Hirschman v. Saxon

California Court of Appeal Nov 21, 1966 No. Civ. 29951Published

Before: Herndon

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Holding. The court held that summary judgment was properly granted because the appellant failed to present a triable issue of fact regarding the statute of limitations, as the doctor-patient relationship had terminated and the appellant was aware of the alleged misconduct more than one year prior to filing the cross-complaint.

Issues

Whether the appellant's declaration in opposition to summary judgment established a triable issue regarding the statute of limitations for medical malpractice.
Whether the appellant's failure to deny the respondent's evidentiary facts regarding the termination of the doctor-patient relationship precluded a claim of tolling.

Disposition. affirmed

Quotations verified verbatim against the opinion

“we must accept as true the fact that the fiduciary doctor-patient relationship existing between the parties terminated when appellant failed to keep his scheduled appointment with respondent in March 1962”

“appellant’s letter to respondent written January 7, 1963, establishes fully that by that date appellant was actually asserting misconduct on the part of respondent”

“it is clear that the summary judgment was properly granted in the instant case.”

HERNDON, J.

Cross-complainant Hirschman appeals from the summary judgment entered in favor of respondent Saxon on appellant’s cross-complaint alleging medical malpractice. The sole question presented by this appeal is whether or not appellant’s declaration in opposition to respondent’s motion for summary judgment set up facts sufficient to present a triable issue as to the applicability of Code of Civil Procedure, section 340, subdivision 3, which establishes the one-year period within which actions of this type must be instituted. The declaration of respondent filed in support of his motion sets forth the following facts which are not disputed by appellant:

On January 29, 1962, appellant consulted respondent regarding an injury consisting of a fracture of his left ring finger. Respondent set the fracture and the finger was placed in a traction cast. X-rays revealed excellent alignment. However, against respondent's advice appellant went deep sea fishing shortly thereafter and used the hand and finger which was in a cast. When respondent saw appellant thereafter he noted that following the fishing episode there was a recurrence of the anterior angulation of the finger. Additional therapy was done and on March 5, 1962, it was noted that the finger had marked restriction of motion. The patient was advised to start heavy exercise and to return to the office in two weeks. Appellant never returned to the respondent’s office at any time. On January 7, 1963, appellant wrote the following letter to respondent:

“I have just received a statement from you stating, ‘unless invoice is paid within 15 days, account will be turned over to Western Creditors Exchange.’

‘ ‘ The only reason I have not paid you, as you are aware, is the fact that the results I have received in re to my broken finger, have not been very satisfactory.

“I feel that the bill is unjust due to the results of setting the finger. In fact, I was going to turn this whole matter over to my attorney, but I realize you want to be fair and just in this matter I am willing to settle this account for $70.00, which I feel is more than just, or I am willing to turn the file

[591]

over [to] the Medical Board for their evaluation on the case.

Hirschman v. Saxon

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HERNDON, J.

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