Zwierlein v. IV Solutions CA4/3

Filed 7/28/21 Zwierlein v. IV Solutions CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ROBERT F. ZWIERLEIN,

Plaintiff and Appellant, G058093

v. (Super. Ct. No. 30-2012-00579320)

IV SOLUTIONS, INC., et al., OPINION

Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County, John C.
Gastelum, Judge. Affirmed.
J. Scott Humphrey, for Plaintiff and Appellant.
Horton, Oberrecht & Kirkpatrick, Cheryl A. Kirkpatrick and Fang Li for
Defendant and Respondent IV Solutions, Inc.
Greer & Associates, C. Keith Greer and C. Tyler Greer for Defendant and
Respondent Devon Glazer.
* * *
 Plaintiff Robert F. Zwierlein appeals from a judgment in favor of
defendants, IV Solutions, Inc. and Dr. Devon Glazer (collectively defendants). The trial
court dismissed Zwierlein’s complaint against defendants with prejudice, after
concluding his claims were time-barred under Code of Civil Procedure section 340.5
(section 340.5). Zwierlein contends the evidence was insufficient to establish he was
aware of the physical cause and negligent cause of his symptoms prior to March 24,
2011. As discussed below, we conclude the trial evidence established Zwierlein
discovered or should have discovered with the use of reasonable diligence his medical
malpractice claims against respondents before March 24, 2011. Accordingly, we affirm
the judgment.

I
FACTUAL AND PROCEDURAL BACKGROUND
On June 22, 2012, Zwierlein filed a complaint against defendants for
medical malpractice. Following several amendments, the operative complaint alleged
that in December 2010, Dr. Glazer prescribed the antibiotic Gentamicin intravenously to
treat an infection in Zwierlein’s left heel. IV Solutions administered the antibiotic and
monitored its effects. In January 2011, Zwierlein began “experiencing trouble getting out
of bed and felt imbalanced.” He also developed trouble with his eyesight. Over the next
several months, Zwierlein saw numerous medical personnel, but “[n]one of the doctors
diagnosed the symptomatology as being caused by Gentamicin poisoning.” Finally on
March 23, 2011, Zwierlein saw Dr. Robert Baloh, who subsequently diagnosed him with
“‘vestibular loss secondary to Gentamicin toxicity.’” The complaint alleged that
Zwierlein’s receipt of Baloh’s written diagnosis “some time after March 23, 2011, was
Plaintiff’s first notice that any doctor had concluded that Gentamicin toxicity was
possibly causing his balance problem.” Later testing confirmed Baloh’s diagnosis.

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“Plaintiff thereafter investigated the cause of Gentamicin [intravenous] ototoxicity and
then first learned of the dangerous side effects of the drug.”
The complaint asserted that Gentamicin is an aggressive antibiotic which is
known to produce side effects when used for periods greater than three to four days.
“[A]lthough standard protocol requires that after a very short period of use . . . the patient
should be carefully monitored and evaluated by an infectious disease physician, no such
careful monitoring or referral was done, nor was the drug discontinued or replaced with a
less toxic antibiotic. Instead, the medication was administered in heavy doses for a
period in excess of thirty days.” As a result, Zwierlein suffered and continues to suffer
symptoms of vertigo, problems with his vision, and loss of balance.
In defendants’ separate answers to the operative complaint, they asserted as
an affirmative defense, the applicable statutes of limitations, including section 340.5.
Defendants also filed separate but similar motions for summary judgment. The summary
judgment motions argued the undisputed facts established Zwierlein was on notice of his
malpractice claims by March 23, 2011, if not earlier, and thus, his claims were barred by
the applicable statute of limitations. The trial court denied the motions, concluding the
evidence presented did not show Zwierlein was explicitly told the use of Gentamicin in
his case was abnormal or negligent, and there was no evidence Zwierlein was aware of
the negligent cause of his injury.
The trial court conducted a three-day bench trial on the statute of
limitations defense in July 2018. Following trial, the court issued a 12-page statement of
decision and judgment. In the written statement, the trial court found the following facts.
For some time, Zwierlein required and received medical treatment for
various conditions, including type 2 diabetes, morbid obesity, and diabetic vasculopathy.
On December 6, 2010, Zwierlein was admitted to Saddleback Memorial Hospital for left
foot pain. Dr. Glazer ordered intravenous administration of an antibiotic, Gentamicin, to
treat an infection in Zwierlein’s left foot. Pursuant to that prescription, Zwierlein

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received intravenous administration of Gentamicin from admission to the hospital
through discharge, December 13, 2010.
On December 12, 2010, Dr. Glazer prescribed an additional seven day
course of Gentamicin to commence following discharge. IV Solutions filled the
prescription for Gentamicin, covering the period December 13, 2010, through December
22, 2010. Per plan, a home health nurse was to administer the drug intravenously.
Zwierlein received his first in-home dose of Gentamicin from Home Health Nurse Kathy
Winteringham, on December 13, 2010. He testified that Winteringham did not discuss
the potential risks of Gentamicin use with him, except perhaps as to kidney issues. He
also claimed the box containing the drug was missing an insert listing the potential risks
of Gentamicin use. According to Zwierlein, he would not have taken Gentamicin had he
known of the potential side effects associated with its use.
At a postoperative appointment on December 22, 2010, Zwierlein
complained of hearing problems and ringing in his ears. At that time, Dr. Glazer told
Zwierlein that ototoxicity was a known risk of Gentamicin use, and the hearing/ringing in
the ear issues he was having could be related to Zwierlein’s use of this drug. Glazer
indicated he felt Zwierlein did not need to be on the drug, but Zwierlein should see an
infectious disease doctor. Glazer then ordered the administration of additional rounds of
Gentamicin.
Following Dr. Glazer’s advice, Zwierlein visited infectious disease
specialist, Alan White, M.D., on January 4, 2011. At that visit, White discussed the
potential side-effects of Gentamicin. White expressed his inclination for Zwierlein to
discontinue further use, noting the risks of continued use outweighed the benefits. Two
days later, on January 6, 2011, Zwierlein ceased Gentamicin use. Shortly thereafter, on
January 7 and 10, 2011, Zwierlein complained of dizziness.
On January 8, 2011, Winteringham visited Zwierlein’s home to draw his
blood due to his complaint of severe dizziness and her concern that Zwierlein could have

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a high Gentamicin level. She testified she was drawing blood to make sure that the level
of the medication was not causing damage to either his kidneys or his ears, and to ensure
that this information was not being hidden from him. She testified “‘[t]hat was clearly
stated’” to plaintiff. Winteringham further noted in the records and testified that she
“‘instructed [Zwierlein regarding the] pathophysiology [of] dizziness and vertigo’” and
explained “‘[h]ow people get dizzy, what dizziness is about, that essentially vertigo
happens in the inner ear.’”
Zwierlein’s primary care physician examined him on January 11, 2011. At
that time, Zwierlein reported he had experienced dizziness, ear ringing, and imbalance
issues in the days immediately preceding the examination.
On February 7, 2011, Zwierlein appeared at the South Bay Hearing and
Balance Center for an appointment. In response to a questionnaire posing the following
questions: “‘Do you know of any possible cause of your dizziness? If yes, what might
the cause be?’” Zwierlein wrote: “‘Antibiotics.’” The medical records relating to this
visit show the examining physician noted Zwierlein’s dizziness was “‘likely the result of
his taking Gentamicin, which is known to be ototoxic.’”
On March 9, 2011, Zwierlein presented to Neuro-Ophthalmologist, Peter
Quiros, M.D., and reported the reason for his visit was “‘dizziness [sic], possible side
effects from Gentamicin.’” Zwierlein further reported that he thought his dizziness
“‘started at the end of taking Gentamicin.’” Quiros advised Zwierlein that he
“‘appear[ed] to have bilateral vestibulopathy which may have been triggered by the
gentamycin use.’” Quiros also informed Zwierlein that Gentamicin is well known for
causing vestibular dysfunction/disorders, like ototoxicity. Quiros referred Zwierlein to
the Neuro-Otology Center at UCLA for further evaluation and treatment.
On March 23, 2011, Zwierlein visited neurologist, Robert Baloh, M.D.
Baloh noted Zwierlein presented to him for evaluation of chronic dizziness and
imbalance, following a course of Gentamicin. Following his examination of Zwierlein,

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Baloh noted and discussed with Zwierlein – per his custom and practice – his assessment
that “‘almost certainly’” Zwierlein’s dizziness was caused by Gentamicin ototoxicity, and
further discussed that Gentamicin can be ototoxic.
On April 7, 2011, Zwierlein underwent testing which confirmed the
information Dr. Baloh communicated to Zwierlein on March 23, 2011. On March 21,
2012, Zwierlein served notice of his intention to commence litigation and, on June 22,
2012, Zwierlein filed his complaint.
Zwierlein testified he did some Internet research in April 2012, and it was
then that he first discovered Gentamicin to be a “black label” medication, i.e., it was a
dangerous drug. He found a Web site called “Wobblers.com,” which detailed “‘people’s
experience with Gentamicin ototoxicity’” and “‘the dose being too high.’” Zwierlein
believed he had seen that Web site before March 23, 2011, but “‘I didn’t really
investigate it.’” He also agreed that he could have done the research after seeing
Dr. Quiros “‘on March 9, 2011 when he knew dizziness was a possible side effect of
Gentamicin, or on March 23, . . . after his visit with Baloh. . . . However, when asked if
there was any reason that he could not do the same research prior to March 23, . . .
Plaintiff responded, “there was nothing[.] Other than [sic] physically trying to live[.]
Yes, I could have done it, but I didn’t.”’”
Based on the foregoing facts, the trial court concluded “credible evidence
showed Plaintiff knew the factual cause of his injury and was aware of sufficient facts to
put him on inquiry notice of the negligent cause of his injury on multiple occasions, i.e.,
by (1) December 22, 2010; (2) January 7, 2011; (3) February 7, 2011; (4) March 9, 2011;
and, at the latest, (5) March 23, 2011. Accordingly, when Plaintiff filed his complaint on
June 22, 2012, Plaintiff’s cause of action for professional negligence was barred by the
applicable statute of limitations.” The trial court granted judgment in favor of
defendants, and ordered the complaint dismissed with prejudice.

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 II
DISCUSSION
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 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.” Under the discovery rule, the statute of limitations begins
to run when a plaintiff suspects or should suspect that her injury was caused by
wrongdoing. “[T]he limitations period begins once the plaintiff ‘“‘has notice or
information of circumstances to put a reasonable person on inquiry . . . .’”’ [Citation.]
A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that
is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of
wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit
on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the
facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d
1103, 1110-1111 (Jolly).)
“[R]esolution of the statute of limitations issue is normally a question of
fact.” (Jolly, supra, 44 Cal.3d at p. 1112; see Drexler v. Petersen (2016) 4 Cal.App.5th
1181, 1197 [“[W]hether 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”].) Because a bench trial was held on the statute of limitations
issue, on appeal the question becomes whether there was substantial evidence to support
the trial court’s findings on the issue. “In resolving the issue of the sufficiency of the
evidence, we are bound by the established rules of appellate review that all factual
matters will be viewed most favorably to the prevailing party [citations] and in support of
the judgment [citation]. All issues of credibility are likewise within the province of the
trier of fact. [Citation.] ‘In brief, the appellate court ordinarily looks only at the evidence

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supporting the successful party, and disregards the contrary showing.’ [Citation.] All
conflicts, therefore, must be resolved in favor of the respondent.” (Nestle v. City of Santa
Monica (1972) 6 Cal.3d 920, 925-926.)
Here, the evidence presented at the bench trial established Zwierlein was on
inquiry notice of his claims against Dr. Glazer and IV Solutions more than one year
before he filed his intention to commence litigation. Although substantial evidence
supports the trial court’s conclusion Zwierlein was on inquiry notice on any one of five
dates, we focus on March 9, 2011, when Zwierlein met with Dr. Quiros.
By at least January 7, 2011, Zwierlein was experiencing symptoms of
Gentamicin poisoning. When he met Dr. Quiros, Zwierlein reported the reason for his
March 9, 2011, visit was “‘dizziness [sic], possible side effects from Gentamicin.’”
Zwierlein further reported that he thought his dizziness “started at the end of taking
Gentamicin.” Quiros advised Zwierlein that he “‘appear[ed] to have bilateral
vestibulopathy which may have been triggered by the gentamycin use.’” Quiros also
informed Zwierlein that Gentamicin is well known for causing vestibular
dysfunction/disorders, like ototoxicity. Zwierlein testified he conducted an Internet
search and from a Web site learned of other “‘people’s experience with Gentamicin
ototoxicity’” and “‘the dose being too high.’” Zwierlein believed he had seen that Web
site before March 23, 2011, and acknowledged he could have done the research after
seeing Quiros on March 9, 2011, when he knew dizziness was a possible side effect of
Gentamicin. The preceding facts show that by March 9, 2011, Zwierlein discovered or
should have discovered through the use of reasonable diligence that an inappropriate
prescription of Gentamicin was the likely cause of his symptoms. By that date, the
evidence established that not only did Zwierlein suspect that Gentamicin use was the
likely physical cause of his symptoms, but also that he discovered or could have
discovered with reasonable diligence that the inappropriate Gentamicin prescription was
the negligent cause of his symptoms.

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 Zwierlein’s reliance on Artal v. Allen (2003) 111 Cal.App.4th 273 (Artal),
is misplaced. There, the plaintiff suffered severe throat pain following a diagnostic
laparoscopy. (Id. at pp. 275-276.) After consulting numerous medical specialists, she
underwent exploratory surgery which revealed a thyroid cartilage fracture, a condition the
plaintiff attributed to the intubation by the defendant anesthesiologist. (Id. at p. 277.)
The trial court concluded the claim was time-barred because during a May 6, 1999, visit
with a pain specialist, the plaintiff reported that the cause of her throat pain was possibly
“‘some sort of trauma . . . caused during intubation.’” (Id. at p. 280.) The appellate
court reversed, finding that the May 6, 1999 response merely showed the plaintiff
suspected a connection between her throat pain and the intubation, not that the throat pain
was caused by professional negligence. “That evidence did not materialize until the
exploratory surgery on November 5, 1999, which revealed the thyroid cartilage fracture.”
(Id. at pp. 280-281.) The appellate court also noted the plaintiff had consulted numerous
specialists, and was provided with dozen of diagnoses. “None of these diagnoses
implicated Dr. Allen [the defendant anesthesiologist].” (Id. at p. 281.) Artal is
distinguishable because there, exploratory surgery was required to establish the cause of
the plaintiff’s severe throat pain. In the present case, Dr. Quiros diagnosed Zwierlein’s
symptoms as likely caused by Gentamicin use. At that time, Zwierlein was aware of the
Gentamicin prescription and had been informed of the side effects of Gentamicin use. In
addition, Zwierlein testified that a simple Internet search revealed that high doses of
Gentamicin could result in his symptoms. Our review of the record reveals substantial
evidence supports the trial court’s conclusion that Zwierlein discovered or should have
discovered his medical malpractice claims against Dr. Glazer and IV Solutions more than
one year before he filed his intention to commence litigation. Accordingly, the trial court
did not err in dismissing the operative complaint with prejudice and granting judgment in
favor of defendants.

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 III
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.

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