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Photias v. Doerfler5/22/1996
SPENCER, P. J.
INTRODUCTION
Plaintiff Gregg Photias appeals from a summary judgment entered in favor of defendant Warren T. Doerfler, M.D., after the trial court found that plaintiff's cause of action was barred by the statute of limitations.
PROCEDURAL AND FACTUAL BACKGROUND
In 1971, when plaintiff was approximately six months old, defendant noted that plaintiff's right testicle was "high" and his left testicle was "not palpable." The condition continued through 1975, during which period defendant provided plaintiff's general medical care and treatment. Defendant saw plaintiff only once after 1975 or 1976; he treated him for a skin rash on July 10, 1984.
Plaintiff applied for part-time employment at Antelope Valley Hospital Medical Center in December 1988. A preemployment physical examination revealed that plaintiff's testicles had not descended. As a consequence, plaintiff had a bilateral orchiopexy on March 13, 1989, to place the testicles within the scrotum. Following the surgery, plaintiff's semen was tested. He learned he was sterile.
Plaintiff notified defendant of his intent to sue on February 2, 1990. The instant complaint was filed on May 1, 1990. It alleges that defendant was negligent in failing to treat or remedy his undescended testicles.
CONTENTION
Plaintiff contends the trial court erred in granting summary judgment, in that considering plaintiff's cause of action to have accrued under Code of Civil Procedure section 340.5 on the date of the wrongful act denies him equal protection of the law. For the reasons set forth below, we agree.
Discussion
The Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution guarantee all persons equal protection of the law. The guarantee "require that, at a minimum, 'persons similarly situated with respect to the legitimate purpose of the law receive like treatment.' [Citations.]" ( Brown v. Merlo (1973) 8 Cal. 3d 855, 861 [106 Cal. Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505].) A legislative classification therefore " ' "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." ' [Citations.]" (Ibid., italics omitted.) The classification " 'must involve something more than mere characteristics which will serve to divide or identify the class. There must be inherent differences in situation related to the subject-matter of the legislation . . . .' [Citation.]" ( Young v. Haines (1986) 41 Cal. 3d 883, 900 [226 Cal. Rptr. 547, 718 P.2d 909].)
As amended in 1975, Code of Civil Procedure section 340.5 is part of the Medical Injury Compensation Reform Act (MICRA) (Stats. 1975, Second Ex. Sess., 1975-1976, ch. 2, § 12.5, p. 4007). The amended statute reduces the maximum limitations period for medical malpractice actions from four years to three years after the date of injury ; this period is tolled only for fraud, intentional concealment, or the presence of nontherapeutic and nondiagnostic foreign bodies. (Code Civ. Proc., § 340.5; Young v. Haines, (supra) , 41 Cal. 3d at p. 893.) With respect to minors, the limitations period is tolled "for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence." (Code Civ. Proc., § 340.5.) Otherwise, an action must be brought within three years from the date of the wrongful act or by the minor's eighth birthday, whi
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