Grimm v. Thayer

In Grimm v. Thayer (1987) 188 Cal. App. 3d 866, the court was faced with a doctor defendant's argument that a plaintiff's malpractice action against him was barred by the statute of limitations because suit was commenced more than one year after the plaintiff discovered her cause of action, and there was no tolling or suspension of the limitations period as against Doe defendants by the giving of a section 364 notice naming him. The facts were that the plaintiff was injured in an automobile accident on November 21, 1981, and received treatment at a particular hospital. Her treating physician told her she did not have a fracture of her neck or at least that the X-rays did not show a fracture, as read by the radiologist (later determined to be defendant Dr. Thayer). However, a new X-ray was taken later and she was advised she had a fracture with a small bone fragment in the spinal canal, and underwent surgery. At the time of her discharge she had already formed the opinion that an initial misdiagnosis of her condition had caused her to sustain injuries. She therefore served the hospital and the treating doctor with a section 364 notice on November 19, 1982. She then filed suit on February 9, 1983, naming as defendants the hospital, the treating doctor, and Does 1 through 100. Then, on March 22, 1984, she amended her complaint to name Dr. Thayer, the radiologist who read the first X-rays, as defendant Doe 1. In Grimm, supra, 188 Cal. App. 3d 866, defendant Dr. Thayer successfully brought a summary judgment motion in the trial court on the grounds that (1) the plaintiff knew his identity and the facts giving rise to her cause of action against him no later than December 1982, well before she filed suit, and the action should be barred because the relation-back doctrine applicable to Doe defendants should not apply ( 474); and (2) the action was barred as against him because suit was commenced more than one year after the plaintiff discovered her cause of action, and the section 364 notice as to the hospital and the treating doctor only applied to them, pursuant to sections 364 and 356 which suspended the running of the limitations period for 90 days; he argued these did not apply to a Doe defendant. However, the appellate court reversed the summary judgment in favor of Dr. Thayer and rejected his interpretation of section 364, subdivision (e) because it "would provide an incentive to file suit before expiration of the 90-day notice period, the incentive being the preservation of the action as against Doe defendants. This interpretation is clearly inconsistent with the statutory purpose of providing a 90-day period for negotiation before commencement of suit." (Grimm, supra, 188 Cal. App. 3d at p. 871.) Rather, in Grimm the court accepted the plaintiff's interpretation of section 364, subdivision (e) "to mean only that the 90-day notice need not be given to Doe defendants before amending the complaint to name them." (Grimm, supra, 188 Cal. App. 3d at p. 870.) The court said, "Plaintiff's interpretation avoids this unfortunate result while still giving meaning to subdivision (e). In our opinion, plaintiff's interpretation is clearly more consistent with the legislative objective in enacting section 364. Accordingly, the filing of plaintiff's action was timely as against Doe defendants and the summary judgment may not be upheld on either of the grounds urged by defendant Thayer." (Grimm, supra, 188 Cal. App. 3d at p. 871.)