BROWN v. BLEIBERG

Reset A A Font size: Print

Court of Appeal, Second District, Division 4, California.

Leonia BROWN, Plaintiff and Appellant, v. Leon BLEIBERG, D.P.M., Joseph Green, M.D., et al., Defendants and Respondents.

Civ. 61217.

Decided: November 23, 1981

Sanford M. Gage, Beverly Hills, for plaintiff and appellant. Bonelli, Wood & Heib, Glen E. Tucker and Stanley M. Sapiro, Los Angeles, for defendants and respondents, Leon Bleiberg, D.P.M. Hagenbaugh & Murphy and Neil Gunny, Los Angeles, for defendant and respondent, Joseph Green, M.D.

Is there a triable issue as to tolling of the statute of limitations in plaintiff's medical malpractice action against defendants Bleiberg and Green, commenced more than 12 years after her last relevant professional contact with either of them?1

The trial court answered that question in the negative and granted those defendants' motions for summary judgment. We agree and affirm.

Eliminating the irrelevant and incompetent material initially tendered to the trial court and now to us,2 we know from plaintiff's deposition that plaintiff was referred to defendant Bleiberg by her family doctor, John Zane, a named but unserved defendant, for treatment of foot pains in June or July 1965, and that Bleiberg told her he was going to remove some painful corns or “corns and some tumors”3 and performed surgery on her at Mid-City Hospital in July 1965. Green was the attending anesthesiologist and was present at Bleiberg's surgery along with Zane. Green told plaintiff “he worked with them and he had put people to sleep, it was going to be all right.” Plaintiff never saw Green again in connection with the foot surgery.4 Zane saw her “just about every day”; Bleiberg visited her but not every day.

While still in the hospital plaintiff told Bleiberg about her feet, “... it was so painful, why were they all cut up like they were.” She could “see ... and feel how they were hurt.” Bleiberg's response was “he just took out a whole lot of little tumors and they were going to be painful.”

Before plaintiff left the hospital Bleiberg told her to keep her feet elevated and to come back to the clinic and take therapy. She took Empirin 3 with codeine for pain for about two to three months.

She went to the clinic every other day for “a long time.” During this period she was making continual complaints to Bleiberg about the pains in her feet. He gave her no further explanation than the removal of the tumors.

Plaintiff went to see Bleiberg until he moved; he left his location before a year was up. As of December she was no longer seeing him.5 At that time her feet were still painful. She still had difficulties in walking, “(l)ike my feet were spreading out.” While walking by “a table or something, my little toe would catch on something.” Bleiberg said “it would be all right.”

She last saw Zane “somewhere along in” 1972 or 1974; “every now and then (she) would tell him it was still painful.”

She broke her ankle in 1975 when her left leg gave way and saw a Dr. Bosley in West Adams Community Hospital. We quote the following excerpt from plaintiff's deposition:

“Q. Did Dr. Bosley ask you if you had been having any problems walking before you had this broken ankle?

“A. Yes.

“Q. And what did you tell him with regard to the problems you had been having walking?

“A. I just told him sometime like it want to give away or slip or something.

“Q. Were you experiencing something of the giving away or slipping in any particular part of your foot or leg?

“A. Well, seem like my feet, when I walk, they go-I don't know what you call it, like a duck, I guess.”

On and off since the 1965 surgery if plaintiff had been on her feet for a prolonged period of time she would be unable to walk the following day. She did not consult with a physician as to her foot problems from 1965 to 1978; she “just had in mind they were going to be all right” but she told Zane that she was not getting any better.

Plaintiff completed the eleventh grade of high school and a nine-month practical nursing school, but never had employment in the nursing field.

Plaintiff's niece, Laverne Grays, a registered nurse since the early ‘70's and employed at Harbor General Hospital, told plaintiff to check out her feet with a doctor prior to the fractured ankle incident.6 Whenever Ms. Grays would come around plaintiff, “they7 would all laugh at my feet because they (were) ugly.”

In 1967 or 1968 plaintiff was referred to a doctor in Lakewood by her welfare case worker; we again quote briefly from her deposition:

“Q. At any rate, this case worker referred you to a doctor in Lakewood?

“A. Yes.

“Q. All right. And this doctor in Lakewood asked you why your feet had been cut up?

“A. Why did they cut them up like that.

“Q. Did you give a history of your foot surgery to this doctor?

“A. I just said they took corn off. He wanted to know how come they had to do all that to take a corn off, so I don't remember.”

In addition, plaintiff made the following answers to certain of Bleiberg's interrogatories:

“Interrogatory $ 7 :

“Describe any bruises, lacerations, swelling, or any other marks of injury on your body after the incident sued upon herein.

“Answer to Interrogatory $ 7 :

“On the side of toes I had bruises, swelling and numbness and a cut on top of foot. Feet were swollen and extremely painful.”

“Interrogatory $ 12 :

“Please give an itemized list of the doctor, dental, hospital, and any other medical expense which you contend resulted from this incident.

“Answer to Interrogatory $ 12 :

“In 1975 my foot and leg gave way because they were so weak from the surgery performed by Dr. Bleiberg. I fell and broke my ankle. I went to the West Adams Hospital, I remained in the hospital.”

“Interrogatory $ 15 :

“If you have lost any time from work or employment because of injuries resulting from this incident, please list the number of days or weeks lost, the dates of time, and the name and address of your employer at the time of loss.

“Answer to Interrogatory $ 15 :

“Couldn't go to work or get job because of my feet, no one would hire me because I couldn't stand for even a short period of time.”

“Interrogatory $ 33 :

“State the names, addresses and occupations of all parties who advised you that defendant had become guilty of malpractice or negligence in connection with this incident.

“Answer to Interrogatory $ 33 :

“My friends made fun of the way my feet looked and they asked, ‘who was the doctor that cut you all up?’ ”

“Interrogatory $ 35 :

“State specifically the alleged acts or omissions of defendant during his medical care and treatment of you, which you contend were negligent or constituted malpractice on his part?

“Answer to Interrogatory $ 35 :

“He removed bones from my toes, and he didn't tell me anything about taking bones out.”

Plaintiff's declaration in opposition to the motion for summary judgment, which does not conform fully to Code of Civil Procedure section 2015.5,8 alleges, inter alia, that “(b)ecause I trusted and had confidence in Dr. Zane and also Dr. Bleiberg, I believed their explanation that the reason that I had unattractive and painful feet was due to the existence of ‘tumors' in the feet which had to be removed at surgery.

“....

“I had nine (9) months of nursing training at Jordon (sic) High School in Watts to become a practical nurse but no hospital training or in service instruction.

“This background did not qualify me to diagnose my foot condition but probably conditioned me to be more accepting of the doctors' diagnosis and explanation for the condition of my feet since I basically had trust and confidence in them.

“Furthermore, Dr. Green, the anesthesiologist, had reassured me that he knew Dr. Bleiberg and had observed him do a lot of foot surgery before and that in undergoing the initial procedure I had nothing to worry about.

“Although other persons suggested that I seek other medical care and did ridicule the appearance of my feet, I was satisfied with the explanations concerning the treatment and care rendered by Dr. Bleiberg and Dr. Zane and did not feel that it was necessary to obtain a third consultation.

“In approximately June, 1978, a family member told me that a friend of his had related that a member of his family had had a similar foot surgery performed by Dr. Bleiberg and had gone to a lawyer because of unhappiness with the results. He urged me to contact the lawyer to see if perhaps something had been done that was improper. He indicated that the lawyer had apparently been successful in bringing suit against Dr. Bleiberg and that there had been many other patients that had had similar problems. Because my feet were still giving me difficulty I decided to make inquiry-at least to see if there was anything to it.

“In June, 1978, I met with the law offices of Sanford M. Gage and was referred to another podiatrist for an evaluation of my foot condition.

“I was examined by Harvey Ross, D.P.M.

“In connection with that examination, he advised me of the X-ray findings that showed that there was damage and destruction to my foot bones and to internal structures and showed me on X-rays what had happened.

“He explained how the surgery had caused the problems and that the operation performed upon me was not a procedure to remove tumors but was a procedure that removed portions of the bones of the feet.”

Based upon the advice of Mr. Gage and Dr. Ross, plaintiff caused suit to be filed on June 21, 1978.

As we have noted, the sole ground of the summary judgment below was the statute of limitations. We need not chronicle the history of the statute of limitations in medical malpractice actions, since that task was accomplished recently, thoroughly-and authoritatively-in Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 96-101, 132 Cal.Rptr. 657, 553 P.2d 1129.

Suffice it to say that prior to the enactment of Code of Civil Procedure section 340.5 in 1970, the general one-year personal injury term of Code of Civil Procedure section 340, subdivision 3 was applicable to medical malpractice actions, but the year did not start to run until “the plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence.” (Sanchez v. South Hoover Hospital, supra, at p. 97, 132 Cal.Rptr. 657, 553 P.2d 1129.)

The enactment of section 340.5 required commencement of a medical malpractice action within “four 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 first occurs.”9

Sanchez expressly holds that “the tolling provision of the pre-1975 version of section 340.5 applied only to the four-year, and not to the one-year limitations period contained in that statute. It follows accordingly that non-disclosure, for purposes of tolling, did not affect the one-year limitations period at issue herein.” (Sanchez v. South Hoover Hospital, supra, at p. 101, 132 Cal.Rptr. 657, 553 P.2d 1129.)

Since it is not contended that plaintiff “actively discovered (her) injury and its negligent cause” prior to June 21, 1977, the issue for resolution on appeal can be stated even more narrowly than we did at the outset: As a matter of law, should plaintiff have discovered her injury and its cause through the exercise of reasonable diligence prior to June 21, 1977? Or, stated in the terms of Code of Civil Procedure section 437c, is there a “triable issue as to (the) material fact”10 of timely discovery through the exercise of reasonable diligence?

It is our conclusion, after a careful review of plaintiff's entire deposition, her answers to interrogatories and her declaration in opposition to the motion for summary judgment, that as a matter of law she should have discovered her injury and its cause through the exercise of reasonable diligence long prior to one year before she filed her complaint, and accordingly there is no “triable issue as to any material fact” as to the statute of limitations defense. It follows that the trial court was correct in rendering summary judgment.11

We have reached this determination because we are satisfied that reasonable diligence cannot exist where a party, for nearly 13 years, suffers the disfiguration of her feet, their continued weakness and pain, the ridicule, inquiries and comments of others (including a nurse and a doctor) and a damaging fall caused by the weakness of her foot and leg.12

Plaintiff's declaration does not negate the facts earlier presented in her deposition and answers to interrogatories, but rather concentrates on her own state of mind and her justification for extended inaction after 1965.

We emphasize again that we are not speaking of subjective “actual discovery” but of its statutory equivalent, objectively determined “reasonable diligence.” Plaintiff's declaration does not present a triable issue as to her extended failure to act. Even where there is a true conflict between a litigant's deposition and interrogatory answers, on the one hand, and her declaration, on the other, the conflict should be resolved against that litigant:

“Moreover, when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of those stern requirements applicable in a normal case are relaxed or altered in their operation. Thus, in King v. Andersen, supra, 242 Cal.App.2d 606 (51 Cal.Rptr. 561) ... the court said:

‘Where, as here, however, there is a clear and unequivocal admission by the plaintiff, himself, in his depositon ... we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact.’ (242 Cal.App.2d at p. 610 (51 Cal.Rptr. 561).) And in Newport v. City of Los Angeles, supra, 184 Cal.App.2d 229, (7 Cal.Rptr. 497) the sufficiency of the moving party's affidavit was challenged on the basis, inter alia, of the rule requiring that only facts within the personal knowledge of the moving party, as to which he could give competent testimony at trial, be given effect when considering the sufficiency of his affidavits. Affirming the summary judgment, the court held that the affidavit was sufficient where the moving party incorporated therein verified admissions of the opposing party concerning which he, the moving party, could claim neither personal knowledge nor competency to testify. (184 Cal.App.2d at p. 236 (7 Cal.Rptr. 497); see also Rader v. Thrasher (1972) 22 Cal.App.3d 883, 889-890 (99 Cal.Rptr. 670).)

“The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in other contexts (see Evid.Code, ss 1220-1230) admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits. (See generally Bauman, California Summary Judgment: A Search For a Standard (1963) 10 U.C.L.A. L.Rev. 347, especially pp. 350-351; 357-360.)” (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22, 112 Cal.Rptr. 786, 520 P.2d 10; emphasis in original.)

Some observations from Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382, 383-384, 121 Cal.Rptr. 768 are instructive:

“Under the rule that the affidavits of the party opposing a motion for summary judgment are liberally construed (citations), it appears that plaintiff has presented sufficient competent evidence to present a triable issue of fact with respect to whether she sustained a physical injury in the subject incident. However, in view of plaintiff's admissions in her deposition and answers to interrogatories that she had suffered no physical injury as a result of the incident, the rule of liberal construction loses its efficacy and the granting or denial of the motion for summary judgment depends upon the issues of credibility. Accordingly, when a defendant can establish his defense with the plaintiff's admissions sufficient to pass the strict construction test imposed on the moving party (citations), the credibility of the admissions are (sic) valued so highly that the controverting affidavits may be disregarded as irrelevant, inadmissible or evasive. (Citations.)” (P. 382, 121 Cal.Rptr. 768.)

“....

“In sum, although liberally construed plaintiff's counterdeclaration standing alone suffices to present evidentiary facts showing that a genuine issue of fact exists, due regard for the issues of credibility in this case in the light of plaintiff's admissions obtained through the discovery procedures requires that we declare that as a matter of law the evidentiary facts stated in the counterdeclaration are irrelevant and evasive. Accordingly, defendants have met the burden of showing that plaintiff's action has no merit and that this is a proper case for the granting of a summary judgment.” (Pp. 383-384, 121 Cal.Rptr. 768.)

To the same effect, see Burgon v. Kaiser Foundation Hospitals (1979) 93 Cal.App.3d 813, 822-823, 155 Cal.Rptr. 763, and Gray v. Reeves (1977) 76 Cal.App.3d 567, 573-574, 142 Cal.Rptr. 716, both of which affirmed summary judgments in medical malpractice cases by reason of the statute of limitations.

We risk stating the obvious in observing that we are not passing upon the ultimate merits of this controversy. “Statutes of limitation have, as their general purpose, to provide repose and to protect persons against the burden of having to defend against stale claims.” (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 787, 157 Cal.Rptr. 392, 598 P.2d 45.) The rejection of what “may well ... (be) a meritorious claim” is “the price of the orderly and timely processing of litigation.” (Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at p. 103, 132 Cal.Rptr. 657, 553 P.2d 1129.)

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  See footnote 4.

2.  The clerk's transcript contains two copies of an unpublished decision of another division of this court. Plaintiff's counsel supplied the first copy as an exhibit to his own declaration in opposition to defendant Green's demurrer and motion to strike. Although on May 30, 1979, Judge Fainer pointed out to plaintiff's counsel the impropriety of utilizing as “authority a citation to an unpublished opinion” (see Cal.Rules of Court, rule 977), plaintiff's counsel was not dissuaded and on May 14, 1980, he presented another copy of the same unpublished opinion to Judge Cardenas as an attachment to the declaration in support of motion for a new trial. Plaintiff's counsel utilizes the contents of this unpublished decision, as well as an article from Coast magazine (two copies of which appear in the clerk's transcript), critical of defendant Bleiberg, to inform us of the “background” of this case. We reiterate Judge Fainer's comments, with the hope that perhaps this time plaintiff's counsel will get the message.

3.  It seems more consistent with plaintiff's position that the tumors were not mentioned until after surgery.

4.  There is some equivocal testimony that Green may have attended her at a subsequent hemorrhoidectomy.

5.  The deposition transcript says “December of 1975.” Bleiberg's counsel says in his brief that 1965 was intended. We agree that 1965 must be correct.

6.  “Q. Do you know whether at any time between 1965 and 1974, before you had your fractured ankle, she made any statement to you that you should have your foot situation checked out by a doctor?“A. Yes, she told me I should have it checked out.“Q. She said this to you between 1965 and 1974 on more than one occasion, correct?“A. Somewhere along there, yes.”

7.  Presumably plaintiff's friends and relatives.

8.  The declaration does not recite the place of its execution.

9.  The 1975 amendment to section 340.5 left the one-year language untouched, reduced the four-year period to three years, and provided three specific bases for tolling the three-year statute: “(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.”

10.  Code of Civil Procedure section 437c in pertinent part states:“Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense thereto....“...“Such motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....”

11.  It is difficult to fix a precise date as the cutoff for “reasonable diligence.” But we are satisfied that if the limitations clock did not begin to tick in 1967 or 1968 when the unnamed doctor in Lakewood asked her “why (her) feet had been cut up” and “how come they had to do all that to take a corn off,” it did so, at the very latest, in 1975, when her “foot and leg gave way because they were weak from the surgery performed by Dr. Bleiberg” and she fell and broke her ankle.

12.  The comments by nurse Grays were “somewhere along there” between 1965 and 1974 (see fn. 6); the subsequent fall was in 1975. In our view the statute of limitations expired one year after the 1975 fall.

DELL,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

KINGSLEY, Acting P. J., and WOODS, J., concur.