WOODS v. YOUNG (1988)

Plaintiff Varetta Woods appeals from the summary judgment entered in favor of defendants Hiawatha Harris, M.D., Alvin T. Trotter, M.D. and Brotman Medical Center (“defendants”).

PROCEDURAL BACKGROUND

On August 16, 1984, plaintiff filed a complaint for medical malpractice against defendants.   The complaint alleged that defendants Hiawatha Harris, M.D. (“Harris”) and Alvin T. Trotter, M.D. (“Trotter”) are agents and employees of defendant Brotman Medical Center (“Brotman”);  that on or about May 5, 1983, plaintiff consulted with and employed defendants for the purpose of obtaining diagnosis and treatment of an illness;  that defendants agreed to care for plaintiff properly;  that on or about May 10, 1983, Harris and Trotter had plaintiff admitted to Brotman;  that defendants negligently examined her, negligently diagnosed her condition and negligently treated her by the improper placement of an endotrachial tube and the administration of the wrong drugs;  and that plaintiff suffered injury, pain, and loss of earnings because of defendants' negligence.

Defendants filed separate general denials to the complaint, each alleging as an affirmative defense that plaintiff's complaint was barred by the statute of limitations set out in Code of Civil Procedure section 340.5.¹  Thereafter, defendants filed motions for summary judgment, all based on section 340.5.   The motions were set for hearing on June 4, 1986, but were continued at plaintiff's request.   The motions were granted on June 19, 1986.   The minute order for that date reflects that no written or oral opposition had been received.

On October 15, 1986 plaintiff filed a motion for relief from default, under section 473.   The motion was based on her attorney's assertion that he had not received notice of the continued hearing date and therefore had not filed opposition and appeared at the June 19 hearing.   Plaintiff's motion was granted.   The court vacated the June 19, 1986 order granting summary judgment and set December 10, 1986 as the date for rehearing defendants' motions.   Defendants' motions were again granted on that date.

On December 19, 1986, plaintiff filed a timely motion for reconsideration of the order granting summary judgments, citing (for the first time) sections 364 and 356 as a basis for the motion.²  However, the summary judgment was signed December 30, 1986 and plaintiff's motion for reconsideration was heard and denied January 26, 1987.   Thereafter plaintiff filed a timely appeal from the summary judgment.

STATEMENT OF FACTS

The trial court's minute order for December 10, 1986 (the date of the rehearing of defendants' motions for summary judgment) states “Granted pursuant to plaintiff's answers to interrogatory # 63.   Plaintiff states that on 6/6/83 she discovered the diagnosis was incorrect.”   Interrogatory # 63 was part of the second set of interrogatories propounded to plaintiff by defendant Trotter.³

Although plaintiff's answers state that she first learned of defendants' misdiagnosis when she was admitted to County–USC Medical Center on June 6, 1983, both the County–USC and Brotman medical records show a different date.   Brotman's records show it discharged plaintiff on June 29, 1983;  County–USC's records show it admitted plaintiff on June 29, 1983 and discharged her on July 25, 1983.   In the record on appeal is an authorization, signed by plaintiff and directed to Brotman, to release her medical records.   It is dated July 21, 1983 and is on the letterhead of an attorney in Panorama City, California.   Since plaintiff was discharged from County–USC on July 25, she apparently signed the release while still in the hospital.   The record shows that another law firm sent letters to defendants on February 17, 1984, to inform them (in compliance with section 364) of plaintiff's intent to file a malpractice action.

CONTENTIONS

On appeal, plaintiff contends that by virtue of the provisions of section 364, subdivision (a), she was entitled to an automatic 90–day stay of the statute of limitations on her cause of action because she had to give a 90–day notice to defendants of her intent to file an action against them.   She argues that such 90–day stay would make her complaint timely even if the commencement of the statutory period is calculated from the earliest date asserted by the defendants.   We agree and therefore reverse the judgment.

DISCUSSION

 1. Although Not Argued to The Trial Court Plaintiff Should be Entitled to Assert Her Claim Regarding the 90–Day Stay as a New Legal Theory on Appeal

 Since plaintiff had filed a timely motion for reconsideration, the trial court should not have entered the summary judgment while plaintiff's motion for reconsideration was pending;  but once it was entered, plaintiff should have changed her approach and attacked the summary judgment rather than proceeding with her motion for reconsideration.   Section 577 defines “judgment” as “the final determination of the rights of the parties in an action or proceeding.”   Generally, only the final judgment may be appealed.   (See 7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, §§ 1–23, pp. 452–469.)   Once a final judgment is rendered, the trial court has no power to reconsider an interim ruling, such as an order granting defendants' motions for summary judgment.  (Magallanes v. Superior Court (1985) 167 Cal.App.3d 878, 882, 213 Cal.Rptr. 547.)   As Weil and Brown point out in their civil procedure handbook, once a summary judgment is entered, it should be attacked in the trial court by a motion for new trial, a motion for relief from judgment, or a motion to set aside the judgment;  or, it should be appealed.  (Weil & Brown, Cal.Prac.Guide:  Civ.Pro.Before Trial (TRG 1987) 10:183–10:191.)

 Because of plaintiff's procedural error, the issue regarding a section 364 90–day stay or tolling of the statute of limitations was not effectively presented to the trial court.   That issue was raised for the first time in plaintiff's motion for reconsideration, a motion which the trial court could not properly hear.⁴  Thus, the issue is, in effect, a new theory on appeal.

 Generally a party is not permitted on appeal to change the theory of his case.   This doctrine of appellate review is known as the “theory of trial.”   There are, however, exceptions to the rule, one of which is that a party may change his theory of the case on appeal if the new issue he raises involves solely a question of law i.e., if there are no new questions of fact or mixed questions of law and fact.  (Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1113, 203 Cal.Rptr. 388;  Barton v. Owen (1977) 71 Cal.App.3d 484, 491, 139 Cal.Rptr. 494;  9 Witkin, Cal.Procedure, (3d ed. 1985) Appeal, §§ 316–323, pp. 327–334.)  “[A]n appellate court may allow an appellant to assert a new theory of the case on appeal where the facts were clearly put at issue at trial and are undisputed on appeal.  [Citation.]”  (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879, 242 Cal.Rptr. 184.)   This is such a case.   Here, the new issue on appeal clearly involves only a question of law.   It centers on a construction of section 364(a) as its language is impacted by section 356.   This is a matter of statutory construction which has been the subject of at least seven appellate decisions.  (See discussion, infra.)

 2. The Statute of Limitations on Plaintiff's Cause of Action Began to Run No Earlier Than June 6, 1983, and No Later Than July 25, 1983

 In her answers to Trotter's interrogatories, plaintiff stated that it was when she was admitted to County–USC that she first realized she had received incorrect diagnosis and treatment at Brotman.   She also stated she was admitted on June 6, 1983.   These answers to interrogatories were used by defendants to support their motions for summary judgment.  (§ 473c, subd. (b).)  However, in addition to this interrogatory evidence, defendants also submitted documentary evidence to support their motions.   Two such documents were records from Brotman and County–USC.   The Brotman records show that plaintiff was discharged from that facility on June 29, 1983;  County–USC's records show that it admitted her on the same date and discharged her on July 25, 1983.   In view of plaintiff's admission in her interrogatory response that she was first advised of the misdiagnosis, “When I was admitted to the USC County Medical Center,” it would seem clear that while the June 6 date may be in error, the date of such advice could not have been later than July 25, 1983, the date of her discharge from County–USC.   Thus, we can safely conclude that the statutory period began to run no earlier than June 6, 1983 and no later than July 25, 1983.⁵

Section 340.5 sets out the statute of limitations for an action against health care providers based on their alleged professional negligence.⁶  Section 340.5 actually contains two provisions of limitation, a three-year provision and a one-year provision, and plaintiffs must meet both.   (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 757–758, 199 Cal.Rptr. 816.)

 The three-year limitation period begins to run on the date of plaintiff's “injury.”  “Injury” means the date a plaintiff discovers the harm caused by the alleged negligence, which is not necessarily the date of the act of alleged negligence.   (Larcher v. Wanless (1976) 18 Cal.3d 646, 655–656, 135 Cal.Rptr. 75, 557 P.2d 507;  Hills v. Aronsohn, supra, 152 Cal.App.3d at p. 762, 199 Cal.Rptr. 816.)   The harm may occur without plaintiff's being aware that negligence was the cause of the injury.   (Hills, supra, at p. 762, 199 Cal.Rptr. 816.)   This court has recently held that in cases of misdiagnosis, the three years begins to run at the time of a subsequent correct diagnosis.  (Steingart v. Oliver (1988) 198 Cal.App.3d 406, 243 Cal.Rptr. 678.)   Since defendants' evidence shows that plaintiff entered County–USC either June 6 or June 29, 1983, and since she asserted in her answers to interrogatories that she discovered the misdiagnosis while at that institution, then the three-year limitation period began to run no earlier than June 6, 1983.   As plaintiff filed her action on August 16, 1984, clearly she met the three-year limitation.

 However, the one-year period of limitation begins to run when the plaintiff knew or reasonably should have known not only of the injury but also of its negligent cause.  (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896, 218 Cal.Rptr. 313;  Steingart v. Oliver, supra, 198 Cal.App.3d at p. 415, 243 Cal.Rptr. 678;  Hills v. Aronsohn, supra, 152 Cal.App.3d at p. 759, 199 Cal.Rptr. 816.)   The courts have focused on whether the plaintiff exercised diligence and reasonable care in discovering the negligent cause of his injury;  that is, they have asked whether the plaintiff could have discovered the negligence sooner.  (Steingart, supra, at p. 416, 243 Cal.Rptr. 678;  Hills, supra, at p. 759, 199 Cal.Rptr. 816.)   In Steingart, a case of alleged misdiagnosis, we found there was a triable issue of material fact as to whether the plaintiff exercised reasonable diligence, after receiving the purported misdiagnosis, to determine what, if any, illness she had.  (Steingart, supra, at p. 416, 243 Cal.Rptr. 678.)

Here, plaintiff appears to have accepted the second (i.e., the County–USC) diagnosis as the correct diagnosis.   As discussed above, a triable issue of material fact exists as to whether she could have received that second diagnosis as early as June 6, 1983;  but certainly she received it no later than July 25, 1983 when she left County–USC.   Since she did not file her complaint until August 16, 1984, the question of whether it was timely must be resolved by a determination as to the impact of section 364, subdivision (a).⁷

 3. As a Matter of Law, the One Year Statutory Period Did Not Expire Until At Least September 4, 1984, and Plaintiff's Complaint was Therefore Timely

 By its express terms, section 364, subdivision (a) prohibits the commencement of an action for medical malpractice for a period of 90 days following service of a notice that such an action would be filed.   While the provisions of section 365 cast no small amount of confusion on the issue (see, Toigo v. Hayashida (1980) 103 Cal.App.3d 267, 269, 162 Cal.Rptr. 874;  Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 481–482, 179 Cal.Rptr. 595),⁸ it would appear that this requirement constitutes a “statutory prohibition” within the meaning of section 356.   That being the case, such 90–day notice period cannot be counted as part of the one year statutory period.   (Gomez v. Valley View Sanitorium (1978) 87 Cal.App.3d 507, 509–510, 151 Cal.Rptr. 97.)

Thus, during the period from February 17, 1984 (when plaintiff served her § 364 notices) until April 18, 1984, the statutory period did not run or was tolled.   It recommenced to run on April 19, 1984, and expired, at the earliest, on September 4, 1984.   That is, adopting defendants' best case, the entire period was one year and 90 days from June 6, 1983, which, as already noted, was the earliest date upon which the limitation period could have commenced.   While some of the cases which have construed the rather confusing and internally contradictory language of section 364,⁹ have reached conclusions different from Gomez, (see, e.g., Banfield v. Sierra View Local Dist. Hospital (1981) 124 Cal.App.3d 444, 457–462, 177 Cal.Rptr. 290;  Braham v. Sorenson (1981) 119 Cal.App.3d 367, 372–373, 174 Cal.Rptr. 39), their dispute has centered around the impact of section 364, subdivision (d), a provision of the statute which is not here relevant.   Plaintiff served her 90 day notice well before the beginning of the last 90 days of the one year period and therefore we need not concern ourselves with the impact of section 364, subdivision (d).

What is clear from all of these cases (see also, Paxton v. Chapman General Hospital, Inc. (1986) 186 Cal.App.3d 110, 230 Cal.Rptr. 355;  Gilbertson v. Osman (1986) 185 Cal.App.3d 308, 229 Cal.Rptr. 627;  Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 222 Cal.Rptr. 713;  Estrella v. Brandt (9th Cir.1982) 682 F.2d 814) is that section 356 applies to section 364, subdivision (a) and compels the conclusion that plaintiff had at least one year and 90 days from the commencement of the statutory period in which to file her complaint.

Since the earliest date of such commencement, as shown by the evidence upon which the defendants and the trial court relied, is June 6, 1983, then even under defendants' version of the facts, the statute of limitations, as extended, could not have expired prior to September 4, 1984.   Plaintiff filed her complaint on August 16, 1984 and it was therefore timely.

DISPOSITION

As the court granted a summary judgment in favor of defendants solely on the ground that the statute of limitations had run, such ruling can not stand.   The judgment is reversed and is remanded with directions to the trial court to enter a new and different order denying the defendants' motion.   Plaintiff shall recover her costs on appeal.

FOOTNOTES

1.   Hereinafter, all statutory references are to the Code of Civil Procedure unless otherwise indicated.Code of Civil Procedure section 340.5 states in pertinent part:“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 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.”

2.   Section 364 states in pertinent part:“(a) No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action.“(b) No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.“(c) The notice may be served in the manner prescribed in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2.“(d) If 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.”Section 356 states:“When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.”

3.   The questions and answers in the Trotter second set of interrogatories, relevant to the statute of limitations, are as follows:“63.  Please state in complete detail all of the circumstances of the plaintiff's discovery of any fact giving rise to the alleged occurrence or malpractice, indicating:(a) The date and time of day of the plaintiff's first knowledge;(b) The location where the plaintiff was, including address and room number, if any;(c) The method or manner by which the plaintiff discovered any fact giving rise to the alleged occurrence or malpractice, stating whether oral, written, observation, etc.;   and(d) The names, addresses and relationship to you of all persons present when the plaintiff discovered any fact relating to the alleged occurrence or malpractice.“63. When I was admitted to the USC County Medical Center I was told that my illness was encephalitis.   It was then that I realized that the defendant's diagnosis and treatment were wrong. (a) On or about June 6, 1983. (b) USC County Medical Center1200 North State StreetLos Angeles, California(c) After I discovered that my illness had been diagnosed incorrectly, I discussed the issue with my mother who is a registered nurse.   I then felt that the defendant had been negligent in his diagnosis.(d) During the conversation with my mother, Bessie Jefferson, 635 East 36th Street, Los Angeles, California 90011.“64. Did the plaintiff discover or learn of the alleged occurrence or malpractice from or through any medical person or hospital employee?“64. Yes.“65. If the answer to the preceding interrogatory is in the affirmative, please state:(a) The name, address and complete identification of any such person;(b) The date, time and place of this discovery or knowledge;(c) The substance of any conversation, communication, statement or writing from any such person to you relating in any way to the alleged occurrence or malpractice.“65. (a) When I was told of my condition.   I don't recall the name of the attending physician.(b) On or about June 6, 1983.(c) Verbally told that my illness was different from what defendant had suspected.“66. Please indicate the date on which you first suspected that the defendant's care of the plaintiff might have been improper or negligent.“66. On or about June 6, 1983 when my illness was diagnosed as encephalitis.“67. Please state all facts which caused you to be suspicious that the defendant might have been improper or negligent in the care of the plaintiff.“67. When I was told of my illness while a patient at USC County Medical Center.“68. On what date did you receive notice of each of the injuries complained of as a result of the subject incident?“68. On or about June 6, 1983.“69. Describe the circumstances under which you received notice of each of the injuries complained of in this action.“69. When I was informed of my illness by the attending physician.”

4.   We cannot consider the appeal to also be from the order denying plaintiff's motion for reconsideration because, as noted above, the trial court had no power to issue that order.   Further, the order denying plaintiff's motion for reconsideration would not be appealable even if the judgment had not been entered before that motion was ruled upon.   An order denying a motion for reconsideration is appealable only if the original ruling as to which reconsideration is sought is itself appealable.   (Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1010, 183 Cal.Rptr. 594.)   In the instant case, the order as to which reconsideration was sought is the order granting the motions for summary judgment.   Such an order is not appealable, although, as noted above, a judgment later entered on that order is appealable.  (Oliver v. Swiss Club Tell (1963) 222 Cal.App.2d 528, 532, fn. 1, 35 Cal.Rptr. 324;  Security First Nat. Bank v. Ross (1963) 214 Cal.App.2d 424, 427, 29 Cal.Rptr. 538.)   Thus, the order denying plaintiff's motion for reconsideration is not appealable.

5.   Summary judgment law is based on issue finding rather than issue resolution.  (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36, 210 Cal.Rptr. 762, 694 P.2d 1134.)   Therefore, the trial court's use of the June 6, 1983 date to commence the running of the statute of limitations (ante, p. 5) was improper since defendants' own documentation (the County–USC admission and discharge records) created a triable issue of material fact as to that date.   However, as we point out below, even were we to hold that plaintiff is bound by an apparently erroneous interrogatory answer, and thus use the June 6 date as the commencement of the statutory period, it would make no difference.

6.   See ante, footnote 1.

7.   Defendants do not contend that plaintiff could have received the second diagnosis earlier if she had exercised greater diligence.

8.   Section 365 provides:“Failure to comply with this chapter shall not invalidate any proceedings of any court of this state, nor shall it affect the jurisdiction of the court to render a judgment therein.   However, failure to comply with such provisions by any attorney at law shall be grounds for professional discipline and the State Bar of California shall investigate and take appropriate action in any such cases brought to its attention.”

9.   As noted by the court in Gomez v. Valley View Sanitorium, supra, 87 Cal.App.3d at pp. 509–510, 151 Cal.Rptr. 97, while subdivision (d) of section 364 extends the time for filing a complaint 90 days from the service of the notice of intent to sue, subdivision (a) of that same section prevents the plaintiff from filing his complaint within that 90 days.   Thus, the additional 90 days in subdivision (d) appears to be illusory because it is coterminous with the 90 days in subdivision (a).It is also to be noted that since section 365 makes the notice requirement in section 364, subdivision (a) nonjurisdictional, one could argue that the cases which have construed section 364 together with section 356 have extended the normal definition of the words “statutory prohibition,” which are found in section 356.   That is, they have gone beyond situations where the plaintiff truly is prevented from filing an action, such as automatic bankrutpcy stays, (11 U.S.C.A. §§ 362, 922, 1201, 1301) and conditions precedent to filing an action, like exhaustion of administrative remedies under the Government Tort Claims Act (Gov.Code § 900 et seq., § 945.4;  Bohrer v. County of San Diego (1980) 104 Cal.App.3d 155, 160, 163 Cal.Rptr. 419;  Dujardin v. Ventura County Gen. Hosp. (1977) 69 Cal.App.3d 350, 355, 138 Cal.Rptr. 20.)In addition, perhaps a strong case could be made for the proposition that sections 364 and 365 should be read together as more recently enacted, special act legislation, applicable to a particular subject, which, under ordinary principles of statutory construction, should preclude the application of section 356 since it appears to conflict with section 365.   (Code Civ.Proc., § 1859;  People v. Tanner (1979) 24 Cal.3d 514, 521, 156 Cal.Rptr. 450, 596 P.2d 328;  Rose v. State of California (1942) 19 Cal.2d 713, 723–724, 123 P.2d 505;  Coca Cola Bottling Co. v. Feliciano (1939) 32 Cal.App.2d 351, 354, 89 P.2d 686;  People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4, 7, 116 Cal.Rptr. 795.)   However, given the confusing draftsmanship of section 364, to do so would in effect reduce the number of days for filing a complaint by 90, something which the Legislature does not appear to have intended.

CROSKEY, Associate Justice.

KLEIN, P.J., and DANIELSON, J., concur.