Motion For Summary Judgment Granted In Medical Malpractice Case

April 1, 2005

Dan L. Longo and Aileen Rodriguez successfully filed a motion for summary judgment on behalf of a surgeon accused of a medical malpractice.

Plaintiff underwent hernia repair surgery in December 2000, and again in September 2002. During the second surgery, the surgeon discovered that the first surgery was completed incorrectly. The plaintiff brought a complaint against the surgeon who first performed the hernia surgery for medical negligence and lack of informed consent in September 2003.

The defense moved for summary judgment arguing that plaintiff's claim was barred by the one year statute of limitations of C.C.P. � 340; and plaintiff had admitted in his response to the Request for Admissions, that he had signed a written consent form, which explained the risks/benefits of the surgery. The defense presented evidence that from May 2001, through July 2002, plaintiff complained to other physicians of chronic pain in the same surgical area since the first surgery, complained that the defendant did "not do a good job" in the surgery; verbally informed his health insurance company and the State of California Bureau of Managed Healthcare that he would not see the defendant again; was diagnosed by subsequent physicians with hernia recurrence; and had even scheduled a second hernia surgery with a different surgeon to treat the same pain in the same area .

The court granted summary judgment, even after the court granted the plaintiff additional time to file opposition. The court held that the plaintiff had a reasonable suspicion of wrongdoing before September 2002, such that his claim was barred by the one year statute of limitations.