Filed 10/31/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
STEVE B. DREXLER, B259375
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC516778)
v.
DAVID J. PETERSEN, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gregory Keosian, Judge. Reversed.
Katchko, Vitiello & Karikomi and Michael T.
Karikomi for Plaintiff and Appellant.
Ryan Datomi, Richard J. Ryan, Jeffrey T. Whitney
and Dawn Cushman for Defendants and Respondents.
________________________________
INTRODUCTION
Code of Civil Procedure section 340.51 provides that a
plaintiff in an action for medical malpractice must file the action
within three years of 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. We
hold that, when the plaintiff in a medical malpractice action
alleges the defendant health care provider misdiagnosed or failed
to diagnose a preexisting disease or condition, there is no injury
for purposes of section 340.5 until the plaintiff first experiences
appreciable harm as a result of the misdiagnosis, which is when
the plaintiff first becomes aware that a preexisting disease or
condition has developed into a more serious one.
Steve Drexler filed this medical malpractice action against
Dr. David Petersen, a primary care physician, Dr. Craig German,
a neurologist, and their employer, HealthCare Partners Medical
Group, Inc., alleging that Dr. Petersen and Dr. German
negligently misdiagnosed the cause of his headaches. When
finally an emergency room doctor correctly diagnosed a brain
tumor as the cause of the headaches, Drexler needed emergency
surgery. By that time, the tumor had grown so large that
surgeons had to sever Drexler‟s cranial nerves to remove it, which
caused Drexler loss of vision in his left eye, deafness in his left
ear, facial paralysis, loss of musculature and strength,
depression, and sexual dysfunction.
The trial court granted a motion by all three defendants for
summary judgment on the ground that section 340.5 barred
1 Statutory references are to the Code of Civil Procedure.
2
Drexler‟s action. Because there are disputed issues of material
fact regarding whether Drexler discovered his injury within the
meaning of section 340.5 more than one year before he filed this
action, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Drexler Seeks Treatment for His Headaches
In December 2006 Drexler consulted Dr. Petersen about
headaches he had been experiencing for a month.2 Dr. Petersen
diagnosed Drexler with tension headaches.
In January 2007 Drexler returned to Dr. Petersen, still
complaining of headaches on the right side of his head and neck.
Dr. Petersen again diagnosed Drexler with tension headaches
and prescribed pain medication.
In September 2007 Drexler again consulted Dr. Petersen
regarding pain on the back and sides of his head. Dr. Petersen
told Drexler that tension was still causing his headaches and to
keep taking the prescribed pain medication.
2 Drexler‟s medical records provide a timeline of his
complaints and symptoms. Medical records may be admissible as
business records if they are properly authenticated. (See Garibay
v. Hemmat (2008) 161 Cal.App.4th 735, 742.) Although both
sides submitted unauthenticated portions of Drexler‟s medical
records in connection with the motion for summary judgment,
neither side objected. (See § 437c, subd. (b)(5) [“[e]videntiary
objections not made at the hearing shall be deemed waived”];
Collin v. Calportland Co. (2014) 228 Cal.App.4th 582, 599, fn. 5
[hearsay, authentication, and relevance objections to documents
are forfeited if not raised in summary judgment papers or at the
hearing].)
3
In November 2007 Drexler returned yet again to Dr.
Petersen, complaining of daily headaches that began with
occipital (back of the head) pain. He told Dr. Petersen the
headaches improved with massage and physical therapy. Dr.
Petersen ordered more pain medication and referred Drexler to
physical therapy.
In November 2009 members of Drexler‟s family called Dr.
Petersen and informed him they were taking Drexler to the
emergency room because Drexler‟s head and neck pain was so
severe he could not lift his arms. The family members also told
Dr. Petersen that they wanted Drexler to have a magnetic
resonance imaging study (MRI) “of the muscle” and that Drexler
“knows it is a muscle.” Dr. Petersen explained that an MRI “is
not useful for muscle pain.” Dr. Petersen later spoke with
Drexler and noted that the “pain remain[ed] occipital and in the
trapezius distribution to the shoulder,” and that Drexler‟s
statement “„Can‟t move shoulders‟ means his muscles hurt, not
that he has neuro weakness.” Dr. Petersen continued to
prescribe pain medication and physical therapy, advised Drexler
to continue seeing a chiropractor, and added acupuncture to
Drexler‟s treatment. In response to Drexler‟s statement “I need
an MRI,” Dr. Petersen wrote, “Answer: MRI is a diagnostic tool
most used by surgeons contemplating surgery. He has palpable
tender muscle spasms. His headache is completely relieved when
these resolve. The MRI will not add to his diagnosis. . . .”
A few months later, on January 30, 2010, Drexler returned
to Petersen for “neck pain.” Dr. Petersen‟s records reflect that
Drexler reported, “It‟s a muscle,” while pointing to his trapezius.
When Drexler asked why he felt pain in the back of his head if
the problem was in his trapezius muscle, Dr. Petersen “explained
4
the attachments again and how neck muscle tension classically
causes pain in the occiput.” Drexler also reported that he was
experiencing pain radiating down his right arm and numbness in
his fourth and fifth fingers, although Drexler could not remember
when he started experiencing the tingling in his hands. Dr.
Petersen reported: “Pain is muscular, reproducible with
palpation of trapezius muscle and neck movement, does not
involve the head other than occiput, so an MRI of his head is not
indicated. He wants an MRI of his trapezius, but that is not
likely to reveal anything that would alter the treatment.” Dr.
Petersen prescribed continued use of pain medication and
referred Drexler to “pain management.” In addition, because
Drexler “complain[ed] of intermittent para[e]sthesia [tingling in
extremities] in right ulnar nerve distribution, and since he [was]
convinced he need[ed] an MRI, [Dr. Petersen] defer[red] to
neurology in this regard.”
On February 10, 2010 Drexler consulted Dr. German, a
neurologist, for “headaches” and “right arm tingling.” Drexler
told Dr. German that the tingling in his fingers and pain in his
right arm began four or five years earlier when he “suffered some
trauma to the arm while attempting to change a tire,” and that a
subsequent car accident caused additional injury to the arm. Dr.
German diagnosed Drexler with carpal tunnel syndrome as a
“likely explanation for shoulder pain and par[a]esthesia” and a
“tension-type headache” probably resulting from “medication
overuse.” Dr. German prescribed various medications for pain
and inflammation and advised him to wear wrist splints at night
for six to eight weeks.
On March 3, 2010 Dr. German performed an “NCS/EMG”
(electromyogram nerve conduction study), an electrical test of
5
nerves and muscles to identify the source of the tingling. Dr.
German diagnosed Drexler with “ulnar nerve entrapment at
elbow” and advised him to “stop putting pressure on his elbows.”
Dr. German explained to Drexler that the problem with his elbow
was separate from his headaches, the pain medication was for the
headaches, and if he did not want to take the medication he
should follow up with his primary care physician.
On May 20, 2010 Drexler called Dr. Petersen about “severe
headaches” he had been suffering “off and on” for three years and
complained he was “not getting the treatment that he should be
getting.” Drexler again reported pain in his trapezius, occiput,
and shoulder, and again stated he thought it was muscular. Dr.
Petersen told him to take the pain medications and referred him
to a pain management specialist, Dr. Imad Rasool.
On October 22, 2010 Drexler returned to Dr. Petersen with
the same neck pain and occipital headache. The medical records
state, “Same exaggerated urgency to the problem, stating how
much it affects his life, how it is nearly impossible to function,
how he can‟t sleep or go out socially.” Dr. Petersen continued to
diagnose a “tension-type headache” and “cervicalgia” (neck pain).
Dr. Petersen gave Drexler an injection of pain medicine, referred
him to pain management, and “explained again that more
diagnostic tests [were] not needed.”
On January 15, 2011 Drexler consulted with Dr. Petersen
for the last time. Dr. Petersen saw Drexler as a “hallway
consult,” and Drexler reported that “he finally used the referral
to pain management, and his pain [was] greatly improved.” The
medical records indicate that Dr. Rasool conducted an MRI of
Drexler‟s neck and diagnosed him with “multi-level disk disease,”
which Dr. Petersen noted was “common in many necks and often
6
seen incidentally on MRI.” Dr. Petersen noted that Drexler
should continue with Dr. Rasool for musculoskeletal neck pain
and follow up with Dr. Petersen as needed.
During the time Drexler treated with Dr. Petersen, and
briefly treated with Dr. German, he did not seek any other
medical treatment. Drexler testified at his deposition, however,
that he never believed that his headaches were due to tension
and stress, or that a problem with the muscles in his neck or
shoulders caused the headaches. Drexler testified that, after the
first few visits, he did not think Dr. Petersen properly diagnosed
his headaches, he thought Dr. German‟s diagnosis of carpal
tunnel syndrome was “a joke,” and at no time was he ever
satisfied with the medical treatment he received from Dr.
Petersen or Dr. German. He testified that he nevertheless
continued to trust Dr. Petersen: “I trusted Dr. Petersen knew
what he was talking about. Then when we got the second opinion
by Dr. German, a neurologist, and then to see Dr. Rasool, I
thought I was being taken care of . . . .” Yet Drexler was
sufficiently dissatisfied with his treatment by Dr. Petersen that
on January 15, 2011, the day of the “hallway” consultation,
Drexler obtained his medical records so he could consult with an
attorney about whether he could sue Dr. Petersen for
malpractice. The attorney told Drexler “he didn‟t think [Drexler]
had a case.”3 Drexler did not see another primary care physician
until the fall of 2012.
3 Drexler changed this deposition testimony to state that he
asked for his medical records “in hopes of finding a new doctor
that could diagnose the problem,” and that “[i]t wasn‟t until after
surgery [in 2013] and going [through] hell that [he] considered
suing for medical malpractice.” Citing Wagner v. Glendale
7
B. Drexler’s Symptoms Become More Severe, and He
Ultimately Learns He Has a Brain Tumor
In October 2012 Drexler went to Olive View Medical Center
complaining of headaches and diplopia (double vision). Doctors
there scheduled an MRI of Drexler‟s brain, but Drexler did not
stay for the procedure because he felt the line was too long.
Drexler subsequently saw an optometrist, who prescribed glasses,
but the glasses did not improve his double vision.
In late January 2013 Drexler went back to Olive View
Medical Center complaining of a “new onset of unsteady gait,”
“progressive voice hoarseness,” and “dysphagia” (difficulty
swallowing) over the last three months. Doctors conducted an
MRI of Drexler‟s brain and discovered “a very large meningioma”
(brain tumor). The tumor was impinging on Drexler‟s brain stem
and causing “focal neurologic defects of cranial nerves,” which
“likely account[ed] for [Drexler‟s] [diplopia], dysphagia,
dysphonia [difficulty in speaking], and ataxia [gait abnormality].”
Doctors recommended Drexler have emergency surgery. On
January 31, 2013 doctors removed the tumor, which caused
Drexler serious injuries.
C. The Court’s Summary Judgment Ruling
On July 30, 2013 Drexler filed this action, alleging that Dr.
Petersen and Dr. German negligently failed to diagnose, and
delayed the diagnosis of, his brain tumor. The trial court granted
the defendants‟ motion for summary judgment on the grounds
Adventist Medical Center (1989) 216 Cal.App.3d 1379, 1391-1392,
the trial court stated, “The court rejects the changed testimony as
it contradicts [Drexler‟s] first admission against interest[, which]
is „valued so highly.‟” Drexler does not appeal this ruling.
8
that both the one-year and the three-year limitations periods in
section 340.5 barred Drexler‟s claim. The court ruled that the
one-year statute of limitations barred Drexler‟s medical
malpractice claim against Dr. Petersen because Drexler had a
suspicion of wrongdoing by January 15, 2011, when he ordered
his medical records and consulted an attorney. The court ruled
the one-year limitations period also barred his claim against Dr.
German because the court found that Drexler had a suspicion of
wrongdoing as early as March 2010, when Dr. German diagnosed
him with carpal tunnel syndrome. The court also ruled that the
three-year statute of limitations period barred Drexler‟s claim
against Dr. German because Drexler suffered an injury in March
2010, when Dr. German failed to diagnose Drexler‟s brain tumor.
Finally, the court ruled that HealthCare Partners was entitled to
summary judgment because no claims remained against Dr.
Petersen or Dr. German. Drexler timely appealed.
DISCUSSION
A. Standard of Review and General Law
“We review the trial court‟s grant of summary judgment de
novo and decide independently whether the parties have met
their respective burdens and whether facts not subject to triable
dispute warrant judgment for the moving party as a matter of
law.” (Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484;
see Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.) “„“We
liberally construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence
9
in favor of that party.”‟” (Hampton v. County of San Diego (2015)
62 Cal.4th 340, 347.)
“A defendant has the initial burden to show that
undisputed facts support summary judgment based on the
application of an affirmative defense.” (Trovato v. Beckman
Coulter, Inc. (2011) 192 Cal.App.4th 319, 322; see Melendrez v.
Ameron Internat. Corp. (2015) 240 Cal.App.4th 632, 637-638.)
“The statute of limitations operates in an action as an affirmative
defense.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.)
“„[T]he question of when there has been a belated discovery of the
cause of action, especially in malpractice cases, is essentially a
question of fact,‟” and “„[i]t is only where reasonable minds can
draw but one conclusion from the evidence that the question
becomes a matter of law.‟” (Brown v. Bleiberg (1982) 32 Cal.3d
426, 436; accord, Whitfield v. Roth (1974) 10 Cal.3d 874, 886; see
Bispo v. Burton (1978) 82 Cal.App.3d 824, 831 [reversing
summary judgment because of a factual issue regarding when the
patient suffered injury within the meaning of the medical
malpractice statute of limitations]; cf. Jolly v. Eli Lilly & Co.
(1988) 44 Cal.3d 1103, 1112 [“[w]hile resolution of the statute of
limitations issue is normally a question of fact, where the
uncontradicted facts established through discovery are
susceptible of only one legitimate inference, summary judgment
is proper”].)
B. The Statute of Limitations Does Not Bar Drexler’s
Malpractice Claim as a Matter of Law
Section 340.5 provides: “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
10
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.” A
plaintiff in a medical malpractice action must satisfy the
requirements of both the one-year and the three-year limitations
periods. (Brown v. Bleiberg, supra, 32 Cal.3d at pp. 436-437; Doe
v. Doe 1 (2012) 208 Cal.App.4th 1185, 1192; Artal v. Allen (2003)
111 Cal.App.4th 273, 278.) The injury commences both the three-
year and the one-year limitations periods. (See Larcher v.
Wanless (1976) 18 Cal.3d 646, 650 [“the meaning of the word
„injury‟ as used in the statute . . . designate[s] the event which
starts the running of the overall four-year [now three-year]
limitation period, and the discovery of which is the basis of the
shorter one-year limitation”].)4 The one-year limitations period,
however, does not begin to run until the plaintiff discovers both
his or her injury and its negligent cause. (See Gutierrez v. Mofid
(1985) 39 Cal.3d 892, 896 [“the term „injury,‟ as used in section
340.5, means both a person‟s physical condition and its „negligent
cause‟”]; Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93,
99 [“the word „injury‟ had come to be used in the cases to denote
both a person‟s physical condition and its „negligent cause‟”].)
“[T]he word „injury‟ [has] the same meaning in the parallel [now
three]-year and one-year limitation periods of the statute.”
(Larcher v. Wanless, supra, 18 Cal.3d at p. 658, fn. 14; accord,
Bispo v. Burton, supra, 82 Cal.App.3d at p. 827, fn. 1; see Wells
Fargo Bank v. Superior Court (1977) 74 Cal.App.3d 890, 899, fn.
4 In 1975 the Legislature amended section 340.5 “to shorten
the outer limitations period from four years to three.” (Flores v.
Presbyterian Intercommunity Hosp. (2016) 63 Cal.4th 75, 81; see
Larcher v. Wanless, supra, 18 Cal.3d at p. 650, fn. 1.)
11
9 [the California Supreme Court has stated that “„injury‟ had the
same meaning in relation to both the one- and the four-year
limitations” under former section 340.5]; see also Gilloon v.
Humana Inc. (Nev. 1984) 687 P.2d 80, 81, fn. 4 [“[i]t is to be
presumed that the Legislature intended the term „injury‟ to have
the same meaning in the parallel two-year and four-year
limitation periods” in Nevada‟s medical malpractice statute].)
As noted, the trial court ruled that Drexler, having
consulted an attorney in January 2011 to determine whether he
could sue Dr. Petersen and Dr. German for malpractice, had a
“suspicion of wrongdoing” by that time. The fact that Drexler
contemplated suing Dr. Petersen and Dr. German is strong
evidence that Drexler suspected the doctors had not properly
diagnosed or treated his headaches. (See Gutierrez v. Mofid,
supra, 39 Cal.3d at p. 897 [facts that the plaintiff knew of her
injury almost immediately after the operation and consulted a
lawyer because she wanted to explore her legal remedies
constituted constructive notice of her claim].) Even with the
presence of such suspicions, however, the one-year and three-year
limitations periods did not begin to run until Drexler discovered
his injury—that is, became aware of additional, appreciable harm
from his preexisting condition—and, with respect to the one-year
limitations period, also had reason to believe that injury was
caused by the wrongdoing of Dr. Peterson and Dr. German.
In most cases, the plaintiff discovers his or her injury prior
to, or contemporaneously with, learning its negligent cause. As a
result, “[w]ith regard to the one-year limitation provision, the
issue on appeal usually is whether the plaintiff actually
suspected, or a reasonable person would have suspected, that the
injury was caused by wrongdoing.” (Garabet v. Superior Court
12
(2007) 151 Cal.App.4th 1538, 1545.) The issue in this appeal,
however, is not whether Drexler had actual or constructive
knowledge of the doctors‟ alleged wrongdoing, but when Drexler
discovered his injury.
1. The Definition of Injury Under Section 340.5
The word “injury” in section 340.5 “refer[s] to the damaging
effect of the alleged wrongful act and not to the act itself.”
(Larcher v. Wanless, supra, 18 Cal.3d at p. 656, fn. 11.)
Therefore, “[t]he date of injury could be much later than the date
of the wrongful act where the plaintiff suffers no physical harm
until months or years after the wrongful act.” (Steketee v. Lintz,
Williams & Rothberg (1985) 38 Cal.3d 46, 54.) The injury,
however, is not necessarily the ultimate harm suffered, but
instead occurs at “the point at which „appreciable harm‟ is first
manifested.” (Brown v. Bleiberg, supra, 32 Cal.3d at p. 437, fn. 8;
see Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762 (Hills)
[“appreciable harm” may become apparent before the ultimate
harm or diagnosis].) “Each case necessarily will turn on its own
particular circumstance. It could well be that an injury or
pathology will not manifest itself for some period after the last
treatment by a physician. On the other hand, that injury or
pathology may manifest itself and the patient will suffer known
appreciable harm at a time prior to the „ultimate‟ result.” (Bispo
v. Burton, supra, 82 Cal.App.3d at p. 831; see Warren v. Schecter
(1997) 57 Cal.App.4th 1189, 1203 [statute of limitations runs
from “point at which appreciable harm was first manifested[,
and] „[m]anifested‟ is that point at which the damage has become
evidenced in some significant fashion; when the damage has
clearly surfaced and is noticeable”]; McNall v. Summers (1994) 25
13
Cal.App.4th 1300, 1309 [statute of limitations begins to run when
there is “appreciable harm or the point in time at which
appreciable harm is first manifested”]; Marriage & Family Center
v. Superior Court (1991) 228 Cal.App.3d 1647, 1652 [“[t]he word
„manifest‟ as used by our courts indeed suggests not only actual
damage but that the damage has made itself known in some
outward fashion”].)
In many medical malpractice cases, the patient alleges that
the health care provider has performed a procedure that caused
some injury. In such cases, it is relatively easy to determine
when both the injury and its cause occurred, whether the injury
occurs immediately following the procedure or does not manifest
itself until months or even years later. (See, e.g., Garabet v.
Superior Court, supra, 151 Cal.App.4th at p. 1541 [plaintiff
suffered cloudy vision, dryness in his eyes, and double vision
within weeks of having LASIK surgery]; McNall v. Summers,
supra, 25 Cal.App.4th at p. 1310 [plaintiff suffered memory loss
soon after receiving electroconvulsive therapy]; Rose v. Fife (1989)
207 Cal.App.3d 760, 769 [plaintiff discovered injury from
insertion of defective intrauterine device when she suffered pelvic
infection many years later].)
When a patient experiences appreciable harm before the
ultimate harm, that appreciable harm will start the limitations
period. For example, in Hills, supra, 152 Cal.App.3d 753, the
plaintiff received silicone injections in her breasts from the
defendant doctor in 1966. (Id. at p. 756.) In 1974, when the
plaintiff noticed lumps and soreness, she consulted a second
doctor who informed her that the lumps were “typical” after
silicone injections. (Ibid.) In April 1975 a third doctor informed
the plaintiff that she was suffering from “silicone granulomatosis
14
due to silicone injections” and discussed the possibility of surgery
to remove the silicone lumps. (Ibid.) Almost two years later, on
January 6, 1977, the third doctor noted that the plaintiff “feels
that the lump in her right breast has gotten larger and also, that
her breasts have become more uncomfortable . . . .” (Id. at pp.
756-757.) That doctor recommended both a mastectomy and
breast reconstruction, and the plaintiff had surgery on February
28 and March 4, 1977. (Id. at p. 757.) On March 1, 1978 the
plaintiff filed a malpractice suit against the defendant. (Ibid.)
Affirming summary judgment for the defendant doctor, this court
rejected the defendant‟s argument that the injury occurred on the
date of the negligent act in 1966, when the defendant injected the
silicone, and also rejected the plaintiff‟s argument that the injury
did not occur until the mastectomy in 1977. (Id. at p. 762.)
Instead, this court held that the key event was the soreness and
lumps the plaintiff experienced in 1974, four years before she
filed her lawsuit. (Ibid.) This court explained: “This admission
is sufficient to show that she suffered the damaging effect of the
alleged malpractice on that date [in 1974].” (Id. at pp. 762-763;
see Bispo v. Burton, supra, 82 Cal.App.3d at p. 831 [rejecting the
defendant‟s argument that the injury occurred on date of the hip
surgery, rejecting the plaintiff‟s argument that the injury
occurred four years later upon learning that leg amputation was
necessary, and finding there was a factual issue regarding when
the plaintiff suffered injury].)
2. Injury in a Case of Failure To Diagnose a
Preexisting, Latent Condition
When a plaintiff brings a malpractice action based on the
defendant‟s failure to diagnose, or misdiagnosis of, a latent,
15
progressive condition, identification of the “injury” is more
difficult. (See Raddatz v. U.S. (9th Cir. 1984) 750 F.2d 791, 796
[“[w]hen a claim of malpractice is based on a failure to diagnose,
warn, or treat a patient for a pre-existing injury, rather than
affirmative conduct creating a new injury, „identification of both
the injury and its cause may be more difficult for a patient‟”].)
Only one published case in California addresses the issue of when
a plaintiff suffers appreciable harm in the context of misdiagnosis
of a preexisting, hidden condition. In Steingart v. White (1988)
198 Cal.App.3d 406 (Steingart) the plaintiff noticed a lump in her
breast, and in February 1982 the defendant doctor diagnosed the
lump as fibrocystic disease, a benign condition. (Id. at p. 409.)
The plaintiff believed the lump was “very nodule and hard,” and
she “had a feeling of cognitive dissonance” about the diagnosis.
(Id. at p. 410.) Because she had “some question in [her] mind”
about the diagnosis, she made an appointment with a second
doctor a few months later. The second doctor ordered a
mammogram, which was negative for cancer. (Ibid.) The
negative result reassured the plaintiff that she did not have
cancer. (Ibid.) In 1984 the plaintiff went to a third doctor, who
ordered another mammogram. Again the results were negative.
(Ibid.) In April 1985 the plaintiff “noticed a change in the
contour of the upper outer quadrant of her right breast.” (Ibid.)
The third doctor immediately referred the plaintiff to a fourth
doctor, who performed a lumpectomy and informed the plaintiff
that she had Stage II breast cancer. (Ibid.)
On March 24, 1986, more than four years after the
defendant doctor‟s examination, but within one year of the
change in contour of the breast and the cancer diagnosis, the
plaintiff filed a malpractice action. (Steingart, supra, 198
16
Cal.App.3d at p. 410.) The court, reversing an order granting the
defendant‟s motion for summary judgment on statute of
limitations grounds, rejected the defendant‟s argument that the
plaintiff “suffered an injury—cancer as manifested by the lump—
at the time [the first doctor] examined her on February 12, 1982.”
(Id. at p. 414.) Instead, the court determined that the plaintiff
“suffered no damaging [effect] or appreciable harm from [the
defendant doctor‟s] asserted neglect until [the third doctor]
discovered her cancer in April 1985.” (Ibid.) The court rejected
the defendant‟s argument that the plaintiff‟s lump, which she
knew about in 1982, was like the lump and soreness in Hills,
which had commenced the running of the statute of limitations.
(Id. at p. 415.) The court‟s holding recognized the difference
between a plaintiff who can connect her injury to a prior
negligent procedure, and a plaintiff whose injury predates
consultation with a doctor: “[A]lthough [the plaintiff] knew about
the lump at the time [the defendant] examined her, such a
condition is not a clear indication of injury, either damaging
effect or appreciable harm. Unlike [the plaintiff in Hills], the
plaintiff [in Steingart] was not advised the lump was the result of
any earlier treatment [the silicone injections]. On the contrary,
she was told repeatedly the lump was nonthreatening.” (Ibid.)
There are federal cases under the Federal Tort Claims Act
(FTCA) addressing the issue of when a medical malpractice
plaintiff discovers an injury after a doctor‟s failure to diagnose a
preexisting, hidden condition. (See 28 U.S.C. § 2401(b)).5 For
5 Title 28 United States Code section 2401(b) provides: “A
tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate federal agency
17
example, in Augustine v. U.S. (9th Cir. 1983) 704 F.2d 1074
(Augustine) the court recognized the difficulty a patient may have
in identifying both the injury and its cause when a doctor fails to
diagnose or treat a preexisting condition: “Where a claim of
medical malpractice is based on the failure to diagnose or treat a
pre-existing condition, the injury is not the mere undetected
existence of the medical problem at the time the physician failed
to diagnose or treat the patient or the mere continuance of that
same undiagnosed problem in substantially the same state.
Rather, the injury is the development of the problem into a more
serious condition which poses greater danger to the patient or
which requires more extensive treatment.” (Id. at p. 1078.) The
court in Augustine held, “In this type of case, it is only when the
patient becomes aware or through the exercise of reasonable
diligence should have become aware of the development of a pre-
existing problem into a more serious condition that his cause of
action can be said to have accrued for purposes of [28 U.S.C.]
section 2401(b).” (Ibid.; see Mamea v. U.S. (D. Hawai„i 2010)
2010 WL 3384854, at p. 8 [plaintiff discovered her injury “when
she learned that her previously diagnosed condition, kidney
stones, had deteriorated into a more serious condition, acute
renal failure”]; Neuenswander v. U.S. (D.Vt. 2006) 422 F.Supp.2d
within two years after such claim accrues . . . .” Like a medical
malpractice claim under section 340.5, a medical malpractice
claim “accrues” under the FTCA when a plaintiff “discovers both
the existence and cause of his injury.” (28 U.S.C. § 2401(b); see
United States v. Kubrick (1979) 444 U.S. 111, 113, 119-122;
McGraw v. U.S. (9th Cir. 2002) 281 F.3d 997, 1001, amended
by (9th Cir. 2002) 298 F.3d 754.)
18
425, 434 [plaintiff‟s injury for purposes of 28 U.S.C. § 2401(b) was
“the deterioration of his medical condition”].)
In McGraw v. U.S. (9th Cir. 2002) 281 F.3d 997, amended
by (9th Cir. 2002) 298 F.3d 754 (McGraw), the Ninth Circuit
refined this standard to explain that a claim will not accrue until
the plaintiff knows that his worsening health is related to a
preexisting condition. The court in McGraw held that “an FTCA
plaintiff asserting a failure-to-diagnose claim must know or have
reason to know of a pre-existing condition before the accrual clock
begins to run.” (Id. at p. 1001.) Thus, in addition to “the mere
knowledge of a worsening medical condition,” the plaintiff also
“must know or have reason to know of a pre-existing condition
before the accrual clock begins to run. Otherwise, it would be
virtually impossible for a plaintiff to assert such a theory when
the doctor‟s negligence is perhaps most wanton: a failure to
inform the patient about the existence of a condition that should
be treated immediately or monitored vigilantly in the future.”
(Id. at p. 1003.)6
We conclude that a standard similar to the standard
articulated in Augustine and McGraw should apply to section
340.5 for claims involving failure to diagnose or treat a
preexisting condition. As the court in Augustine explained, the
plaintiff in such a case may discover the injury when the
6 Other federal courts have stated or applied the Augustine
rule in failure-to-diagnose cases. (See, e.g., Outman v. U.S. (9th
Cir. 1989) 890 F.2d 1050, 1052-1053); Rosales v. U.S. (9th Cir.
1987) 824 F.2d 799, 804; Raddatz v. U.S., supra, 750 F.2d at p.
796; Green v. U.S. (7th Cir. 1985) 765 F.2d 105, 108-109; Mamea
v. U.S., supra, 2010 WL 3384854, at p. 8; Toro v. U.S. (D. Hawai„i
2003) 287 F.Supp.2d 1235, 1240.)
19
undiagnosed condition develops into a more serious condition, but
before it causes the ultimate harm. (See Augustine, supra, 704
F.2d at pp. 1078-1079.) With the worsening of the plaintiff‟s
condition, or an increase in or appearance of significant new
symptoms, the plaintiff with a preexisting condition either
actually (subjectively) discovers, or reasonably (objectively)
should be aware of, the physical manifestation of his or her
injury. (See Goldrich v. Natural Y Surgical Specialties, Inc.
(1994) 25 Cal.App.4th 772, 780-782 [although the plaintiff
believed her body‟s rejection of breast implants, and not the
actual implants, were causing her medical problems, a
reasonable person would have had suspicions about the
implants]; Marriage & Family Center v. Superior Court, supra,
228 Cal.App.3d at p. 1654 [although “[w]e accept the Steingart
proposition that severe damage which does not show itself
(hidden cancer, for instance) is not „injury‟ until it is found by
diagnosis,” it “does not follow . . . that damage which has clearly
surfaced and is noticeable is not „injury‟ until either the plaintiff
or her physician recognizes it”].) And consistent with the court‟s
decision in Steingart, whether measured subjectively or
objectively, when a plaintiff discovers that a preexisting condition
has developed into a more serious condition is often a factual
issue. (See Steingart, supra, 198 Cal.App.3d at p. 416 [“there
remains at minimum a triable issue of fact as to whether
Steingart exercised reasonable diligence after the purported
misdiagnosis,” and “[r]easonable minds could easily conclude
Steingart did everything within her power to ascertain what, if
any, illnesses she had after receiving [the] initial diagnosis”];
Augustine, at p. 1079 [whether dentists had advised the plaintiff
in 1975 that a bump on his palate required further diagnosis and
20
care prior to another doctor‟s cancer diagnosis in 1977 was a
factual issue]; McGraw v. U.S., supra, 281 F.3d at p. 1004 [when
the decedent became aware that terminal lung cancer may have
resulted from earlier misdiagnosis of a lung condition was a
factual issue].)
3. When Drexler Became Aware of His Injury Is a
Factual Issue
In their motion for summary judgment, Dr. Petersen and
Dr. German argued that Drexler suffered appreciable harm
“throughout the time that he sought care and treatment from Dr.
Petersen and Dr. German” because he continued to suffer severe
and debilitating headaches. Dr. Petersen and Dr. German did
not argue that Drexler‟s symptoms ever increased or his
condition ever became worse. They relied exclusively on the fact
that Drexler‟s headaches continued without any improvement.
In contrast, Drexler argued in opposition to the motion that his
injury, like the plaintiff‟s injury in Steingart, did not manifest
until doctors correctly diagnosed his brain tumor on January 28,
2013.7
7 The trial court‟s findings regarding when Drexler
discovered his injury for purposes of section 340.5 are unclear.
The court stated: “The undisputed evidence establishes that the
limitations period has expired as against Dr. German since the
alleged failure to diagnose occurred on 3/3/10 . . . .”
Distinguishing Steingart, the court further concluded: “Plaintiff‟s
testimony indicates he continued to suffer intense headaches
throughout treatment with [Dr. Petersen and Dr. German].
Plaintiff admits that by October 2012, his symptoms worsened,
he had double vision, progressive hoarseness, inability to balance
and had persistent headaches.” The court‟s reliance on the
21
The parties have modified their positions on appeal. Dr.
Petersen and Dr. German now argue that Drexler suffered
appreciable harm under section 340.5 not when his headaches
continued unabated for several years, but when Drexler‟s
headaches became worse and he suffered “neurological deficits,
including shoulder pain, arm pain, arm tingling, finger tingling
and numbness,” which they argue was as early as March 2010
but no later than January 2011. Conversely, Drexler now
concedes that his increased symptoms in October 2012, which
included double vision, hoarseness, difficulty swallowing, and
balance problems, may have been sufficient to commence the one-
year limitations period. The evidence in the record is on
Drexler‟s side.
The evidence Dr. Petersen and Dr. German submitted in
support of their motion for summary judgment of a pre-October
2012 increase in symptomatology, including Drexler‟s deposition
October 2012 date is probably a typographical error because if
Drexler‟s injury first manifested in October 2012 his July 2013
lawsuit would have been timely. To the extent the trial court
ruled that Drexler suffered appreciable harm upon Dr. German‟s
failure to diagnose his tumor, or that the continuation of
Drexler‟s preexisting headaches “throughout treatment with” Dr.
Petersen and Dr. German constituted appreciable harm, the
court‟s ruling was incorrect. (See Steingart, supra, 198
Cal.App.3d at p. 416 [rejecting the argument that injury
manifests upon initial misdiagnosis]; Augustine, supra, 704 F.2d
at p. 1078 [where the medical malpractice claim is based on
failure to diagnose a preexisting condition, the injury is not the
mere continuance of that same undiagnosed problem in
substantially the same state].)
22
testimony and the medical records, does not support the
arguments they make on appeal. There is no evidence that
Drexler‟s headaches became worse or “more intense.” In fact, Dr.
Petersen‟s records reflect that Drexler‟s headaches were not
getting worse, but were “chronic,” “intermittent,” and lasted for
four years. The medical records state that, as of October 22,
2010, Drexler reported the “same c/o [complaints of] neck pain
and occipital headache” and the “same exaggerated urgency to
the problem, stating how much it affects his life, how it is nearly
impossible to function, how he can‟t sleep or go out socially.”
There is also no evidence that prior to October 2012
Drexler‟s shoulder pain, neck pain, and “neurological deficits”
were related to his headaches or signs of a brain tumor. The
evidence of Drexler‟s arm and finger tingling, which he first
reported to Dr. Petersen on January 30, 2010, does not show or
support an inference that those symptoms were related to his
headaches or indicative of a brain tumor. Drexler stated he could
not recall when the tingling started, but he told Dr. German he
thought they “started 4-5 years ago” after “he suffered some
trauma to the arm while attempting to change a tire.” Dr.
German told Drexler that the tingling in Drexler‟s arm and
fingers was unrelated to his headaches, and Dr. German‟s March
2010 medical records reflect that the carpal tunnel syndrome
affecting Drexler‟s arm had nothing to do with his headaches.
Nor do the medical records state or support an inference that
Drexler‟s neck and shoulder pain were new symptoms. Drexler
complained of neck and shoulder pain in January 2007,
November 2009, and throughout 2010, and he repeatedly
requested an MRI of his shoulder. And Dr. Petersen concluded
23
that the pain in Drexler‟s trapezius muscle did “not involve the
head other than [the] occiput.”
At a minimum, Dr. Rasool‟s diagnosis of Drexler‟s neck
pain as “multi-level disk disease” and Drexler‟s reported
improvement under Dr. Rasool‟s care create a triable issue of
material fact regarding whether Drexler‟s neck pain was related
to his preexisting condition, and therefore whether it constituted
the appreciable harm that would commence the statute of
limitations. (See McGraw v. U.S., supra, 281 F.3d at p. 1001 [in
light of the plaintiff‟s overall poor physical condition, including
back pain, congestion, and coughing, it was unclear from the
record whether the plaintiff should have discovered that lung
cancer was the result of an earlier failure to diagnose a lung
condition].) Therefore, because the evidence was not undisputed
that Drexler discovered his injury more than one year before he
filed this action, Dr. Petersen and Dr. German were not entitled
to summary judgment under section 340.5. (See Mason v.
Marriage & Family Center (1991) 228 Cal.App.3d 537, 543
[reversing summary judgment where “nothing in the record
[established] the date of [the plaintiff‟s] injury as a matter of
law”]; Bispo v. Burton, supra, 82 Cal.App.3d at p. 831 [the
defendant‟s evidence was “insufficient to effectively negate the
existence of the triable issue of fact respecting the crucial element
of injury and consequently cannot provide an adequate basis for
summary judgment”]; see also Augustine, supra, 704 F.2d at p.
1079 [district court should not have dismissed the plaintiff‟s
malpractice claim unless the relevant facts relating to date of the
plaintiff‟s discovery of his injury were not in dispute].)
Dr. Petersen and Dr. German may yet prevail on their
statute of limitations defense; they are just not entitled to prevail
24
on summary judgment. For example, although Drexler concedes
that he suffered appreciable harm by October 2012 when his
condition worsened and he experienced new symptoms of double
vision and unsteady gait, nothing in the record indicates what
symptoms, if any, Drexler experienced between January 2011,
when he stopped treating with Dr. Petersen, and October 2012.
His symptoms may have increased during that period, but there
is no evidence in the record that they did. Nor is there any
evidence that during this period Drexler consulted with any other
health care professional who told him that he needed an MRI
because his symptoms, although constant, had persisted for too
long. (See Steingart, supra, 198 Cal.App.3d at p. 416; Augustine,
supra, 704 F.2d at p. 1078.) In the absence of such evidence,
whether Drexler actually discovered, or reasonably should have
discovered, his injury more than a year before he filed his
malpractice claim remains a factual issue for trial. (See Photias
v. Doerfler (1996) 45 Cal.App.4th 1014, 1021 [reversing summary
judgment because the record did not conclusively show when
injury became evident and “express[ing] no opinion on when the
injury first manifested itself, leaving the question for resolution
in the trial court”]; Bispo v. Burton, supra, 82 Cal.App.3d at p.
831 [the defendant‟s “statements viewed most advantageously
are insufficient to effectively negate the existence of the triable
issue of fact respecting the crucial element of injury and
consequently cannot provide an adequate basis for summary
judgment”].)
25
DISPOSITION
The judgment is reversed. Drexler is to recover his costs on
appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
GARNETT, J. *
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
26