Under California Code of Civil Procedure Section 340.5, a medical malpractice plaintiff must bring suit within three years of the date of injury or within one year after a plaintiff discovers the injury, whichever comes first. But what if a plaintiff suspects negligence before he knows the extent of his injury? That was the question posed in a new case, Drexler v. Peterson, which explains that in missed diagnosis cases, the legal definition of “injury” is critical. (As in many appellate cases, the court assumed the following allegations as true in order to articulate its view of the law. The ultimate facts themselves are still subject to a jury’s finding.)
From late 2006 to early 2011, Steve Drexler consulted with his primary care physician, David J. Peterson, MD, about his headaches. Over nine visits and calls, Mr. Drexler complained of severe headaches that began at the back of the head. Dr. Peterson diagnosed tension headaches and prescribed pain medication, physical therapy, and acupuncture and referred him to a chiropractor. At one point, when Mr. Drexler asked for an MRI, Dr. Peterson explained that his pain “remain[ed] in the occipital and in the trapezius distribution of the shoulder” and that an MRI would not add to the diagnosis.
In 2010, Mr. Drexler consulted with a neurologist for headaches and “right arm tingling” that he said had begun four to five years earlier after a trauma. The neurologist diagnosed carpal tunnel syndrome and tension headaches. Mr. Drexler continued to see Dr. Peterson, who maintained his diagnosis of “tension type headache.”
In a later deposition, Mr. Drexler testified that though he trusted Dr. Peterson, he never believed that his headaches were caused by tension or stress. He said that after the first few visits, he did not believe that Dr. Peterson properly diagnosed his headaches. He also testified that he had thought that his neurologist’s diagnosis of carpal tunnel syndrome was “a joke.”
In early 2013, Mr. Drexler went to the hospital after experiencing headaches, double vision, unsteady gait, progressive hoarseness, and difficulty swallowing. An MRI revealed a large brain tumor impinging on the brain stem, the surgical removal of which resulted in significant injuries. Mr. Drexler sued Dr. Peterson and his neurologist in July 2013, claiming negligent failure to diagnose.
At the trial court level, the judge dismissed the case after ruling that Mr. Drexler’s claims were barred under the one-year statute of limitations because he had a suspicion of wrongdoing by Dr. Peterson and the neurologist by January 2011 and March 2010, respectively. The judge also ruled that the three-year limit had run on the claim against the neurologist because, the judge reasoned, the injury by the neurologist occurred in March 2010 when he failed to diagnose the tumor.
However, on appeal, the justices noted that as used in the statute, “injury” means both a person’s physical condition and its “negligent cause.” So while Mr. Drexler had formed a suspicion of wrongdoing by his physicians (and even consulted with an attorney) by January 2011, the appellate court said that the one-year and three-year “limitations periods did not begin until Drexler discovered his injury – that is, became aware of additional, appreciable harm from his preexisting condition . . . .”
The Los Angeles-based appellate court said that when a claim is based on a failure to diagnose, the injury is not the mere undetected existence of the medical problem. “Rather, the injury is the development of the problem into a more serious condition which poses a greater danger to the patient or requires an extensive treatment.”
Because the evidence submitted to the trial court before the dismissal was open to interpretation on whether Mr. Drexler timely discovered his “injury,” the Court of Appeal reinstated the suit for a factual determination on that issue.
Gordon Ownby is general counsel for CAP. Questions or comments related to this article should be directed to gownby@CAPphysicians.com. The information in this publication should not be considered legal or medical advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney.