Metropolitan News-Enterprise


Monday, March 4, 2019


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Court of Appeal:

Patient’s Fretting Not Akin to Knowledge of Malpractice

Opinion Reverses Summary Judgment in Favor of Defendants, Saying That Patient’s Apprehension While in Hospital Could Be Attributable to Concern Over His Medical Condition


By a MetNews Staff Writer


A man who experienced apprehension while under hospitalization was not necessarily on notice as to possible malpractice, thus triggering a one-year statute of limitation, the Court of Appeal for this district has held, reversing summary judgment in favor of a hospital, a medical group, and a treating physician.

Los Angeles Superior Court Judge Gregory J. Weingart wrote the opinion, sitting on assignment to Div. One. The opinion, filed Thursday and not certified for publication, reverses summary judgments granted by Los Angeles Superior Court Judge Malcolm Mackey to defendants California Hospital Medical Center, White Memorial Medical Group, Inc., and neurologist Antonio K. Liu.

The plaintiff, Noe Abarca, was brought to California Hospital in the South Park area of downtown Los Angeles at about 9 a.m. on June 22, 2014, suffering from weakness and numbness on the right side of his body. Liu decided not to administer a tissue plasminogen activator (“tPA”), which dissolves blood clots to improve blood flow to the brain.

Patient Suffered Stroke

Abarca had a stroke at about 5 a.m. on June 24, from which the right side of his body remains paralyzed.

Liu did not show up until about noon. At his deposition, Abarca testified that he “felt very bad” that “nobody showed up” for seven hours.

A malpractice suit was not brought until Feb. 17, 2016. At issue was whether it was time-barred under Code of Civil Procedure §340.5 which provides that in such actions, “the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence could have discovered, the injury, whichever occurs first.”

Mackey’s View

In granting summary judgment on July 19, 2017, Mackey said:

“The Court having read and considered all the pleadings and the arguments of counsel, the Motion is granted….Regarding the Statute of Limitations, the moving separate statement adequately references evidence to shift the burden of proof, regarding whether plaintiff should have known of the alleged malpractice, whereas the opposing separate statement just ineffectively references a demurrer to the complaint….

“Parties cannot rely upon their own unverified, or verified, pleadings, as proof in support of, or in opposition to, a motion for summary judgment….”

Weingart’s Opinion

Explaining the reversal, Weingart recounted the facts, and observed that when Abarca experienced a stroke, his health “took a turn for the worse.” He wrote:

Abarca, like anyone else would in such a position, felt desperate and that his life was in danger. He was worried about what was going to happen to him, and when a doctor would arrive to see if something could be done. When the condition progressed faster and the doctor still was not there, he felt bad.

“It is possible to read Abarca’s statements, as defendants argue (and the trial court found), as indicating Abarca was sufficiently concerned about the delay in his treatment to suspect wrongdoing. Given our obligation to consider the testimony in the light most favorable to Abarca, it is equally if not more plausible to read those statements not as suspicions of wrongdoing but as the natural response when experiencing a medical emergency—fear and concern over one’s well-being, and desperation for a doctor to make it better. When the inferences to be drawn from certain evidence are ambiguous, as they are here, summary judgment is not appropriate.”

Issue of Agency

Mackey also found that Abarca, who had limited proficiency in the English language, commissioned his daughter, who is English-speaking, to act as his agent in dealing with the hospital staff. In that capacity, she learned that administering a tPA was no longer an alternative because too much time had past, putting her on notice of possible malpractice.

California Hospital pointed to this portion of Abarca’s deposition:

“Q [Your daughter] speaks English?

“A Yes.

“Q Would she do most of the talking to the doctors and nurses?

“A Yes.

“Q And did you want her to speak to them on your behalf?

“A Yes.”

Insufficient Showing

Weingart declared:

“This evidence was an insufficient basis from which to find the type of agency claimed by California Hospital. When considered in the light most favorable to Abarca, and resolving doubts in his favor as the party opposing summary judgment, the existence of an agency relationship is not the only inference that can be drawn from this brief deposition exchange. Rather, the more reasonable inference is that given Abarca’s limited English language skills and the hospital staff’s limited Spanish language skills, he wanted his daughter to translate for him.”

The case is Abarca v. California Hospital Medical Center, Inc., B285197.


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