This month, we feature a popular “Case of the Month” from the archives written by CAP’s former General Counsel Gordon Ownby
Determining when a plaintiff must act to sue a healthcare provider is a topic of longstanding interest in California’s courts. A featured case adds a twist: Does a patient suing a subsequent treating physician get additional time to sue?
On April 22, 2013, Judith Brewer underwent carpal tunnel and shoulder surgery. Early the next morning, she became paralyzed and sought emergency treatment from Benjamin Remington, MD, a neurological surgeon. Tests revealed Ms. Brewer suffered spinal cord syndrome, cervical spine stenosis, paraplegia, and incontinence. According to the allegations relied on in the Court of Appeal opinion, Dr. Remington performed spinal compression surgery on Ms. Brewer on May 30, 2013, after waiting for a reduction in the patient’s swelling. After the surgery, the patient allegedly regained some movement in her arms and legs but did not fully recover.
Judith and Michael Brewer filed a medical professional liability lawsuit against Brewer’s original surgeon, the anesthesiologist, the hospital, medical clinic, and “Doe” defendants within the statute of limitations period under the Medical Injury Compensation Reform Act (MICRA). “John” or “Jane Doe” defendants are intended to allow a plaintiff to add codefendants to a suit once their identities become known.
As the case proceeded, the plaintiffs obtained medical records and had those records reviewed by a medical consultant. On July 20, 2015, Brewer’s expert, a neurological surgeon, opined that Dr. Remington breached the standard of care by not immediately commencing with surgery to decompress Brewer’s spine. According to the expert, Dr. Remington’s delay was a significant factor in causing her ongoing neurological deficits.
After receiving the report, the plaintiffs filed a “Doe amendment” on July 24, 2015, filling in Dr. Remington’s name as a new codefendant in the ongoing lawsuit. Dr. Remington filed a motion for summary judgment in the trial court, claiming that the lawsuit was barred by the one-year statute of limitations. In his motion for a dismissal, Dr. Remington argued that Ms. Brewer knew his identity and all of the facts giving rise to the claims against him by April 23, 3013, and certainly by May 30, 2013, when he performed the spinal decompression surgery.
The Brewers argued that Dr. Remington was added as a defendant as soon at they learned that his (alleged) failure to immediately perform the spinal decompression surgery may have precluded Ms. Brewer from recovering more of her abilities and caused her to injury to become permanent.
Importantly, plaintiffs argued that the nature of Dr. Remington’s alleged negligence provided no basis for Brewer or her counsel to suspect Dr. Remington had breached the standard of care and contributed to the plaintiff’s neurological injury.
The California law in question is Section 340.5 of the Code of Civil Procedure, which imposes a one-year limit to bring a lawsuit against a healthcare practitioner when a plaintiff suspects or has reason to suspect that her injury was caused by wrongdoing. The Brewers’ argument is that prior to getting an expert opinion, Ms. Brewer and her counsel had no suspicion of wrongdoing by Dr. Remington. Once they received the expert’s report, they added Dr. Remington’s name immediately.
Dr. Remington in turn argued that it is the suspicion that someone was negligent that commences the statute of limitations and triggers the plaintiff’s duty to investigate — not when the plaintiff discovered precisely how a defendant was negligent.
In considering the motion for summary judgment, the judge at the trial court level said that whether Ms. Brewer should or should not have suspected negligence prior to getting the expert opinion is a factual issue (which cannot be decided by a judge via summary judgment) and not a legal issue (which can). When the case reached the Central California Court of Appeal in Brewer v. Benjamin Remington, the appellate court explained how the courts view such a distinction: “[W]henever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law.” But because there could be more than one reasonable conclusion on the plaintiff not suspecting within a year of his treatment that Dr. Remington caused her injury, the Court of Appeal supported the trial court’s determination that there were factual issues to be decided.
“Remington argues Judith’s statue-commencing injury was her paralysis and loss of sensation during and after his medical care, which was apparent and appreciable throughout his treatment of her as well as after the spinal decompression surgery. Plaintiffs argue Judith suffered a second injury by Remington’s delay of the spinal injury, and it is a factual issue whether there was any appreciable harm plaintiffs should have discovered prior to July 2015 from which they reasonably should have suspected Remington had done something wrong. We agree with plaintiffs.”