SAN FRANCISCO (Legal Newsline) – A California appeals court has reinstated a $6.3 million jury verdict that was struck down by the trial judge.
In a June 4 decision, the First Appellate District of the California Court of Appeal ruled that a Jane Doe’s medical malpractice lawsuit against a plastic surgeon was filed in time.
Though filed past the statute of limitations, it was done so because Dr. Timothy Marten’s induced the plaintiff to refrain from filing on time.
“The undisputed facts give rise to only one reasonable inference: Plaintiff did not realize that defendant had not signed the subject arbitration agreement when she served her arbitration demand, and defendant’s failure to question or object to her arbitration demand, coupled with his written response indicating his express willingness to participate in arbitration proceedings, led plaintiff to actually and reasonably believe that she and defendant would resolve their dispute through arbitration and that commencing a legal action was unnecessary,” Justice Carin Fujisaki wrote.
The Jane Doe plaintiff was unhappy with the results of a face and neck lift, minor forehead lift, upper eye lift and lower eye lift performed in 2007.
She announced her displeasure with a letter stating she was considering a lawsuit. Her lawyer sent a written demand for arbitration in November 2008, stating there was an arbitration agreement entered into for the surgery.
The defendant’s lawyer responded Jan. 20, 2009, without questioning the origin of the arbitration agreement. They selected an arbitrator for the dispute.
The timeframe to sue passed in March 2009 – one year after Jane Doe announced her intention to pursue legal action. She had yet to file a lawsuit.
It turned out the arbitration agreement was with a different doctor. In 2012, Marten’s lawyer said, since Marten had not signed the agreement, he would be exiting the arbitration proceedings. Two days later, Jane Doe filed her lawsuit.
“Whether or not plaintiff and her counsel could or should have ascertained at the outset that a doctor other than defendant signed the subject arbitration agreement, it remains the case that defendant acted as if he actually signed it,” the ruling states.