Zarum v. Hoag Memorial Hospital CA4/3
G050952
| Cal. Ct. App. | Aug 22, 2016Background
- Decedent Theodore Gunderson was diagnosed with high-grade invasive bladder cancer in Oct 2009 and developed widespread metastatic disease by 2010–2011.
- Gunderson underwent a percutaneous liver biopsy at Hoag on June 24–25, 2011; pathology confirmed metastatic urothelial carcinoma and physicians concluded he was not a candidate for chemotherapy.
- Gunderson entered hospice and died July 31, 2011; autopsy in Oct 2011 confirmed widely metastatic carcinoma.
- Plaintiff (daughter) Lorie Zarum alleged the June 24–25, 2011 biopsy was performed over family objections, violated directives, and caused rapid cancer spread and wrongful death.
- Zarum learned of the biopsy on June 25, 2011 but claims she first suspected negligence after receiving the autopsy report in November 2011; she filed wrongful death medical malpractice suit on June 24, 2013.
- The trial court granted defendants’ summary judgment based on Code of Civil Procedure section 340.5 (statute of limitations), finding Zarum discovered the alleged injury by November 2011 and did not file within the one-year discovery period; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zarum’s malpractice claim is time-barred under CCP § 340.5’s discovery rule | Zarum contends she had three years from the biopsy date or alternatively first discovered negligence in Nov 2011 (autopsy), so her June 2013 filing was timely | Defendants contend the discovery rule began no later than Nov 2011 (when Zarum received the autopsy and suspected negligence), and she failed to file within one year | Held: Discovery rule triggered by Zarum’s actual suspicion upon receiving the autopsy in Nov 2011; suit filed June 2013 was untimely and summary judgment affirmed |
Key Cases Cited
- Jolly v. Eli Lilly & Co., 44 Cal.3d 1103 (discovery rule: limitations begins when plaintiff suspects injury was caused by wrongdoing)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (summary judgment burden shifting standard)
- Guz v. Bechtel Nat. Inc., 24 Cal.4th 317 (consideration of evidence on summary judgment)
- Kitzig v. Nordquist, 81 Cal.App.4th 1384 (discovery rule’s subjective and objective tests)
- Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264 (plaintiff’s burden opposing summary judgment)
- Vebr v. Culp, 241 Cal.App.4th 1044 (standard of review for summary judgment)
- NBCUniversal Media, LLC v. Superior Court, 225 Cal.App.4th 1222 (summary judgment proper when uncontradicted facts show statute has run)