McHenry v. American. Medical. Response
Filed 10/13/11 McHenry v. American. Medical. Response CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| NOLAN MCHENRY, Plaintiff and Appellant, v. AMERICAN MEDICAL RESPONSE OF INLAND EMPIRE, Defendant and Respondent. | E051915 (Super.Ct.No. CIVSS710380) OPINION |
APPEAL from the Superior Court of San Bernardino County. Frank Gafkowski, Jr., Judge. (Retired judge of the former L.A. Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
The Pedigo Law Corporation and Brian T. Pedigo for Plaintiff and Appellant.
Farmer Case Hack & Fedor, Phillip L. Hack and Robyn R. Penton for Defendant and Respondent.
Nolan McHenry, plaintiff and appellant (plaintiff), sued American Medical Response of Inland Empire (AMR), defendant and respondent, for damages based on personal injury that resulted when AMR paramedics transported him to Saint Bernardine Medical Center (SBMC) after he suffered a diabetic seizure.[1] AMR moved for summary judgment on the ground that plaintiff’s claim was barred by the statute of limitations. The trial court agreed and granted AMR’s summary judgment motion. Plaintiff appeals from the summary judgment entered in AMR’s favor.
We conclude, as we explain below, that plaintiff’s claim is barred by the one-year limitations period set out in Code of Civil Procedure section 340.5. Therefore, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are undisputed. Plaintiff is diabetic and needs dialysis three times per week. On December 27, 2005, plaintiff was leaving his aunt’s house when he suffered a diabetic seizure. AMR responded to a neighbor’s call for an ambulance and transported plaintiff to SBMC. Because plaintiff apparently was combative, the AMR paramedics had to hold him down and place him in restraints on a gurney. Plaintiff experienced pain in his upper body when he arrived at SBMC and he needed assistance to move from the AMR gurney onto a hospital gurney. Plaintiff complained to a doctor at SBMC that he felt pain in his right shoulder, and that it felt like something was wrong. Plaintiff was unable to move his right shoulder when directed by the doctor to do so. SBMC ordered an X-ray of plaintiff’s arm but the X-ray apparently did not disclose any injury. The pain in his right arm was so severe that when he was discharged from the hospital later in the day on December 27, plaintiff was unable to drive his car because he could not turn the steering wheel. Plaintiff had to use his chin and put his arms through the steering wheel in order to drive his car home from his aunt’s house. Once at home plaintiff noticed he had bruises on his neck, down his chest, and his arm. Plaintiff could not move and was in pain.
A day or two later, plaintiff talked with Regina Campbell, the neighbor who called the ambulance. When plaintiff told her that something was wrong with his shoulder, Ms. Campbell responded, “I bet you it is after the way the ambulance treated you.” Ms. Campbell told plaintiff that when AMR put him on the gurney, plaintiff tried to get off, and the paramedics were forcing and pressing his upper body down and then violently pulled restraining straps tight around him.
When the pain in his right arm and shoulder did not go away, plaintiff went to Arrowhead Regional Medical Center, where a third X-ray was taken. Arrowhead Regional Medical Center doctors told plaintiff there was nothing wrong with his shoulder. In May 2006 plaintiff consulted a doctor who ordered an MRI of plaintiff’s shoulder. The MRI disclosed that plaintiff’s right shoulder had been broken and that it had healed incorrectly. Plaintiff had to undergo corrective surgery.
Plaintiff filed his complaint against AMR and SBMC in April 2007, seeking damages based on personal injury. After filing several demurrers, AMR answered plaintiff’s complaint, and then moved for summary judgment on the ground that plaintiff had not filed his complaint within the time specified in Code of Civil Procedure section 340.5, the pertinent limitations period.[2] The trial court granted that motion. Plaintiff appeals from the subsequently entered judgment.
DISCUSSION
Plaintiff acknowledges that his claim against AMR is subject to the one-year limitations period set out in section 340.5, which provides, 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. [Emphasis added.]” Plaintiff contends the one-year provision did not begin to run until May 2006 when the MRI results revealed his broken shoulder. We disagree.
1.
STANDARD OF REVIEW
Plaintiff’s claim, although raised through the procedure of a summary judgment motion, is based on undisputed facts and presents only an issue of law—namely what constitutes an “injury” under section 340.5. Whether analyzed under the review standard applicable to summary judgment motions or under the standard applicable to issues of law, our review is de novo and independent. (Hill Brothers Chemical Co. v. Superior Court (2004) 123 Cal.App.4th 1001, 1005 [“Summary judgment is properly granted when the papers show there is no triable issue of material fact, and the moving party is entitled to judgment as a matter of law. [Citation]. Issues of law, including statutory construction and the application of that construction to a set of undisputed facts, are subject to this court’s independent review.”].)
2.
ANALYSIS
“It is well established that, ‘“[t]he term ‘injury,’ as used in section 340.5, means both a person’s physical condition and its negligent cause.”’ [Citation.]” (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295.) In this case the evidence is undisputed that as soon as plaintiff arrived at SBMC on December 27, 2005, he complained about pain in his upper body and right shoulder. That evidence establishes that plaintiff knew of his physical condition, i.e., his painful right shoulder, at the latest on December 27, 2005.
The evidence is equally undisputed that within a day or two after his hospitalization, plaintiff learned the negligent cause of the pain in his shoulder when Regina Campbell told him that the AMR paramedics had pushed plaintiff down onto the gurney and strapped him down tightly. That evidence, in turn, establishes that at the latest within a day or two after December 27, 2005, plaintiff knew what caused the pain in his shoulder and thus he knew of his “injury.” That knowledge started the clock running on the one-year limitations period in section 340.5. As the Supreme Court put it in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, “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 exits, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Id. at p. 1111.) In other words, plaintiff in this case had one year from a day or two after December 27, 2005, within which to discover the full extent of his injury and then to file his lawsuit against AMR.
In fact, plaintiff did discover the full extent of his injury within months after the injury occurred. As noted previously, in May 2006 an MRI revealed the pain in plaintiff’s shoulder was caused by a bone fracture. Thus, in May 2006 plaintiff knew every fact he needed to know to file his personal injury action against AMR.
Plaintiff argues that until he learned his shoulder was broken he had not suffered any harm and as a result could not file his lawsuit. We do not necessarily disagree with that claim, but we will not address its merits because plaintiff’s application of the principle is incorrect. Plaintiff relies on the principle to excuse his failure to file his action against AMR as soon as he learned of his injury, i.e., within a day or two of December 27, 2005, because at that point he had not suffered any harm. Section 340.5 does not require a plaintiff to file a lawsuit as soon as the plaintiff knows of the injury. As set out above, the statute affords the injured party one year after discovery of the injury within which to file an action for personal injury. During that year a plaintiff should be able to determine what harm was actually suffered, just as plaintiff did in this case. Had plaintiff filed his lawsuit when or shortly after he learned in May 2006 that his shoulder had been broken, his action would have been filed within one year of the date of his injury and therefore would have been timely.
Plaintiff did not file his action until April 2007, which is four months beyond the date the one-year limitations period started to run in this case. Therefore, plaintiff’s action was not timely, and for that reason the trial court correctly granted summary judgment in AMR’s favor.
DISPOSITION
The summary judgment in favor of AMR is affirmed. AMR to recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
Acting P.J.
We concur:
/s/ Richli
J.
/s/ Codrington
J.
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