AGUSTINA SANCHEZ, Plaintiff and Appellant, v. SOUTH HOOVER HOSPITAL et al., Defendants and Respondents, 18 Cal. 3d 93

Opinion RICHARDSON, J. We. consider the application of the statute of limitations in medical malpractice actions and, particularly, construe

section 340.5 of the Code of Civil Procedure as it read prior to September 24, 1975. That

section then provided that the limitations period for actions founded in medical malpractice was “four 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 first occurs.” The

section further recited that “[t]his time limitation shall be tolled for any period during which [the treating physician or hospital].. . has failed to disclose any act, error, or omission upon which such action is based and which is known or through the use of reasonable diligence should have been known to him.” We will hold that this tolling provision applied only to the four-year and not to the one-year limitations period contained in the statute, concluding, therefore, that the trial court properly found plaintiff’s action barred by the lapse of more than one year between the date when plaintiff either discovered, or “through the use of reasonable diligence” should have discovered, her injury and the date of filing the complaint.

We will thus affirm the summaiy judgment for defendants. Under the professional care and attention of a physician, defendant Pilson, plaintiff entered defendant hospital around March 19 or 20, 1972, for the birth of her child. After a difficult two-day labor, during which plaintiff asserts that she was continuously restrained physically, her baby was stillborn following Pilson’s performance of a Caesarian

section on March 22. Plaintiff remained in the hospital post-surgically until March 30, during which time there was continuous drainage from the Caesarian incision, and plaintiff felt that her wound was not healing properly. On March 30, 1972, she was discharged from the hospital with a high fever, and she recalls that when she stood up, preparatory to leaving, “many things” fell from her wound.

She remembers that a hospital employee, observing her condition at that time, told her, “They have done a mess with you.” Nonetheless, plaintiff never questioned Pilson about his treatment of her, nor did she discuss her condition with the hospital administration, although urged to do so by the employee.

Pilson, when advised of plaintiff’s high temperature on the day of her departure from the hospital, told her to take aspirin and it would “go away.” At this time, plaintiff was suspicious that defendants’ negligence had caused both the stillbirth of her child and her own post-operative complications, and had tentatively decided to sue defendant. Following her discharge plaintiff had no further contact with either defendant. Within two hours after leaving defendant hospital, plaintiff was taken by ambulance to Los Angeles County General Hospital, where she remained convalescent for most of April 1972.

Plaintiff filed her malpractice complaint against Pilson and South Hoover on April 16, 1973. She appeals from a trial court order granting defendants’ motion for

summary judgment, which motion invoked the one-year “discovery” limitations period of

section 340.5. Plaintiff contends that defendants, on their motion for

summary judgment, bore the burden of demonstrating that no triable issue existed as to the running of the statute of limitations. Plaintiff further asserts that defendants did not sustain that burden since their supporting papers failed to negate the possibility that, within one year prior to commencement of the action, defendants had knowingly or negligently failed to disclose the facts on which the complaint is based. The validity of this argument depends at the outset upon the assumption that the statutory tolling provision for nondisclosure set forth in the prior version of

section 340.5 applied to the one-year as well as to the four-year limitations period described therein. We will conclude that this assumption is incorrect. We briefly trace portions of the background of

section 340.5. Prior to the enactment of this statute in 1970, the limitations period for medical malpractice actions was the one-year term generally applicable to actions for personal injury or death, as provided in

section 340, subdivision 3. Since Huysman v. Kirsch (1936) 6 Cal.2d 302, 312 [57 P.2d 908], however, it had been clear that the limitations period did not commence until the plaintiff either (1) actually discovered his injuiy and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence. (See generally Whitfield v. Roth (1974) 10 Cal.3d 874, 885 [112 Cal.Rptr. 540, 519 P.2d 588]; Stafford v. Shultz (1954) 42 Cal.2d 767, 776 [270 P.2d 1]; Mock v.

Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64 [9 Cal.Rptr. 555].) Thus, in many cases, commencement of the statute might be deferred indefinitely. The rationale for this judicially created tolling rule has been variously described. Most frequently the rule was said to spring from the fiduciary and confidential relationship created between physician and patient the effect of which both compelled disclosure by the physician, on the one hand, and diminished the degree of diligence expected of the patient, on the other. (E.g., Stafford v.

Shultz, supra, at pp. 777-778.) Another basis for the rule, originating in workers’ compensation cases, has been the further assumption that, apart from the physician’s disclosure, the patient had few other methods of discovering the nature of his abnormal condition and determining its negligent origin, if any. (E.g., Huysman v. Kirsch, supra, at p. 312.) Thus, it was commonly held that the statute did not run during the period the patient remained in the physician’s care. (Myers v.

Stevenson (1954) 125 Cal.App.2d 399, 401-402 [270 P.2d 885].) This corollary did not apply, however, in those cases in which there was evidence of the patient’s actual discovery of the injury or a failure to discover through lack of due diligence under the circumstances. (Mock v. Santa Monica Hospital, supra, 187 Cal.App.2d 57, 64; Hundley v. St. Francis Hospital (1958) 161 Cal.App.2d 800, 806 [327 P.2d 131, 80 A.L.R.2d 360].) Repeated efforts to modify this “open-ended” discovery doctrine were unavailing until 1970 when

section 340.5 was enacted. (For an amplified discussion of the section’s legislative history, see Comment (1971) 2 Pacific L.J. 663, 669-671, and discussion, post.) The principal technical argument supporting the application of the tolling provision to both four-year and one-year limitations periods is the ambiguity which arises from the inclusion in former

section 340.5 of the cryptic phrase—“[t]his time limitation,” following recitation of both the four- and one-year statutory periods. Literally read, the phrase indeed lends some support to the premise that the one-year period was affected by the special tolling provision for concealment. Another troublesome feature is that the phrase is couched in the singular person and does not expressly refer to a particular antecedent phrase.

These factors suggest a legislative intent either (1) to make no distinction between the two periods in applying the tolling provision or (2) to affect only the period to which the provision is more closely placed within the structure of the statute, namely, the one-year period. However, we are impressed by the fact that to apply the tolling provision to the one-year period would produce a result seemingly at odds with common sense.

Under such a construction, the mere fact of nondisclosure by the physician would suspend indefinitely the period within which plaintiff might elect to bring an action, and this even though the plaintiff (1) had actually discovered the basis of his action by other means, or (2) could have done so by the exercise of reasonable diligence. In effect, not one but two, elements would always be necessary in order to trigger the running of the one-year period: “discovery” (actual or constructive) by the patient and “disclosure” by the doctor— even if the former was, in a particular case, not dependent upon the latter.

The mere statement of the proposition argues against its acceptance. As we have observed, courts have recognized bpth the physician’s fiduciary duty of disclosure, and the frequent interrelationships between discovery and disclosure. The applicable decisional law, however, has rejected any notion that nondisclosure by defendant would toll the statute despite discovery by plaintiff. (Mock v. Santa Monica Hospital, supra, 187 Cal.App.2d 57, 64; Hundley v. St. Francis Hospital, supra, 161 Cal.App.2d 800, 806.) Plaintiff’s construction, accordingly, requires a conclusion that the Legislature in its adoption of former

section 340.5 intended a major overhaul of prior case law. The legislative history of this

section suggests, however, a more modest purpose—that its drafters sought to retain the substance of the common law discovery rule, while modifying its “open-ended” operation. As introduced, Senate Bill No. 362 (1970 Sess.), which ultimately became

section 340.5, employed the language subsequently enacted, except that it contained no tolling provision.

However, interested parties argued that it would be manifestly unfair to apply the four-year limitations period resulting in an absolute cutoff date in those cases in which plaintiff’s failure to discover his cause of action within the statutory period stemmed from the failure of the health care provider to fulfill a fiduciary obligation to disclose errors and omissions. (2 Pacific L.J., supra, at pp. 669-671.) This argument was deemed persuasive and the proposed legislation was amended to provide for tolling in the event of “intentional” nondisclosure.

In response to the urging that injured plaintiffs should not be expected to carry the burden of demonstrating the physician’s intent, further tolling language was added in the form finally adopted. (Id.) The foregoing suggests that the Legislature intended

section 340.5 to effect only limited changes in the prior tolling rule. We are not persuaded by reasoning advanced in support of an alternative

interpretation of

section 340.5. Briefly, this reasoning runs as follows: (1) former

section 340.5 delayed commencement of the one-year limitations period only until the patient’s discovery of his “injury,” regardless of whether negligent cause was also known; (2) this intentional change from prior decisional law served the Legislature’s purpose of easing the effect of the “discovery” rule on malpractice defendants; (3) such a change would, however, operate unfairly against injured plaintiffs unless physicians and hospitals were strongly encouraged to advise their otherwise unaware patients that they had been negligently treated; and (4) the Legislature therefore introduced the sanction of tolling in all cases until the health care provider actually disclosed any errors or omissions.

The legislative history to which we previously have alluded gives no indication that the drafters of

section 340.5 either intended to modify the common law “discovery” rule in the foregoing fashion or to effect such a change by focusing on the term “injury.” In fact, the word “injury” had come to be used in the cases to denote both a person’s physical condition and its “negligent cause.” (E.g., Stafford v. Shultz, supra, 42 Cal.2d at pp. 776-777; Mock v. Santa Monica Hospital, supra, 187 Cal. App.2d at p. 64.) We think that the Legislature in enacting

section 340.5 intended no more than to adopt the prior “discovery” rule, and that the word “injury” retained, in the context used, the broad meaning the courts had previously given to it. Our conclusion as to the legislative purpose of

section 340.5 is reinforced, by analogy, to a well accepted principle in the law of fraudulent concealment. It has long been established that the defendant’s fraud in concealing a cause of action against him tolls the applicable statute of limitations, but only for that period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it. (E.g., Kimball v. Pacific Gas & Elec. Co. (1934) 220 Cal. 203, 210 [30 P.2d 39]; Pashley v. Pacific Elec. Ry.

Co. (1944) 25 Cal.2d 226, 229 [153 P.2d 325].) Notwithstanding a defendant’s continuing efforts to conceal, if plaintiff discovers the claim independently, the limitations period commences. (Id.) This rule has been applied even in those cases in which there was imposed on a defendant a fiduciary duty of disclosure. (See Bowman v.

McPheeters (1947) 77 Cal.App.2d 795, 798, 800 [176 P.2d 745] [medical malpractice].) The rationale for the foregoing rule is that the culpable defendant should be estopped from profiting by his own wrong to the extent that it hindered an “otherwise diligent” plaintiff in discovering his cause of action. (Pashley, supra, at p. 231.) Similar policy considerations apply in the matter before us and persuade us against application of the tolling principle to the one-year statute.

As the present case demonstrates, the treating physician is not always the only source from which knowledge comes, or from which suspicion arises, that a claim exists. If, in a given case, there is no source of information other than the physician, relative to the existence, and tortious cause, of the claim then the statute will be tolled until disclosure in any event.

It is doubtful that an inflexible tolling rule could realistically be expected to discourage affirmative acts of concealment (such as destruction of records); on the contrary, it would encourage stale claims in which reconstruction of the essential facts by all parties would be rendered more difficult. Avoidance of such an “open-ended” operation of the statute of limitations appears to have been the very reason for the enactment of

section 340.5. Finally, once a plaintiff is placed on “inquiry,” he is, of course, free to sue immediately and thereby to invoke court sanctions, if necessary, against any defendant who seeks to avoid the discovery process. In dictum, we have previously suggested that it is only the four-year period of

section 340.5 which was affected by the tolling provision. (See Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 181 [98 Cal.Rptr. 837, 491 P.2d 421].) We have the company of respected commentators who, considering the statute, have also assumed that this is the case. (2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 317, p. 1160, see 2 Pacific L.J., supra, at p. 671.) The Legislature, in its 1975 amendment of

section 340.5, resolved any doubt as to its present intention by applying the tolling statute, with clarity, to the longer period only.. It retained the one-year “discovery” limitations period, reduced the four-year maximum limitation to three years, and provided that: “In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.” (Code Civ.

Proc., § 340.5, as amended, italics added.) The amendment makes substantive changes from prior law, and admittedly cannot be viewed simply as an attempt to reexpress what was always intended. Nonetheless, the specific relationship and semantic tie thus created between the tolling provision and the statutory three- (formerly four) year period reasonably suggests that the Legislature previously intended a similar connection. In conjunction with the other considerations already discussed, the recent amendment provides some additional indication of the intended meaning of the previous ambiguous language.

In sum, though plaintiff’s arguments draw colorable support from ambiguous language included in former

section 340.5, her suggested

interpretation, in our view, is nonetheless refuted by more convincing indicia of legislative intent. We therefore hold that the tolling provision of the pre-1975 version of

section 340.5 applied only to the four-year, and not to the one-year limitations period contained in that statute. It follows accordingly that nondisclosure, for purposes of tolling, did not affect the one-year limitations period at issue herein. Since defendants’ motion for

summary judgment was premised upon the fact of plaintiff’s commencement of suit more than one year after actual discovery of her claim, we need not further consider her assertion that defendants bore a particular burden on the issue of nondisclosure. We examine the only remaining question, namely, whether the unrebutted evidence presented by defendants in support of their motion established beyond dispute that plaintiff had failed to bring her action within one year after she was placed on notice of its existence. Our affirmative answer leads us to conclude that

summary judgment for defendants was appropriate. Possession of “presumptive” as well as “actual” knowledge will commence the running of the statute. The applicable principle has been expressed as follows: “when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation . . . the statute commences to run.” (2 Witkin, Cal. Procedure, supra, Actions, § 339, p. 1181 [citing numerous cases], italics added.) This “inquiry” rule has been previously applied in the area of medical malpractice. (Mock v.

Santa Monica Hospital, supra, 187 Cal.App.2d at pp. 64-65; Hurlimann v. Bank of America (1956) 141 Cal.App.2d 801, 803 [297 P.2d 682].) On the other hand, the patient is fully entitled to rely upon the physician’s professional skill and judgment while under his care, and has little choice but to do so. It follows, accordingly, that during the continuance of this professional relationship, which is fiduciary in nature, the degree of diligence required of a patient in ferreting out and learning of the negligent causes of his condition is diminished. (Stafford v. Shultz, supra, 42 Cal.2d at p. 778; Bowman v.

McPheeters, supra, 77 Cal.App.2d 795, 800.) This principle is not confined to the physician-patient relationship alone but exists in other contexts as well, in which it' is generally held that existence of the trust relationship limits the duty of inquiry. (E.g., Knapp v. Knapp (1940) 15 Cal.2d 237, 241 [100 P.2d 759] [trustee]; Rutherford v. Rideout Bank (1938) 11 Cal.2d 479, 486 [80 P.2d 978, 117 A.L.R. 383] [banker acting as business advisor]; Schaefer v. Berinstein (1956) 140 Cal.App.2d 278, 296 [295 P.2d 113] [taxpayer suit; city attorney’s fraud].) In their motion for

summary judgment defendants rely on plaintiff’s deposition which reveals that she was dependent upon the exclusive care of defendants through March 30, 1972. However, her reasonably founded suspicions were undeniably aroused during this period, both by her own recognition of her symptoms and by external corroboration. Plaintiff admits she did not accept defendant Pilson’s assurances at face value. Under these circumstances, it is arguable that plaintiff was on notice of defendants’ negligence prior to March 30.

Regardless of the possibility of an earlier commencement, however, it is clear that the statute began to run no later than the date of plaintiff’s discharge from defendants’ care, namely, March 30, 1972. Plaintiff’s deposition reveals that, when released, she believed she had been a victim of malpractice. Referring to her state .of mind at the time of discharge she said “Yes, I did think they had done something wrong because of all the time that I stayed there suffering.” It is fair to conclude that by March 30, 1972, plaintiff had become alerted to the necessity for investigation and pursuit of her remedies.

The one-year statute of limitations commenced, and since more than one year elapsed before her complaint was filed the action was manifestly barred. Nor does plaintiff’s convalescence in another hospital during April 1972 change this result. Code of Civil Procedure sections 352 and 354 describe the particular personal disabilities which will toll the statute of limitations. These statutory conditions have been held to be exclusive, and they do not include either physical debility or hospital confinement. (Baker v. Beech Aircraft Corp. (1974) 39 Cal.App.3d 315, 322 [114 Cal.Rptr. 171]; see Phillips v.

Standard Acc. Ins. Co. (1960) 180 Cal.App.2d 474, 481-482 [4 Cal.Rptr. 277].) Plaintiff’s deposition suggests that she had local relatives who might have assisted her in investigating her claim or in retaining counsel to do so. In any event, at least 11 months remained following her final discharge from Los Angeles County General Hospital in which she herself could have done these things. The application of the statute of limitations combined with the inexorable passage of one year results in a

summary judgment preventing assertion of what may well have been a meritorious claim. This consequence, however, similar to that which frequently follows imposition of any rule possessing a fixed duration, is the price of the orderly and timely processing of litigation. The judgment is affirmed. Wright, C. J., McComb, J., Tobriner, J., Sullivan, J., and Clark, J., concurred.