Date: 03-05-2020

Case Style:

Case Number: F076467

Judge: Meehan, J

Court: California Court of Appeals Fifth Appellate District on appeal from the Superior Court, County of Stanislaus

Plaintiff's Attorney: Cyrus A. Tabari and Adam M. Stoddard

Defendant's Attorney: Wilcoxen Callaham, William C. Callaham and Christopher G. Romero

Description: Defendant Benjamin J. Remington, M.D., appeals the trial court’s grant of a
motion for a new trial. On April 22, 2013, plaintiff Judith Brewer underwent carpal
tunnel surgery and shoulder surgery performed by Drs. Pistel and Bedi. Early the next
morning, she became paralyzed and sought emergency treatment. Remington performed
a spinal decompression surgery on Judith on May 30, 2013, but Judith did not recover a
substantial amount of function following the surgery.
Judith and Michael Brewer (collectively plaintiffs) filed a medical malpractice
action on June 9, 2014, against Dr. Pistel, Dr. Bedi, Doctors Medical Center of Modesto,
Inc. (Doctors Medical), Stanislaus Orthopedic & Sports Medicine Clinic (none of whom
are parties to this appeal), and a number of Doe defendants. In July 2015, plaintiffs
obtained through discovery medical charts and imaging from Doctors Medical, which
they sent to a retained neurosurgical expert. Plaintiffs’ expert opined Remington
breached the standard of care by delaying Judith’s surgery from April 23, 2013, when she
was first examined by Remington, until May 30, 2013. On July 24, 2015, based on their
expert’s opinion, plaintiffs filed a doe amendment of their complaint, adding Remington
as a defendant to the lawsuit.
At the end of 2016, Remington filed a motion for summary judgment on the
ground plaintiffs’ claims against him were barred by the applicable statute of limitations,
and the trial court granted Remington’s motion. Plaintiffs subsequently filed a motion for
a new trial, asserting the grant of summary judgment was based on an error of law in the
application of the delayed discovery rule. The trial court agreed with plaintiffs and
granted the motion for a new trial, vacating and effectively reversing its previously issued
summary judgment in favor of Remington.
Remington appealed. Remington contends the statute of limitations has expired as
to plaintiffs’ claims against him, the summary judgment order contained no error of law,
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and the trial court erred in granting plaintiffs’ motion for a new trial. We conclude the
trial court properly granted the motion for a new trial and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Judith’s Surgery and Subsequent Care
On April 22, 2013, Judith underwent shoulder surgery and carpal tunnel surgery at
Doctors Medical in Modesto. She awoke with paralysis and loss of sensation in her arms
and legs in the early hours of the next day. She immediately went back to Doctors
Medical, where she underwent examination and an MRI. Testing revealed she suffered
central cord syndrome, cervical spinal stenosis, paraplegia, and incontinence requiring
C4-5, C5-6, C6-7 anterior cervical discectomy with fusion and extensive rehabilitation.
Remington made a chart note that Judith’s lower extremities’ function had reduced
further by April 24, 2013. Remington elected not to perform a spinal decompression
until May 30, 2013, after some of the swelling had reduced. Remington performed the
surgery on May 30, 2013; afterward Judith regained some movement in her arms and
legs.
II. Procedural Background
A. Plaintiffs’ Complaint and Doe Amendment
On June 9, 2014, plaintiffs Judith and Michael Brewer filed suit against Pistel,
Bedi, Doctors Medical, and Stanislaus Orthopedic & Sports Medicine Clinic asserting
claims of professional negligence as to the April 22, 2013, surgeries.1
Plaintiffs jointly
1 As part of the Medical Injury Compensation Reform Act, attorneys are required to file a
notice of intent to sue with health care providers before an action may be commenced against
such providers for professional negligence. (Code Civ. Proc., § 364, subd. (a); Woods v. Young
(1991) 53 Cal.3d 315, 320.) Subdivision (d) of section 364 provides that, “[i]f the notice is
served within 90 days of the expiration of the applicable statute of limitations, the time for the
commencement of the action shall be extended 90 days from the service of the notice.” As such,
the statute of limitations in professional medical malpractices cases is tolled 90 days when the
section 364 notice to sue is provided in the last 90 days of the limitation period. (Woods v.
Young, supra, at p. 328.) There is no dispute as to the timeliness of plaintiffs’ original suit, as
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stated a claim for medical professional negligence, and Michael stated a second claim for
loss of consortium.
Discovery commenced and, in October 2014, plaintiffs propounded document
requests on all defendants seeking, among other things, all medical records relating to
Judith’s surgeries and subsequent care. Complete production of all radiological images
and charts were not produced by Doctors Medical until July 8, 2015.
Plaintiffs immediately sent the images and medical charts to Dr. Brian Andrews
for his expert opinion regarding Judith’s medical treatment. On July 20, 2015, after
Andrews reviewed Judith’s medical records, he opined Remington had breached the
standard of care while providing neurosurgical consultation, evaluation, and treatment of
Judith on April 23 and 24, 2013. According to Andrews, when Remington first evaluated
Judith at 8:15 a.m. on April 23, 2014, he should have taken her to surgery immediately to
decompress her spine. Andrews noted Judith first presented at Doctors Medical at
1:36 a.m. on April 23, 2013, with whole-body numbness and inability to move her
extremities. An MRI performed at 6:11 a.m. of Judith’s cervical spine showed severe
congenital and degenerative spinal stenosis, severe spinal cord compression, and
abnormal signal consistent with cord contusion, edema, or infarction. At 8:15 a.m.,
Remington evaluated Judith and noted in his chart that Judith still had neurological
function—he noted she had strength of 2-3 as graded on a scale of 0 (absent) to 5 (within
normal limits) in muscles of her upper and lower extremities. But, by the next morning
on April 24, 2013, Remington’s chart note indicated Judith’s neurological function in her
lower extremities had deteriorated to 0/5 (absent).
Andrews opined the evidence of deterioration in neurological function coupled
with the MRI findings constituted a neurosurgical emergency, and Remington was
plaintiffs’ counsel served the section 364 notices within the last 90 days of the statute, tolling the
one-year limitation period 90 days.
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negligent for failing to immediately decompress her spine. By ignoring her deterioration
and giving steroids while waiting for her swelling to subside before taking her to surgery,
Remington breached the standard of care. Andrews further opined Remington’s failure
to immediately decompress Judith’s spine was a significant factor in causing her
neurological deficits.
Upon receiving Andrews’s opinion, plaintiffs filed a Doe amendment to the
complaint pursuant to Code of Civil Procedure section 474, substituting Remington in
place of Doe 1 on July 24, 2015.2 On September 8, 2015, Remington filed an answer.
B. Summary Judgment Granted in Favor of Remington
On December 8, 2016, Remington filed a motion for summary judgment on the
ground that plaintiffs’ claims against him were barred by the applicable statute of
limitations and there were no triable issues of fact in this regard. Remington argued
plaintiffs knew his identity and all of the facts giving rise to their claims against him by
April 23, 2013, and certainly by May 30, 2013, when he performed the spinal
decompression surgery. Relying on Knowles v. Superior Court (2004) 118 Cal.4th 1290,
1295 (Knowles) and Gutierrez v. Mofid (1985) 39 Cal.3d 892 (Gutierrez), among other
cases, Remington argued plaintiffs knew of Judith’s paralysis and its suspected cause or
at the very least should have suspected wrongdoing by Remington as of April 23, 2013,
when he first treated her, or by May 30, 2013, when he performed her spinal
decompression surgery and her symptoms persisted, and absolutely no later than June 9,
2014, when plaintiffs filed their original complaint—an express indication of their
suspicion of negligence regarding her medical care.
Plaintiffs filed an opposition asserting their claims against Remington had not
accrued until July 2015, when they discovered the harm he caused. Specifically,
2 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
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plaintiffs argued they named Remington as a defendant as soon as they learned that his
failure to immediately perform the spinal decompression surgery may have precluded
Judith from recovering more of her abilities and caused her injury to become permanent.
Further, the nature of Remington’s negligence provided no basis for either plaintiffs or
their counsel to suspect Remington had breached the standard of care and contributed to
Judith’s neurological injury.
In support of their positions, each party submitted portions of Judith’s depositions
taken on January 7, 2015, and November 19, 2015. Judith testified that immediately
following her surgeries on April 22, 2013, she was able to walk with assistance, but when
she awoke around midnight that night, she had lost sensation along with the ability to use
her arms and legs. When she saw Remington, he said he wanted to wait until the
swelling went down in her spine, and then he would perform surgery. She did not ask
him whether the surgery could be performed sooner, she did not question his
recommendation to wait for the swelling to go down, nor did she consult with any other
physicians about whether it was appropriate to delay the surgery until the swelling had
abated.
Remington performed the spinal surgery on May 30, 2013. None of the
physicians Judith had seen between May 2013 and July 2015 suggested Remington
should have performed the surgery sooner than he did; Remington had never talked to her
about how much improvement she could expect from her condition, nor had anyone else.
At the time of her depositions, Judith did not have full strength in her arms and she
experienced tingling and numb spots. Judith explained none of the doctors had told her
whether or in what time frame she might potentially regain her strength or the use of her
arms and legs, but no one had told her she had reached her maximum potential recovery,
either. After Remington performed the spinal surgery, she had a little more movement in
her left leg and more movement in her arms.
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After a hearing on the motion, the trial court granted summary judgment in favor
of Remington. The court stated that, “[i]n the case at bar, Mrs. Brewer knew of her
paralysis the same day, if not the next, after surgery. When Dr. Remington performed his
surgery on Mrs. Brewer it was some thirty-nine (39) days later. Therefore,
Dr. Remington’s alleged malpractice was independent of the paralysis injury incurred by
Mrs. Brewer on April 23, 2013.” While finding the harm/injury caused by Remington
was independent of Judith’s paralysis injury, the court nonetheless granted the motion for
summary judgment because the amendment adding Remington “was filed more than oneyear after at least June 9, 2014, the latest date the one[-]year statute of limitations
commenced.”
C. Motion for a New Trial Granted
Plaintiffs then filed a motion for a new trial, asserting the court’s summary
judgment order was predicated on an error of law—i.e., the court had improperly applied
the limitation period provided in section 340.5. The one-year limitation period in
section 340.5 commences when a plaintiff suspects or has reason to suspect that her
injury was caused by wrongdoing. Plaintiffs argued they did not know or have reason to
suspect Judith was harmed in any way by Remington and, thus, had no suspicion he
committed any wrongdoing until July 2015, when their expert explained Remington
injured her through delaying her May 2013 surgery. The harm Judith sustained from the
initial surgeries was distinct from the harm she suffered from Remington’s care.
According to plaintiffs, when they actually discovered, or reasonably should have
discovered, Remington’s harm to Judith was a disputed factual issue inappropriate for
resolution on summary judgment.
The trial court agreed with plaintiffs and granted the motion for a new trial. The
trial court gave the following reasons, in relevant part:
“The Court concludes its summary judgment ruling finding that the
amendment to the Complaint adding Dr. Remington was filed ‘more than
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one-year after at least June 9, 2014, the latest date the one-year statute of
limitations commenced’ was an error in law as Plaintiffs contend. [⁋] … [¶]
The gravamen of the issue beyond that of alleged legal error is a
determination of ‘when [Judith] actually suffered appreciable harm, if any,
related to Dr. Remington’s treatment and the date of discovery.’ [Citations.]
[¶] In conclusion, the Court agrees with Plaintiffs’ Counsel it committed a
legal error as to the applicable time frame of the statute of limitations and
further concludes that the issue of whether or not, through the use of
reasonable diligence, Plaintiff should have discovered any injury as a result
of Dr. Remington’s medical treatment and or medical
determinations/opinions. Therefore, there is a triable issue of material fact
as to the pertinent statute of limitations and its attendant timeframe.”
Remington appealed the trial court’s order granting a new trial.
DISCUSSION
I. Parties’ Arguments
Remington argues the injury alleged to have been caused by the originally named
defendants is the same injury upon which the claims against Remington are based—
Judith’s paralysis and loss of sensation. While plaintiffs may have been unaware of
exactly how Remington contributed to Judith’s ultimate injury, they were aware she had
been injured, and her symptoms of paralysis and loss of sensation persisted both before
and after Remington’s treatment and the spinal decompression surgery. Remington
argues it is the suspicion that someone was negligent that commences the statute of
limitations and triggers the plaintiff’s duty to investigate—not when plaintiffs discovered
precisely how Remington was negligent. As the trial court observed in its summary
judgment order, there was no factual dispute Judith first experienced her injuries on
April 23, 2013, that she saw Remington immediately after perceiving her injuries,
Remington performed surgery in May 2013, and Judith continued to experience loss of
sensation and paralysis—all the facts about her injury and Remington’s care were known
to plaintiffs at that time—which triggered the statute of limitations.
Remington maintains plaintiffs’ argument Judith suffered two separate injuries—
one she was aware of and one she was not—triggering the statute of limitations at two
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different times, simply constitutes two different causative factors leading to her single
injury. According to Remington, the fact plaintiffs did not know exactly who caused or
contributed to Judith’s injury is not relevant—it is when plaintiffs were aware of Judith’s
injury that is the controlling factor. Because the undisputed facts show Judith was aware
of her injury, the statute of limitations commenced when she became (or should have
become) suspicious of negligence. Plaintiffs were suspicious of negligence when they
served their intent-to-sue notices on the original defendants. As such, Remington asserts,
the trial court improperly granted plaintiffs’ motion for a new trial.
Plaintiffs maintain the discovery rule delays accrual of an action until the plaintiff
discovers, or has reason to discover, her injury and its negligent cause. Plaintiffs argue
they had no reason to know Remington harmed Judith at all, separately injuring her.
Plaintiffs maintain the second injury by Remington was not known to them until July
2015, when their expert told them Remington had breached the standard of care.
Plaintiffs contend the trial court’s order granting a new trial correctly pointed out there
were factual issues whether Judith suffered injury by two separate incidents and when
Judith knew or should have known of the injury caused by Remington. Given the factual
dispute whether Judith suffered a second injury as a result of Remington’s care and when
plaintiffs reasonably should have discovered Judith’s second injury, plaintiffs maintain
the trial court correctly granted the motion for a new trial and its order should be
affirmed. 3
II. Standard of Review
An order granting summary judgment is properly challenged by a motion for a
new trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858 (Aguilar).) “This
3
Issues pertaining to the relation-back doctrine as applied to Doe amendments under
section 474 were not addressed in the trial court’s order granting a new trial, and they were not
expressly briefed by the parties here. We express no opinion on the applicability of the relationback doctrine.
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is so, even though, strictly speaking, ‘summary judgment … is a determination that there
shall be no trial at all.’” (Ibid.) A new trial may be granted under section 657,
subdivision (7), if the original ruling was erroneous as a matter of law. (Ramirez v.
USAA Casualty Ins. Co. (1991) 234 Cal.App.3d 391, 397.)
Typically, an order granting a new trial is reviewed for abuse of discretion as to
whether the trial court gave an adequate statement of its reasons for ordering a new trial.
(§ 657; Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 159.) However,
where the sole determination underlying the trial court’s order granting a new trial is the
asserted error of law in its order granting summary judgment, such an order is reviewed
de novo. (Aguilar, supra, 25 Cal.4th at p. 860.) This is so because any determination
underlying the order must be scrutinized according to the test applicable to that
determination. (Ibid. [“[T]he superior court’s order granting a new trial was predicated,
specifically, on its determination that, in granting the petroleum companies summary
judgment, it made an error in law .… [¶] … [and] such a determination is itself
scrutinized de novo.”].) Summary judgment should be granted when there is no triable
issue as to any material fact and the moving party is entitled to judgment as a matter of
law. (§ 437c, subd. (c); Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th
990, 1002–1003.)
II. Legal Framework4
A. Statute of Limitations Under Section 340.5
Statutes of limitations prescribe the length of time a plaintiff is given to bring suit
or be barred. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.)
Generally, the limitation period “runs from the moment a claim accrues.” (Ibid.; § 312
4 Neither party disputes Michael Brewer’s loss of consortium claim is subject to the
discovery rule on the same basis as plaintiffs’ negligence claim—but only to the extent the
discovery rule applies to that claim. (See Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425,
1438 [applying delayed discovery rule to wife’s loss of consortium claim].)
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[action must be “commenced within the periods prescribed in this title, after the cause of
action shall have accrued”].) California follows the “‘last element’” accrual rule, which
provides the statute of limitations runs from the occurrence of the last element essential to
the cause of action. (Aryeh, supra, at p. 1191.) Our Supreme Court has described the
essential elements for statute of limitations purposes as “‘wrongdoing, harm, and
causation.’” (Ibid.)
Section 340.5 sets forth the statute of limitations for medical malpractice actions.
In relevant part, that section provides as follows:
“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 the action shall be three years after the date of the injury
or one year after the plaintiff discovers, or through the use of reasonable
diligence should have discovered, the injury, whichever occurs first .…”
“[T]he term ‘injury,’ as used in section 340.5, means both a ‘person’s physical
condition and its “negligent cause.”’” (Gutierrez, supra, 39 Cal.3d at p. 896.) The word
“injury” for purposes of section 340.5 is a term of art that “refer[s] to the damaging effect
of the alleged wrongful act and not to the act itself.” (Larcher v. Wanless (1976) 18
Cal.3d 646, 655–656, fn. 11.) The injury is not necessarily the ultimate harm suffered,
but instead occurs at “the point at which ‘appreciable harm’ [is] first manifested.”
(Brown v. Bleiberg (1982) 32 Cal.3d 426, 437, fn. 8; see McNall v. Summers (1994) 25
Cal.App.4th 1300, 1309 [§ 340.5 limitation periods commence when there is
“appreciable harm or the point in time at which appreciable harm is first manifested”].)
Under the one-year limitation period of section 340.5, the plaintiff must bring suit
within one year after he or she discovers, or should have discovered, his or her injury.
However, a plaintiff need not be aware of either the specific facts or the actual negligent
cause of the injury. (Knowles, supra, 118 Cal.App.4th at p. 1295.) If the plaintiff has
notice or information of circumstances that would put a reasonable person on inquiry
notice, the limitation period is activated. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d, 1103,
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1110–1111.) When this occurs, the “patient is charged with ‘presumptive’ knowledge of
his negligent injury .…” (Gutierrez, supra, 39 Cal.3d at pp. 896–897.) There is,
however, no bright-line rule that when a plaintiff has cause to sue based on knowledge or
suspicion of negligence, the limitation period begins to run as to all potential defendants,
regardless of whether those defendants are alleged as wrongdoers in a separate but related
cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 813 (Fox).)
If “a plaintiff’s reasonable and diligent investigation discloses only one kind of
wrongdoing when the injury was actually caused by tortious conduct of a wholly
different sort, the discovery rule postpones accrual of the statute of limitations on the
newly discovered claim.” (Ibid.)
B. Legal Applications: Discovering an Injury and a Negligent Cause
The limitation period of section 340.5 may commence, as a matter of law, once
appreciable harm unambiguously manifests which causes actual suspicion of
wrongdoing. For example, in Knowles, the decedent (Anatalio) underwent two different
surgeries on back-to-back days in November 2000; the first procedure was performed by
Dr. Knowles, and the second procedure was performed by Drs. Dilley and Chock. Three
days after the second procedure, Anatalio died. (Knowles, supra, 118 Cal.App.4th at
p. 1293.) Anatalio’s wife immediately ordered an autopsy, obtained the medical records,
and, along with her children, filed suit in November 2001 against Dilley, Chock, and the
hospital. (Id. at p. 1294.) The plaintiffs’ lawyer later consulted with an expert who, in
October 2002, opined Knowles also may have been negligent, and Knowles was added to
the suit in November 2002. (Ibid.) Knowles sought summary judgment based on
expiration of the statute of limitations, which the court denied. (Ibid.)
Upon review of Knowles’ writ petition, the appellate court reversed the denial of
summary judgment holding the statute of limitations for medical malpractice against
Knowles had commenced as a matter of law shortly after Anatalio’s death in November
2000, when the plaintiffs admitted they suspected medical negligence caused his death.
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(Knowles, supra, 118 Cal.App.4th at pp. 1294, 1298.) While the plaintiffs argued they
did not specifically suspect Knowles’s negligence until October 2002, the court found the
cause of action against Knowles was within the scope of their initial suspicion of medical
negligence: “They knew, or should have known, that Knowles had performed the initial
surgery, and they suspected that some form of medical malpractice had caused Anatalio’s
death four days later.” (Id. at p. 1300.) The court explained it was not the expert’s
opinion but the plaintiffs’ suspicion of negligence that triggered the limitation period.
(Ibid.) The facts supported only one conclusion—the statute commenced as to all the
physicians’ potential malpractice as soon as Anatalio suffered appreciable harm (death),
which caused the plaintiffs to become suspicious of wrongdoing. (Id. at p. 1301.)
Gutierrez, supra, 39 Cal.3d at pages 896–903, provides another example of the
general rule that suspicion of wrongdoing may activate the statute of limitations, even if
one is unaware of the exact legal cause of action available. In Gutierrez, the plaintiff
went to the hospital complaining of pain in her right side in December 1978. (Gutierrez,
supra, 39 Cal.3d at p. 895.) She consented to an exploratory operation to remove a tumor
or her appendix. (Ibid.) When she awoke after surgery, she discovered the doctors had
performed a complete hysterectomy. (Ibid.) At her deposition, the plaintiff testified she
had communicated her distress to many of the hospital’s staff, and she felt consistently
the doctors had done something wrong by failing to warn her the operation might end her
ability to conceive. (Ibid.) About four months after the surgery, she consulted with a
malpractice attorney who told her she had no provable case. (Id. at p. 896.)
In November 1980, the plaintiff consulted with a second attorney, and filed a suit
on November 21, 1980, nearly two years after the procedure. (Gutierrez, supra, 39
Cal.3d at p. 896.) The trial court granted summary judgment in favor of the defendants
on statute of limitations grounds, and the plaintiff appealed. The appellate court affirmed
the grant of summary judgment, noting the plaintiff “both knew of her injury and
suspected malpractice almost immediately after the operation.” (Id. at p. 897.) Although
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the plaintiff did not discover the precise legal cause of action until the second attorney
consultation, the court held it was irrelevant for the statute of limitations that the plaintiff
is ignorant of her legal remedy or the theories underlying her cause of action. (Id. at
pp. 897–898.) “[I]f one has suffered appreciable harm and knows or suspects that
professional blundering is its cause, the fact that an attorney has not yet advised him does
not postpone commencement of the limitations period.” (Id. at p. 898.)
Yet, unsatisfactory outcomes or naturally occurring side effects are not necessarily
sufficient as a matter of law to place a person on inquiry notice of a defendant’s
wrongdoing. In other words, even when there is an appreciable manifestation of harm,
that harm may not necessarily cause any suspicion of wrongdoing. In Clark v. Baxter
Healthcare Corp. (2000) 83 Cal.App.4th 1048 (Clark v. Baxter), the plaintiff sued a
manufacturer of latex gloves (Baxter). The plaintiff, a nurse, began experiencing
symptoms such as skin rashes and breathing problems in 1992, which she suspected were
caused by an allergic reaction to latex gloves. (Id. at p. 1052.) By January 1994, she had
consulted doctors and concluded her symptoms were attributable to her latex allergy. (Id.
at pp. 1052–1053.) Then, in January 1996, the plaintiff filed a complaint against Baxter
alleging extended exposure to toxic substances contained in the gloves caused severe
illnesses and injuries, which included the symptoms she had already been suffering. (Id.
at p. 1053.)
Baxter filed a motion for summary judgment arguing the plaintiff’s claim was
filed out of time—at least two years before the suit was filed, she was fully aware of her
injuries, attributed those to latex gloves, and suspected or should have suspected there
was something wrong with the gloves. (Clark v. Baxter, supra, 83 Cal.App.4th at
p. 1053.) In response, the plaintiff submitted a declaration explaining she had filed her
action after reading an article at the end of 1995 about defects in the manufacturing
process for latex gloves. (Id. at pp. 1053–1054.) While she had known about the
connection between the gloves and her allergies since 1994, she believed her problems
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were simply caused by her own naturally occurring allergic reaction, not from any
wrongdoing on the part of Baxter. (Ibid.) The court held there were triable issues of fact
regarding the plaintiff’s knowledge or suspicion of Baxter’s wrongdoing—it was not
clear as a matter of law the plaintiff was on notice of Baxter’s wrongdoing based on
symptoms the plaintiff assumed were part of her latex allergy. (Id. at pp. 1059–1060.)
Even a strongly developed suspicion of wrongdoing, standing alone, will not
necessarily commence the statute of limitations when there is a factual dispute whether
that suspicion was linked to any appreciable harm. In Drexler v. Petersen (2016) 4
Cal.App.5th 1181 (Drexler), the court considered when the statute of limitations
commenced on a plaintiff’s failure-to-diagnose malpractice claim. Between 2006 and
2011, Drexler sought treatment from his primary care physician (Petersen) and a
neurologist (German) for headaches and neck pain. (Id. at pp. 1184–1186.) Petersen and
German believed Drexler’s symptoms were due to tension, stress or carpal tunnel issues.
(Ibid.) In January 2013, an emergency room doctor diagnosed Drexler with a brain
tumor, but by then the tumor was so large that when it was removed the surgeons had to
sever Drexler’s cranial nerves, which caused a host of severe injuries. (Id. at pp. 1184,
1187.) Drexler filed suit in July 2013 against Petersen, German, and the hospital for
whom they worked. (Id. at pp. 1184, 1188.)
Drexler gave deposition testimony he never believed his headaches were due to
tension and stress or problems with the muscles in his neck. (Drexler, supra, 4
Cal.App.5th at p. 1187.) He testified that after just a few visits with Petersen, he did not
think he had properly diagnosed his headaches; he also thought German’s 2010 diagnosis
of carpal tunnel was “‘a joke.’” (Ibid.) Drexler testified he was never satisfied with
Petersen’s and German’s care, and he obtained medical records and consulted with an
attorney about whether to sue Petersen for malpractice. The attorney thought Drexler did
not have a case, and Drexler did not see another physician until October 2012. (Ibid.)
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The trial court granted summary judgment to Petersen and German based on the
expiration of the statute of limitations. (Drexler, supra, 4 Cal.App.5th at p. 1188.) The
court ruled Drexler had suspicions of wrongdoing by Petersen by January 2011, when he
consulted with the attorney. (Ibid.) Drexler’s claim against German was likewise barred
because Drexler had a suspicion of wrongdoing as early as March 2010, when German
diagnosed him with carpal tunnel, which Drexler considered preposterous at the time.
(Ibid.)
The appellate court reversed, determining that while Drexler’s consultation with
an attorney in January 2011 was strong evidence Drexler suspected wrongdoing by that
time, there was a factual dispute when Drexler became aware of appreciable harm caused
by Petersen and German. (Drexler, supra, 4 Cal App.5th at p. 1198.) Petersen and
German argued Drexler suffered an increase in symptomatology while they treated him,
which was a manifestation of appreciable harm, but the court held that evidence did not
show Drexler’s headaches were getting worse, and his neck symptoms were not
definitively related to his brain tumor. (Id. at pp. 1196–1197.) It was, therefore, a factual
question when the appreciable harm (failure to diagnose a brain tumor) manifested to
trigger the statute of limitations—it could not be determined as a matter of law. (Id. at
p. 1197.)
From that basic framework, we consider whether there is a disputed issue of fact
as to plaintiffs’ discovery of Judith’s injury allegedly caused by Remington.
III. Analysis
“Resolution of the statute of limitations issue is normally a question of fact.”
(Fox, supra, 35 Cal.4th at p. 810.) As our high court has observed, “[t]here are no hard
and fast rules for determining what facts or circumstances will compel inquiry by the
injured party and render him chargeable with knowledge. [Citation.] It is a question for
the trier of fact.” (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d
586, 597.) “However, whenever reasonable minds can draw only one conclusion from
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the evidence, the question becomes one of law.” (Snow v. A.H. Robins Co. (1985) 165
Cal.App.3d 120, 128, 135 [reversing summary judgment].) In its summary judgment
order, the court found the statute of limitations had been triggered at the time Judith
received care from Remington, or shortly thereafter, as a matter of law. In its order
granting a new trial, the court determined there were factual disputes about whether
Judith sustained a second injury from Remington and when a reasonable person would
have been suspicious Remington had been negligent.
As noted above, the term “injury” as used in section 340.5 is a term of art—it
signifies both the negligent cause and the damaging effect (appreciable harm) of the
wrongful act, and not necessarily the ultimate injury suffered. (Larcher v. Wanless,
supra, 18 Cal.3d at pp. 655–656 & fn. 11; Brown v. Bleiberg, supra, 32 Cal.3d at p. 437,
fn. 8.) Thus, the one-year limitation period under section 340.5 requires the plaintiff to
file a claim within one year of discovering appreciable harm and is, or should be,
suspicious of wrongdoing as to the cause of that harm. The parties dispute how to
characterize the statute-triggering injury in this case. Remington argues Judith’s statutecommencing injury was her paralysis and loss of sensation during and after his medical
care, which was apparent and appreciable throughout his treatment of her as well as after
the spinal decompression surgery. Plaintiffs argue Judith suffered a second injury by
Remington’s delay of the spinal surgery, and it is a factual issue whether there was any
appreciable harm plaintiffs should have discovered prior to July 2015 from which they
reasonably should have suspected Remington had done something wrong. We agree with
plaintiffs.
The persistence of Judith’s symptoms during Remington’s care, without more,
does not trigger the statute of limitations as a matter of law. “The mere fact that an
operation [or treatment] does not produce hoped-for results does not signify negligence
and will not cause commencement of the statutory period.” (Bristol-Myers Squibb Co. v.
Superior Court (1995) 32 Cal.App.4th 959, 964, disapproved on other grounds by
18.
Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 410, fn. 8 & Fox, supra, 35 Cal.4th at
p. 803; see Gutierrez, supra, 39 Cal.3d 892 at p. 899 [“The best medical treatment
sometimes fails, or requires long and difficult recuperation, or produces bad side effects.
Thus, even if a patient is unhappy with his condition, he may not suspect he has been
wronged.”].) Plaintiffs indicate they did not perceive any harm resulting from
Remington’s care until July 2015. Judith testified no one told her before July 2015 the
spinal surgery should not have been delayed and Remington never told her to expect any
particular kind of recovery upon surgery, which might suggest the general persistence of
Judith’s symptoms was appreciable harm linked to Remington. In fact, Judith testified
her symptoms were somewhat better after the spinal surgery. On this record, whether the
persistence of Judith’s paralysis and loss of sensation constitute an appreciable
manifestation of harm cannot be determined as a matter of law.
Relatedly, whether plaintiffs should have linked the persistence of Judith’s
symptoms to wrongdoing by Remington is a factual question—there is evidence from
which it can be inferred plaintiffs reasonably did not link Judith’s symptoms to any
wrongdoing by Remington. Again, at the time Judith sought care with Remington she
already suffered from paralysis and loss of sensation. Until July 2015, no one told
plaintiffs that Judith’s symptoms would be relieved with surgery, or that the surgery
should have been performed more quickly for better results. Other than the April 24,
2013, chart note that Judith’s lower extremities were losing function, which should have,
according to Andrews, signified a surgical emergency, there is no evidence Judith’s
condition worsened while she waited for the spinal surgery.
Similar to Clark, where the plaintiff initially attributed her symptomatology to her
latex allergy and had no suspicion of the manufacturer’s wrongdoing until much later,
plaintiffs here claim they had no reason until July 2015 to suspect Judith suffered any
harm as a result of Remington’s care, even though they were aware of the appreciable
harm Judith sustained before she sought treatment from Remington. (Clark v. Baxter,
19.
supra, 83 Cal.App.4th at pp. 1059–1060.) Moreover, Judith testified at her deposition
Remington was added as a defendant based on information from her lawyer—she did not
concede to any suspicions about Remington’s care. No one told her waiting for the
swelling to go down was inappropriate or that the surgery should have been performed
sooner, and plaintiffs maintain they had no way to know the delay of the spinal
decompression surgery was problematic absent any appreciable harm. This evidence
supports a reasonable inference Judith’s paralysis and loss of sensation did not, and
reasonably would not, give rise to suspicion of wrongdoing on the part of Remington.
For these reasons, Knowles, supra, 118 Cal.App.4th at pages 1294–1301, is also
distinguishable. There, Anatalio underwent two surgeries on back-to-back days, and then
died just days after the second surgery. (Id. at p. 1293.) The harm was immediate and
appreciable, and it admittedly cast suspicion of wrongdoing as to the doctors involved in
the two prior surgeries. (Id. at p. 1298.) Because the harm to Anatalio had
unambiguously manifested and its negligent cause was admittedly suspected to be his
medical care prior to his death, the evidence supported only one reasonable conclusion—
the statute as to Knowles was activated just after Anatalio’s death. (Id. at pp. 1300–
1301.) The same is not true here. Despite Remington’s urging at oral argument that
Knowles is indistinguishable because it involved two surgeries just as Judith underwent
here, Judith’s paralysis and loss of sensation manifested before she was treated by
Remington, not after. It is axiomatic that harm cannot manifest before it is caused by
negligent wrongdoing. In Knowles, both surgeries occurred just prior to the
manifestation of harm (death), and the plaintiffs were admittedly suspicious of all the
care rendered prior to the harm. Remington’s treatment cannot be reasonably linked to
harm suffered before he ever treated her.
Moreover, simply because Remington’s treatment did not resolve or more fully
mitigate Judith’s injuries did not, in itself, place plaintiffs on inquiry notice that
Remington provided negligent care. Under such an interpretation of the limitation period
20.
and discovery rule, every time medical treatment did not yield positive results (even if
such results were not expected, promised or even reasonable) patients would be
immediately charged with discovering a negligent cause before there was any reason to
suspect harm or injury. Such an interpretation would encourage filing professional
negligence claims before there was any good faith basis to do so. It also has the potential
to disrupt doctor-patient relationships by forcing patients to assume that, despite any
counsel from their trusted physician and in the absence of any reasonable suspicion of
wrongdoing, the lack of perfect or more desirable treatment results is rooted in
negligence. The singular lack of perfect or better treatment results cannot be a matter-oflaw trigger commencing the statute of limitations for medical malpractice.
Here, it is disputed when there was an appreciable manifestation of harm after
Remington started providing medical care to Judith. The persistence of Judith’s
symptoms was not necessarily an appreciable manifestation of harm from Remington’s
treatment. There is no evidence Judith’s symptoms worsened during the five weeks she
waited for the spinal surgery, nor is there evidence a certain level of improvement was an
expected or a promised result of the spinal decompression surgery. (See Dolan v. Borelli
(1993) 13 Cal.App.4th 816, 819–824 [statute began to run when patient, who understood
from her surgeon she would be pain free 60 days after surgery, experienced significantly
worse symptoms after surgery].) In fact, Judith experienced some small improvements
after Remington’s spinal surgery.
The harm resulting from medical treatment may not always be objectively
appreciable to the layperson, thus its discovery may be delayed until someone with
expertise uncovers it. This type of situation is distinguishable from cases such as
Knowles, supra, 118 Cal.App.4th at pages 1298–1301, and Gutierrez, supra, 39 Cal.3d at
pages 896–903, where appreciable harm had manifested and had given rise to suspicions
of professional negligence, but the plaintiffs did not learn until later from medical or legal
experts the precise extent or nature of the harm or its precise cause, or the existence of a
21.
legal cause of action. Thus, in Drexler, while the plaintiff was highly suspicious of his
doctors’ diagnoses and treatment of his head and neck pain, there were factual disputes
about when appreciable harm from Drexler’s undiagnosed brain tumor manifested—
Drexler could not have been aware of the failure to diagnose his growing tumor until
there were appreciable manifestations of it. (Drexler, supra, 4 Cal.App.5th at pp. 1196–
1198.) Similar to Drexler, Judith’s symptoms of paralysis and loss of sensation were the
reason she sought medical care from Remington in the first place, just as Drexler sought
care for his headaches and neck pain. (Id. at p. 1184.) Judith’s paralysis and loss of
sensation persisted, in large part, throughout her treatment by Remington, as did
Drexler’s symptoms, without evidence of appreciable worsening. (Id. at pp. 1184–1187,
1196–1197.) While Remington’s purported failure to recognize that Judith’s condition
required immediate surgery is not identical to the failure-to-diagnose issue in Drexler, the
same principle applies to both cases: the accrual period under section 340.5 commences
when there has been, from an objective standard, a manifestation of appreciable harm that
would put a reasonable person on inquiry notice of wrongdoing. Like Drexler, we
conclude there is a factual dispute when Judith experienced appreciable harm that would
have caused a reasonable person to be suspicious of Remington’s wrongdoing.
In sum, we agree with the trial court that granting summary judgment in favor of
Remington on statute of limitations grounds constituted an error of law. We affirm the
trial court’s order granting plaintiffs’ motion for a new trial.

Outcome: The trial court’s order granting a new trial is affirmed. Plaintiffs are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278, subd. (a)(1).)

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