Suit May Proceed Over Long-Delayed Failure to Diagnose Brain Tumor

One of the cornerstones of the Medical Injury Compensation Reform Act (MICRA) is the time barrier after which a suit for medical professional negligence cannot be initiated. The core of MICRA’s statute of limitations provides that a suit must be commenced within “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.” (Fraud, intentional concealment, or the presence of a non-therapeutic foreign body will extend those deadlines.)

While surgical mishaps and other acute events can provide a clear set of facts to determine whether a plaintiff waited too long to file a suit, undiagnosed conditions continue to challenge California’s courts in determining how do deal with a healthcare provider’s defense based on the statute of limitations. A recent case from the Court of Appeal provides a fresh glimpse into applying the law to a patient’s complaint over a long-delayed diagnosis of a brain tumor. The case arises out of a motion for summary judgment, so the facts relied on by the courts are construed in favor of the plaintiff.

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The patient began to complain of headaches in 2004 or 2005 and those headaches became steadily worse over a period of years. He described the headaches as involving a feeling of pressure or constant discomfort — “on a scale of 1 to 10, that was like 5 all the time” and then would “spike up based on acute episodes.” During such an acute episode in 2010, the patient’s doctor ordered an MRI after the patient experienced blind spots, blurry vision, and left eyelid and lip twitching.

The MRI took place in September 2010 and the radiologist interpreting the report, Dr. R, did not detect any abnormalities.

The gentleman’s headaches continued to worsen and between 2010 and 2014 they became “more intense, more debilitating, and more different types,” sometimes involving pulsing, sometimes throbbing, and sometimes sharp pain. In 2011, the patient separated from his wife and assumed full custody of his three daughters. He told his physician that he felt overwhelmed, did not sleep well at night, and had trouble concentrating. Also in 2011, he reported to his physician worsening depression and that he had low energy, had difficulty focusing and concentrating, and that his job performance was poor.

He saw a mental health professional during this time and taking antidepressants brought some relief. Leaves of absence from work in 2011 and 2012 were for depression, stress, and anxiety. The patient described experiencing a “brain fog — [for] lack of [a] better word” and headaches that “were both debilitating as well as scary, such as the feeling of electric shock through my brain or a lightning bolt . . . [and] constant pressure [in my head], like it felt like it was going to explode from physical pressure.”

He received a demotion at work and was given the opportunity to improve his work performance in 2013.

Concerned about his condition, the patient asked a physician around 2013 whether he might have a brain tumor. His doctor dismissed the suggestion, saying nothing in the patient’s blood work indicated he had cancer and that he had already had a negative MRI. The physician instead suggested the symptoms might be caused by the patient’s marital problems and resulting stress.

In 2014, however, the patient's headaches were sometimes incapacitating and his physician referred him to a neurologist. The patient underwent brain imaging in December, with results showing a cyst or tumor of the brain. A re-review of the 2010 MRI then showed a “relatively subtle” mass, which had increased by 2014. The patient underwent surgery to resect the mass, which left adverse physical effects. He served a notice of his intent to bring an action against Dr. R and the imaging group within one year of that surgery and (adhering to another MICRA provision allowing an additional 90 days to initiate actual litigation) filed his lawsuit in early March 2016.

The defendants moved for summary judgment, asking the judge for an immediate dismissal of the suit because of the plaintiff’s delay after the September 2010 MRI. The trial judge granted the defendants’ request, a decision the plaintiff took to the Court of Appeal.

In seeking a summary judgment, a defendant has the initial burden to show undisputed facts to establish an affirmative defense. Once the defendant meets that requirement, the burden shifts to the plaintiff to show a triable issue of material fact regarding the defense. A judge confronted with alternative interpretations of facts must send a matter to a jury to resolve such “factual” disputes. When the facts are uncontroverted, the judge may make a “summary judgment” ruling from the bench as a matter “of law.” As the Court of Appeal in Filosa v. Alagappan, et al. explained: “Although the application of the statute of limitations is normally a question of fact, the question becomes one of law when the evidence is susceptible of only one reasonable conclusion.”

In crafting its decision, the Court of Appeal focused on the date of the patient’s “injury” within the meaning of California law: “The term ‘injury’ for purposes of [the statute] refers to the damaging effects of the alleged wrongful act and not to the act itself. The injury is not necessarily the ultimate harm suffered, but instead occurs at the point which ‘appreciable harm’ is first manifested.

“Because the three-year limitations period accrues at the time of the injury, it is the surfacing of appreciable harm that marks the beginning of the three-year period,” the court explained. For purposes of the one-year period, the Court of Appeal continued, the discovery of the injury means the plaintiff has discovered “both his or her injury and its negligent cause.” The plaintiff “need not be aware of the specific facts or the actual negligent cause of the injury. If the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry notice, the limitation period is activated.”

In beginning its analysis, the Court acknowledged its challenge: “When a plaintiff brings a malpractice action based on the defendant’s failure to diagnose a latent, progressive condition, identification of the ‘injury’ is more difficult than in the common case of a health care provider performing a procedure that causes injury.” Citing to previous case law, the Court set out the template for its decision: “[A] plaintiff discovers the injury when the undiagnosed condition develops into a more serious condition. 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.”

In first addressing whether the three-year statute of limitations barred the patient’s lawsuit, the Court of Appeal said the defendants did not establish undisputed facts to support their position that the patient’s injury occurred in September 2010 — the date when Dr. R failed to notice evidence of a brain tumor on the original MRI: “[T]here was no immediate ‘damaging effect’ apparent on the day [Dr. R] failed to diagnose [plaintiff’s] brain tumor.”

The Court then rejected the defendants’ contention that the plaintiff discovered his injury no later than his first medical leave in July 2011. “The evidence is that [plaintiff] suffered constant and debilitating headaches, including acute episodes, both before and after his MRI in 2010, and that his headaches worsened steadily over the many years he complained of them. But a reasonable trier of fact could conclude that events in the months following [Dr. R’s] failure to diagnose his tumor were not the manifestation of a more serious condition, but merely the continuation of [plaintiff’s] previous condition.”

The court explained that not only did the plaintiff testify that his headaches in 2014 were the same types he had experienced in 2010, but the “record contains evidence from which a trier of fact could reasonably infer the increase in symptoms that disrupted [plaintiff’s] life in 2011 were caused by factors other than the tumor” such has his wife’s serious mental health issues, the end of his marriage, and taking full responsibility for three children. The court also pointed out other symptoms mentioned by the plaintiff plaguing him in 2012 and 2013, including extreme fatigue, eye strain, “brain fog,” an inability to concentrate, and difficulty functioning “at a mental executive capacity.”

“Although a factfinder might ultimately conclude some of these symptoms were effects of the brain tumor and that appreciable harm from the failed diagnosis manifested more than three years before [plaintiff] brought this action, the record does not permit that question to be resolved on summary judgment.”

As for the one-year component of the statute of limitations, the Court of Appeal rejected the defendants’ contention that the plaintiff’s testimony about increasingly severe headaches would have prompted a person of reasonable diligence to discover his brain tumor. In particular, the defendants pointed to the plaintiff’s asking a doctor in 2013 if a brain tumor might account for his conditions. But with plaintiff receiving reassurance from that physician that his blood work and negative MRI history did not indicate cancer, “reasonable minds could easily conclude [plaintiff] did everything within his power to ascertain what, if any, illnesses he had after receiving defendants’ initial diagnosis.”

Significantly, the Court of Appeal then addressed the suspected negligence component of the one-year period: “Nor does the evidence show unambiguously that even if [plaintiff] suspected a tumor, he knew, or reasonably should have known, that his original MRI was negligently misinterpreted.”

Finding that the defendants did not carry their burden to show facts with only “one reasonable conclusion,” the Court of Appeal returned the case for a jury’s determination on the statute of limitations, adding, “We express no view as to what the evidence will show at trial.”

A Note on NSAIDs — We’ve heard from several members regarding May’s "Case of the Month" focusing on a patient’s use of Ibuprofen prior to a cervical epidural steroid injection. The intent of "Case of the Month" is not to offer specific guidance on standard of care, but rather to point out risk management strategies that can reduce patient injuries and increase the chance of prevailing in a medical malpractice suit. Though expert review supported having the patient stop the use of blood-thinning medications prior to the CESI, standards of care can be nuanced and subject to change. The risk management lesson in May was to suggest better coordination between the physician and staff as to what pre-procedure advice should be given to patients. For pain management and other specialties, resources on ever-evolving standards of care include specialty-based literature, specialty society guidance, and other continuing medical education tools.    

Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to gownby@CAPphysicians.com.