In the absence of such evidence, whether Drexler actually discovered, or reasonably should have discovered, his injury more than a year before he filed his malpractice claim remains a factual issue for trial. (See Photias v. Doerfler (1996) 45 Cal.App.4th 1014 , 1021 [ 53 Cal.Rptr.2d 202 ] [reversing summary judgment because the record did not conclusively show when injury became evident and “express[ing] no opinion on when the injury first manifested itself, leaving the question for resolution in the trial court”]; Bispo v. Burton, supra, 82 Cal.App.3d at p. 831 [the defendant’s “statements

DISPOSITION

The judgment is reversed. Drexler is to recover his costs on appeal.

Perluss, P. J., and Garnett, J.,* concurred.

A petition for a rehearing was denied November 17, 2016, and respondent’s petition for review by the Supreme Court was denied February 1, 2017, S238908.