Kaplan v. Mamelak

California Court of Appeal · Torts

Tortsmedical malpracticebatterystatute of limitationstollingconsentMICRAsection 340.5

Facts

Kaplan underwent spinal surgery by Dr. Mamelak in July 2002 for a herniated T8-9 disk, but Mamelak mistakenly operated on T6-7 and T7-8 instead. At a September 11, 2002 meeting after an MRI, Kaplan learned respondent had operated on the wrong disks, and a jury later found Kaplan was on notice of wrongdoing by that date. Kaplan served a notice of intent to sue on September 17, 2003, and filed suit within 90 days, but the timeliness of the notice depended on whether the one-year period was tolled by any time Mamelak was absent from California. Kaplan also alleged battery because his written consent authorized surgery only on disk T8-9, yet respondent operated on other disks.

Issue

Does Code of Civil Procedure section 351 toll MICRA's one-year medical malpractice limitations period when the defendant is absent from California, such that discovery on the defendant's out-of-state time should have been allowed? Also, where a patient consented only to surgery on one specified spinal disk, can surgery on different disks support a battery claim, or is that issue foreclosed as mere negligence on demurrer?

Rule

Under Belton's interpretation of MICRA, general statutory tolling provisions apply to the one-year inside limitations period in section 340.5 unless they would extend the total limitations period beyond the statute's three-year outside limit; the three-year outside limit is subject only to MICRA's specified exceptions. In medical battery, a physician commits battery when performing treatment that exceeds the patient's limited consent or is a substantially different procedure from that authorized; when it is unclear whether the unauthorized procedure is substantially different, the question may be one of fact not suitable for resolution on demurrer.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In San Diego, Nora Levin learned on March 1, 2023, that Dr. Evan Sloane may have caused her injury during a cosmetic procedure. She served a notice of intent to sue on March 3, 2024, and later filed suit within 90 days. In discovery, Nora seeks records showing that Dr. Sloane spent four days in Nevada during the year after March 1, 2023.

If Dr. Sloane argues those records are irrelevant because general tolling never applies in medical malpractice cases, how should the court rule?

Explanation. The majority rule is that general statutory tolling provisions continue to apply to MICRA's one-year discovery-based inside limitations period, though not to extend the three-year outside limit beyond MICRA's specified exceptions. Because even a few days of out-of-state absence could affect whether the notice of intent was timely and thus whether the 90-day extension applies, the requested discovery is relevant and should be allowed.