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Court of Appeal, Second District, Division 7, California.

Lubov SOSUNOVA, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants and Respondents.

No. B055989.

Decided: August 17, 1992

Girardi, Keese and Crane and John A. Girardi, Los Angeles, for plaintiff and appellant. Patterson, Ritner, Lockwood, Zanghi & Gartner, Robert R. Scholl and Shahin S. Karim, Los Angeles, and Greines, Martin, Stein & Richland, Martin Stein and Cynthia N. Sarno, Beverly Hills, for defendants and respondents.

Plaintiff, Lubov Sosunova, brought this action for damages against defendant, the Regents of the University of California, alleging negligence during an x-ray procedure at the University of California, Los Angeles dental clinic.   The trial court granted summary judgment in favor of the defendant on the ground the statute of limitations had run, barring plaintiff's claim.   We reverse.


On March 28, 1985, plaintiff, Lubov Sosunova, received dental treatment at the University of California, Los Angeles dental clinic.   During this treatment, defendant “John Doe Hunter,” a student x-ray technician, exposed Sosunova to over 20 x-rays of her mouth.   Sosunova asserts Hunter had difficulty inserting into her mouth the material used for taking the x-rays causing Sosunova to scream in pain.   Sosunova was aware Hunter never turned off the light.   Sosunova began to experience dryness and blistering of her mouth and tongue at which point Hunter massaged her tongue with his bare hands.   Sosunova believed this student obviously needed supervision to take x-rays.

Subsequently, a supervisor did enter the room and told Hunter he had taken the x-rays incorrectly and he should never take x-rays that way.   Sosunova watched as the supervisor instructed Hunter how to take x-rays correctly.   Sosunova was shocked at the “negligence to people's health.”

Immediately following the procedure, Sosunova began to experience burning and itching around her mouth.   Her tongue dried up and the skin around her mouth and lips began to blister and peel away.   Sosunova left the x-ray room but could not go outside without first sitting and resting.

Sosunova concedes she initially believed the injury had resulted from the incorrect x-ray procedure.   Early the next morning Sosunova telephoned the dental clinic and spoke with the supervisor.   After telling the supervisor what had taken place, the supervisor comforted Sosunova and told her everything would be “okay.”   Sosunova asserted in her deposition she believed the supervisor.   Sosunova further asserted the supervisor told her the injury did not happen at the clinic.   Sosunova did not believe the supervisor on that issue, questioning how the supervisor could be so sure the injury did not occur at the clinic while still knowing it would be “okay.”

Sosunova made repeated visits to the dental clinic for treatment and each time inquired about her condition.   On May 3, 1985, Sosunova was assured by a student at the clinic there was nothing to worry about.   On June 6, 1985, Sosunova was treated by two hygienists who said nothing when Sosunova told them about her injury.   Sosunova continued treatment at the dental clinic and on January 7 saw Dr. White regarding her injury.   Dr. White assured Sosunova her condition could not have been caused by the x-ray procedure.   Dr. White told Sosunova to see a dermatologist.   January 7, 1986, was Sosunova's last treatment at the dental clinic.

On February 13, 1986, Sosunova saw the dermatologist.   Following this visit Sosunova decided to file her lawsuit.   Sosunova filed her complaint for damages on January 7, 1987, against John Doe Hunter and the Regents of the University of California.

The regents answered Sosunova's complaint, asserting Code of Civil Procedure § 340.5 as an affirmative defense.   The regents then moved for summary judgment, contending plaintiff's claim was time barred because it exceeded the one-year discovery limit and thus judgment for the regents should follow as a matter of law.

Sosunova filed her opposition to the motion for summary judgment, contending she discovered the negligent cause of her injury less than a year before commencing her suit.

The trial court granted the motion for summary judgment finding no triable issue of material fact existed and the regents were entitled to judgment as a matter of law.   We disagree.   An issue of fact exists as to when Ms. Sosunova discovered the negligent cause of her injury.   Due to the doctor-patient relationship, Ms. Sosunova could have reasonably relied on her doctor's assurances the x-ray examination was not the cause of her injury.


 Summary judgment may only be granted when the moving party has established no material issue of fact exists.  (Code Civ.Proc., § 437c;  Unjian v. Berman (1989) 208 Cal.App.3d 881, 884, 256 Cal.Rptr. 478.)   The trial court must determine whether the moving party's affidavit has presented sufficient facts to establish the action as meritless or without defense.   A summary judgment is a drastic procedure to be used cautiously.   Accordingly, the court strictly construes the affidavit supporting the summary judgment.  (Gray v. Reeves (1977) 76 Cal.App.3d 567, 573, 142 Cal.Rptr. 716.)

The evidence presented by the regents must establish beyond dispute that Sosunova failed to commence her action within three years after the date of injury or one year after she discovered, or through reasonable diligence should have discovered, the injury, whichever came first.  (Code Civ.Proc., § 340.5;  Unjian, supra, 208 Cal.App.3d at p. 884, 256 Cal.Rptr. 478.)

Because Sosunova commenced her action less than three years from the date of the injury, the issue is whether the action was commenced less than one year from the date the injury was discovered, or should have been discovered.

 Discovery of injury occurs when the plaintiff holds actual knowledge of the injury as well as knowledge that could reasonably be discovered through the investigation of sources open to her.  (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923;  Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101, 132 Cal.Rptr. 657, 553 P.2d 1129.)   For purposes of discovery, the term “injury” refers to both the physical condition and its negligent cause.  (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896, 218 Cal.Rptr. 313, 705 P.2d 886.)   In other words, accrual of a cause of action is delayed until the plaintiff is aware of both her injury and its negligent cause.  (Jolly, supra, 44 Cal.3d at p. 1109, 245 Cal.Rptr. 658, 751 P.2d 923.)

 Furthermore, the plaintiff is presumed to have knowledge of the negligent injury and the statute begins to run once the plaintiff has knowledge of circumstances or information which would put a reasonable person on inquiry notice.  (Gutierrez, supra, 39 Cal.3d at pp. 896–897, 218 Cal.Rptr. 313, 705 P.2d 886;  Sanchez, supra, 18 Cal.3d at p. 101, 132 Cal.Rptr. 657, 553 P.2d 1129.)   If the plaintiff believes, because of the injuries she has suffered, someone has done something wrong, the statutory period begins to run.  (Jolly, supra, 44 Cal.3d at p. 1111, 245 Cal.Rptr. 658, 751 P.2d 923.)   Once plaintiff is put on inquiry notice he or she has a duty to go find the facts.  (Rose v. Fife (1989) 207 Cal.App.3d 760, 769, 255 Cal.Rptr. 440;  Jolly, supra, 44 Cal.3d at pp. 1110–1111, 245 Cal.Rptr. 658, 751 P.2d 923.)

The regents contend the events occurring at the clinic on March 28, 1985, point to only one conclusion:  a reasonable person would have discovered both the physical condition and the negligent cause of Sosunova's injury on that day.   On the day in question, an apparently inexperienced technician exposed Sosunova to over 20 x-rays without ever turning the light off.   Sosunova's mouth dried up, began to blister and peel away.   Sosunova witnessed the x-ray technician receive a reprimand for the way he had taken her x-rays and a lesson on the correct procedure.   The procedure rendered Sosunova unable to walk out of the clinic without first resting.   The evidence fails to show Sosunova had experienced any symptoms or indications her injury was due to anything other than the mistreatment at the clinic.

From these facts, the regents argue they are entitled to summary judgment because no material issue of fact exists as to whether a reasonable person would have known or should have known the cause of her injury.   However, the regents fail to account for the statements made by the trained medical personnel of the clinic who assured Sosunova her injury did not occur from the x-rays.   We conclude the effect of these statements must be decided by the trier of fact.

The triable issue is whether the clinic did anything to alleviate the belief Sosunova, as a reasonable person, should have had as to the negligent cause of her injury.

Sosunova contends clinic personnel on several occasions assured her not to worry because she would get better.   For purposes of this discussion those statements are irrelevant because we conclude they would not dispel a reasonable belief the clinic negligently caused the injury.

In addition, however, Sosunova claims both the supervisor of the clinic and Dr. White assured her that her injury did not occur at the clinic.   Dr. White told Sosunova x-rays would not have caused her injury and to see a dermatologist.   We find the effect of these statements to be a question of fact upon which reasonable minds could differ.

 Although Sosunova concedes she initially believed the x-rays negligently caused her injury, the clinic's repeated assurances to the contrary could have reasonably allayed Sosunova's suspicions of wrong doing.   Generally, courts will assume the patient relied on the physician during a continued doctor-patient relationship.  (Brown v. Bleiberg (1982) 32 Cal.3d 426, 438, fn. 9, 186 Cal.Rptr. 228, 651 P.2d 815.)   Where, as here, a trust relationship exists, the patient is fully entitled to rely upon the doctor's superior professional knowledge, skill and judgment.  (Sanchez, supra, 18 Cal.3d at p. 102, 132 Cal.Rptr. 657, 553 P.2d 1129;  Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 234, 153 P.2d 325.)

In the case before us, Sosunova made a reasonably diligent inquiry as to the negligent cause of her injury, but, due to reliance on the clinic's assurances, Sosunova may have failed to discover the truth.   In a similar case, Unjian, supra, 208 Cal.App.3d 881, 256 Cal.Rptr. 478, this court held failure to make an earlier discovery of fault was not unreasonable when the patient, continuing under the doctor's care, inquired about the cause of his apparent injury and was given an explanation calculated to allay any suspicion of the negligence on the doctor's part.  (Id. at p. 885, 256 Cal.Rptr. 478.)

In Unjian, the defendant, a plastic surgeon, performed face lift surgery on the plaintiff on November 23, 1982.   After the normal swelling had subsided, plaintiff complained his face looked worse than before.   Plaintiff continued under the defendant's care questioning defendant several times regarding the infection on his face.   Defendant assured plaintiff nothing had gone wrong and explained the infection was due to possible suture reactions or old acne cysts.   Plaintiff continued under defendant's care until October 19, 1983.

Unjian filed his action on September 24, 1984.   The trial court granted summary judgment for the defendant on the ground plaintiff's action was barred by the statute of limitations.  (Id. at p. 883, 256 Cal.Rptr. 478.)   We reversed, stating, in light of the “fiduciary relationship” between the patient and his doctor, a trier of fact could reasonably conclude the patient was justified to rely on his doctor's assurances and explanations for his condition following surgery.  (Id. at p. 889, 256 Cal.Rptr. 478.)   We reasoned the patient may have relied on the doctor's assurances because he himself had no medical expertise and had no accurate way to know if the assurances were reasonable.  (Ibid.)  As long as the patient accepts his doctor's assurances without loss of trust, the diligence required for use in discovery is diminished.  (Ibid.)

In the present case, there is evidence that while continuing care under the clinic, Sosunova relied on assurances from a supervisor and doctor her injury was not the result of x-rays at the clinic.   Applying the reasoning of Unjian, it follows a trier of fact could reasonably conclude Sosunova was justified in accepting the clinic's explanations her injury did not result from the x-rays.   Although Sosunova may have had initial suspicions, she was unqualified to diagnose her condition and, thus, could reasonably have relied on the trained medical personnel of the clinic.

Another malpractice case where the plaintiff relied on statements made by his doctor and subsequently did not file his complaint within the statute of limitations is Bowman v. McPheeters (1947) 77 Cal.App.2d 795, 176 P.2d 745.   In Bowman, plaintiff received treatment from defendant, a licensed physician.   In the course of this treatment plaintiff had x-rays taken in such a negligent manner that plaintiff suffered burns on his arm which resulted in a cancerous condition.   When plaintiff consulted the physician defendant about his condition, the defendant stated too much heat had been applied to the arm but that nothing was wrong with it.   Defendant then told plaintiff not to worry.   Over two years later plaintiff again consulted defendant regarding the pain in his arm.   Defendant again reassured plaintiff there was nothing to worry about.   However, at the time of both statements defendant was aware of the cancerous condition of plaintiff's arm.

The plaintiff, in Bowman, did not discover the cancerous condition until he sought treatment from other physicians a month after defendant's last reassurance.   The court held the plaintiff was not negligent in failing to discover the true facts earlier nor was it unreasonable for the plaintiff to rely on the words and conduct of the defendants.  (Id. at p. 799, 176 P.2d 745.)   The court reasoned due to the relationship between the patient and physician, and the duty imposed on physicians to fully disclose material facts, plaintiff was not negligent in relying on the assumption that if there had been anything else to disclose defendant would have disclosed it.  (Id. at p. 801, 176 P.2d 745.)   The court stated the effects of the assurances made by defendant are questions of fact to be determined by the trier of fact.  (Id. at p. 803, 176 P.2d 745.)

In the case before us, Sosunova consulted the clinic about her burns.   The clinic told Sosunova not only that there was nothing to worry about, but also the injury did not occur at the clinic.   Applying the Bowman court's reasoning it follows that due to the patient-physician relationship Sosunova was not negligent in relying on both the clinic's assurances she would be “okay,” and also the clinic's assurances the x-rays did not cause her injury.   Because the Bowman court found a question of fact on the effect of the doctor's statement to his patient, assuring him his arm would be okay, it follows the effect of the clinic's assurances to Sosunova should also be determined by the trier of fact.

The regents principally rely on Sanchez v. South Hoover Hospital, supra.   There, the plaintiff entered the defendant hospital for the birth of her child.   The doctor performed a Caesarian section but the baby was stillborn.   During the time plaintiff remained in the hospital there was continuous drainage from the Caesarian incision and plaintiff felt her wound was not healing properly.   On the day she was discharged she was suffering from a high fever.   A hospital employee, observing her condition at the time, remarked to her, “ ‘They have done a mess with you.’ ”  (18 Cal.3d at pp. 95–96, 132 Cal.Rptr. 657, 553 P.2d 1129.)   When advised of her high temperature on the day of her discharge, the doctor who performed the operation told plaintiff to take aspirin and it would “go away.”   Plaintiff never questioned the doctor about his treatment nor whether her problems were caused by that treatment.   Following her discharge, plaintiff had no further contact with the doctor who performed her Caesarian section or any hospital employee.  (Id. at p. 96, 132 Cal.Rptr. 657, 553 P.2d 1129.)   Plaintiff suspected negligence and admitted she did not accept the defendant's general assurances at face value.   The court affirmed summary judgment despite the doctor's assurances.  (Id. at p. 102, 132 Cal.Rptr. 657, 553 P.2d 1129.)   The court reasoned although there existed a trust relationship between the doctor and patient which limited the duty of inquiry into the negligent cause of the patient's injury, the statute had run because the patient admitted disbelief in the doctor's assurances.  (Ibid.)

The present case is clearly distinguishable from Sanchez because of the nature of the assurances given by the defendants.   In Sanchez, the plaintiff was told by her doctor, in essence, she had suffered no injury.   In the present case, Ms. Sosunova was told by her doctor, in essence, she had suffered an injury but not as a result of the x-rays.   In Sanchez, the plaintiff suspected negligence in her treatment from the beginning and did not accept her doctor's assurances that with a few aspirin she would be fine.   As the Supreme Court pointed out, plaintiff's suspicions were aroused in part by her own recognition of her symptoms.  (Id. at p. 102, 132 Cal.Rptr. 657, 553 P.2d 1129.)   Here, there is no dispute Ms. Sosunova recognized her symptoms but she was assured those symptoms were not caused by the x-rays.   It would seem a patient has even more reason to rely on her doctor's explanation as to what caused her injury than as to whether she is injured.   A layperson can recognize he or she has been injured, but what caused the injury takes medical knowledge.   The trained medical personnel at the clinic told Sosunova her injury did not result from the x-rays.   Because Sosunova had no medical training she could have reasonably believed these assurances.   The regents did not produce any evidence to show Sosunova had lost her trust in the clinic nor that she failed to accept the assurances at face value.   We cannot say that as a matter of law Sosunova unreasonably believed the clinic's assurances.

Other jurisdictions also hold the patient justifiably may rely on the physician's expertise.   In Adams v. Ison (Ky.App.1952) 249 S.W.2d 791, the court addressed the issue of whether reliance on a physician could effectively prevent the statute of limitations from running.   The defendant, a physician and surgeon, treated plaintiff for pneumonia.   In the course of the treatment defendant inserted a rubber tube into plaintiff's lung, which defendant negligently left in the lung following surgery.   Ten days later plaintiff learned of the negligence and asked the defendant to perform another operation to remove the tube.   Plaintiff told defendant if he did not remove the tube he would sue defendant for damages.   Defendant then told plaintiff not to sue, that the tube would be absorbed by the lung and no negative effects would occur.   Plaintiff relied on defendant's statements and did not sue.   Twenty years later plaintiff suffered a lung hemorrhage.   Treatment revealed the tube had not been absorbed, but in fact was the cause of the hemorrhage.   Plaintiff's lung was removed.   Plaintiff brought suit and defendant asserted the statute of limitations as defense.   The court held the statute of limitations had not run.  (Id. at p. 794.)   The court reasoned because of the professional relationship between the physician and his patient, the patient had a right to rely on the professional word of the physician.   Because the patient must place great reliance on his doctor's skill and experience, it is the physician's duty to act with the utmost good faith and to speak fairly and truthfully at peril of being held liable for damages for fraud and deceit.  (Id. at pp. 793–794.)

A similar case where reliance on the doctor prevented the patient from bringing his action within the statutory period is Hill v. Fordham (1988) 186 Ga.App. 354, 367 S.E.2d 128.   In Hill, defendant, a dentist, treated plaintiff for a toothache.   X-rays revealed an impacted molar which defendant noted might erupt later.   However, defendant told plaintiff any pain he felt was from bone slivers which would eventually work their way out of the gum.   Although plaintiff continued to suffer pain and discomfort he did not seek any other treatment.   Four years later plaintiff sought treatment from a different dentist who diagnosed the erupted wisdom tooth.   Extraction of the tooth relieved plaintiff's pain.   The court affirmed the trial court's decision to deny summary judgment for defendant, reasoning a patient has the right to believe what he is told by his physician about his condition.  (Id. 367 S.E.2d at p. 129.)   The court further reasoned whether defendant knowingly failed to inform plaintiff of his condition and whether plaintiff justifiably relied on defendant's diagnosis, or failed to exercise ordinary care by neglecting to seek treatment over a four-and one-half-year period, are properly questions for jury determination and may not be resolved on summary judgment.   (Id. at p. 130.)


The judgment is reversed.   Appellant is awarded her costs on appeal.

JOHNSON, Associate Justice.

LILLIE, P.J., and FRED WOODS, J., concur.

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