Robert F. Timmel v. Gene Moss and College Hospital, Inc.
803 F.2d 519
9th Cir.
1986
Check Treatment

*2 CANBY, Before REINHARDT and NOONAN, JR., JOHN Judges. T. Circuit CANBY, Judge: Circuit appeals Robert F. Timmel grant from the judgment of summary of favor defend- ants. The district court that his medi- held malpractice cal action ap- is barred plicable of statute limitations. We reverse and remand. 1979, appellant diagnosed was as hav- psychiatric Appellant’s disorder. required

work him frequently; to relocate he was treated several hospitalized in different institutions on early occasions between 1979 and During period appellant was drugs, neuroleptic including treated with Trilafon. April 1982, March after Trilafon, developed

was taken off he neuro- logical symptoms diagnosed as having dyskinesia. Appellant sub- sequently dyskine- learned that his tardive long-term sia was the result of treatment neuroleptic Trilafon, drugs, including with and that the condition was irreversible. On appellant filed a diversity alleging Dr. that Moss and College Hospital negligently provided psychiatric care and treatment to him inappropriate neuroleptic drugs use of by failing dys- to advise him that tardive potential kinesia is effect of side such drugs. granted The district court summa- ry judgment College to Dr. Moss and Hos- pital, holding appellant’s complaint plaintiff learns of the statute of the time the cause by the California barred injury, and not at the time he applicable malpractice ac- his becomes limitations any part Procedure aware of on the tions, Code Civil California physician provider.” or health care We 340.5. that, applicable conclude under granting summary order review an We applied authority, the district court an im- Corp. novo. judgment de Fruehauf *3 assessing in proper standard whether the America, Exchange Assurance Royal of one-year begun statute of limitations had 1168, (9th Cir.1983). F.2d 1171 We 704 appellant’s malpractice to run on medical applied by same standard as that apply the claim.1 grant of district court and will affirm a the summary judgment “only appears if it interpret The California courts “in record, viewing after all evidence from the 340.5, jury,” in as it is used section to mean light in most and factual inferences the physical injury the negligent both and its appellant, to the that there are favorable 892, Mofid, cause. v. 39 Gutierrez Cal.3d material fact and that genuine no issues of 896, 886, 888, 313, Cal.Rptr. 705 P.2d 218 appellee prevail is entitled to as a mat- the 315, (1985); v. Hoover Sanchez South Hos Phoenix, Heiniger City ter of law.” 93, 96-97, 1129, pital, 18 Cal.3d 553 P.2d of (9th Cir.1980). 842, F.2d 843-44 We 625 1132, 657, (1976). “Thus, Cal.Rptr. 132 660 of state de review issues law novo. Matter knows, patient once a or reasonable (9th Cir.1984). McLinn, 739 F.2d 1395 known, diligence of should have that he has through professional negli been harmed Code of Civil Procedure sec- year bring gence, he has one to his suit.” provides: tion 340.5 896, Gutierrez, 39 Cal.3d at 705 P.2d at against a injury In an action for or death 888, added). Cal.Rptr. (emphasis 218 provider, upon such health care based extent, therefore, To the that the district negligence, person’s alleged professional required court actual or constructive notice of the time for the commencement cause, only of the rather than the negli years three after the date of shall be cause, gent injury, of the it erred. The injury year plaintiff or one after the dis- plaintiff must aware of be sufficient covers, through the use of reasonable or facts person inquiry put to a reasonable on discovered, diligence the in- should have injury; the cause of the In jury, whichever occurs first. no event not, however, plaintiff need be aware that legal of shall the time for commencement cause of action exists before the years unless tolled action exceed run. statute of limitations to Id. at (1) following: upon proof any for of the 897-98, 889, Cal.Rptr. 705 P.2d at 218 at concealment, fraud, (2) intentional or of 316;2 Hansen, Cal.App.3d 128 Graham v. (3) presence foreign body, of a which the (1982). Cal.Rptr. 180 609 therapeutic diagnostic purpose has no or effect, person injured in the of the the cause of action Where was be person. discovered, latedly the issue whether the 340.5, diligence is a plaintiff the district exercised reasonable applying Graham, 128 stated, question Cal.App.3d of fact. “A claim for relief court 180 Cal.Rptr.at 609. Id. “The test provider accrues at physician or health care dyskinesia an Appellant’s tardive was tentative- ful cause. The issue was whether attor- 1. ly diagnosed April prevent- con- ney's in March or 1982 and advice that no claim existed July hospitalization firmed after in running. majority ed limitations from A of Therefore, action, his filed 1982. Supreme the California Court held that it year limita- falls within the three case, however, our did not. The issue in period. tions plaintiff is whether had notice of facts suffi- inquiry negli- put cient to him on holding regard We do not 2. Gutierrez gent injury of his more than one cause today. with our decision to be inconsistent year prior to the institution of his suit. Gutierrez, clearly plaintiff aware of wrong- showing injury both and its facts 522 plaintiff

is whether the has information of he appellant “many told he times” that put sufficient to a reason previous should have circumstances been warned his person inquiry opportu able on or has (10) dyskinesia. about nity knowledge from sources obtain During February appellant began open investigation.” (quot her to his or Id. treatment with Lithium. the summer Weinberg, Cal.App.3d 97 McGee v. of appel- the Lithium had controlled (1979)). The Cal.Rptr. 86 reason psychiatric (11) symptoms. Appel- lant’s delayed discovery presents a ableness of a lant asserts affidavit that the first time question only “when the evidence law he became psychiatrists may aware his beyond dispute plain establishes May have made a mistake was bring tiff has failed to the action within one evidence; therefore, consists con- year its after notice of existence.” Gra flicting testimony and affidavits about ham, Cal.App.3d Cal.Rptr. when reasonably should have be- at 608-09. *4 come aware that he should have been Viewing in light the evidence a most warned potentially the devastating about appellant, favorable to we conclude that side effects of undisputed Trilafon. It is the in granting district court erred summa appellant was advised that the tardive ry judgment to defendants. The evidence dyskinesia might temporary be a condition (1) Appellant indicates by that: was treated symptoms successfully that his were physicians numerous in different cities with Thus, controlled Lithium. the evidence drugs. (2) Trilafon or related He was told “beyond dispute” does not establish necessary that this medication was to con appellant late 1982 was aware that his con- psychiatric episodes. (3) trol his In Octo negligent dition was due to his possibly 1981, ber Dr. Moss forbade him to follow treatment with A question Trilafon. suggestion the subsequent psychiatrist of a fact also exists as appellant to whether that he take Lithium instead of Trilafon. diligence exercised reasonable in discover- (4)After appellant daily dosag discontinued injury his allegedly negligent and its Trilafon, es of he developed dys cause. (5) appellant kinesia. After discontinued Trilafon, given he was brief courses of REVERSED AND REMANDED. neuroleptic another drug when he suffered psychiatric episode. (6) Although appel NOONAN, Judge, dissenting: Circuit dyskinesia lant’s tardive tentatively di agnosed soon after he discontinued Tri the Supreme Court of California has lafon, he was dys advised that the tardive stated: might kinesia resolve itself in six months to ... the uniform California rule is that a year (7) years. Appellant’s or two tar- period limitations dependent on discovery dyskinesia dive was confirmed during a of the cause of action to run no hospitalization in during June which later plaintiff learns, than the time the given he was pamphlet dys on tardive learned, should have the essential facts (8) kinesia to read. At deposition, his Dr. to his claim. Gutierrez v. Mofid, 218 Tarantolo, appellant’s treating psychiatrist Cal.Rptr. 313 at 39 Cal.3d February from through or March 1982 ear (1985)(italics 705 P.2d in ly during testified that a session on original). 16, 1982, appellant November indicated citing After earlier cases to the same ef- that he considering suing previous his fect, Supreme the Court of California affidavit, subsequent doctors. Dr. a. states: Tarantolo described this incident as an ex pression by plaintiff ignorant It is irrelevant that generalized is his anger (9) legal remedy at his overall of his or the condition. theories With regard to the underlying November session his cause of action. Id. at appellant, with 316; 898; Dr. Tarantolo testified that 39 Cal.3d at 705 P.2d at 889. present In the case psychiatrists Robert F. Timmel ber 1982 that his earlier Joseph in 1982 Dr. was treated Taranto- dangers should him have warned about the Psychiatric the Institute of lo of Wash- drug they prescribed. had If such ington, In March of D.C. 1982 Dr. Taran- warning did not make Timmel suspect he diagnosed dys- tolo his condition as tardive case, had a job? what would have done the probably long kinesia and its cause as the Not, however, January until 1984 was term use of Trilafon. On November brought. Timmel’s suit that date the 1982 Timmel told Tarantolo that he was period Statute had run. The in which to considering legal prior his bring “inexorably” suit had expired. Id. psychiatrists they due to his belief that 39 Cal.3d at 705 P.2d at 892. negligently failed to inform him that tar- If this court were free to determine the dyskinesia dive was a risk of the extended Statute of Limitations as a matter of social use of Trilafon. Tarantolo him advised policy, there are those who would think it lawyer. consult a At point this Timmel enlightened longer to have a statute than learned “or should have learned” the facts year. one many There are others who essential to his claim. nothing would see enlightened in leaving Gutierrez plaintiff suspected physicians conscientious surgeon something wrong” had “done long period vulnerable for a to the dissat- hospital when she left in December complaints isfied they of those had tried to One doctor 1979 advised help. But this court is not free up to make sue, her to in February another told period its own of limitations. We are her she had had surgery.” “too much At *5 Guaranty bound Trust California law. point she was on constructive notice York, Co. v. 326 U.S. 65 S.Ct. had, prescribes, as statute itself “a (1945). L.Ed. 2079 disregards The court inquiry.” Id. duty diligent 316; the controlling controlling statute and the 897; Cal.3d at 705 P.2d at 889. In our case California cases. after Dr. Tarantolo had told Timmel his problem and its cause and Timmel had rec-

ognized involved, Tim-

mel was a duty diligent under similar inquiry. I any significant am to see unable LORBER INDUSTRIES OF CALIFOR- difference between Tarantolo’s advice and NIA, corporation, Plaintiff/Appellee, given by the advice in Gu- physician sue, tierrez advice which even the dis- Gutierrez thought

sent in enough to LOS ANGELES PRINTWORKS CORPO- running start the of the Statute if an attor- RATION, corporation, Defendant, ney suit. Id. had not then advised 321; 39 Cal.3d at 705 P.2d at 894 (per Bird, C.J.). Fabrics, corporation, Mark only November Timmel not Defendant/Appellant. facts; knowledge he was aware knowledge that to make his 86-5560, effective he Nos. 86-5561. would need assistance. As the Su- United States Appeals, Court of preme it, Court of put the Stat- Ninth Circuit. ute to run when “one has suffered suspects appreciable harm and knows or Sept. Submitted 1986*. professional blundering is its cause Decided Oct. ____” Id. (italics supplied); opin- Cal.3d at 705 P.2d at 894. The acknowledges

ion of the court that Taran- “many

tolo told Timmel times” on Novem- * appropriate for submis- 34(a) App.P. case 3(f). this panel finds and 9th Cir. R. Fed.R. pursuant to argument oral sion without