On March 12, 2020 we posted regarding Drexler v. Petersen (2016) 4 Cal.App.5th. 1181 (Drexler), litigated by Partner Michael T. Karikomi. At issue in that case was whether even a strongly developed suspicion of wrongdoing commences the statute of limitations in medical malpractice cases. (Id. at pp. 1196–1198). The Court of Appeal concluded in favor of Plaintiffs, generally, when finding that the statute of limitations did not begin to run even when Steven Drexler developed a suspicion of wrongdoing by the doctors without being linked to further appreciable harm. Drexler was again cited in the unpublished appellate case of Michael Filosa v. Ravi Alagappan et al. (2020) Cal.App.4th Dec. No. A156412 (Filosa).
Briefly, Plaintiff Steven Drexler (“Mr. Drexler”) suffered from severe headaches between 2006 and 2011, which were diagnosed as symptoms due to tension, stress or carpal tunnel. (Drexler at pp. 1184–1186). In 2011, Mr. Drexler was ultimately diagnosed with a brain tumor, the removal of which required severance of cranial nerves, leaving Mr. Drexler with severe, life-long injuries. (Id. at pp. 1184, 1187). Due to the fact that Mr. Drexler testified that he never believed the doctors’ diagnosis, the defendant-doctors argued that Mr. Drexler’s claim was barred by the statute of limitations because his disbelief amounted to a “suspicion of wrongdoing”. (Id. at pp. 1196–1197.)
Similarly, plaintiff Michael Filosa (“Mr. Filosa”) alleged that the defendants in his case failed to diagnose a brain tumor when he underwent an MRI in 2010. Between 2010 and 2014, Mr. Filosa’s headaches intensified and he struggled with stress and anxiety. In 2013 he even asked a doctor whether he might have a brain tumor. Mr. Filosa was diagnosed in 2014 with a brain tumor which caused him damage upon removal. The defendants-doctors argued that Mr. Filosa’s worsening symptoms after the 2010 MRI triggered the statute of limitations and that he was therefore barred from bringing suit three years from that point.
The Appellate Court cited Drexler and focused on the term “injury” and its relationship to both the 1-year medical malpractice statute of limitations and the 3-year statute of limitations. Traditionally, “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 should have discovered, the injury, whichever occurs first.” Code of Civil Procedure section 340.5.
The Court reiterated from Drexler that “injury” refers to a damaging effect and that a damaging effect occurs when appreciable harm is manifested; appreciable harm is manifested when damage has clearly surfaced and is noticeable and that it is only the surfacing of appreciable harm that marks the beginning of the three-year period as well as the one year period. Ultimately, the Court determined that, notwithstanding Mr. Filosa’s intensified headaches, the record contained evidence from which a trier of fact could reasonably infer the increase in symptoms that disrupted Filosa’s life in 2011 was caused by factors other than the tumor. Thus it was not a manifestation of appreciable harm attributable to the tumor, and did not trigger the statute of limitations. The trial court’s grant of summary in favor of the defendants was reversed.
By Katya Zavala, January 28, 2021.