California Appellate Court Reinstates $6.3M Plastic Surgery Medical Malpractice Verdict

In its published opinion dated June 4, 2020, the Court of Appeal of the State of California First Appellate District Division Three (“California Appellate Court”) reinstated a California plastic surgery medical malpractice verdict in excess of $6.3 million, holding that “plaintiff’s medical malpractice claim was not time-barred because defendant’s conduct actually and reasonably induced plaintiff to refrain from filing a timely action.”

The Underlying Facts

On November 16, 2007, the defendant plastic surgeon performed upper eye plastic surgery and a face and neck lift on the plaintiff. Just before the surgery, the plaintiff initialed a handwritten notation for “minor facial fat injections” on the consent form she previously signed. The defendant plastic surgeon then performed the surgery on the plaintiff’s face and neck. The plaintiff was unhappy with the results of the surgery (she contended that she consented to fat injections only beneath her eyes, but the defendant had also injected fat around the sides of her nose, mouth, and in her forehead). On March 20, 2008, the plaintiff had her last follow-up visit with the defendant.

On November 13, 2008, the plaintiff’s California medical malpractice attorney served the defendant with a written demand for arbitration “[p]ursuant to the Physician-Patient Arbitration Agreement . . . entered into between [defendant and plaintiff] . . . for any and all claims for injuries and damages arising out of the treatment, care, procedures, examination and/or other conduct related to this patient.” The demand attached a copy of an arbitration agreement that the plaintiff had found in her files. The agreement expressly stated that by signing the agreement, signatories agreed to having “any issue of medical malpractice decided by neutral arbitration” and to “giving up [the] right to a jury or court trial.” The agreement contained plaintiff’s signature and an illegible physician’s signature that the plaintiff assumed was the defendant’s.

In May 2009, as part of the pending arbitration proceeding, the defendant subpoenaed and obtained the records of Dr. Daniel, whom the plaintiff earlier consulted for nose surgery. Located within Dr. Daniel’s records was a signed arbitration agreement between the plaintiff and Dr. Daniel. The plaintiff had served a copy of this agreement on the defendant, but unlike the copy that was in the plaintiff’s possession, the agreement found within Dr. Daniel’s records reflected his office stamp.

During the plaintiff’s deposition on February 7, 2012, the defendant’s attorney for the first time confronted the plaintiff with the arbitration agreement obtained from Dr. Daniel and asserted the defendant’s refusal to continue with the arbitration. The next day, the defendant prevailed in obtaining a stay of the arbitration.

On February 10, 2012, the plaintiff filed her California medical malpractice complaint, alleging causes of action for medical malpractice and medical battery. The complaint also alleged facts supporting the plaintiff’s claims that her action was timely filed under the doctrines of equitable tolling and equitable estoppel.

After the close of evidence during the trial, the trial court granted the defendant’s motion for nonsuit on the medical battery claim, but allowed the medical malpractice claim to go to the jury. After several days of deliberation, the jury returned a verdict awarding the plaintiff $3,676,780 for past and future economic losses and $3,000,000 for past and future non-economic losses, and found the plaintiff was five percent contributorily negligent. The jury also specifically determined that the plaintiff’s harm occurred before February 10, 2011, i.e., more than one year before she filed her complaint on February 10, 2012.

The trial court determined that the doctrines of equitable tolling and equitable estoppel did not apply on the facts of the case and that the action was therefore time-barred under Code of Civil Procedure section 340.5. The court ordered the action dismissed, resulting in the negation of the jury’s multi-million dollar award. The plaintiff appealed, arguing that the defendant should have been found equitably estopped from asserting the one-year statute of limitations and that the trial court erred in concluding otherwise.

California Appellate Court Opinion

Equitable Estoppel

Code of Civil Procedure section 340.5 provides the time for commencement of a medical malpractice action “shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”

The California Appellate Court stated that in appropriate cases, a defendant may be equitably estopped from asserting a statutory limitations period. Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he [or she] must intend that his [or her] conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he [or she] must rely upon the conduct to his [or her] injury.

In the statute of limitations context, equitable estoppel may be appropriate where the defendant’s act or omission actually and reasonably induced the plaintiff to refrain from filing a timely suit. The requisite act or omission must involve a misrepresentation or nondisclosure of a material fact bearing on the necessity of bringing a timely suit. Even a defendant who is ignorant or mistaken as to the real facts may be equitably estopped if the defendant was in such a position that he [or she] ought to have known the true facts.

The California Appellate Court stated with respect to the present case: “On January 20, 2009, which was within the one-year limitations period, defendant responded to plaintiff’s arbitration demand by selecting his own arbitrator and making a demand for a neutral third party arbitrator, without questioning the validity of the arbitration agreement or its binding effect on defendant. Defendant assumed, erroneously it turns out, that he signed the arbitration agreement plaintiff had provided him, even though he acknowledged that he did not use arbitration agreements in his practice and that it was “very rare” for a patient to ask him to sign an arbitration agreement. Had defendant denied signing or being a party to the arbitration agreement in responding to plaintiff’s arbitration demand, plaintiff would have commenced an action in court to protect her rights. Indeed, plaintiff filed her complaint three days after defendant first claimed he was not a party to the arbitration agreement.”

“The undisputed facts give rise to only one reasonable inference: plaintiff did not realize that defendant had not signed the subject arbitration agreement when she served her arbitration demand, and defendant’s failure to question or object to her arbitration demand, coupled with his written response indicating his express willingness to participate in arbitration proceedings, led plaintiff to actually and reasonably believe that she and defendant would resolve their dispute through arbitration and that commencing a legal action was unnecessary. Put another way, plaintiff did not timely file a lawsuit because she reasonably relied on defendant’s response to her arbitration demand, and the only reasonable conclusion to be drawn from the record is that defendant must be deemed estopped from relying on a statute of limitations bar … Whether or not plaintiff and her counsel could or should have ascertained at the outset that a doctor other than defendant signed the subject arbitration agreement, it remains the case that defendant acted as if he actually signed it. There appears no question that defendant’s response to plaintiff’s arbitration demand led her and her counsel to reasonably believe that filing a lawsuit was unnecessary because the malpractice dispute would be resolved through arbitration.”

The California Appellate Court held: “Based on the undisputed facts, defendant must be deemed equitably estopped from asserting a statute of limitation defense.”

Source Doe v. Marten, A153427.

If you or a loved one suffered a bad outcome, injury, or other harm as a result of a plastic surgery procedure in California or elsewhere in the United States, you should promptly consult with a California medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your plastic surgery claim for you and represent you or your loved one in a claim against a plastic surgeon, if appropriate.

Click here to visit our website or telephone us on our toll-free line in the United States at 800-295-3959 to be connected with plastic surgery malpractice lawyers in your state who may assist you with your plastic surgery malpractice claim.

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