Friday, April 4, 2014

Soon to Be an Episode of CSI ...

Arroyo v. Plosay, No. B245659 (D2d4 Apr. 2, 2014)

The court of appeal holds that the statute of limitations does not bar claims based on a factual theory that the plaintiff did not uncover until he hired an expert witness. This was the case even though plaintiff was aware of the factual basis for claims on an entirely different theory, for which the statute had run.


This one’s pretty grim. Husband sued a hospital for negligently handling has wife’s corpse. The theory was that sometime after the wife was declared dead, someone broke her nose and made lacerations and bruises to her face that weren’t there when she died. Her body was found lying face-down in a compartment in the hospital morgue when workers came to take her to the funeral home. The injuries were sufficiently severe that they couldn’t be covered up by the mortuary for the funeral. On the verge of trial, however, the husband’s expert made a pretty startling discovery: the wife’s injuries were potentially inflicted before she died! Plaintiff voluntarily dismissed the original case without prejudice and refiled this one against the hospital and the treating doctor.

The first two counts—a survivorship action for the wife and wrongful death claim for the husband and their children—alleged a new theory: The doctor mistakenly declared the wife dead. After the family paid their last respects, her body was sent to the hospital morgue. She awoke to find herself locked in a morgue refrigerator compartment, broke her nose and caused herself the facial injuries in trying to claw her way out, managed to turn over, and ultimately froze to death. The third claim re-alleged a negligence based on the inconsistent post-mortem mutilation theory that he been the basis of the prior lawsuit.

The second suit was filed almost two years after the wife died. The hospital demurred, based on the one-year statute of limitations in Code of Civil Procedure § 340.5, which governs professional negligence claims against a healthcare provider. The court granted the motion, and plaintiffs appealed.

The court reverses as to the two claims alleging the pre-mortem injury theory due to the discovery rule. Section 340.5 includes a statutory discovery rule; its one-year limit runs from discovery of an injury. The husband was, of course, aware that his wife’s body was disfigured soon after she died.

But discovery of an injury includes to some degree knowledge or suspicion of the factual basis of the underlying wrongdoing. So although the husband might have suspected the facts that gave rise to the post-mortem injury theory, the facts alleged in the complaint afforded no basis to believe that he discovered an injury based on a premature death declaration and the wife’s ensuing trauma in the morgue refrigerator. The theories were sufficiently different in kind that discovery of one did not entail discovery of the other.

Nor did the facts give rise to inquiry notice because the husband had no suspicion that his wife’s injuries were caused before her death until the expert made his report in the prior case. Notably, her death certificate said that she died of cardiac arrest, heart attack, and hypertension, not hypothermia. Under the circumstances, the court could not say as a matter of law that the discovery clock had run before these claims were filed.

The re-filed claim based on post-mortem disfigurement, however, does fail. The court holds that negligent handling of a body by a hospital is a form of professional negligence by a healthcare provider, and thus subject to § 340.5. The hospital is a licensed medical facility and it was required by law to maintain a morgue. Handling remains is part of the hospital’s ordinary and usual professional medical services.

Further, the fact that the plaintiff/husband was not the patient preclude the application of § 340.5. Section 340.5 applies to any “personal injury,” caused by professional medical negligence. That would include the husband’s emotional distress resulting from the negligent handling of his wife’s remains. Nor would tolling apply while the prior case was pending. It is settled California law that the statute of limitations is not tolled by a prior litigation that is dismissed without prejudice. See Wood v. Elling Corp., 20 Cal. 3d 353, 359 (1977). Thus, because the husband was clearly aware of any injury based on mutilation of his wife’s corpse more than a year before he filed his second lawsuit, this claim was time-barred.

Reversed in part.

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