Heimuli v. Lilja
Filed 6/29/12
Heimuli v. Lilja CA1/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION TWO
ESETA HEIMULI et al.,
Plaintiffs and
Appellants,
v.
JAMES LILJA et al.,
Defendants and
Respondents.
A132595
(Alameda County
Super. Ct. No.
HG10503883)
INTRODUCTION
Plaintiffs and appellants
Eseta Heimuli and her spouse Mike Heimuli appeal a judgment in favor
of defendant and respondent physicians James Lilja and
Helen Matthews, after the court sustained defendants’ demurrer to
plaintiffs’ third amended complaint for medical malpractice and loss of
consortium based on the statute of
limitations (Code Civ. Proc., § 340.5).
sustaining the demurrer without leave to amend where they alleged they did not
suspect that someone had done something wrong until they consulted with their
attorney after the surgery on which the malpractice
claim was based. We shall affirm.
FACTUAL and PROCEDURAL BACKGROUND
Complaint.
On March 12,
2010, plaintiffs filed a complaint for
medical malpractice and loss of consortium against defendants, alleging that on
August 9,
2008, defendants negligently caused them
damage by committing medical malpractice in performing a hysterectomy upon
Eseta.
defendants negligently severed her urethra.
alleged negligence had been committed.
Defendant Lilja filed a demurrer to the complaint based on the statute
of limitations, arguing that the one-year statute of limitations (§ 340.5)
barred the complaint on its face.
Defendant Matthews answered the original complaint, asserting the
statute of limitations as an affirmative defense. The original complaint contained no
allegations of late discovery by plaintiffs nor allegations of compliance with
section 364, the 90-day notice requirement of intent to file suit. Plaintiffs requested leave to amend. The court sustained Lilja’s demurrer with
leave to amend “to allege facts demonstrating that Plaintiffs’ claims are not
time-barred by Code of Civil Procedure section 340.5.â€
Plaintiffs filed a first amended complaint on August 24, 2010. Therein, they alleged they
first consulted an attorney to determine whether they had a valid claim for
malpractice against defendants on December 17, 2008. They alleged they “first
learned that they had a valid claim against defendants for malpractice†on that
date, when they were advised they probably did have a valid claim against
defendants. Plaintiffs also alleged that
on December 14,
2009, they caused defendants to be served
by certified mail, with 90-day notices of plaintiffs’ intention to file a
lawsuit against defendants, in compliance with section 364. (If the cause of action accrued on December 17, 2008, and plaintiffs served their 90-day notice on December 14, 2009, their action would be timely under the one-year statute of
limitations, because their action was filed on March 12, 2010, two days before the statute would have expired on March 14, 2010.)
title="">[4]
Lilja demurred to the first amended
complaint on statute of limitations ground and the trial court sustained the
demurrer with leave to amend on November 12, 2010, in an
order stating, in part: “Plaintiffs are
given one final opportunity to clearly allege facts, if possible, demonstrating
that their claim is not time[-]barred by Code of Civil Procedure
section 340.5. Specifically,
Plaintiffs must allege facts demonstrating how and when they became suspicious
of Defendant’s alleged negligence. [Citation.] Plaintiffs’ argument that the statute of
limitations began to run on December 17, 2008, when
they first consulted an attorney to determine whether they had a valid claim
for malpractice, is not well taken.
Plaintiffs, it would appear, must have been suspicious of Defendant’s
alleged malpractice prior to December 17, 2008,
otherwise they would not have consulted an attorney on that date to investigate
that claim. It is Plaintiffs’ suspicion
of negligence, rather than confirmation of that suspicion, that triggers the
limitations period. (
“allege how and when they became suspicious of Defendant’s alleged negligence,
leading them to consult an attorney about the claim.â€
Plaintiffs filed a second amended complaint, in which they alleged
in relevant part: “[D]uring the surgery
of August 9,
2008, Eseta’s left uret[er] was severed due
to the negligence of Drs. Lilja and Matthews. [¶] Several days following the surgery,
Eseta started experiencing urine discharge through her vagina. She contacted Dr. Matthews and went to
see her on August 18,
2008.
Dr. Matthews found that Eseta had copious amounts of urine leaking
from her vagina due to a vesico-vaginal fistula and requiring diapers to catch
the urine flow. Due to lack of insurance
and the financial wherewithal plaintiff could not be readmitted to
St. Rose Hospital.
Dr. Matthews sent plaintiff to Highland General Hospital emergency
with a letter explaining the circumstances and history. [¶] . . . [¶] In
addition Dr. Matthews told plaintiffs that Eseta’s condition would take a
long time to heal. Dr. Matthews did
not state the leng[th] of time for healing.
Nor did Dr. Matthews discuss the August 9, 2008 surgery with
plaintiffs. [¶] After being seen at
Highland Hospital and UCSF Medical Center plaintiffs learned that Eseta would
need . . . surgeries to repair a cut and severed
uret[er]. Shortly before December 17,
2008 they decided to contact a lawyer for a determination as to whether
something wrong was done during the August 9, 2008 surgery. They had no belief as to whether or not
defendants had been negligent and whether negligence had caused Eseta’s injury.â€
Lilja and Matthews each filed
separate demurrers based on the statute of limitations. The court once again sustained the demurrers,
but again gave plaintiffs leave to amend, stating in pertinent part: “If Plaintiffs seek to rely on the delayed
discovery rule, they must specifically plead facts showing the time and manner
of discovery of their claim, and their inability to have made earlier discovery
despite reasonable diligence. (See
808.) . . . Plaintiffs have failed to allege specific facts
demonstrating how and when they became suspicious of Defendants’ alleged
negligence, or that they did not (and could not reasonably have) become
suspicious of that negligence until sometime on or after December 14,
2008, within one year of serving the [section] 364 notices.â€
Plaintiffs filed a third amended
complaint on March 8, 2011. It
contained allegations that during her August 18, 2008 meeting with
Matthews, Matthews did not tell Eseta that anything was done wrong by the
surgical team during the August 9 surgery and did not tell her why urine
was flowing from her vagina. This
complaint also alleged that Matthews had referred plaintiffs to Highland
Hospital emergency department with her hand-written note containing the history
of Eseta’s problem. With respect to when
plaintiffs began to suspect wrongdoing, the third amended complaint
alleged: “After undergoing extensive medical
procedures and with other procedures expected in the future, plaintiffs decided
to see an attorney for a legal opinion.
Plaintiffs first saw an attorney on December 17, 2008. Up until they spoke with an attorney and got
an opinion from him on December 17th[,] plaintiffs had no belief or
suspicion as to whether Eseta’s problems relating to her severed uret[er] were
caused by the negligence of defendants.
In fact, because Dr. Matthews had told Eseta that the surgery of
August 9, 2008 had gone well, and because when plaintiffs met with
Dr. Matthews on August 18, 2008, she, Dr. Matthews failed to
inform them of any connection between her passing urine through her vagina and
any surgical error committed at surgery, and that it was something that would
take a long time to heal, plaintiffs, when they left their meeting with Dr. Matthews
on August 18, 2008, until they met with their attorney on
December 17, 2008, believed that what happened to Eseta in the surgery of
August 9, 2008[,] was probably just something that could happen in the
surgery performed by defendants.†The
complaint also alleged that Eseta “has had extensive medical treat[ment],
including surgeries, to correct the condition caused by defendants.â€
Defendants again demurred to the
complaint on the basis of the statute of limitations and the court granted the
demurrers without leave to
amend. In sustaining the demurrer
without leave to amend, the trial court explained:
“The facts, as alleged in the Third
Amended Complaint, indicate that Plaintiffs suspected, or reasonably should
have suspected that the surgery performed on August 18, 2008, was
performed negligently because Eseta’s left uret[er] was severed and after
multiple procedures would be required to correct the problems that had been
created. (See Third Amended Complaint at
page 5.) Plaintiffs have changed
their allegations to state that ‘[u]p until they spoke with an attorney and got
an opinion from him on December 17th [2008,] plaintiffs had no belief or
suspicion . . . as to whether Eseta’s problems relating to
her severed uret[er] were caused by the negligence of defendants.’ (Third Amended Complaint at page 5,
paragraph 2.) However, the
remaining allegations in the Third Amended Complaint, along with those
previously pleaded in the Second Amended Complaint, plainly indicate that Plaintiffs
were on notice that something was wrong at some time prior to their meeting
with an attorney for a legal opinion.
(See Second Amended Complaint at page 5 [after being seen at
Highland and UCSF, Plaintiffs learned that Eseta would need surgery to repair
the severed uret[er] and then went to see attorney ‘shortly before
December 17, 2008’]; Third Amended Complaint at page 5; [‘[a]fter
undergoing extensive medical procedure and other procedures expected in the
future, plaintiffs decided to see an attorney for a legal opinion’].) [¶] Plaintiffs seeking to rely on the
delayed discovery rule must specifically plead facts showing the time and
manner of discovery of their claim, and their inability to have made earlier
discovery despite reasonable diligence.
(See Fox[, supra,] 35 Cal.4th
797, 808.) Plaintiffs here have failed
to allege specific facts demonstrating how and when they became suspicious of
Defendants’ alleged negligence, or that they did not (and could not reasonably
have) become suspicious of that negligence until sometime on or after
December 14, 2008, within one year of serving the [section] 364
notices. Despite being given multiple
opportunities to plead facts that would place that date within a year of
December 14, 2009, Plaintiffs have failed to do so. As a result, their claims, as pleaded, are
time-barred.†The order granting the
demurrers and dismissing the action as to Matthews was entered on May 13,
2011. An order dismissing Lilja was
entered July 26, 2011. Plaintiffs
filed a timely appeal.
DISCUSSION
of review: demurrer.
“ ‘On appeal from a judgment dismissing an action after
sustaining a demurrer without leave to amend, . . . [t]he
reviewing court gives the complaint a reasonable interpretation, and treats the
demurrer as admitting all material facts properly pleaded.’ [Citations.]
‘[I]t is error for a . . . court to sustain a
demurrer when the plaintiff has stated a cause of action under any possible
legal theory.’ [Citations.] ‘[I]t is [also] an abuse of discretion to
sustain a demurrer without leave to amend if the plaintiff shows there is a
reasonable possibility [that the] defect . . . can be cured
by amendment.’ [Citations.].†(Fox,
supra,35 Cal.4th at p. 810.)
We will not, however, assume the truth of contentions, deductions or
conclusions of fact or law. (
38 Cal.4th 1, [6]; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, (The Rutter Group
2012) ¶ 8:136.1, p. 8-93.)
Furthermore, “[w]here the demurrer is to an amended complaint, the
reviewing court may properly consider factual allegations in the prior
complaints.†(Eisenberg et al., at
¶ 8:136.1b, p. 8-94; People ex
rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950,
957.) Plaintiffs have the burden of
demonstrating the court abused its discretion in refusing to grant leave to
amend by showing how the complaint can be amended to state a cause of
action. (Eisenberg et al., at
¶ 8:136.3, p. 8-94.)
2.
General principles: plaintiff must file suit within one year of discovering
the injury and its negligent cause.
In Artal v. Allen (2003) 111 Cal.App.4th 273
(Artal), the court summarized the
principles relating to the statute of limitations for medical malpractice and
the assertion of delayed discovery:
“Section 340.5 provides ‘[i]n an action for
injury . . . 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.’ Thus, section 340.5 contains two periods
of limitation, a three-year period and a one-year period, both of which must be
met. [Citation.][
“Under section 340.5, the three-year period is
tolled ‘ “(1) upon proof of fraud, (2) intentional concealment,
or (3) the presence of a foreign body, which has no therapeutic or
diagnostic purpose or effect, in the person of the injured person.†The statute makes clear, however, that the
one-year period is not similarly extended.
Thus, regardless of extenuating
circumstances, the patient must bring . . . suit within one
year after he discovers, or should have discovered, [the] “injury.†(Sanchez v. South Hoover Hospital
[(1976)] 18 Cal.3d [93,] 100-101 [(Sanchez)].)’ (Gutierrez
v. Mofid (1985) 39 Cal.3d 892, 896[, italics added by this court].)
“In Sanchez, the Supreme Court ‘indicated that by
common law tradition, the term “injury,†as used in section 340.5, means
both “a person’s physical condition and its ‘negligent
cause.’ †([Sanchez, supra,] 18 Cal.3d at p. 99, citing Stafford
v. Shultz (1954) 42 Cal.2d 767, 776-777; [citations], . . . .) Thus, once a patient knows, or by reasonable
diligence should have known, that he has been harmed through professional
negligence, he has one year to bring his suit.’
(Gutierrez v. Mofid, supra, 39 Cal.3d at p. 896.)
“The patient is ‘charged with “presumptive†knowledge of
his negligent injury, and the statute commences to run, once he has
“ ‘notice or information of circumstances to put a reasonable person on
inquiry, or has the opportunity to obtain knowledge from sources
open to his investigation. . . .’ †([Sanchez, supra,
18 Cal.3d] at p. 101. . . .) Thus, when the patient’s “reasonably founded
suspicions [have been aroused],†and she has actually “become alerted to the
necessity for investigation and pursuit of her remedies,†the one-year period
for suit begins. (18 Cal.3d at p. 102.)’
(Gutierrez v. Mofid, supra, 39 Cal.3d at
pp. 896-897.)†(Artal, supra,
111 Cal.App.4th at pp. 278-279.)
The California Supreme Court
recognized these principles in Fox,
supra, 35 Cal.4th at pages 806-809. There, the court held the accrual of a products liability cause of action was
delayed unless the patient had reason to suspect that her injury resulted from
a defective product and that the plaintiff patient was entitled to amend her
complaint to allege facts explaining why she did not discover an earlier
factual basis for a products liability claim QUOTE
pp. 803-805, 814-815.)
discovery rule, a cause of action accrues and the statute of limitations begins
to run when the plaintiff has reason to suspect an injury and some wrongful
cause, unless the plaintiff pleads and proves that a reasonable investigation
at that time would not have revealed a factual basis for that particular cause
of action. In that case, the statute of
limitations for that cause of action will be tolled until such time as a
reasonable investigation would have revealed its factual basis.†(Id. at
p. 803.)
title="">[6]
The Supreme Court also reiterated
that plaintiffs seeking to rely on the delayed discovery rule “ ‘must
specifically plead facts to show (1) the time and manner of discovery
earlier discovery despite reasonable diligence.’ [Citation.]
In assessing the sufficiency of the allegations of delayed discovery,
the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory
allegations will not withstand demurrer.’
(McKelvey v. Boeing North America,
Inc. (1999) 74 Cal.App.4th 151, 160 [superseded by statue on another
point, as stated in Grisham v. Philip
Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 637, fn. 8].)†(Fox,
supra, 35 Cal.4th at p. 808.)
As the trial court recognized here,
plaintiffs failed to meet this burden, despite four opportunities to do so.
Plaintiffs rely on their pleading in
the third amended complaint that, “Up until they spoke with an attorney and got
an opinion from him on December 17th plaintiffs had no belief or suspicion
as to whether Eseta’s problems relating to her severed uret[er] were caused by
the negligence of defendants.†However,
an attorney’s advice to a client that he or she may (or may
malpractice does not affect the statute of limitations period where the
plaintiff has learned or should have learned the facts essential to his or her
malpractice claim. (See
at p. 902.)
In Gutierrez v. Mofid, supra, 39 Cal.3d 892, the plaintiff sued the defendant for malpractice arising out of
the defendant’s performance of a hysterectomy, rather than the simple operation
for removal of a tumor or appendix that plaintiff had understood and agreed was
to be performed. The plaintiff suspected
the doctors had done something wrong by failing to advise her in advance that
the operation might end her ability to conceive. (Id. at
p. 895.) However, when she
consulted a firm of malpractice attorneys, they “told her there was ‘no
provable malpractice’.†(
consulted a second firm of lawyers and the action was immediately filed. (Ibid.) The Supreme Court reiterated the “uniform
California rule . . . that a limitations period dependent
on discovery of the cause of action begins to run no later than the time the
plaintiff learns, or should have learned, the facts essential to his claim.
[Citations.]†(
postpone the time of discovery or extend the statute of limitations period
applicable to a person “who had already come to suspect he [or she was] a
victim of malpractice.†(
period for medical malpractice (§ 340.5) is not delayed, suspended, or
tolled when a plaintiff with actual or constructive knowledge of the facts
underlying his malpractice claim is told by an attorney that he has no legal
remedy.†(Gutierrez v. Mofid, at p. 902.)
“It is irrelevant that plaintiff is
ignorant of the legal theories underlying his or her cause of action: ‘[I]f one has suffered appreciable harm and
knows or suspects that . . . blundering is its cause, the fact
that an attorney has not yet advised him does not postpone commencement of the
limitations period.’ [Citation.]†(Rylaarsdam et al., Cal. Practice Guide: Civil Procedure Before Trial, Statutes of
Limitations (Thomson Reuters 2012) ¶ 3:158.2. p. 3-22, quoting
21 Cal.4th 383, 398, fn. [2].)
Plaintiffs here did not meet their
pleading burden as articulated by Fox,
supra, 35 Cal.4th 797.
Plaintiffs failed to “ ‘specifically plead facts to show
(1) the time and manner of discovery and
(2) the inability to have made earlier discovery despite reasonable
diligence.’ [Citation.]†(Id. at
p. 808.) As the trial court
recognized, plaintiffs “changed their allegations†in the third amended
complaint to state that “ ‘[u]p until they spoke with an attorney and got
an opinion from him on December 17th [2008,] plaintiffs had no belief or
suspicion . . . as to whether Eseta’s problems relating to
her severed uret[er] were caused by the negligence of defendants.’ (Third Amended Complaint at page 5,
paragraph 2.)†However, the
remaining allegations in the third amended complaint, when considered with the
allegations of the second amended complaint, “plainly indicate†plaintiffs “
some time prior to their meeting with an attorney for a legal opinion. (See Second Amended Complaint at page 5
[after being seen at Highland and UCSF, Plaintiffs learned that Eseta would
need surgery to repair the severed uret[er] and then went to see attorney
‘shortly before December 17, 2008’]; Third Amended Complaint at
page 5; [‘[a]fter undergoing extensive medical procedure and other
procedures expected in the future, plaintiffs decided to see an attorney for a
legal opinion’].)†(Italics added.)
We agree with the trial court’s
assessment of the third amended complaint.
Plaintiffs do not identify in other than the most general manner
problems were caused by the severed ureter.
The complaints here demonstrate plaintiffs had reason to suspect an
injury and some wrongful cause at some unspecified time before they consulted an attorney.
Indeed, in their appellants’ opening brief, plaintiffs argue that “They
decided to find out whether they had a claim,
by consulting an attorney. When they
found they had a claim they complied with [section] 340.5 and filed this
action . . . .†(Italics added.) Whether or not plaintiffs knew they had a
viable legal claim is not the question. Neither plaintiffs’ ignorance of the legal
theories underlying a possible cause of action, nor the likelihood of bringing
a successful claim are relevant to the question of when plaintiffs knew they
had “ ‘suffered appreciable harm’ †and suspected that
“ ‘blundering’ †was its cause.
(Norgart, supra, 21 Cal.4th
at p. 398, fn. 2.)
Nor did plaintiffs attempt to plead
facts showing “that a reasonable investigation at that time would not have
revealed a factual basis†for their malpractice cause of action or their
“reasonable diligence.†(
will not withstand demurrer.’ (
(Id. at p. 808.) As the Supreme Court recognized in
“A plaintiff seeking to utilize the discovery rule must plead facts to show
his or her inability to have discovered the necessary information earlier
despite reasonable diligence.
[Citation.] This duty to be
diligent in discovering facts that would delay accrual of a cause of action
ensures that plaintiffs who do ‘wait for the facts’ will be unable to
successfully avoid summary judgment against them on statute of limitations
grounds.†(Id. at p. 815.)
Plaintiffs rely upon Artal,
supra, 111 Cal.App.4th 273, which they describe as holding that a plaintiff,
“who suspected an intubation caused her pain, can wait for another exploratory
[surgery] to confirm her already held suspicions.†The case does not stand for the proposition
that plaintiffs suggest.
malpractice that could not have been discovered without later surgery. (Artal,
at p. 276.) The patient in
improperly performed intubation during a previous pelvic surgery. She knew the throat pain had begun after
intubation from the previous surgery and suspected some trauma might have been
caused during intubation. Thereafter,
she sought help from at least 20 medical specialists—none of whom were able to
determine the cause of her pain and she was given possible diagnoses of
numerous different and unrelated conditions that could be causing her
pain. (Id. at p. 281.) As her
diligent efforts showed, she could not have discovered that the prior
intubation had caused her injury without the exploratory surgery. “It was not until the exploratory surgery,
which revealed the thyroid cartilage fracture, that Artal had reason to suspect
Dr. Allen had negligently performed
the intubation. Although a malpractice
litigant is required to pursue her claim diligently through discovery of the
cause of her injury, Artal’s duty of diligence did not extend to submitting to
surgery sooner in order to discover the negligent cause of her injury. [Citation.]â€
(Ibid.) The court concluded that the statute of
limitations did not begin to run until
the plaintiff could have discovered the cause of the injury. (Ibid.) As the appellate court explained, “requiring
a plaintiff to sue while still ignorant of her injury and its negligent cause would require a plaintiff to bring a
lawsuit without any objective basis for believing that malpractice had
occurred.†(Ibid.)
In Artal, the plaintiff truly was unable to appreciate the injury
until subsequent diagnosis of broken thyroid cartilage. (Artal,
supra, 111 Cal.App.4th at
p. 278.) The Artal plaintiff properly pleaded
she had discovered the negligent cause of their injury upon the second
exploratory surgery. She also pleaded
facts showing “that a reasonable investigation at that time would not have
revealed a factual basis†for her malpractice cause of action and also pled
facts demonstrating her “reasonable diligence.â€
(See Fox, supra, 35 Cal.4th
In this case, plaintiffs argue they
“knew something had gone wrong, but not necessarily whether the cause was
negligence of respondents or was a risk of the procedure, especially when told
by Dr. Matthews that the operation went well, coupled with the failure of
Dr. Matthews to tell Ms. Heimuli that negligence caused her condition
when they met on August 18, 2008.â€
This argument does not address the fundamental defects in the Third
Amended Complaint: plaintiffs’ failure
to plead when they learned that
Eseta’s ureter had been severed; their failure to plead when they first suspected
or reasonably should have suspected
the wrongdoing that led them to seek an attorney’s advice; and their failure to
plead facts to show their inability to have discovered the relevant information
earlier, despite their due diligence.
The court allowed them three opportunities to plead these facts. Upon their failure to do so, the court did
not err in sustaining defendants’ demurrers without leave to amend.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on this
appeal.
_________________________
Kline,
P.J.
We concur:
_________________________
Haerle, J.
_________________________
Richman, J.
name="_ftn1" title=""> [1] All
statutory references are to the Code of Civil Procedure, unless otherwise
indicated.
name="_ftn2" title=""> [2] For
purposes of clarity, the parties and the trial court refer to plaintiff Eseta Heimuli
by her given name. We do the same here,
intending no disrespect.
