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Hutson v. Westphal3/26/2003
Plaintiff Charles Hutson challenges summary judgments based on the statute of limitations in Hutson's medical malpractice action against various healthcare providers. The defendants are Jay Westphal, M.D., Carlo Z. Biscaro, M.D., Franklin B. Grossman, M.D., and U. S. Healthworks Medical Group (USHW). Hutson contends there are triable issues of fact regarding delayed discovery of his cause of action. We disagree and affirm the judgments.
FACTS
On October 12, 1998, plaintiff fell from a ladder while at work. The next day, Westphal examined him at USHW, where X-rays were taken and interpreted by Grossman as negative for fractures. Diagnosed with contusions of the ribs, finger, thumb and right knee and superficial injury to the hand, plaintiff was given a knee support and conservative care.
After two visits at USHW, plaintiff was referred to Biscaro, an orthopedist. At the initial consultation, plaintiff complained of "pain in the right calf and over the anterior aspect of the right knee." Biscaro's diagnosis was prepatellar tendon bursitis post trauma with possible injury to the patellar tendon and possible tear of the lateral meniscus of the right knee. Biscaro ordered magnetic resonance imaging (MRI), which was performed on November 12. The MRI procedure revealed, for the first time, a "vertical fracture through the medial third of the patella." Plaintiff claims he was not informed of the fracture. He was still complaining of pain when he returned to Biscaro's office for reevaluation on November 30. Biscaro advised him to wait until the patella had healed before making any further decisions regarding treatment to his knee and to return in one month for a follow-up visit. However, because plaintiff remained symptomatic and believed the physicians thus far were "not doing anything for ," he did not return to Biscaro, but instead retained an attorney who requested that he see Nick Sharma, M.D.
On January 15, 1999, Sharma told plaintiff he had a fractured kneecap. Sharma criticized the previous healthcare providers, saying he "thought something should have been done . . . ." He advised plaintiff he did "not think it a good idea to do an interdiction on this fracture," and said plaintiff's "hip pain likely to be only on a temporary basis" and would probably disappear with physical therapy. However, Sharma concluded, the knee pain was "always going to be a major source of symptomatology . . . . "
Sharma, who is not a defendant in the action, ordered an eight-month course of physical therapy for plaintiff from January to August 1999. Upon completing that program, plaintiff began treating with John Freeman, M.D. Sometime between August 24 and October 7, Freeman told plaintiff he "should have had treatment on knee sooner," the fractured bone had failed to heal completely, and the nonunion had caused him additional injury.
On January 13, 2000, pursuant to Code of Civil Procedure section 364, plaintiff served defendants with written notice of his intent to sue. On April 24, he filed his complaint alleging medical malpractice from October 12, 1998 to January 15, 1999. Specifically, plaintiff alleged defendants negligently and carelessly failed to advise plaintiff of the fracture and provide immediate appropriate treatment and procedures. Defendants claimed a statute of limitations defense, asserting that under the one-year provision of section 340.5, and the extension provided in section 364, plaintiff's last day to file his complaint would have been April 14, 2000. Thus, they alleged, the April 24 complaint was untimely.
The court resolved the issue in defendants' favor on their respective motions for summary judgment.
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