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Wheeler v. Castro12/18/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
ORDER
THE COURT
TURNER, P.J.
GRIGNON, J.
On November 24, 2003, this court filed its opinion in this case, reversing the trial court's grant of defendants' demurrer to plaintiffs' complaint for medical malpractice and loss of consortium based on the statute of limitations. On December 8, 2003, defendants filed a petition for rehearing, claiming that this court violated the proscription of Government Code section 68081, which provides: "Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing." The specific issue which defendants maintain that this court based its decision upon without benefit of briefing was when the statute of limitations for medical malpractice, codified in Code of Civil Procedure section 340.5, commenced to run under the facts of this case.
Contrary to defendants' contention on rehearing, each party addressed the issue of the statute of limitations in their briefs on appeal: Defendants argued in section II of their respondents' brief that "plaintiff's claims for negligence, and breach of fiduciary duty, are time-barred." Plaintiff argued that the statute did not bar his claim because "a patient who is not informed about her or his condition by a treating physician may have a cause of action for deceit, negligence, and/or breach of fiduciary relationship between doctors and patients. The statute of limitations claim should be denied because: [plaintiffs] have alleged facts, which if supported by evidence, would be a defense to the [defendants'] statute of limitations claim. The statute of limitations claim should be left to the trial or a motion for summary judgment." This court concluded that plaintiffs' causes of action for medical malpractice and loss of consortium were not time-barred, although not for the reasons proffered by plaintiff. We do not believe that Government Code section 68081 requires an appellate court to solicit additional briefing when the court decides the precise issue presented by the parties, but on grounds not precisely articulated by either party.
In any event, now having the benefit of defendants' views of the deficiencies in our reasoning concerning the application of Code of Civil Procedure section 340.5 to the allegations of the complaint as set forth in the petition for rehearing, we are satisfied that plaintiff's medical malpractice action was timely filed.
The opinion dated November 24, 2003, is modified.
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