Osborne v. County of Los Angeles

Opinion

ASHBY, X

Plaintiff Robert Osborne appeals from an order denying his petition under Government Code section 946.6 for relief from failure to file a timely claim against the county for medical malpractice.

Plaintiff was a patient at Rancho Los Amigos Hospital, owned by defendant County of Los Angeles, between December of 1967 and April of 1972. He entered that hospital for treatment for infection and osteomyelitis which had developed after surgery at another hospital to repair fractures of the left leg and hip which plaintiff suffered in a 1967 automobile accident. Various screws and pins had been inserted in the prior surgery and plaintiff was suffering infection in the left hip. In January 1968 surgery was performed on plaintiff at defendant hospital for

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removal of these pins and screws. However, one screw was left in plaintiff’s hip. Plaintiff alleges that there was negligence in failing to remove this screw, which prevented the healing of his infection and caused the infection to worsen. Plaintiff remained as a patient, both inpatient and outpatient, at defendant hospital until April 1972, where he continued to suffer infection and be confined to a wheelchair. Hospital records showed that the staff of defendant hospital was aware that one screw remained in plaintiff’s hip, and one staff doctor opined that it would have to be removed if plaintiff’s osteomyelitis was to be eradicated. Nevertheless, the screw was not removed.

In April 1972 plaintiff left the care of defendant hospital and became a patient at Orange County Medical Center, where he remained as an inpatient or outpatient through the filing of the instant action, and where he continued to suffer infection of the hip. X-rays taken at Orange County revealed the presence of the screw on May 5, 1972, September 12, 1973, January 4, 1976, and March 5, 1976. Because a hip “sinogram” indicated that the screw, and possibly also a sponge, were in the hip, surgery was performed on plaintiff at Orange County Medical Center on August 6, 1976, “for exploration, debridement and removal of foreign body.” The old surgical screw was removed, and no sponge was found.

On August 11, 1976, plaintiff filed with the county board of supervisors his application for leave to present a late claim. In that application, plaintiff declared that “On or about the end of July, 1976,1 was informed for the first time, that a major source of my physical and medical problems was the presence of a foreign substance left in my leg during one or more of the surgeries previously done, and the nature of the foreign substance in my body was not determined until August [6], 1976, when further surgery was done to remove the same.” The board of supervisors denied his application, and plaintiff filed the instant petition. In his declaration herein plaintiff stated that at the time of the January 1968 surgery for removal of the metallic devices and screws from the infected left leg and hip, “I was unaware of the specific items that were to be removed or how much of it was to be removed.” Plaintiff repeated his declaration that he was “informed for the first time” at the end of July 1976 “that a major source of my physical and medical problems was the presence of a foreign substance left in my leg during one or more of the surgeries previously done, . . .” Plaintiff stated, “I was completely unaware that the piece of metal (screw) was left in my hip until August of 1976, when it was removed at the U C I Medical Center in Orange County.”