Filed 9/2/26; Opinion following rehearing
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CECILIA GODSHALL et al., D086572
Plaintiffs and Appellants, (Super. Ct. No. 37-2022-
00029915-CU-MM-CTL)
v.
DREW A. PETERSON et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Marcella O. McLaughlin, Judge. Reversed.
Denning Morres, Jennifer S. Hegemier for Plaintiffs and Appellants.
Schmid & Voiles, Denise H. Greer, Kyle A. Cruse, and Catherine M.
Schroeder for Defendants and Respondents.
In this medical malpractice action, Cecilia Godshall alleges Drew A.
Peterson, M.D. and California Orthopaedic Institute Medical Associates, Inc.
(Orthopaedic Institute) negligently performed carpal tunnel surgery on her in
2017. The trial court granted summary judgment for the defendants on the
ground that Godshall’s complaint is barred by the statute of limitations set
forth in Code of Civil Procedure, section 340.5.1 We conclude triable issues of
material fact remain as to the date that Godshall’s injury manifested and,
accordingly, reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Evidence in the summary judgment record establishes the following
facts. Godshall is an office support technician with the Federal Bureau of
Investigation (FBI) whose job involved substantial typing duties. On
October 28, 2016, she visited Dr. Peterson for an initial consultation for
carpal tunnel syndrome. At her visit, Godshall reported that for five to six
weeks she had been experiencing numbness and tingling in her right hand
that increased with grasping, gripping and repetitive use. Godshall also
reported she had a history of carpal tunnel syndrome in 2012 that resolved on
its own. After an examination, Dr. Peterson diagnosed Godshall with
“[p]robable recurrent right carpal tunnel syndrome.” Dr. Peterson
administered a corticosteroid injection and directed Godshall to return if her
symptoms did not resolve in three to four weeks.
When her symptoms did not resolve, Godshall had another consultation
with Dr. Peterson and he referred her for an electrodiagnostic study. The
radiologist who performed the study reported Godshall had “moderate severe
carpal tunnel syndrome” in her right wrist and “mild to moderate carpal
tunnel syndrome” on the left wrist. After receiving the radiologist’s report,
Dr. Peterson recommended carpal tunnel release surgery. He performed the
operation on January 30, 2017. Dr. Peterson’s report of the operation
1 Subsequent undesignated statutory references are to the Code of Civil
Procedure.
2
indicated he made an incision to the transverse carpal ligament, resulting in
a “complete release [of] the median nerve.”
At her follow-up appointment two weeks after surgery, Godshall
reported no change in her symptoms, but Dr. Peterson reported “good
healing” and “good range of motion.” He referred Godshall to occupational
therapy and ordered her to return for a follow-up visit with him in six weeks.
Dr. Peterson also advised Godshall she could return to work, but she should
take frequent breaks from typing and should consider using a brace. Two
weeks later, Godshall returned to Dr. Peterson with complaints that her
incision was warm and tender. He reported after the visit that Godshall’s
surgical wound was well-healed, she had good sensation in all digits, and
good range of motion. Dr. Peterson reassured Godshall there were no signs of
infection and requested that she follow up in six weeks.
When Godshall returned for her follow-up visit on April 25, 2017, she
reported “an ‘ache’ up to her right mid-forearm,” “a ‘tightness’ in the joint,”
and concerns about “her right forearm muscle fatigue pain with repetitive
typing.” Godshall also told Dr. Peterson she did not have numbness or
tingling and was otherwise “doing well.” Dr. Peterson recommended six
physical therapy sessions for her right forearm and noted that she would
“return in late summer to consider scheduling of left carpal tunnel release in
the fall.”
On May 3, 2017, Godshall’s occupational therapist reported that
Godshall thought her “carpal tunnel was ‘creeping back up.’ ” Godshall also
reported “grip and pinch strength limitations” and that “grasping and
twisting tasks remain[ed] challenging.” The therapist advised her to
continue with occupational therapy. On June 21, 2017, the therapist
reported Godshall had completed 12 sessions and “demonstrate[d] no pain or
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paresthesia, and functional [range of motion] and strength. Her scar is flat
and well healed. She has minimal functional limitations and is working full
duty.” The therapist recommended a discharge from occupational therapy.
On June 23, 2017, Godshall contacted Dr. Peterson’s office and asked
him to provide a note restricting her typing activity at work for a large
project because she was unable to type for long periods of time. On June 26,
2017, Dr. Peterson provided a note restricting Godshall to typing for
30 minutes per one hour period. Around this time, Godshall recalled
Dr. Peterson telling her that the symptoms she continued experiencing after
the operation were normal and that the surgery was successful. She
remembered Dr. Peterson saying, “look, I can do 25 pushups but I cannot do a
sit up to save my life because I have a bad back, just like you have a bad
hand.”
Almost four years later, on April 29, 2021, Godshall sought treatment
from another physician, Eric Hofmeister, M.D., because the symptoms in her
right hand had worsened, including numbness and her long finger locking in
the flexed position. The visit was authorized by the U.S. Department of
Labor through Godshall’s employment with the FBI. Dr. Hofmeister ordered
an ultrasound, which showed the distal transverse ligament, supposedly
released during the prior operation, was still intact.
On July 12, 2021, Godshall met with Dr. Hofmeister and he informed
her there was the “possibility that she had incomplete release of her
transverse carpal ligament from her previous surgery in 2017.” Godshall told
Dr. Hofmeister that after the operation, she did not have complete resolution
of her symptoms and that her symptoms had worsened in the past few
months. Dr. Hofmeister recommended a “revision right carpal tunnel
release” and this second operation was performed on August 17, 2021.
4
On April 28, 2022, Godshall and her husband Bradlee Godshall served
a notice of intent to sue under section 364 on Dr. Peterson. On July 28, 2022,
the Godshalls filed an initial complaint against Dr. Peterson and the
Orthopaedic Institute asserting claims for medical negligence, lack of
informed consent, and loss of consortium. On December 20, 2023, the parties
filed a stipulation for leave to file an amended complaint removing the lack of
informed consent cause of action and the amended complaint was deemed
filed the next day. The defendants filed their answer on December 28, 2023.
On July 1, 2024, Dr. Peterson and the Orthopaedic Institute filed a
motion for summary judgment asserting the Godshalls’ claims were barred by
the statute of limitations under section 340.5. The Godshalls opposed the
motion, arguing triable issues of material fact remained as to when the
statute of limitations was triggered. After oral argument, the trial court
issued its ruling finding the statute of limitations barred the Godshalls’
claims and granting summary judgment in favor of Dr. Peterson and the
Orthopaedic Institute. After the entry of judgment, the Godshalls appealed.
DISCUSSION
I
Summary Judgment
“The purpose of the law of summary judgment is to provide courts with
a mechanism to cut through the parties’ pleadings in order to determine
whether, despite their allegations, trial is in fact necessary to resolve their
dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
“[G]enerally, from commencement to conclusion, the party moving for
summary judgment bears the burden of persuasion that there is no triable
issue of material fact and that he is entitled to judgment as a matter of law.”
(Id. at p. 850.) Thus, a defendant moving for summary judgment “bears the
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burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in
question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.”
(Ibid., citing § 437c, subd. (o)(2).)
“ ‘Because this case comes before us after the trial court granted a
motion for summary judgment, we take the facts from the record that was
before the trial court when it ruled on that motion. [Citation.] “ ‘We review
the trial court’s decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were made and
sustained.’ ” [Citation.] We liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party.’ ” (Conroy v. Regents of University of
California (2009) 45 Cal.4th 1244, 1249–1250.)
II
Statute of Limitations
The statute of limitations for medical malpractice, set forth in
section 340.5, states, “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.” “A
plaintiff in a medical malpractice action must satisfy the requirements of
both the one-year and the three-year limitations periods.” (Drexler v.
Petersen (2016) 4 Cal.App.5th 1181, 1189 (Drexler).)
The one-year limitations period does not begin to run until the plaintiff
discovers both his or her injury and its negligent cause. (See Gutierrez v.
Mofid (1985) 39 Cal.3d 892, 896 [for purposes of the one-year limitation, “the
term ‘injury,’ as used in section 340.5, means both a person’s physical
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condition and its ‘negligent cause’ ”]; Sanchez v. South Hoover Hospital (1976)
18 Cal.3d 93, 99 [“the word ‘injury’ had come to be used in the cases to denote
both ‘a person’s physical condition and its “negligent cause” ’ ”].) However,
“[t]he plaintiff ‘need not be aware of either the specific facts or the actual
negligent cause of the injury. [Citation.] If the plaintiff has notice or
information of circumstances that would put a reasonable person on inquiry
notice, the limitation period is activated.’ ” (Filosa v. Alagappan (2020) 59
Cal.App.5th 772, 779 (Filosa).)
“ ‘[T]he word “injury” [has] the same meaning in the parallel [three]-
year and one-year limitation periods of the statute.’ ” (Drexler, supra, 4
Cal.App.5th at p. 1189.) “The term ‘injury’ for purposes of section 340.5
‘ “refer[s] to the damaging effect of the alleged wrongful act and not to the act
itself.” [Citation.] The injury is not necessarily the ultimate harm suffered,
but instead occurs at “the point at which ‘appreciable harm’ [is] first
manifested.” ’ [Citation.] An injury manifests when damage is ‘evidenced in
some significant fashion; when the damage has clearly surfaced and is
noticeable.’ ” (Filosa, supra, 59 Cal.App.5th at p. 779.)
Because the “limitations period accrues at the time of injury, it is the
surfacing of appreciable harm that marks the beginning of the” period.
(Filosa, supra, 59 Cal.App.5th at p. 779.) Significantly, “ ‘[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.’ ”
(Drexler, supra, 4 Cal.App.5th at p. 1190.) Further, “ ‘[e]ach case necessarily
will turn on its own particular circumstance. It could well be that an injury
or pathology will not manifest itself for some period after the last treatment
by a physician.’ ” (Id. at p. 1191.)
7
“In sum, an action is barred under section 340.5 if it is brought either
more than three years after an injury or more than one year after the
plaintiff discovers, or in the exercise of reasonable diligence should have
discovered, the injury and its negligent cause.” (Filosa, supra, 59
Cal.App.5th at p. 781.)
Identifying “both the injury and its cause” creates a challenge “when a
doctor fails to diagnose or treat a preexisting condition: ‘Where a claim of
medical malpractice is based on the failure to diagnose or treat a pre-existing
condition, the injury is not the mere undetected existence of the medical
problem at the time the physician failed to diagnose or treat the patient or
the mere continuance of that same undiagnosed problem in substantially the
same state. Rather, the injury is the development of the problem into a more
serious condition which poses greater danger to the patient or which requires
more extensive treatment.’ ” (Drexler, supra, 4 Cal.App.5th at p. 1193.)
“ ‘In this type of case, it is only when the patient becomes aware or
through the exercise of reasonable diligence should have become aware of the
development of a pre-existing problem into a more serious condition that his
cause of action can be said to have accrued for purposes of’ ” section 340.5.
(Drexler, supra, 4 Cal.App.5th at pp. 1193–1194; see also Mason v. Marriage
& Family Center (1991) 228 Cal.App.3d 537, 542 (Mason) [“ ‘Until the patient
“suffers appreciable harm” as a consequence of the alleged act of malpractice,
he cannot establish a cause of action. “ ‘It follows that the statute of
limitations does not begin to run against a negligence action until some
damage has occurred.’ ” ’ ”].) Put another way, in a medical malpractice
action, a cause of action accrues not when the negligent act occurs but when
“ ‘the plaintiff has suffered some legally compensable injury. To adopt a rule
that the statute begins to run on the date of the alleged negligence would
8
mean that a plaintiff is denied all possibility of recovery simply because the
injury did not manifest itself until sometime after three years from the date
of the negligent act. Indeed, where the injury does not manifest itself within
three years of the negligent act, a plaintiff would have no opportunity
whatsoever to recover since the three-year period would effectively bar the
action before the cause of action even accrued.’ ” (Steingart v. White (1988)
198 Cal.App.3d 406, 413 (Steingart).)
Critically here, “ ‘ “[t]he mere fact that [a medical] operation does not
produce hoped-for results does not signify negligence and will not cause
commencement of the statutory period.” ’ [Citation.] Rather, ‘[w]hen there
has been a belated discovery of the cause of action, the issue whether the
plaintiff exercised reasonable diligence is a question of fact for the court or
jury to decide. The drastic remedy of summary judgment may not be granted
unless reasonable minds can draw only one conclusion from the evidence.’ ”
(Kernan v. Regents of University of California (2022) 83 Cal.App.5th 675,
684.)
III
Analysis
In its order granting summary judgment, the trial court found it was
undisputed that after the initial operation in 2017, Godshall “experienced
physical manifestations of harm in her right wrist in the following months”
and this was “sufficient to trigger the three-year limitations period …, which
expired well before plaintiffs filed their complaint.” The court found Filosa,
supra, 59 Cal.App.5th 772 and Steingart, supra, 198 Cal.App.3d 406 were
distinguishable because they involved latent or hidden medical conditions,
and Godshall was “not alleging that she was injured by Dr. Peterson’s failure
to diagnose a preexisting condition that later developed into a more serious
9
problem. Rather, [Godshall] allege[d] that her injuries were caused by
Dr. Peterson’s negligent attempt to repair the carpal tunnel.”
The trial court erred by looking solely to the time the injury was caused
(i.e., the initial surgery), and not when Godshall discovered her injury, i.e.
“ ‘ “the point at which ‘appreciable harm’ [was] first manifested.” ’ ” (Filosa,
supra, 59 Cal.App.5th at p. 779.) Contrary to the trial court’s finding, this
case is similar to a failure to diagnose case because the injury itself—
regrowth of the carpel ligament causing nerve impingement—was latent
until a later point. Because of this latency, a question of fact remains
concerning when Godshall’s symptoms were sufficiently appreciable to
constitute injury and trigger the three-year limitations period.
In the Godshalls’ complaint, they assert that Dr. Peterson negligently
performed the carpal tunnel surgery, and it was not until “or about July of
2021 during a procedure that it was found that the median nerve was intact
so, during the prior surgery by Defendants, the ligament was snipped instead
of cut so it grew back and fused together.” In essence, the Godshalls allege
Dr. Peterson and the Orthopaedic Institute negligently performed the
surgery, negligently failed to diagnose the failed surgery, and Godshall only
suffered appreciable harm and became aware of its cause around the time of
the revision surgery by Dr. Hofmeister. Because the evidence in the record
supports these allegations, questions of material fact remain as to when the
symptoms were sufficiently appreciable to constitute injury for purposes of
section 340.5.
As the Godshalls argue, Dr. Peterson’s statements to Godshall that the
pain she continued to experience after the initial surgery was normal and
that the surgery had been successful raise factual questions as to when the
harm was manifest. As the Godshalls state in their briefing before this court,
10
they allege Godshall was “injured by Dr. Peterson’s failure to realize he had
not completely severed the ligament … that later developed into a more
serious problem because the ligament grew back and put more pressure on
her menial [sic] nerve.” When such harm became sufficiently appreciable to
trigger the statute of limitations remains in dispute and presents a question
of fact for the jury. (See Mason, supra, 228 Cal.App.3d at p. 543 [reversing
summary judgment where “nothing in the record … establishe[d] the date of
[the plaintiff’s] injury as a matter of law”].)
Drexler, supra, 4 Cal.App.5th 1181, which also addressed when the
plaintiff’s discovery of a latent medical condition constituted injury, is
instructive. The plaintiff in Drexler “alleged his doctors negligently
misdiagnosed the cause of his [chronic] headaches, only later to discover they
were caused by a brain tumor for which he needed surgery that caused him
physical harm. (Drexler, supra, 4 Cal.App.5th at pp. 1183–1184.) On the
facts before it, the appellate court concluded summary judgment for the
defendants was improper; although the plaintiff continued to suffer severe
and debilitating headaches for a period of years during which his doctors
failed to discover the cause of his headaches, it was only when new symptoms
associated with the brain tumor appeared—including double vision, difficulty
swallowing, and balance problems—that the court could say, as a matter of
law, that a more serious condition[, i.e. the injury at issue,] had developed.
(Id. at pp. 1196–1197.)” (Filosa, supra, 59 Cal.App.5th at pp. 779–780.)
“There was no evidence in either Drexler’s deposition testimony or his
medical records that his headaches became more intense after the
defendants’ failure to diagnose, nor that any medical professional ‘told him
that he needed an MRI because his symptoms, although constant, had
persisted for too long.’ ([Drexler, supra, 4 Cal.App.5th] at pp. 1196–1197.)
11
The evidence did not establish that other symptoms he experienced, such as
shoulder and neck pain, were related to his headaches or were signs of a
brain tumor. (Id. at p. 1196.) ‘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.’ (Id. at p. 1197.) The court concluded there were triable issues of
material fact as to when Drexler experienced ‘appreciable harm that would
commence the statute of limitations.’ (Ibid.)” (Filosa, supra, 59 Cal.App.5th
at p. 780.)
Like in Drexler, here a question of fact remains as to when Godshall
appreciated or should have understood that she had an “injury” as a result of
the operation performed by Dr. Peterson in 2017. Dr. Peterson argues that
there is no dispute that Godshall and her husband were aware of the cause of
her right-hand wrist pain in 2017 when Godshall “experienced persistent
post-operative [wrist] pain and symptoms and when [her husband]
experienced the deterioration of his marital relationship and loss of her
household services.” Not so. The facts support the Godshalls’ assertion that
the injury was not apparent until much later. Of particular note,
Dr. Peterson repeatedly told Godshall her symptoms after the operation were
normal and that she was healing fine. Additionally, as the Godshalls point
out in their briefing, the reports from the occupational therapist submitted at
summary judgment showed Godshall’s pain and function had significantly
resolved after surgery. In her declaration, Godshall stated that she believed
12
the pain she suffered after the operation was from her employment as a
typist and was unrelated to the operation.2
In sum, the evidence at summary judgment supports the Godshalls’
assertion that Godshall’s injury was not apparent until 2021 around the time
she sought treatment from Dr. Hofmeister and he discovered that
Dr. Peterson had failed to fully sever the ligament.3 These facts establish
2 The respondents argue this case is like McNall v. Summers (1994) 25
Cal.App.4th 1300 and Garabet v. Superior Court (2007) 151 Cal.App.4th 1538
(Garabet). We disagree. Unlike Godshall, in McNall and Garabet, the
plaintiffs suffered appreciable harm that they immediately related to the
procedure at issue in the case. In McNall, the plaintiff underwent
electroconvulsive therapy (ECT) to treat depression. Following a series of
ECT treatments over several months, the plaintiff experienced severe
confusion and memory loss. (Id. at pp. 1304–1305.) The appellate court
affirmed the trial court’s directed verdict in favor of the defendant, holding
the malpractice claims were outside the three-year limitation period because
the plaintiff “unequivocally experienced losses of memory commencing with
the ECT treatments …. Here, not only did McNall’s onset of complaints
immediately follow the ECT, but both she and her physician associated the
symptom with that specific treatment. There was nothing hidden about her
injury.” (Id. at p. 1310.)
Similarly, in Garabet, supra, 151 Cal.App.4th 1538, the plaintiff
received LASIK surgery that immediately resulted in severe negative
symptoms the plaintiff associated with the treatment, constituting
appreciable harm that triggered the statute of limitations: “There was
nothing hidden about [the plaintiff’s] injuries. They manifested themselves
immediately after the August 1995 LASIK surgery.” (Id. at p. 1550.)
3 Steingart and Filosa, distinguished by the trial court in its order,
support reversal of the court’s decision. In Steingart, the plaintiff discovered
a lump in her breast in 1982 and the physician that examined her at that
time diagnosed the condition as benign. (Steingart, supra, 198 Cal.App.3d at
p. 409.) Unsatisfied, the plaintiff visited a second doctor, who ordered a
mammogram and also diagnosed the lump as benign. (Id. at p. 410.)
Another mammogram in 1984 was also negative for cancer, but in 1985 the
13
the existence of a dispute as to when the actual injury arose. Therefore, we
agree with the Godshalls that triable issues of material fact remain as to
when the statute of limitations was triggered, and summary judgment was
not properly granted.4
plaintiff noticed worrying changes in the lump and a fourth physician ordered
a lumpectomy that showed she had stage II breast cancer. (Ibid.) In 1986,
the plaintiff sued the first three doctors, and the trial court granted summary
judgment, concluding the statute of limitations was triggered when the
plaintiff first noticed the lump in 1982. (Id. at p. 414.) The Court of Appeal
reversed, holding the plaintiff had not suffered an actionable injury until her
cancer was diagnosed in 1985 and thus her complaint filed the following year
was well within the three-year statute of limitations. (Id. at p. 415.)
In Filosa, the plaintiff complained for years to multiple physicians
about severe headaches and other symptoms that were later revealed to be
caused by a brain tumor. (Filosa, supra, 59 Cal.App.5th at pp. 776–777.) On
appeal from a grant of summary judgment in which the trial court found the
medical negligence claims were barred by section 340.5, the appellate court
reversed. The court held that nothing in the record compelled the conclusion
that the symptoms suffered in the years leading up to the tumor diagnosis
should have triggered the plaintiff to understand he had suffered an
appreciable injury. (Id. at p. 782.) The court explained, “[a]lthough a
factfinder might ultimately conclude some of [the plaintiff’s] symptoms were
effects of the brain tumor and that appreciable harm from the failed
diagnosis manifested more than three years before [he] brought th[e] action,
th[e] record d[id] not permit that question to be resolved on summary
judgment.” (Id. at p. 783.)
In each case, like the present one, there was no evidence that
conclusively established for purposes of summary judgment that the plaintiff
suffered an appreciable injury more than three years before filing suit.
4 The parties agree that the claims against the Orthopaedic Institute and
the loss of consortium claim are derivative of the medical negligence claim.
Accordingly, these claims must also be reinstated.
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DISPOSITION
The judgment is reversed. Appellants are awarded the costs of appeal.
MCCONNELL, P. J.
WE CONCUR:
O’ROURKE, J.
DO, J.
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