Brown v. LAC-USCMed.Center

Filed 12/31/08 Brown v. LAC-USC Med. Center CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court for the County of Los Angeles. Irving S. Feffer, Judge. Affirmed.

Goodheart & Goodheart and Michael R. Goodheart for Plaintiffs and Appellants.

Pollak, Vida & Fisher and Daniel P. Barer; Peterson & Bradford and Thomas R. Bradford, for Defendant and Respondent..

______________________________

SUMMARY

The trial court properly granted summary judgment to a county hospital in a wrongful death action where the plaintiffs failed to comply with the claims presentation requirements of the Government Claims Act.

FACTUAL AND PROCEDURAL BACKGROUND

Detoria Brown, a young woman who suffered from sickle cell anemia and a number of other ailments, died at Los Angeles County + USC Medical Center (LAC+USC). Brown was a frequent patient at LAC+USC, and had been admitted on December 1, 2005 for a therapeutic abortion. On December 3, it was determined that Brown needed an exchange transfusion. The transfusion never occurred, and Brown died on December 5, 2005.

In January 2006, Browns mother, Joyce Brown, wrote a letter of complaint to the California Department of Health Services, requesting an investigation into medical misconduct with respect to her daughters death. Mrs. Brown requested that you assign your most competent investigator(s) to conduct a formal and thorough investigation concerning probable medical misconduct by County USC Hospital, physicians, nurses and staff which have resulted in the death of my daughter, Detoria Nicole Brown . . . . Mrs. Brown stated that on December 3, 2005, her daughters hematologist informed her that an emergency blood transfusion had to be performed to replace [Detorias] oxygen or her organs would shut down. Mrs. Browns January 9, 2006 letter of complaint further described her concerns of misconduct, including the following:

The emergency transfusion supposedly ordered by the hematologist to administer lifesaving oxygen to Detoria immediately after the central line IV port was in place was NEVER done. The equipment to [do] the transfusion was available, but I was told that they did not have the nurse or technician to run the machine. [] Over eight hours had elapsed between the time the transfusion was to take place and the time of Detorias death. The transfusion was to take only 90 minutes. (Emphasis in original.)

On September 6, 2006, the Department of Health Services wrote to Mrs. Brown, advising her it had completed its investigation and substantiated her complaint. A copy of the statement of deficiencies the Department issued to LAC+USC dated August 1, 2006, and LAC+USCs Plan of Correction was enclosed for Browns review.

On November 7, 2006, Joyce and Clyde Brown (Detorias father) filed a wrongful death complaint. The County answered, including among its affirmative defenses the assertion that the Browns suit was barred by their failure to comply with the Government Claims Act (Gov. Code, 900 et seq.), which requires timely presentation of a claim to the responsible public entity before a lawsuit may be filed.[1]

On May 7, 2007, the Browns filed an application with the County for leave to present a late claim.

On July 23, 2007, the County filed a motion for summary judgment on the ground the Browns lawsuit was barred by their failure to comply with the provisions of the Government Claims Act. The trial court agreed, and judgment was entered in favor of the County. The Browns filed a timely appeal.

DISCUSSION

The principal question presented in this case is whether the Browns wrongful death cause of action accrued on or around January 2006, when Mrs. Brown wrote her letter of complaint seeking an investigation into the Countys probable medical misconduct, or in September 2006, when she was advised by the Department of Health Services that her complaint had been substantiated. We conclude the action accrued no later than the date Mrs. Brown wrote her letter of complaint, in January 2006. And, because the Browns failed to apply to the County for leave to present a late claim within one year of the accrual of their cause of action, their lawsuit is barred by the Government Claims Act.

We briefly review the relevant legal principles.

The Government Claims Act requires that claims for damages against local public entities be presented to the responsible public entity before a lawsuit is filed; failure to present a timely claim bars a lawsuit against the entity. ( 905, 945.4; City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738.) In the case of a claim for wrongful death, the claim must be presented not later than six months after the accrual of the cause of action. ( 911.2.) If an injured party fails to file a timely claim, he or she may apply to the public entity for leave to present a late claim (and if leave is denied, may petition the court for relief from the claim presentation requirements), but the application must be made within a reasonable time not to exceed one year after the accrual of the cause of action . . . . ( 911.4, subd. (b); 946.6, subd. (c); Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779 [court is without jurisdiction to relieve a litigant from the claims presentation requirement if the underlying application to file a late claim is filed more than one year after accrual of the cause of action].)

In this case, the Browns filed no claim with the County until May 7, 2007, when they filed an application for leave to file a late claim. Consequently, if their cause of action accrued at any time earlier than May 2006, their lawsuit is barred. Unfortunately for the Browns, under well-established principles governing the accrual of a cause of action, their lawsuit accrued no later than January 2006, when Mrs. Brown first suspected negligence on the Countys part.[2]

The general rule is that a cause of action accrues when it is complete with all of its elements . . . . (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) Those elements are generically referred to by sets of terms such as wrongdoing or wrongful conduct, cause or causation, and harm or injury . . . . (Ibid., quoting Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1107, 1109, 1110, 1112, 1113, & 1114 (Jolly).) An exception to the general rule is the discovery rule, which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Norgart, supra, 21 Cal.4th at p. 397.) However, a person need not know of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period. (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295; see Norgart, supra, 21 Cal.4th at pp. 397-398, quoting Jolly, supra, 44 Cal.3d at p. 1110 [the plaintiff discovers the cause of action when he at least suspects a factual basis . . .  for its elements, even if he lacks knowledge thereof when, simply put, he at least suspects . . . that someone has done something wrong to him].) The plaintiff need not know the specific facts necessary to establish the cause of action; rather, he may seek to learn such facts through the process contemplated by pretrial discovery . . . . [3] (Norgart, supra, 21 Cal.4th at p. 398, quoting Jolly, supra, 44 Cal.3d at p. 1111.)

Under these well-established rules, we cannot disagree with the trial courts grant of summary judgment to the County. Mrs. Brown knew that a transfusion had been ordered for Detoria on December 3, 2005; was informed by her daughters hematologist that an emergency blood transfusion had to be performed or Detorias organs would shut down; was told that the transfusion equipment was available but personnel to run the equipment were not; and knew that no transfusion was done. All this is clearly reflected in her letter of complaint dated January 9, 2006, which in turn clearly reflects a suspicion of negligence more than sufficient to trigger the accrual of a cause of action for wrongful death. (Knowles v. Superior Court, supra, 118 Cal.App.4th at p. 1295 [a person need not know of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period].) Consequently, because the Browns failed to present any claim to the County until May 7, 2007 well in excess of one year after the accrual of the cause of action in January 2006 ( 911.4, subd. (b)) their claim is barred.

DISPOSITION

The judgment is affirmed. The County of Los Angeles is to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

BIGELOW, J.

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[1] All further statutory references are to the Government Code, unless otherwise specified.

[2] In its respondents brief, the County argues that even if we use the Browns September 2006 date for the accrual of their cause of action, their claim is barred. The County says that the Browns May 7, 2007 application to file a late claim was denied by the County, and the Browns failed to petition the court for relief within six months after the Countys denial, as required by section 946.6, subdivision (b), thereby effectively forfeiting their claim. The facts asserted by the County, however, are not in the record before this court, and were not the basis for the trial courts grant of summary judgment; consequently, we will not consider the Countys argument on this point.

[3]Norgart continues: [W]ithin the applicable limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place he cannot wait for them to find him and sit on his rights; he must go find them himself if he can and file suit if he does . . . . (Norgart, supra, 21 Cal.4th at p. 398, quoting Jolly, supra, 44 Cal.3d at p. 1111.)