SAN FRANCISCO (Legal Newsline) – A California appeals court has reinstated the medical malpractice lawsuit of a man who says his doctors failed to diagnose a brain tumor in 2010, even though he didn’t file suit for another six years.
There exists a dispute on when the statute of limitations started running, says a Jan. 8 decision from the First Appellate District that sends the case back to Contra Costa County Superior Court.
Plaintiff Michael Filosa underwent an MRI in 2010 at Bay Radiology San Ramon, and his radiologist did not detect any abnormalities.
But Filosa’s headaches worsened for four years, as did issues with anxiety and depression. He took medical leaves of absence in 2001 and 2012 and complained to a mental health professional about “brain fog” and severe headaches.
In December 2014, he underwent brain imaging at the same radiology practice that showed a cyst or tumor on his brain. A re-review of the 2010 MRI showed a “relatively subtle” mass that had continued to grow.
The statute of limitations for a failure-to-diagnose claim is three years after the date of injury or one year after the plaintiff discovers or should have discovered the injury, whichever occurs first.
Defendants can’t argue the clock started ticking when Filosa’s MRI was misread in 2010, the court ruled.
“Defendants also fail to establish that Plaintiff discovered his injury no later than when his first medical leave began in July 2011, as they also contend,” Justice Alison Tucher wrote.
“The evidence is that Filosa suffered constant and debilitating headaches, including acute episodes, both before and after his MRI in 2010, and that his headaches worsened steadily over the many years he complained of them.
“But a reasonable trier of fact could conclude that events in the months following Dr. Alagappan’s failure to diagnose his tumor were not the manifestation of a more serious condition, but merely the continuation of Filosa’s previous condition.”
The trial court will be asked to determine if the end of his marriage after the 2010 MRI caused his stress and depression when it tries to figure out just when the clock on the statute of limitations should have started running.
“Although a factfinder might ultimately conclude some of these symptoms were effects of the brain tumor and that appreciable harm from the failed diagnosis manifested more than three years before Filosa brought this action, this record does not permit that question to be resolved on summary judgment,” Tucher wrote.