Brown v. Bleiberg

Opinion

REYNOSO, J.

We interpret provisions of the statute of limitation dealing with medical malpractice. In the case at bench, we reverse a summary judgment in favor of a podiatrist and a physician despite the passage of over 12 years since the plaintiff’s injury. Although the delay in this case was extreme, a triable issue of fact exists whether the doctors’ alleged affirmative concealment of the true nature of the surgery prevented plaintiff from discovering that the injury resulted from the defendants’ tortious conduct in performing an unnecessary operation. We cannot say as a matter of law that plaintiff’s reliance on what they told her was unreasonable.

1. The facts and proceedings below.

Plaintiff Leonia Brown appeals from a summary judgment entered against her in a medical malpractice action and in favor of defendants Dr. Leon Bleiberg, a licensed podiatrist, and Dr. Joseph Green, a physician. The basis for the grant of summary judgment was that plaintiff’s claim, which arose out of surgery performed on her in 1965, was barred by the statute of limitations. Plaintiff contends that her cause of action, did not accrue until June 1978, when she was advised by a podiatrist to whom her lawyer referred her that portions of the bones of her feet had been removed which should not have been. She challenges the trial court’s implicit conclusion that, as a matter of law, she either knew or should have known of the injury to her foot

and its negligent cause

over a year before she commenced the present action, on June 21, 1978.

[430]

The factual background begins in June or July 1965. Plaintiff complained of foot pain to her family physician, Dr. John Zane (a named but unserved defendant), who referred her to defendant Bleiberg. Bleiberg informed her that she needed surgery to remove some corns. The operation was performed at Mid-City Hospital in July 1965. Defendant Green was the attending anaesthesiologist; before the operation he spoke to plaintiff reassuring her that she “had nothing to worry about” and that he had often seen Bleiberg perform such foot surgery.

After the surgery, plaintiff was in great pain and observed that her feet were “all cut up .... ” Bleiberg assured her that nothing was amiss, that he had found and removed “a whole lot of little tumors and they were going to be painful.” After her discharge from the hospital she continued under Bleiberg’s care, going to his clinic every other day for therapy. During this time she was making continual complaints to him about the pain in her feet, and was taking codeine pills for two or three months after the operation. Bleiberg gave her no further explanation than the removal of the tumors, but assured her that “it would be all right.” She continued to see him until he moved, sometime before the end of 1965. She remained in Dr. Zane’s care until he, too, moved away in 1972.