Kaplan v. MAMELAK
162 Cal.App.4th 637, 75 Cal. Rptr. 3d 861, 2008 Cal. App. LEXIS 631 (2008)
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Rule of Law:
General statutory tolling provisions, such as for a defendant's absence from the state, apply to the one-year discovery period for medical malpractice claims. Furthermore, whether a surgery on a wrong but nearby body part constitutes a battery, by being a 'substantially different procedure' from the one consented to, is a question of fact for the jury.
Facts:
- Larry Kaplan suffered from pain caused by a herniated disk at T8-9 in his spine and sought treatment from neurosurgeon Dr. Adam Mamelak.
- In July 2002, Dr. Mamelak performed surgery on Kaplan but mistakenly operated on spinal disks T6-7 and T7-8, not the correct T8-9 disk.
- Kaplan's pain persisted post-surgery, and a subsequent MRI revealed that the herniation at T8-9 remained because the wrong disks had been operated on.
- On September 11, 2002, Dr. Mamelak informed Kaplan of the surgical error.
- Dr. Mamelak performed a second surgery on Kaplan in September 2002, but again operated on the wrong disk.
- Kaplan subsequently underwent a third, successful surgery with a different neurosurgeon but was left with lingering pain and limited mobility.
- Kaplan's consent form for the initial surgery specified permission to operate only on disk T8-9.
Procedural Posture:
- Larry Kaplan sued Dr. Adam Mamelak in trial court for medical malpractice and battery.
- The trial court sustained Dr. Mamelak's demurrer to the battery causes of action, dismissing them for failure to state a claim.
- During pretrial discovery on the malpractice claim, the trial court denied Kaplan's motion to compel discovery regarding Dr. Mamelak's absences from California.
- The trial court granted Dr. Mamelak's motion to bifurcate the trial, proceeding first on the statute of limitations affirmative defense.
- A jury returned a special verdict finding that Kaplan was on notice of Dr. Mamelak's wrongdoing as of September 11, 2002.
- Based on the jury's finding and its prior ruling that the statute of limitations could not be tolled for the defendant's absence, the trial court entered judgment for Dr. Mamelak.
- Kaplan, as appellant, appealed the judgment to the California Court of Appeal.
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Issue:
1. Does California Code of Civil Procedure § 351, which tolls statutes of limitations while a defendant is absent from the state, apply to the one-year statute of limitations for medical malpractice claims? 2. Is a surgeon's operation on the wrong spinal disk, when consent was given for a specific disk, a 'substantially different procedure' that may constitute a battery, creating a question of fact for the jury rather than a matter of law to be decided on demurrer?
Opinions:
Majority - Rubin, J.
1. Yes, the general statutory provision tolling the statute of limitations for a defendant's absence from the state applies to the one-year statute of limitations for medical malpractice. The court followed the California Supreme Court's analysis in Belton v. Bowers Ambulance Service, which distinguished between the Medical Injury Compensation Reform Act's (MICRA) two limitations periods under § 340.5. The three-year absolute 'outside' limit can only be tolled by the three exceptions explicitly listed in the statute (fraud, intentional concealment, foreign object). However, because the one-year 'inside' discovery limit contains no such list of exclusive exceptions, general tolling provisions, including § 351 for absence from the state, apply to it. The trial court's reliance on contrary dicta in Hanooka v. Pivko was error, as that case predated and contradicts the binding precedent of Belton. 2. Yes, whether a wrong-site surgery constitutes a battery is a question of fact for the jury. A medical battery occurs when a physician performs a 'substantially different treatment' from that to which the patient consented. While consent may implicitly cover inherent, undisclosed risks of a procedure, it does not extend to an entirely different operation. Operating on disks T6-7 and T7-8 when consent was explicitly limited to T8-9 could be found by a jury to be a 'substantially different procedure.' Given the lack of a definitive legal standard, the determination is a factual one that cannot be resolved on demurrer and requires evidence, including expert testimony, for a fact-finder to decide.
Analysis:
This case solidifies the precedent set by Belton, clarifying that California's general tolling statutes apply to the one-year discovery period in medical malpractice cases, thereby increasing flexibility for plaintiffs. By distinguishing the one-year 'inside' limit from the rigid three-year 'outside' limit, the court reinforces a bifurcated approach to timeliness in MICRA cases. The decision's holding on the battery claim is also significant, as it prevents trial courts from dismissing wrong-site surgery claims as mere negligence at the pleading stage. This empowers juries to decide the factual question of whether such a deviation from consent is 'substantially different,' potentially exposing surgeons to liability for the intentional tort of battery in addition to negligence.
