On October 31, 2016, The Court of Appeal of California, Second Appellate District, Division Seven, ordered a reversal in full of the prior judgment in favor of Defendant-Respondent physicians in a medical malpractice case brought by Steve B. Drexler against his former primary care physician, Defendant Dr. David J. Petersen, his former neurologist, Dr. Craig German, and the multi-billion dollar health group who employed both defendant-physicians, Healthcare Partners Medical Group, Inc. The Drexler court stated: When the plaintiff in a medical malpractice action alleges the defendant health care provider misdiagnosed or failed to diagnose a preexisting disease or condition, there is no injury triggering the statute of limitations until the plaintiff first experiences appreciable harm as a result of the misdiagnosis, which is when the plaintiff first becomes aware that a preexisting disease or condition has developed into a more serious one. (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1183-1184.)

Defendant Healthcare Partners Medical Group, Inc. and its doctors are accused of committing medical malpractice for negligently failing to diagnose and misdiagnosing a large tumor in Mr. Drexler’s brain. The evidence presented on appeal showed that beginning in December 2006, Mr. Drexler consulted with defendant David Petersen, M.D. about painful headaches which were waking him up from his sleep. For more than 3 years, from December 2006 – January 2010, Mr. Drexler frequently sought care and treatment from defendant David Petersen, M.D. for his constant headaches. Despite Mr. Drexler’s complaints and requests for an MRI, defendant David Petersen, M.D. told him that he was exaggerating the severity of his headaches and that an “MRI will not add to [your] diagnosis.” Instead of ordering any diagnostic testing, defendant David Petersen, M.D. prescribed a cocktail of pain pills and pain injections.

Defendant Craig German, M.D. was the neurologist accused of committing medical malpractice for refusing to order Mr. Drexler an MRI of his brain and thereby failing to diagnose his brain tumor. Mr. Drexler consulted with defendant Craig German, M.D. with the hope that as a neurologist, he would be able to find a solution to his constant headaches. Instead, defendant Craig German, M.D. did no neuroimaging related to Mr. Drexler’s headaches and told him to continue taking pain medications and begin taking antidepressants. Mr. Drexler was finally referred to a pain management physician, defendant Imad Rasool, M.D., who diagnosed him with multi-level disk disease and injected Mr. Drexler’s neck with pain medication.

As part of his medical malpractice case, Mr. Drexler testified: “I trusted Dr. Petersen knew what he was talking about. Then when we got the second opinion by Dr. German, a neurologist, and then to see Dr. Rasool, I thought I was being taken care of . . . .”  In January 2013, Mr. Drexler went to Olive View Medical Center with the complaints of headaches and new symptoms over the previous 3 months. Mr. Drexler was ultimately diagnosed with a very large brain tumor which was impinging on his brain stem, requiring emergency neurosurgery. On January 31, 2013, the physicians at Olive View Medical Center removed the tumor; however, it is alleged that the delay in diagnosis during the years of defendants’ medical malpractice caused the tumor to grow to such a large size while under Defendants’ “care” that Mr. Drexler suffered serious injuries.

Defendants argued at summary judgment, and on appeal, that the statute of limitations should begin to run, and Mr. Drexler should have brought a law suit, when  his requests for an MRI were not granted and he questioned the defendant-physicians’ diagnosis as he continued to suffer from headaches under their care.

The Drexler court honored the framework established by preexisting California law, and similar cases governing medical malpractice under the Federal Tort Claims Act, to ensure that the law would not impose a burden on patients to rush to the courthouse in the event that they may have misgivings about their physician’s diagnosis.  Adopting defendant-physicians’ dangerously irrational argument would have meant that patients, who have no change in their preexisting condition, could not doubt or question their physicians’ initial diagnosis without filing a lawsuit for medical malpractice within one year or risk losing their rights for legal redress.  It is our position that the Defendants’ interpretation of the statute of limitations for medical malpractice would have spawned an influx of premature and/or meritless medical malpractice lawsuits which would needlessly burden California’s already strained and underbudgeted court system while simultaneously increasing the cost of medical malpractice insurance, and consequently healthcare costs.

Defendant Healthcare Partners Medical Group, Inc. classifies itself as an “Accountable Care Organization” where “healthcare professionals hold themselves responsible for the quality and results each patient gets.” (See Healthcare Partners’ Webpage here).  Yet, in this case not only did defendant Healthcare Partners Medical Group, Inc. and its physicians refuse to order any diagnostic testing for Mr. Drexler’s debilitating headaches, they sought to shield themselves from liability by claiming that Mr. Drexler should be imputed with more medical knowledge than they collectively possessed.

Following the opinion being issued by the California Court of Appeal, Defendants’ sought review and depublication of the Drexler Opinion by the California Supreme Court. Review and the request for depublication were both denied on February 1, 2017.

Attorneys on appeal were Michael T. Karikomi of Katchko, Vitiello & Karikomi, PC 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 (2016) 4 Cal.App.5th 1181.

Read the opinion from the California Court of Appeal here:  http://caselaw.findlaw.com/summary/opinion/ca-court-of-appeal/2016/10/31/277827.html

By:  Michael T. Karikomi, February 14, 2017