Tell v. Taylor

California Court of Appeal Apr 17, 1961 No. Civ. 19279Published

Before: Kaufman

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Holding. The court held that the plaintiff's causes of action for malpractice and deceit were barred by the one-year statute of limitations for medical malpractice, as the plaintiff had knowledge of the alleged negligence more than one year prior to filing suit. The court further held that a personal injury action against a physician cannot be extended beyond the malpractice statute of limitations by pleading the claim as one for fraud or deceit.

Issues

Whether the trial court erred in granting summary judgment by finding no triable issue of fact.
Whether the plaintiff's causes of action for malpractice and deceit were barred by the statute of limitations.
Whether a personal injury action against a physician can be extended by pleading it under a theory of fraud.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the trial court properly followed all of the above-mentioned rules, and properly determined that there was no issue of fact to be tried, that the issue was one of law alone, and that the summary judgment procedure was appropriate”

“any cause of action based upon that negligence is clearly barred by the statute of limitations”

“even though the plaintiff alleges false representations on the part of the physician or fraudulent concealment, our courts have always treated the action as one for malpractice”

KAUFMAN, P. J.

Appellant, Fannie T. M. Tell, filed her complaint against the respondent, Wesley Taylor, alleging two causes of action, the first for malpractice, the second for

[268]

deceit. Respondent in his answer denied both causes of action and alleged the statute of limitations (Code Civ. Proc., § 340, subd. 3) as an affirmative defense to both causes. Thereafter, respondent filed his motion for a summary judgment pursuant to section 437c of the Code of Civil Procedure. Both sides filed affidavits and points and authorities and after a hearing and argument, respondent’s motion was granted as to both causes of action and a judgment entered in his favor.

On this appeal from the judgment, it is argued that the trial court erred in: (1) granting the respondent’s motion for a summary judgment as the affidavits raised a triable issue of fact; (2) concluding that the statute of limitations was applicable as to both causes of action.

The first argument on appeal is that the trial court erred in granting a summary judgment because the affidavits raised a triable issue of facts, i.e., whether both causes of action were based on the same facts. While we are well aware that the summary judgment procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods of determining issues of fact, the granting or denying a motion for summary judgment is determined by the sufficiency of the affidavits on file and the affidavits in support of the motion should be strictly construed and those of the opponent liberally construed

(Family Service Agency of Santa Barbaras.

Ames, 166 Cal.App.2d 344 [333 P.2d 142]).

Respondent’s affidavit reveals the following facts: On June 22, 1957, the appellant fell in front of her fireplace and injured her left hip. On June 23, the respondent first saw her at her home, and again on June 24, 27, 29, and July 1, 8 and 13. On each occasion, the respondent, an osteopathic physician, gave her general manipulative treatment and attempted to determine whether the soreness might be due to a fracture. When the respondent saw the appellant on June 23 and on several occasions thereafter, he urged that X-rays be taken of the left hip to determine whether or not there was a fracture. Respondent urged the appellant and her husband to have X-rays taken but the appellant refused until July 15. On July 15, 1957, X-rays were taken at the respondent’s office, and revealed a fracture near the hip joint. The respondent immediately told the appellant about the fracture and advised her to have it treated by an orthopedic specialist. The respondent did not see or talk to the appellant after her departure from his office on July 15, 1957; he did, however,

Tell v. Taylor

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KAUFMAN, P. J.

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