Grimm v. Thayer

Opinion

HEWS, J.

Plaintiff Maxine Grimm has appealed from a judgment in favor of defendant Joel Thayer following the granting of Thayer’s motion for summary judgment. Plaintiff’s action against Thayer and others seeks recovery of personal injury damages based upon the professional negligence of health care providers. Summary judgment was granted on the ground that the action against defendant Thayer was barred by the applicable one-year statute of limitations (§ 340.5.)

2

The issues on appeal are: (1) whether plaintiff was “ignorant of the name” of defendant Thayer within the meaning of section 474 so that an amendment naming him in place of a Doe defendant would relate back to the filing of the original complaint and (2) whether plaintiff’s notice of intention to sue (§ 364) tolled or suspended the limitations period as against Doe defendants.

Facts

Plaintiff was injured in an automobile accident on November 21, 1981, and was taken to Desert Hospital for treatment. X-rays were promptly taken of plaintiff’s head and neck region and she was told by her treating physician, Ali Tahmouresie, that she did not have a fracture of her neck or at least that the X-rays did not show a fracture.

Plaintiff continued to experience pain in her neck and on November 24 or 25 a new X-ray (tomogram) was taken and plaintiff was advised she had a cervical compression fracture with a small bone fragment located in the spinal canal. Surgery was thereafter performed and plaintiff remained at Desert Hospital until December 22, 1981. At the time of her discharge plaintiff had already formed the opinion that an initial misdiagnosis of her condition had caused her to sustain injuries which are the subject of the present action.

Plaintiff served Desert Hospital and Dr. Tahmouresie with a notice of intention to sue health care provider (§ 364) on November 19, 1982. Plaintiff filed suit on February 9, 1983, naming as defendants Desert Hospital, Dr. Tahmouresie, and Does 1 through 100. Plaintiff amended her complaint on

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March 22, 1984, to name Dr. Joel Thayer as Doe 1. Dr. Thayer was the person who had interpreted the first X-rays of plaintiff’s neck, concluding that the X-rays were normal and that there appeared to be no fractures.