Jury to decide when man suspected tumor was misdiagnosed

A jury should decide when a patient began suspecting his brain tumor was misdiagnosed, the 1st District Court of Appeal ruled, reversing summary judgment by a judge who found a medical malpractice claim was time barred.

In an opinion published Jan. 8, the justices reversed Contra Costa County Superior Court Judge Susanne Fenstermacher's judgment in favor of a doctor who was sued on an accusation that he did not spot a brain tumor during an MRI scan in 2010. The lawsuit claimed the tumor remained undiscovered until a second MRI scan four years later.

Plaintiff Michael Filosa was represented by Michael A. Kelly, a partner at Walkup, Melodia, Kelly & Schoenberger.

"This case is a peculiarly, factually intensive inquiry under what circumstances was it that Filosa knew or should have known of his injuries, which must be defined by outward manifestation and reasonable belief that this was somehow due to the failure of some part of the doctors," Kelly said. "This opinion does something that courts haven't been willing to do lately, and that is, let a jury decide whether or not there are facts suggesting the patient really did suspect there was malpractice. Did he really know or suspect something in 2011 when he couldn't have known about the tumor until 2014?"

Defense attorneys from Cole Pedroza LLP and Donnelly, Nelson, Depolo & Murray could not be reached for comment Monday.

In the lawsuit Filosa said he suffered persistent headaches for years starting in 2005 and had an MRI scan in 2010. His lawsuit claimed that Dr. Ravi Alagappan and a Bay Area imaging center said his results showed no evidence of malignancy or tumors. Filosa's lawsuit said his headaches worsened over the next four years, and he went for a second MRI scan in December 2014 that detected a brain tumor. The lawsuit alleged that a second review of the first MRI also showed a mass that grew, was eventually removed and resulted in adverse physical effects. Michae Filosa v. Ravi Alagappan, Insight Imaging East Bay, CGC-16-550784 (Contra Costa Super. Ct., filed Mar. 3, 2016).

Filosa sued Alagappan and the imaging center on March 3, 2016 in Contra Costa County. He alleged a single cause of action for alleged medical negligence based on the defendants' alleged failure to diagnose the mass in 2010. Fenstermacher ruled that Filosa's claim was time barred.

According to California Civil Procedure Code Section 340.5, a medical malpractice claim must be brought within three years after the date of the injury, or "one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first," the opinion reads.

Filosa's attorneys argued neither statute of limitations began to run until his second MRI. The defendants contended Filosa's claims expired under the statute of limitations as he waited more than three years to get a second scan.

The appellate court's opinion, written by Justice Alison Tucher and joined by Presiding Justice Stuart R. Pollak and Justice Jon B. Streeter, found that a reasonable jury could conclude Filosa's injury began in December 2014. Filosa v. Ravi Alagappan, et al., 2021 DJDAR 379.

"The one-year period commences when a plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its negligent cause," the opinion reads. "We have already rejected defendants' contention that Filosa discovered his injury no later than the beginning of his first medical leave in July 2011. We likewise reject defendants' arguments that, as a matter of law, Filosa should have discovered his injury and its negligent cause more than a year before he filed his complaint."

The justices added, "We express no view as to what the evidence will show at trial, but on this record, defendants have not carried their initial burden on summary judgment to establish their statute of limitations defense."