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Court of Appeal, Second District, Division 2, California.

Leatrice DOWNS et al., Plaintiffs and Appellants, v. A. SILBER et al., Defendants and Respondents.

No. B 038565.

Decided: May 14, 1992

Walter Tribbey, Ontario and Gilbert J. Martinez, Montclair, for plaintiffs and appellants. Veatch, Carlson, Grogan & Nelson, C. Snyder Patin, Los Angeles, Greines, Martin, Stein & Richland, Irving H. Greines, Timothy T. Coates, Sheila S. Kato, Beverly Hills, Baker, Silberberg & Keener, Robert C. Baker, Melissa S. Fink, Santa Monica, Hillsinger & Costanzo, Linda Star, Sarah Yoseloff, Thelen, Marrin, Johnson & Bridges, Curtis A. Cole, Julia C. Wo, Patterson, Ritner, Lockwood, Zanghi & Gartner, Myrtle E. Arthur, Lisa Ann Fritz, Los Angeles, George McDonald & Associates, Christopher Keosian and John M. Anderson, Pasadena, for defendants and respondents.

Plaintiffs appeal from a judgment on directed verdict for defendants in a medical negligence case.   The directed verdict and judgment were grounded in the one-year-after-discovery limitation period of Code of Civil Procedure section 340.5 (section citations alone are to that code), and were rendered following defendants' case-in-chief.

We reverse.   We hold that although a directed verdict without hearing the opposing party's evidence is technically permissible, in this case it should not have been granted.   Neither plaintiffs' awareness of severe illness following unrelated surgery nor their failure to accumulate additional facts over the last year and a half before bringing suit established as a matter of law that they already knew or should have known enough to start the statute running.


In a complaint filed May 12, 1983, plaintiffs Leatrice Downs (Mrs. Downs) and Douglas Downs (Mr. Downs) sought damages for personal injuries and loss of consortium against defendants, numerous medical providers of Mrs. Downs.   The focus of the complaint was a stroke which Mrs. Downs suffered upon gynecological surgery in June 1980, and which rendered her partially paralyzed and totally disabled.   Plaintiffs' factual theory of medical negligence, although not apparent from the record, apparently is that the defendants subjected Mrs. Downs to the surgery without proper knowledge or care of her vulnerable vascular system.

Under section 597.5, the affirmative defense of limitations was tried separately.   Viewed in accordance with the rules governing appellate review of judgments on directed verdict (see post, pp. 11–12), the evidence defendants adduced was as follows.

Mrs. Downs, age 45 at the time of her stroke, had suffered from high blood pressure since her teens, and her mother also had undergone a stroke.   Mrs. Downs had worked as a clinical lab technician in the army in the 1950's, where she met her husband, later a Los Angeles County deputy sheriff, who was serving as a psychiatric ward orderly.   She resumed working in 1969, as a transcriber of pathology and radiological examinations, and in 1980 she was in charge of filing pathology and radiology reports at Community Hospital of San Gabriel.

In February 1980, after blacking out while driving to work, Mrs. Downs was admitted to that hospital with excessively elevated blood pressure.   Her attending physician, defendant Kwang Kim, M.D., referred her to defendant Vincent Fortanasce, M.D., a neurologist whom Mrs. Downs had worked with and respected.   An examination to ascertain if Mrs. Downs's blood pressure had caused kidney damage disclosed an enlargement of the uterus, whereupon Mrs. Downs was referred to defendant Arthur Silber, M.D., a gynecologist.   He concluded a tumor was present and recommended a hysterectomy, to which Mrs. Downs agreed after a second opinion.

On June 20, 1980, Mrs. Downs was hospitalized for an exploratory laparoscopy, to be followed by hysterectomy and, if indicated, bilateral salpingo-oophorectomy (removal of the ovaries).   Dr. Silber performed these procedures, with defendant James Sullivan, M.D., attending as anesthesiologist.   Mrs. Downs awoke in the recovery room on her left side.   She felt pain in her left arm, but no abdominal pain.   Mrs. Downs “pondered” the discrepancy, but attributed the pain to her positioning and to fluid from an improperly placed IV.   The next day, however, her left leg was weak, and she could not perambulate as requested by Drs. Kim and Silber.   She inquired, and Dr. Fortanasce arranged for an encephalogram, CAT scan, and nuclear brain scan.   He then told her he had no physiological explanation for her symptoms and they were psychosomatic.1

Mrs. Downs was discharged on June 27.   Over the next few days she felt greater pain and weakness on her left side, and noticed the left side of her face drooping.   She also experienced incontinence.   On June 30 or July 1 she checked into Methodist Hospital of Arcadia, at Dr. Fortanasce's suggestion, where she had an arteriogram.   Dr. Fortanasce then informed her that she had suffered a stroke, caused by total blockage of her right carotid artery and 80 to 90 percent blockage of the left carotid artery.   Dr. Fortanasce told Mr. Downs that his wife had the arteries of a 70–year–old woman.

Mrs. Downs remained hospitalized until August 29, her 46th birthday.   She was soon readmitted, suffering from respiratory problems.   After about three weeks, she again returned home, where she suffered a seizure.   She thereafter remained at home, and ceased to earn her share of the family income.

Mrs. Downs continued to see Dr. Kim in 1981, to monitor her blood pressure, and she saw Dr. Fortanasce until 1983.   She believed both of them to be reputable and reliable.   On her first visit to Dr. Kim after her hospitalizations, he told her, apologetically, that he had never had any such problems before and she was the first of his patients to go “sour.”   Mrs. Downs also spoke to Dr. Fortanasce about her continuing depression, and her financial straits.   On one occasion he spontaneously offered to lend her $1,000, when her mortgage payment was overdue, and she accepted the loan, repaying it two weeks later.

Mrs. Downs testified she did not further discuss the cause of her stroke with these doctors following the original explanation of arterial occlusion.   She interpreted Dr. Kim's apology not as a confession but as a reference to her failure to improve through his care.   She expected her doctors to tell her of anything further, and she did not have second thoughts about her condition because of her personal and family history of high blood pressure and stroke.

However, Mrs. Downs ignored bills from Dr. Sullivan, the anesthesiologist, because she did not recognize his name, and her other physicians had submitted insurance claims.   In early 1981, Dr. Sullivan's office turned over the $350 account to a collection agency, which sent dunning notices and phoned plaintiffs' residence.   In September 1981, Mrs. Downs answered a call and requested the bill be re-sent, stating she had been paralyzed since surgery.   On November 19, 1981, the collection agent spoke to Mr. Downs.   According to the agent's notes, Mr. Downs stated he did not have the money to pay the bill, and did not believe their insurance would cover it because over a year had elapsed.   He further stated his wife had gone in for a hysterectomy and had had a stroke on the operating table, and he felt like suing the doctors.   However, he would see if insurance would cover the bill.   Mr. Downs testified he did not recall making the statement about suing the doctors but, “If I did, it was an empty threat.”

Plaintiffs received threats of legal action from other creditors too.   Concerned about these efforts, plaintiffs consulted a lawyer.   He referred them to his partner, who ultimately filed the present case.

Both Mr. and Mrs. Downs testified they acquired no further knowledge about the doctors or her condition between October 1981 and commencement of the case in May 1983.   Conversely, the only suspicion of wrongdoing that plaintiffs admitted harboring apparently came from their lawyer.   In this connection Mr. Downs testified he first believed his wife's stroke stemmed from misconduct rather than natural causes on December 12, 1982.   By stipulation, his elaboration that this was the date his lawyer reported having grounds to proceed with litigation was stricken.

With the foregoing evidence before the jury, defendants rested, and plaintiffs moved for “nonsuit” on the issue of limitations.   Defendants responded with a motion for directed verdict in their favor, contending that plaintiffs' extent of knowledge, as of October 1981 at the latest, was sufficient to put a reasonable person on notice to suspect and investigate negligence in connection with Mrs. Downs's stroke.   In defendants' view, that plaintiffs avowed learning no more facts before filing suit made this proposition incontestable.

The court agreed.   After stating that plaintiffs learned all their facts by October 1981, and learned no more than the legal significance of those facts in December 1982, the court denied plaintiffs' motion for directed verdict and granted defendants'.

After the jury retired, plaintiffs' counsel stated he had intended to call defendants to testify about information they had provided plaintiffs, to place defendants' proof in context.   Counsel had previously announced this intention and scheduled defendants' appearances.   He noted that the court had not formally invited an offer of proof before granting the directed verdict.   The court adhered to its ruling, and later denied plaintiffs' motion for a new trial.


1. The Directed Verdict:  Procedural Issues.

 This appeal arises from the unusual posture of a directed verdict having been granted in favor of the party with the burden of proof, without hearing the responding party's case.   Before addressing the merits, we consider plaintiffs' initial contention that this ruling was procedurally improper.   As will appear, the practice the trial court pursued was not impermissible, but it was inherently dangerous—as this case exemplifies.

The procedures attending directed verdicts were codified for the first time in 1986, by amendments to section 630, adding subdivisions (a) through (e).   Subdivision (a), the provision relevant here, addresses timing and states, “Unless the court specified [sic ] an earlier time for making a motion for directed verdict, after all parties have completed the presentation of all of their evidence in a trial by jury, any party may ․ move for an order directing entry of a verdict in its favor.”   This language parallels the common law that preceded its enactment;  as Witkin then summarized:  “Ordinarily the motion is made at the completion of evidence on both sides, so as to give the opposing party an opportunity to introduce additional evidence to overcome the grounds.   But it is within the court's discretion to permit it to be made at any time before the case is submitted to the jury.”  (7 Witkin, Cal.Procedure (3d ed. 1985) Trial, § 423, p. 423.)

 Plaintiffs' contention that defendants' motion was untimely because the court had not “specified an earlier time for making [the] motion” (§ 630, subd. (a)) than the close of all evidence is incorrect.   The court was authorized to entertain the motion before plaintiffs presented their evidence, and in doing so the court plainly, if implicitly, resolved that the requested juncture was appropriate.   As long as the requisites of a fair hearing are provided, a court need not more formally “specif[y] [the] earlier time for making [the] motion” under section 630, subdivision (a).

 But this is not to say that entertaining the motion after only one side has completed its evidence is advisable.   The statutory presumption and historical preference for directing a verdict only at the close of all the evidence reflect strong sensible and practical underpinnings.   Because a directed verdict motion is in the nature of a demurrer to the evidence (Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 394, 196 Cal.Rptr. 117), the party against whom it is made should generally be allowed to present its share of the evidence, before it is so evaluated.   Short-circuiting this norm potentially threatens not only fairness for the opposing party but also informed and considered decision by the court.

 These concerns appear acutely when, as here, the motion is made by the party with the burden of proof, at the close of only its evidence, on grounds that that proof is irrebuttably sufficient and conclusive.   At the very least, such a motion should not ordinarily be granted without eliciting and considering a complete offer of proof from the responding party.

Our Supreme Court reviewed the relevant precepts nearly 80 years ago, in Bias v. Reed (1914) 169 Cal. 33, 145 P. 516.   The trial court there had entertained and granted a motion for directed verdict for plaintiff, after he had presented his evidence and the defense had only made its opening statement.   Although holding the procedure authorized, the court stated:  “It is no doubt true, as is argued by the appellants, that the practice of directing a verdict, in advance of the introduction of evidence, upon the opening statement of one or the other party is a dangerous one and that an order granting such motion can be upheld only where it is clear that counsel has undertaken to state all of the facts which he expects to prove․”  (Id. at p. 37, 145 P. 516.)   The court went on to affirm the judgment, but only after noting that defense counsel had made a detailed opening statement, the court had had it read back so counsel could supplement it, and counsel had affirmatively agreed to join issue on the motion.  (Id. at p. 38, 145 P. 516.)

In the present case, the proceedings were not so refined.   Plaintiffs did argue extensively about the legal significance of defendants' evidence, in simultaneous support of and opposition to directed verdict.   But neither counsel nor the court adduced, before ruling, exactly what further evidence would have been forthcoming from plaintiffs.

 In sum, the present directed verdict was not improper by virtue of its timing, as a matter of civil procedure under section 630.   But a more complete record of plaintiffs' proposed evidence in opposition should have been obtained, to enable more informed decision, both below and on review.   Nevertheless, resolution on the merits may now be made on defendants' evidence alone.   As we explain, that evidence did not warrant the directed verdict granted.

2. The Directed Verdict:  Merits.

 Appellate review of a directed verdict is de novo, and follows the same strict standards that govern a trial court's consideration of a directed verdict motion.   Those, in turn, mirror the substantial evidence rules that govern appellate review of a judgment after trial.  “ ‘[T]he function of the trial court on a motion for a directed verdict is analogous to ․ that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict.’ ”  (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 745, 87 Cal.Rptr. 376, 470 P.2d 360.)   A trial court therefore may direct a verdict—and a reviewing court may affirm that ruling—“ ‘only when, disregarding all questions of credibility, and all unfavorable evidence, and indulging all rational inferences to help the resisting party, there is still a total lack of substantial evidence to support a verdict in his favor.’ ”  (Vinson v. Ham Bros. Constr., Inc. (1970) 7 Cal.App.3d 990, 993, 87 Cal.Rptr. 12;  see also Hilliard v. A.H. Robins Co., supra, 148 Cal.App.3d at p. 395, 196 Cal.Rptr. 117.)

So guided, we assess the evidence in the record under the governing law.   The statute of limitations for medical malpractice appears in section 340.5.   It provides in relevant part:  “[T]he 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․”  (Italics added.)

Because this action was commenced less than three years after Mrs. Downs's June 1980 stroke, the issues concern the statute's alternative limitation period, of one year after discovery.   We briefly explain this provision.

 First, the “injury” whose discovery commences the one-year period includes not merely the actual, physical injury but also the “negligent cause” of that injury.  (E.g., Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896, 218 Cal.Rptr. 313, 705 P.2d 886;  see Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923 [applying § 340, subd. (3) ];  Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64, 9 Cal.Rptr. 555 (Mock ) [same].)

 On the other hand, commencement of the statute need not await actual discovery of these elements;  rather, as explicitly stated, the statute runs from the time the plaintiff should have so discovered the injury, “through the use of reasonable diligence.”

 Moreover, the requirement and attribution of “reasonable diligence” take the statutory starting point a further step back from full-fledged discovery.  “The patient is charged with ‘presumptive’ knowledge of [the] negligent injury, and the statute commences to run, once [the patient] has ‘ “notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to ․ investigation․” ’ ”  (Gutierrez v. Mofid, supra, 39 Cal.3d at pp. 896–897, 218 Cal.Rptr. 313, 705 P.2d 886, original italics.)   However, under this objective analysis the test remains whether, from the facts known, the plaintiff should have suspected that the defendant's tortious conduct caused the physical injury.  (Brown v. Bleiberg (1982) 32 Cal.3d 426, 434–436, 186 Cal.Rptr. 228, 651 P.2d 815;  see Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at pp. 1110–1112, 245 Cal.Rptr. 658, 751 P.2d 923.)

 Because the “constructive discovery” rule just discussed involves application of a reasonable person standard to the plaintiff's knowledge and conduct, it naturally invites jury resolution.   However, as exemplified by the vast majority of the cases just cited, the facts may well admit of only one reasonable conclusion, and hence permit a judgment for the defendant without trial.   The question here is which type of case this is.

 Defendants contend that a number of incidents and increments of plaintiffs' admitted knowledge triggered the limitations period as a matter of law.   First, it is contended, plaintiffs were under a duty to suspect and investigate malpractice when, immediately after her hysterectomy, Mrs. Downs experienced pain and weakness in her left side, and difficulty walking, impairments not associated with the physical site of her surgery (where she indeed felt no discomfort).   Defendants ground this contention principally on the following language from Mock v. Santa Monica Hospital, supra, 187 Cal.App.2d 57, 66, 9 Cal.Rptr. 555:  “Certainly, a prudent person would believe that if, in the course of an operation at one point on the body, a serious and painful injury occurred to another part of the body, there was cause for an investigation for the purpose of determining whether there was fault on the part of the surgeons and their assistants.”

Defendants overestimate the significance of this statement, in itself, in context, and in general.   The plaintiff in Mock alleged defendants operated on her lower back to relieve an industrial injury;  the surgery caused further injuries, to her arms and upper back;  she believed they too had resulted from her prior industrial accident, until a workers' compensation examining physician reported they were caused by the surgery, not the accident.   The court held that that information, obtained more than two years before suit, warranted inquiry about negligence and commenced the statute.   The language quoted above followed this statement:  “We must determine whether the plaintiff's information with respect to the origin of her injury of which she complains ․ was sufficient to put her on inquiry as to the existence of negligence on the part of the defendants․”  (Mock, supra, 187 Cal.App.2d at p. 66, 9 Cal.Rptr. 555.)

 Thus, all that the passage defendants adduce from Mock signifies is that a patient who has been professionally advised that her injury was caused by her surgery has sufficient information to start the statute running.  Mock does not stand for the proposition that a patient who awakens from surgery with discomfort or even apparent disability on a different part of the body is automatically charged with suspicion and investigation of malpractice.  (Cf. Enfield v. Hunt (1979) 91 Cal.App.3d 417, 420–423, 154 Cal.Rptr. 146 (Enfield ) [plaintiff experienced right foot paralysis immediately after lumbar disc surgery;  summary judgment for defendants reversed].)

 Nor did Mrs. Downs's postoperative experience in this case necessarily so inform and charge her.   When she noticed her pain, weakness, and inability to walk, she inquired.   Dr. Fortanasce performed three sophisticated neurological examinations.   He and Dr. Kim then told her and her husband that there appeared no organic cause of her symptoms and they were psychosomatic.   It cannot be said that in this posture a reasonable patient should as a matter of law have suspected medical wrongdoing.   This is particularly so because at this stage Mrs. Downs was relying on the continuing care of the very physicians she allegedly should have suspected.   It is well established that such relationship and reliance diminish the degree of diligence required of the patient.  (E.g., Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102, 132 Cal.Rptr. 657, 553 P.2d 1129;  Enfield, supra, 91 Cal.App.3d at p. 423, 154 Cal.Rptr. 146.)

 Defendants next contend that the statute must have commenced running by early July, by which time Mrs. Downs had suffered more severe symptoms at home, had been hospitalized again, and had been informed by Dr. Fortanasce that she had suffered a stroke and that its immediate cause was her nearly totally blocked carotid arteries, the “veins of a 70–year–old.”   Defendants contend that the disclosed error of the initial “psychosomatic” diagnosis, and the alarming knowledge of such a severe condition as a stroke following surgery, must have raised at least a suspicion of medical wrongdoing.   Defendants pose a worthy argument for a jury, but not one justifying a directed verdict.

We do not believe that Mrs. Downs, as a presumptively reasonable person—and one with a personal and family history of vascular problems as opposed to psychosomatic ones—must have been alerted to suspect negligence as the cause of her injury merely because Drs. Kim and Fortanasce, after further diagnostic testing, withdrew their “no physical cause” explanation of her symptoms in favor of a logical, albeit disquieting, physical diagnosis.   Perhaps a litigious, acutely suspicious patient would seize the occasion to make such a connection, but it certainly was not required as a matter of law, or logic.2

With respect to the informative quality of the stroke diagnosis and symptoms themselves, certainly as a literal matter this was notice to plaintiffs that something awful had happened to Mrs. Downs during or following her surgery.   But Mrs. Downs testified that, as a patient who had consulted her physicians in the first instance because of vascular problems, she was neither alerted nor suspicious, upon the doctors' account of that cause, that the real or additional cause was their negligence.   She not only accepted their explanation trustingly and without question, but continued to see Drs. Fortanasce and Kim for years thereafter.

Whether this outlook and conduct were those of a reasonably diligent person must be deemed a question of fact.   To convert the question into one of law, “plaintiff's admissions would have had to establish ‘beyond dispute’ [citation] not only that she knew that [she had been] injured as a result of the operation, but also that she knew or should have known that the injury resulted from defendants' tortious conduct.”  (Brown v. Bleiberg, supra, 32 Cal.3d 426, 434–435, 186 Cal.Rptr. 228, 651 P.2d 815.)  “Where, as here, the injury is obvious but there is nothing to connect that injury to defendant's negligence it cannot be said as a matter of law the plaintiff's failure to make an earlier discovery of fault was unreasonable.  [Citation.]  This is especially true in cases such as the one before us where the plaintiff continues under the doctor's care, does inquire about the cause of [the] apparent injury and is given an explanation calculated to allay any suspicion of negligence on the doctor's part.”  (Unjian v. Berman (1989) 208 Cal.App.3d 881, 885, 256 Cal.Rptr. 478.)3

 In short, we agree with plaintiffs that the fact that a patient—and particularly one in Mrs. Downs's position and condition—has a stroke during or immediately following surgery does not necessarily evoke or warrant a suspicion of negligent cause as a matter of law.   This situation is qualitatively different from such cases upholding summary judgment as Gutierrez v. Mofid, supra, 39 Cal.3d 892, 218 Cal.Rptr. 313, 705 P.2d 886, in which the plaintiff awoke from appendix surgery to find she had received a complete hysterectomy, and was soon told by two other doctors that the surgery had been excessive and she could sue;  or Sanchez v. South Hoover Hospital, supra, 18 Cal.3d 93, 132 Cal.Rptr. 657, 553 P.2d 1129, in which the plaintiff not only perceived her surgical wound to be not healing properly but also was told when she left the hospital that she had been mistreated, was rehospitalized for a month, and admitted immediately suspecting malpractice;  or Graham v. Hansen (1982) 128 Cal.App.3d 965, 180 Cal.Rptr. 604, in which the plaintiff went in for a routine endoscopy, suffered a perforated esophagus, and remained in the hospital for several months, during time which she admitted suspecting malpractice.

 Defendants emphasize recent decisions which explain that the “discovery” limitations period begins to run upon possession of information that would lead a reasonable person to suspect negligence or other wrongdoing, rather than upon acquisition of the facts necessary to establish the claim, or knowledge of the legal effect of the facts.  (E.g., Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1110–1112, 245 Cal.Rptr. 658, 751 P.2d 923;  Rose v. Fife (1989) 207 Cal.App.3d 760, 771, 255 Cal.Rptr. 440.)   These cases and their rules are clear enough.   But it still cannot be said that the facts known to plaintiffs in July 1980 necessarily compelled a suspicion of wrongdoing.   At that time the only causal facts about the stroke plaintiffs knew were that it had occurred during or immediately after surgery, that Mrs. Downs had the occluded carotids of “a 70–year–old,” and that, according to Dr. Fortanasce, that was the cause in fact.  (Cf. Jolly, supra, 44 Cal.3d at p. 1112, 245 Cal.Rptr. 658, 751 P.2d 923 [“a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, will commence the limitations period”].)   Moreover, contrary to defendants' suggestion, Mrs. Downs's experience as a lab technician and medical transcriber did not compel a finding that she appreciated or suspected that malpractice had caused her condition.  (Cf. Brown v. Bleiberg, supra, 32 Cal.3d at p. 435, 186 Cal.Rptr. 228, 651 P.2d 815.)

 There is another dimension, however, to defendants' view of plaintiffs' knowledge.   Perhaps defendants' principal argument is that, whatever may be concluded about other times, the statute must have commenced to run by October 1981, because plaintiffs admitted they learned no further facts about Mrs. Downs's condition or treatment from then until the case was filed, over a year and a half later.   This argument hinges squarely on these admissions;  defendants do not rely on any further developments between July 1980 and October 1981, other than that Mrs. Downs remained crippled and that Dr. Sullivan and others had begun their collection efforts.   The argument, in short, is syllogistic:  if plaintiffs learned no more between October 1981 and filing suit, then they must have had the facts justifying suit, and a fortiori a suspicion of wrongdoing, in October 1981.

 Defendants' argument is beguiling, but ultimately not conclusive.   Their equation omits the most important variable:  the quality of plaintiffs' knowledge.   That a plaintiff brings suit based on the same knowledge he or she had more than a year earlier certainly may permit an inference that plaintiff had enough knowledge then to start the statute running.   But that is not necessarily so.   The only certain thing is that the plaintiff's knowledge was quantitatively the same at both times.   But the statute turns on the quality of the plaintiff's knowledge, and that is what must be proven and evaluated.

Thus, in Graham v. Hansen, supra, 128 Cal.App.3d at p. 975, 180 Cal.Rptr. 604, the court did state casually, “Quite obviously plaintiff was aware of all the essential facts upon which her cause of action is based when her complaint was filed.”   But the court devoted its analysis and holding to determining just when plaintiff learned sufficient facts to start the statute affirmatively.  Section 340.5 speaks of one year “after the plaintiff discovers, or ․ should have discovered, the injury,” not one year before the case is filed.   Failure to acquire more knowledge during the last year before filing may imply earlier possession of the necessary degree of knowledge, but it does not necessarily or conclusively prove it.4

 Furthermore, the record in this case reflects that something did intervene between October 1981 and commencement of suit in May 1983:  plaintiffs consulted a lawyer about their debtor-creditor problems, and his partner undertook to investigate Mrs. Downs's situation.   Of course, the one-year period of section 340.5 is triggered by the plaintiff's knowledge of facts, not comprehension of their legal significance.  (Gutierrez v. Mofid, supra, 39 Cal.3d at pp. 897–898, 218 Cal.Rptr. 313, 705 P.2d 886.)   But in some cases, the bundle of knowledge necessary to generate or ascribe suspicion of wrongdoing may not be completed without an independent professional's participation.  (E.g., Mock, supra, 187 Cal.App.2d 57, 9 Cal.Rptr. 555 [plaintiff received information putting her on inquiry from a worker's compensation independent medical examiner].)

In Enfield, supra, 91 Cal.App.3d 417, 154 Cal.Rptr. 146, a case not unlike this one, the plaintiff consulted his worker's compensation lawyer, who brought in his partner.   The partner began to explore the medical history in October 1974, and did not commence suit until July 1976.   The Court of Appeal reversed a summary judgment based on the statute of limitations, and held that plaintiff's obtaining an attorney was “not determinative.”  (Id. at p. 423, 154 Cal.Rptr. 146.)   Rather, what had to be determined was when the plaintiff, with or without his attorney, knew enough to indicate wrongdoing by the doctor.  (Id. at pp. 423–424, 154 Cal.Rptr. 146.) 5

Here, defendants asked that the issue be decided upon plaintiffs' own account of their knowledge;  and plaintiffs too were satisfied to have their conduct so measured.   Although defendants' inquiry yielded an unelaborated gap of a year and a half before suit, that does not necessarily mean that plaintiffs' October 1981 knowledge was either practically or legally sufficient to start the statute.

 Defendants rely finally on the evidence that in November 1981 Mr. Downs told a collection agent he “felt like suing the doctors.”   But this evidence too cannot be held to have established discovery as a matter of law, particularly in light of Mr. Downs's disclaimers that he made the “threat,” or that he meant it.   Just as we cannot judge the weight and credibility of the witnesses' accounts on a cold record, neither was the trial court entitled to make such determinations, or to draw adverse rather than favorable inferences, on motion for directed verdict.  (Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d at p. 745, 87 Cal.Rptr. 376, 470 P.2d 360.)   The statement attributed to Mr. Downs may or may not have been a considered statement of suspicion or intent.   The question was for the jury.  (Compare Unjian v. Berman, supra, 208 Cal.App.3d at pp. 888–889, 256 Cal.Rptr. 478 [plastic surgery patient's withdrawal of consent to arbitration because his “face looked worse” presented triable issue];  Hirschman v. Saxon (1966) 246 Cal.App.2d 589, 54 Cal.Rptr. 767 [summary judgment affirmed where plaintiff responded to doctor's collection notice with offer to compromise, stated the results of treatment were not satisfactory, the bill was therefore unjust, and “ ‘I was going to turn this whole matter over to my attorney,’ ” and then complained to the medical association, all over a year before suit].)

 The common theme of defendants' contentions is that the occurrence of a serious, unexpected, and seemingly unrelated injury or illness upon surgery must necessarily cause the patient to suspect malpractice.   This may be good defense, but it is not good medicine, or good law.   Not all postoperative complications are the fault of the doctor, and a contrary, cynical attitude is not yet the invariable measure of the reasonable patient.   Previous cases have refused to find a lack of diligence or to begin the statute running as a matter of law upon such scenarios.  (E.g., Enfield, supra, 91 Cal.App.3d 417, 154 Cal.Rptr. 146;  Wozniak v. Peninsula Hospital (1969) 1 Cal.App.3d 716, 82 Cal.Rptr. 84 [cardiac arrest causing brain damage suffered during eye surgery].)   Other cases, on their own facts, may warrant different rulings.   But this is not one of them.   The court should not have granted defendants' motion for directed verdict.

3. Plaintiffs' Other Contentions.

 In holding that the case should not have been withdrawn from the jury, we also reject plaintiffs' contention that they were entitled to a directed verdict of their own, on grounds defendants failed to introduce expert testimony that occurrence of a stroke following surgery is indicative of negligence.   Although such hypothetical evidence might have helped defendants, it was not necessary or indispensable to their proving that plaintiffs should have suspected wrongdoing.6  Plaintiffs' contention that expert testimony was necessary confuses the merits of a malpractice case with the statute of limitations phase, in which the reasonableness of the lay plaintiff's conduct is at issue.

 Plaintiffs also overstate when they contend that defendants' failure to admit fault or disclose unspecified facts should estop them from charging plaintiffs with knowledge sufficient to exhaust the statute.   Plaintiffs rely on cases concerning fraudulent concealment, or physicians' duties of disclosure, which predated the enactment of section 340.5.   The current statute does provide for tolling of its ultimate, three-year limit “upon proof of fraud, [or] intentional concealment․”  But it is settled that the one-year discovery period, at issue here, is not tolled by such conduct, for the reason, among others, that the one-year period does not commence until the plaintiff has acquired knowledge or means of knowledge.  (Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at pp. 97–101, 132 Cal.Rptr. 657, 553 P.2d 1129.)   Moreover, whatever plaintiffs' claimed ignorance, the evidence of record does not exempt them as a matter of law from the one-year statute.

Certain related evidentiary questions may arise again on remand.   The court ruled irrelevant whether defendants had told Mrs. Downs her stroke was the result of negligence.   Technically, the answer would have been highly relevant, to the issue of actual discovery:  we doubt defendants would have objected to an affirmative answer, timed at more than a year before suit.   On the other hand, the predictable negative answer may or may not have deserved exclusion under Evidence Code section 352.   Defendants also contend that plaintiffs' offer to have them testify about their communications and relationship with Mrs. Downs was irrelevant, in light of her own testimony about those subjects.   We disagree.   But again, such evidence's weight, cumulativeness, or other qualities under Evidence Code section 352 cannot be judged on this record.


One other feature of this appeal requires mention.   The issues under review concern the reasonableness of plaintiffs' behavior, and thus are common to all defendants.   Nevertheless, defendants have filed five separate respondents' briefs on the merits, totalling one hundred forty-four pages.   Only one defendant has been content to file a brief joining and adopting the others, under rule 13, California Rules of Court.7

Ordinarily, this situation would not deserve mention.   This court sits to read briefs, and parties who can afford it are generally entitled to their chosen means of advocacy, however roundabout or redundant.8

But this case is different, because of who is paying for the legal work before us.   This appeal arises under the Medical Injury Compensation Reform Act of 1975 (Stats.1975, 2d Ex.Sess., chs. 1 and 2;  hereafter MICRA), which was enacted in response to a “medical malpractice crisis,” involving prohibitive costs and in some cases unavailability of medical liability insurance.   The resulting reforms not only amended section 340.5 but also, among other things, strictly limited the amount of noneconomic damages recoverable, and attorney's fees payable, by malpractice plaintiffs, however severe their injuries or complex their cases.  (Civ.Code, § 3333.2;  Bus. & Prof.Code, § 6146.)   By closely divided votes, the Supreme Court upheld these restrictions as constitutional, finding that they validly served the purpose of reducing medical malpractice insurance costs.  (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665;  Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 211 Cal.Rptr. 77, 695 P.2d 164.)

MICRA and its legislative premises continue to be topical.   In this very case, one of the defendants' briefs urges affirmance on grounds reinstatement of plaintiffs' case would “further aggravate the existing ‘medical malpractice crisis' ․ [and] result in increased litigation expense․”

Yet defendants, by their insurers, have filed five separate briefs, by six separate law firms.

This court has strictly enforced MICRA, and in particular its restrictions of plaintiffs' damages and attorney's fees.  (E.g., Yates v. Law Offices of Samuel Shore (1991) 229 Cal.App.3d 583, 280 Cal.Rptr. 316;  Yates v. Pollock (1987) 194 Cal.App.3d 195, 239 Cal.Rptr. 383.)   Our function and responsibilities are no more or less.   But our responsibilities do not exclude reporting what we see.


The judgment is reversed.   Plaintiffs shall recover costs.


1.   Dr. Kim delivered the same diagnosis to Mr. Downs.   Mrs. Downs had no prior history of psychosomatic illness.

2.   The matter might deserve more attention if the sole ground of plaintiffs' action were that the June 1980 psychosomatic diagnosis was the wrongful act that caused their injuries;  but that is not the case.

3.   Defendants contend that the cases quoted in the last paragraph should not control the present one, because they involved injury to the same area of the body upon which surgery was done.   Of course, the quoted legal principles admit of no such distinction.   More generally, although adverse postoperative symptoms may be more informative—really and hence legally—if located away from the surgical site, the matter is one of degree, depending on the facts of the particular case;  as observed above, Mock, supra, 187 Cal.App.2d 57, 9 Cal.Rptr. 555, does not set forth a “bright-line” rule to the contrary.

4.   Likewise, Graham v. Hansen's reference to facts on which the claim is based does not necessarily equate with facts satisfying the discovery statute.   An aggressive or vexatious plaintiff might well bring a malpractice suit without even a suspicion of wrongdoing, or at least one that would provoke a reasonable person.   Would such a plaintiff be entitled to defeat a malicious prosecution suit on the premise that since he filed the malpractice case he necessarily must have had probable cause for it?

5.   The Enfield case came before the Court of Appeal again, on plaintiff's appeal from the adverse statute of limitations judgment following trial on remand.  (Enfield v. Hunt (1984) 162 Cal.App.3d 302, 208 Cal.Rptr. 584.)   The court found substantial evidence supported the trial court's finding that plaintiff had been put on inquiry notice even before he consulted his attorney.   The second decision, rendered on a different record and standard of review, does not diminish the authority of the first one.  (See id. at p. 307, 208 Cal.Rptr. 584.)

6.   We wonder what type of expert could have provided such an opinion.   Medical?  Legal?  “Reasonable humanist”?

7.   Separate briefs by separate counsel have been filed on behalf of:  Dr. Fortanasce;  his professional group, Medical Neurology, Inc.;   Dr. Kim;  Dr. Silber and his clinic;  and Dr. Louis Duemler and Arcadia Neurological Association.   Dr. Sullivan filed the joinder under rule 13.

8.   However, it is at least ironic that one defendant's brief urges affirmance in the interests of “judicial economy ․ which, in these days of restricted budgets, work furloughs, and retrenchment at all levels of government, particularly in the judicial system, should be heeded․”

FUKUTO, Acting Presiding Justice.

NOTT and MANELLA *, JJ., concur.

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