LOS ANGELES (Legal Newsline) - A man who developed gangrene and had to have his foot amputated waited too long to sue a California county for medical malpractice, an appeals court ruled, rejecting the plaintiff’s argument he only discovered he had a potential claim after visiting the Mexican consulate on another matter months after his foot was cut off.
Emilio Carrillo sued Santa Clara County and 50 unidentified employees after a nurse popped a blister on his foot -- “over his objection” -- while he was incarcerated in the county jail in December 2017. The foot quickly became infected and gangrenous, and doctors amputated it at Santa Clara Valley Medical Center on Dec. 20, 2017.
Four months later, Carrillo visited the Mexican consulate in San Jose for guidance on immigration matters. “The subject of his right foot amputation came up,” his complaint states, and Carillo “became informed” that the nurse who popped his blister probably had something to do with it. He filed a claim with the county on June 18, 2018, which the county rejected on July 19. He filed his lawsuit on Jan. 18, 2019.
The county moved to dismiss, citing California’s one-year statute of limitations for medical malpractice cases. Carrillo argued he only discovered the malpractice after visiting the Mexican consulate, but the county rejected his claim as irrelevant. There could be “no question but that a reasonable person having his foot amputated under such circumstances would necessarily be on notice that something was wrong,” the county argued.
In November 2019 the trial court granted the county’s motion for demurrer, or dismissal. California’s Second Appellate District Court, in a March 13 decision, upheld the decision.
To rely on the “discovery rule” extending the statute of limitations, the appeals court said, plaintiffs must show both when they discovered the injury and explain why they couldn’t have discovered it earlier with reasonable diligence.
“We find no error in the trial court’s conclusion” that with more diligence, Carrillo would have suspected wrongdoing, the appeals court concluded.
Carrillo was represented by Babach “Bobby” Lau.