Metropolitan News-Enterprise


Wednesday, November 2, 2016


Page 1


C.A. Clarifies Statute of Limitations in Misdiagnosis Cases




The time in which a patient may sue for medical malpractice based on misdiagnosis does not begin to run until the patient suffers harm resulting from the misdiagnosis, the Court of Appeal for this district has ruled.

Div. Seven Monday reinstated Steve B. Drexler’s claim against two doctors affiliated with HealthCare Partners Medical Group. He claims that the two, his primary care physician and a neurologist, misdiagnosed the cause of his headaches.

When an emergency room doctor correctly diagnosed a brain tumor as the cause of the headaches, according to the complaint, Drexler needed emergency surgery, and—because the tumor had grown—surgeons had to remove Drexler’s cranial nerves, causing loss of vision in one eye, deafness in one ear, and other difficulties.

The defendants moved for summary judgment based on Code of Civil Procedure §340.5, which requires that a medical malpractice action be brought within three years of injury or one year after the plaintiff discovered, or should have discovered, the injury.

Multiple Visits

Evidence presented with respect to the motion indicated that Drexler was seen several times by the primary care physician, Dr. David Petersen, between December 2006 and November 2007, complaining about headaches. The doctor described them as tension headaches and prescribed pain medication and physical therapy.

In November 2009, he complained of severe neck and head pain, and the doctor again prescribed pain medication and physical therapy, and also advised chiropractic treatment and acupuncture.

In February 2010, he consulted the neurologist, Dr. Craig German, who diagnosed carpal tunnel syndrome, in addition to a “tension-type headache,” and prescribed various medications, and recommended wearing wrist splints at night. He saw Peterson several times after that, the last time in January 2011.

In May 2010, Peterson referred him to Dr. Imad Rasool, a pain management specialist who conducted a neck MRI and said Drexler had “multi-level disk disease.”

He appeared at Olive View Medical Center in January 2013 complaining of various symptoms he had experienced over the previous three months. A brain MRI resulted in the discovery of a large tumor, known as a meningioma.

The tumor was removed that month, and Drexler sued in July of that year. He testified in his deposition that he had trusted in Peterson, and that “when we got the second opinion by Dr. German…and then to see Dr. Rasool, I thought I was being taken care of.”

Summary Judgment

Los Angeles Superior Court Judge Gregory Keosian granted summary judgment for the defendants. He ruled that the plaintiff had a suspicion of wrongdoing when he last saw Peterson, and was thus required to sue within a year of that date.

He also ruled that the claim against the neurologist was untimely because it was not filed within three years of the date the doctor allegedly failed to diagnose his brain tumor.

The Court of Appeal, however, said Drexler had sufficient evidence to take to a jury on his allegation that he discovered the injury less than a year before he filed suit.

Justice John Segal explained that a medical malpractice plaintiff suffers “injury,” within the meaning of §340.5, when he suffers “appreciable harm.”

The Ninth U.S. Circuit Court of Appeals, he noted, in cases brought under the Federal Tort Claims Act, has held that if a doctor has failed to diagnose a preexisting, hidden condition, the plaintiff suffers injury for statute of limitations purposes only when he becomes aware, or should have become aware, that the condition has become more serious.

“We conclude that a standard similar to the standard articulated in [those cases]  should apply to section 340.5 for claims involving failure to diagnose or treat a preexisting condition….[T]he plaintiff in such a case may discover the injury when the undiagnosed condition develops into a more serious condition, but before it causes the ultimate harm….With the worsening of the plaintiff’s condition, or an increase in or appearance of significant new symptoms, the plaintiff with a preexisting condition either actually (subjectively) discovers, or reasonably (objectively) should be aware of, the physical manifestation of his or her injury.”

Applying that standard to Drexler’s claim, the justice wrote:

“At a minimum, Dr. Rasool’s diagnosis of Drexler’s neck pain as ‘multi-level disk disease” and Drexler’s reported improvement under Dr. Rasool’s care create a triable issue of material fact regarding whether Drexler’s neck pain was related to his preexisting condition, and therefore whether it constituted the appreciable harm that would commence the statute of limitations.”

Attorneys on appeal were Michael T. Karikomi of Katchko, Vitiello & Karikomi for the plaintiff and Richard J. Ryan, Jeffrey T. Whitney and Dawn Cushman of Ryan Datomi for the defendants.

The case is Drexler v. Petersen, 16 S.O.S. 5467.


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