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Wheeler v. Castro11/24/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiffs Gordon S. Wheeler (plaintiff) and Gail M. Wheeler appeal the dismissal of their lawsuit against defendants Dan J. Castro, M.D. and Gerald S. Berke, M.D. (together, defendants), following the latters' successful demurrer to plaintiff's first amended complaint based on the statute of limitations. We conclude that the causes of action for medical malpractice and loss of consortium were timely filed, and therefore reverse the judgment of dismissal.
FACTS AND PROCEDURAL HISTORY
The following facts appear in the first amended complaint: At the recommendation of defendants, plaintiff underwent surgery in July 1996 for a chronic sinus problem. A known risk of this surgery, which defendants neither explained nor discussed with plaintiff, is that "the bony tissue adjacent to the cranium is nudged by surgery instruments so that an aperture will result that results in the flow of cerebral spinal fluid from the cranium." Within a few days after the surgery, plaintiff "became aware of dripping from his nose that was not dripping like he had before from time to time when his sinus condition flared up. The dripping was a clear liquid that sometimes accompanied drippings of mucus. Most of the time the new dripping was a steady flow and, worst of all, it had a terrible stench. The smell was so obnoxious that it disrupted his sexual relations with his wife and, in addition, hurt his work to the point where he was embarrassed and found it difficult to speak to customers and fellow employees in person. . . . Accompanying the odor were headaches and sometimes dizziness, which probably resulted from the stench."
When plaintiff complained about the dripping problem to defendants, they "gave him a liquid medication that he used on a daily basis, more than once, to irrigate his nostrils. The medication did not help. He returned to the defendant doctors to again discuss the matter, but the defendant doctors told him to utilize the medication as directed and it would be a short time for the stench problem to dissipate. The stench did not dissipate as the doctors had anticipated." On subsequent visits to address the dripping problem, the defendants "gave plaintiff multiple endoscope examinations in plaintiff's nasal channels to discover the reason for the smelly drainage." The doctors repeatedly told plaintiff "that there was nothing wrong with his nasal passage, that it would take time for the medication he was taking to effect a cure, that he was fortunate because the 1996 surgery was successful, and that some people with his condition would take the medication for a lifetime."
Finally, defendants ordered a CAT scan and MRI, which were performed on November 18, 1998 and December 22, 1998, respectively. After these procedures were completed, Dr. Berke "took himself off the case and abandoned plaintiff."
On January 7, 1999, plaintiff met with Dr. Castro, who "did not say anything to [plaintiff] about the CAT scan or the MRI. The smelly dripping continued, and [plaintiff] told this to Dr. Castro. [Plaintiff] asked Dr. Castro whether something turned up in the MRI or CAT scan that would suggest something could be done to stop the smelly flow, dizziness, and headaches. As seen in Dr. Castro's report of January 7, 1999, Dr. Castro apparently did not read the reports of the MRI and CAT scan. Dr. Castro's report does n
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