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Fuller v. Tucker11/17/2000
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph E. DiLoreto, Judge.
Reversed.
INTRODUCTION
The trial court concluded plaintiff and appellant Annie Fuller (Fuller) did not properly amend her complaint to substitute in defendant and respondent Dr. James Tucker (Dr. Tucker) as a Doe defendant, pursuant to Code of Civil Procedure section 474. We reverse. The trial court used the wrong legal standard in addressing the issue and some of its factual findings are either not supported by the evidence or are irrelevant.
FACTUAL AND PROCEDURAL BACKGROUND
1. Preliminary facts.
On November 13, 1995, Fuller was admitted to Long Beach Memorial Hospital for bladder lift surgery. It appears the surgery corrected the bladder problems. However, during surgery Fuller sustained a significant nerve injury , which eventually paralyzed her right lower extremity. According to Fuller, " hat caused the damage was the operation."
Dr. Tucker was the anesthesiologist who administered an anesthetic during the surgery. Prior to surgery, no one discussed the risks and complications of the anesthesia as articulated in the anesthesia consent form signed by Fuller. Dr. Tucker's name does not appear on the form. Fuller, who is illiterate, did not attempt to read the form. Dr. Tucker's name appears in Fuller's medical records, including a pre-operation anesthetic evaluation form. This form also shows that the day after surgery Dr. Tucker evaluated Fuller's problem with regard to her lower extremity weakness.
Immediately after surgery, Fuller noticed extreme weakness in her right leg. A neurologist opined that the paralysis had been caused by nerve damage. On November 16, 1995, Fuller consulted a second neurologist who thought the weakness might be attributed to right sciatic nerve palsy. The neurologist did not tell Fuller what caused the nerve injury . The neurologist opined that the paralysis had been caused by nerve stretch injury. In December 1995, Fuller underwent an electromyogram which showed "markedly abnormal" results, "demonstrating evidence of diffuse denervation in virtually all muscles tested in the right lower extremity compatible with a right lumbosacral plexopathy." In December 1995, a lumbosacral MRI scan did not clearly identify the problem. The MRI report showed a cystic lesion on the conus, which could represent a tumor. Multiple physicians could not specifically diagnose why Fuller could not walk.
Fuller filed a medical malpractice complaint, which was subsequently amended by a first amended complaint. The first amended complaint alleges, among other things, that defendants were negligent by "improperly injecting plaintiff, by improperly positioning of plaintiff and/or improper injecting of plaintiff during the preparation for and during the actual surgery of plaintiff. . . ." The first amended complaint did not name nor refer to Dr. Tucker.
After the statute of limitations expired, Fuller filed a Doe amendment naming Dr. Tucker as Doe II pursuant to Code of Civil Procedure section 474.
Dr. Tucker answered and alleged as an affirmative defense that Fuller was barred by the medical malpractice statute of limitations (Code Civ. Proc., § 340.5).
After all other defendants were dismissed, Dr. Tucker sought a separate trial on the issue of whether the statute of limitations barred Fuller from bringing the case against him. (Code Civ. Proc., § 597.5.) The motion was granted and both parties waived their right to jury.
2. The bifurcated proceedings.
Dr. Tucker submitted a brief
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