Mishalow v. Horwald

In Mishalow v. Horwald (1964) 231 Cal. App. 2d 517, the plaintiffs' son was injured in a fall and sought treatment from the defendants. After the son failed to survive surgery to remove a ruptured spleen, the plaintiffs sued various medical professionals involved in the operation. However, the anesthesiologist, Dr. Horwald, was not included. After Horwald was substituted in place of Doe I, the trial court granted his motion for summary judgment on the statute-of-limitations defense. ( Id. at p. 518.) The Court of Appeal reversed. The facts presented in connection with the motion established that, at the time suit was filed, the plaintiffs believed the cause of death was an unreasonable delay in performing the splenectomy. They did not have any information as to what occurred during surgery and received no information that would have cast suspicion on the role played by Horwald. Neither the medical records nor the depositions of the attending physicians suggested any wrongdoing by Horwald. Such wrongdoing did not become an issue until the plaintiffs consulted another anesthesiologist, over two years after the complaint was filed. (Mishalow, supra, 231 Cal. App. 2d at pp. 519-520.) The Court of Appeal explained: "While plaintiffs and their counsel, at the time of filing the complaint, knew of respondent, it is clear that they then had no knowledge or information from which it could be inferred that respondent was negligent; they discovered no facts indicating a cause of action against him until April 1963, immediately after which he was served. It may well be a matter of common knowledge, as suggested by respondent, that a failure or reduction in a patient's breathing during surgery is vital to an anesthesiologist and that respiratory arrest is a condition properly within the scope of his treatment, but it is clear from the record before us that at the time of filing the complaint neither plaintiffs nor their counsel knew that the child had sustained a respiratory arrest, or that there was a failure or reduction in his breathing during surgery, or the true cause of death, for at the time they had not seen the hospital records. " (Mishalow, supra, 231 Cal. App. 2d at pp. 520-521.)