## Facts

- In 2004 or 2005, Michael Filosa began experiencing headaches that became progressively worse over time.
- By 2010, Filosa’s headaches were constant, with intermittent acute episodes; during one episode he had blind spots, blurry vision, and twitching of his left eyelid and lip.
- Filosa’s doctor ordered a brain MRI, which was performed in September 2010 at a medical imaging facility.
- Dr. Ravi Alagappan, a radiologist, interpreted the 2010 MRI as showing no abnormalities.
- After 2010, Filosa’s headaches continued to worsen, becoming more intense and more debilitating, and he also experienced different types of headaches.
- In 2011, Filosa and his wife separated, and Filosa assumed care of the couple’s children.
- Filosa was diagnosed with depression and took leaves of absence from work in 2011 and 2012.
- At some point before the 2014 diagnosis, Filosa asked a physician whether he might have a brain tumor; the physician reassured him based on normal blood work and the prior “negative” MRI.
- In December 2014, additional brain imaging revealed a brain mass.
- A later review of the 2010 MRI showed that the mass had been visible then, though relatively subtle, and had grown larger by 2014.
- Filosa underwent surgery and alleged adverse physical effects from treatment.
- Filosa served a notice of intent to sue in November 2015 and filed a medical malpractice complaint in March 2016, alleging Alagappan negligently failed to diagnose the brain mass in 2010.
- The trial court granted summary judgment for defendants on statute-of-limitations grounds under California Code of Civil Procedure § 340.5, and Filosa appealed.

## Issues

1. Did defendants establish, as a matter of law, that Filosa’s claim was untimely under § 340.5’s three-year limit measured from the “date of injury” (i.e., when he first suffered appreciable harm from the alleged negligence)?
2. Did defendants establish, as a matter of law, that Filosa’s claim was untimely under § 340.5’s one-year limit measured from when he discovered, or should have discovered, both his injury and its negligent cause?

## Decision

- The Court of Appeal reversed the judgment and remanded.
- The court held defendants did not carry their summary-judgment burden to show, as a matter of law, that Filosa suffered “injury” (appreciable harm) more than three years before he sued.
- The court held there were triable fact questions about when Filosa discovered, or reasonably should have discovered, the injury and that it was caused by wrongdoing, given the course of symptoms, competing explanations (including depression and life stress), and medical reassurance based on the earlier MRI.
- Because reasonable factfinders could reach different conclusions on both timing questions, summary judgment on § 340.5 was improper.

## Legal Principles

- Under Code of Civil Procedure § 340.5, a medical malpractice action must be filed within the earlier of: (1) three years after the “date of injury,” or (2) one year after the plaintiff discovers, or through reasonable diligence should discover, the injury, subject to statutory tolling provisions.
- For § 340.5, “injury” means appreciable harm caused by the alleged negligence; it is not automatically the date of the negligent act or the mere existence of an undiagnosed condition.
- The one-year period begins when the plaintiff actually suspects, or a reasonable person would suspect, that the injury was caused by wrongdoing; certainty, a definitive diagnosis, or knowledge of every supporting fact is not required.
- In assessing constructive discovery, a factfinder may consider whether symptoms were reasonably attributable to non-negligent causes and whether medical assurances (such as reliance on a prior “negative” MRI) reasonably delayed suspicion of negligence.
- On summary judgment based on limitations, defendants must show the claim is time-barred as a matter of law; if the record supports competing reasonable inferences about injury or discovery, those issues are for the trier of fact.

## Conclusion

The Court of Appeal reversed summary judgment because defendants failed to show that Filosa’s malpractice claim was untimely as a matter of law: the record permitted differing inferences about when he first suffered appreciable harm from the missed brain mass and when he knew, or should have known, that his harm was likely caused by a negligent misreading of the 2010 MRI.


Filosa v. Alagappan, 59 Cal. App. 5th 772, 273 Cal. Rptr. 3d 731 (2020)