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Gray v. Tri-City Medical Center2/20/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this action for relief from an order denying a petition to file a late claim, Jason Gray and Christine Gray (Gray) sought to file a late claim for medical malpractice against Tri-City Medical Center (Tri-City). (Gov. Code, § 946.6, subd. (c).) In August 1995, plaintiff and appellant Jason Gray had an appendectomy at Tri-City, a government entity. Almost three years later, he felt back pain and went to Scripps Hospital where an x-ray revealed a metallic ring in his abdomen. He had further tests at that time (August-September 1998), but the location of the ring was still uncertain. Fifteen months later he underwent a colonoscopy, which showed the ring was in the surgical site.
In January 2000, Gray presented a government tort claim to Tri-City, which was denied as untimely. He applied for leave to file a late claim, which Tri-City also denied. (§§ 911.2, 911.4.)
Gray then brought this petition for an order seeking relief from the claim presentation requirement. The superior court denied the petition and he appeals. As we will explain, we agree that under the discovery rule, the claim was not timely and the order was properly denied. (Code Civ. Proc., § 340.5)
DISCUSSION
I. FACTUAL AND PROCEDURAL BACKGROUND
Dr. Andrew Deemer of Tri-City performed an appendectomy on Gray on August 7, 1995. On August 3, 1998, Gray went to Scripps Clinic because of lower back pain, and Dr. Michele Carpenter treated him. An x-ray revealed the presence of an oval-shaped metal ring in his right lower abdomen, but was indeterminate as to whether it was within the small intestine or in the surgical site of the appendectomy. Carpenter told him the ring might be something he swallowed as a child and that doctors did not normally make such mistakes. Carpenter spoke to Deemer, the surgeon, and he denied using rings attached to laparotomy pads.
In September of 1998, Gray had a barium study CT scan which was also inconclusive as to the precise location of the ring. Gray was told that a colonoscopy would determine the exact location. Further, he was told that if the ring was in the small intestine, then the consequences would have to be discussed, but that if it was not, it could be left alone.
In December of 1999, more than a year later, Gray had a colonoscopy that confirmed the ring was in the surgical site.
Gray filed a claim pursuant to section 911.2 against Tri-City for medical negligence and negligence on January 5, 2000. Christine Gray sought loss of consortium damages. It was denied for being untimely on February 16, 2000. Gray then applied under section 911.4 for leave to file a late claim on March 15, 2000. His application was denied on April 28, 2000. Next, on October 23, 2000, Gray petitioned the trial court pursuant to section 946.6 for relief from the provisions of section 945.4. The petition was denied and Gray appeals the order.
II. APPLICABLE STANDARD
We review the trial court's denial of the order under an abuse of discretion standard. "The determination of the trial court in granting or denying a petition for relief under section 946.6 will not be disturbed on appeal except for an abuse of discretion. [Citation.] Abuse of discretion is shown where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relie
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