Unjian v. Berman

In Unjian v. Berman (1989) 208 Cal. App. 3d 881, the plaintiff had an unsuccessful facelift in November 1982. About three weeks after the operation, the plaintiff mailed a letter to the doctor performing the operation, revoking an agreement to arbitrate. When asked at deposition why he mailed the letter, the plaintiff responded "I could see there was no improvement in my face. Actually, I felt even a little more gaunt; . . . little . . . worse. . . . My face looked worse." ( Unjian v. Berman, supra, 208 Cal. App. 3d at p. 883.) The plaintiff remained in the doctor's care until October 1983, during which time the doctor told plaintiff an infection on his face was probably caused by an old acne cyst. Plaintiff did not file suit until September 1984, more than one year after the surgery. ( Id. at pp. 883-884.) The doctor argued a reasonable person in plaintiff's position would have known something was wrong based on the plaintiff's statement in December 1982 that his face looked "worse." ( Unjian v. Berman, supra, 208 Cal. App. 3d at p. 883.) This court reversed the trial court's grant of summary judgment, noting "the fact that an operation did not produce the expected result would not necessarily suggest to the ordinary person the operation had been performed negligently." ( Id. at p. 885.) Therefore, where "the injury is obvious but there is nothing to connect that injury to the defendant's negligence it cannot be said as a matter of law the plaintiff's failure to make an earlier discovery of fault was unreasonable." (Ibid.)