Filed 7/29/21 Barrett v. Hershey CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THOMAS J. BARRETT,

 Plaintiff and Appellant,

v.

ALLEN HERSHEY et al.,

 Defendants and Respondents.

 G060211

 (Super. Ct. No. 17CV001179)

 O P I N I O N

Appeal from a judgment of the Superior Court of Monterey County, Susan 

J. Matcham, Judge. Affirmed.

Monterey Legal Associates and Darrell D. Moon for Plaintiff and 

Appellant.

Sheuerman, Martini, Tabari, Zenere & Garvin and Michael J. Garvin for 

Defendants and Respondents.
2

Appellant Thomas J. Barrett (Barrett) appeals from the summary judgment 

entered in favor of respondents Allen Hershey, M.D., and Precision Orthopedics, a 

Medical Corporation (collectively, Dr. Hershey), on his medical malpractice claim. The 

sole issue is whether the claim was barred by the statute of limitations for actions based 

on a healthcare provider’s alleged professional negligence. (See Code Civ. Proc., § 

340.5.)

1

It was, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

From the parties’ undisputed facts, and the unchallenged exhibits in support

and opposition to the summary judgment motion, we have culled the following:

On December 16, 2015, Barrett went to Dr. Hershey’s office for treatment 

of a chronically sore osteoarthritic knee. As they had in the past, they agreed Barrett 

would receive a cortisone injection into the knee to relieve the pain. This was not the 

first time Barrett had been treated by Dr. Hershey, including an earlier cortisone injection 

in the same knee, and their doctor-patient relationship spanned over 20 years.

Barrett watched as Dr. Hershey began to prepare a syringe for injection. He

noticed the doctor was not wearing gloves, although this was not unusual because he had 

not worn gloves in the past when administering an injection. Barrett saw Dr. Hershey 

“dr[a]w up the injection,” turn around, and accidentally poke himself with the

hypodermic needle. He said, “Ow,” and then “everything hit the floor, syringe, needle, 

everything.” Dr. Hershey picked the apparatus up off the floor, removed and discarded 

the needle, replaced it, and using the same syringe, injected its contents into Barrett’s 

knee joint. When asked at his deposition how clean the floor was in the treatment room, 

Barrett quipped, “How clean can a doctor’s office be?” 

Barrett also noticed Dr. Hershey did not wash his hands that day, either 

before the procedure or after picking the syringe up off the floor. Similarly, Dr. Hershey 

1

All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
3

did not cleanse the injection site either before or after the injection, which Barrett said 

was different from his prior injections.

By the evening of the next day, December 17, Barrett began experiencing 

increased pain in his knee. On December 18, Barrett’s wife or daughter called Dr. 

Hershey’s office, but were told Dr. Hershey could not be reached and if Barrett’s pain

was severe, he should be seen at the hospital. Finally, by December 19, Barrett’s leg hurt 

so badly he could barely walk; it was extremely swollen and the skin around the knee was 

warm.

Thus, on the morning of December 19, Barrett’s daughter took him to the 

Salinas Valley Memorial Hospital Emergency Room, where ER Dr. Ian Stehmeier 

confirmed Barrett’s right knee was swollen, painful, and warm to the touch. Barrett said 

a syringe was used to aspirate two vials of gray-colored fluid from his knee, and he 

watched as it was drawn up into the syringe. The fluid looked to him like pus, he knew

pus meant an infection, and realized that his knee was indeed infected. In fact, Barrett

told his daughter, “I don’t think I’m going home today.” He was correct.

Later that day, Barrett was seen by hospitalist Dr. Mario Cole. Cole said

Barrett told him he had come to the hospital because his right knee had become

significantly worse shortly after he had an injection in his orthopedist’s office on 

December 16. He explained Dr. Hershey had given him an injection of what he thought 

was cortisone in his right knee, and within 24 hours he developed pain and swelling,

which progressed to severe pain by the time he showed up at the ER.

Dr. Cole consulted with the on-call orthopedist, Dr. Justin Swan. Although 

Dr. Cole was unsure whether Barrett’s symptoms might be a result of arthritic 

pseudogout, he was “still cautious about the potential for septic arthritis as [Barrett] 

recently had a joint in[j]ection and states that the symptoms got worse after that.” He 

also noted: “[Barrett] also has low-grade fevers . . . [and Barrett’s] joint analysis also 

suggest[s] possible septic arthritis.” Cole’s “impression” was that it was a “septic right 
4

knee versus [pseudogout]” because “the description of the aspirate being remarkably 

purulent suggest[s] that this may actually be septic joint.” In addition, the initial lab 

results showed a high number of white blood cells, but no calcium pyrophosphate crystals 

in the synovial fluid indicative of pseudogout. Barrett was started on intravenous 

antibiotics, and Cole admitted him to the hospital.

The next day, December 20, Dr. Cole confirmed that final lab tests showed 

the knee was indeed infected. He and Dr. Swan made a “plan” for a “wash out” of the 

knee later that day. Barrett was then seen by Dr. Swan. Swan and Barrett discussed an 

“incision, debridement, and lavage for a likely septic joint[.]” Barrett agreed, and said he 

“underst[ood] and wishe[d] to proceed” with the procedure. Later that day, Barrett was 

taken to an operating room where Swan performed a “[r]ight knee arthrotomy” with

“[i]ncision, debridement and lavage of septic knee” in order to open up, clean, and flush

out the infection. 

Still hospitalized, on December 24 Barrett had a PICC (peripherally

inserted central catheter) inserted for long-term intravenous administration of antibiotics. 

Barrett acknowledged in his deposition that by this time he had been told his knee was 

infected and the PICC was to be used to administer antibiotics to treat that infection.

On December 27, Barrett was discharged from the hospital to a recovery 

nursing facility. The medical records do not show Dr. Hershey was ever consulted or 

otherwise involved in Barrett’s treatment during this hospital stay.

On December 31, Barrett was readmitted to the hospital at the direction of 

Dr. Hershey after aspiration of additional fluid from the knee at Dr. Hershey’s office on 

December 30 indicated the presence of a new infection, possibly yeast. As Barrett put it 

in his deposition testimony, “I had a secondary infection.” 

The hospitalist, Dr. Aurelio Gonzalez, noted in the chart that Barrett was 

being readmitted, having earlier been admitted “for a septic joint status post arthrotomy 

with debridement and washout on 12/20/2015 with aspirate cultures positive for 
5

Streptococcus gordonii . . . .” Dr. Gonzalez brought in consulting Dr. Mahendra Poudel

from the hospital’s infectious disease department to assess and assist, and Dr. Poudel also 

met with Barrett.

Later that day, Dr. Hershey performed a second arthroscopy and 

debridement of Barrett’s knee in order to again try to wash out and drain any infection.

Beforehand, Barrett and Dr. Hershey discussed the procedure, Barrett’s “clinical 

progress,” and the “culture results,” and Barrett “wishe[d] to proceed with surgery as 

discussed[.]” In his deposition, Barrett acknowledged this second surgery “was to try to 

wash out the infection out of the knee again . . . .” 

On January 1, 2016, a second PICC line was put in for additional 

intravenous antibiotic administration, and Barrett was finally discharged from the 

hospital on January 11, 2016.

On January 4, 2017, Barrett served Dr. Hershey with his notice of intent to 

commence an action against a health care provider pursuant to section 364. On April 4, 

2017, Barrett filed a complaint containing a single cause of action for general negligence,

alleging that on December 16, 2015:

“Defendant Hershey [was] a licensed healthcare provider. . . . Defendant 

Precision Orthopedics, A Medical Corporation, employ[ed] Defendant Hershey in the 

capacity of a Medical Doctor specializing in Orthopedics. Plaintiff sought and received 

medical treatment from Defendants for a sore right knee. Defendant Hershey proceeded 

to inject depo-medrol 80 and 10cc of 1% lidocaine in Plaintiff’s right knee without 

properly preparing himself, the equipment used for injecting the depo-medrol 80 and 

10cc of 1% lidocaine, and the site of the injection to prevent infection of Plaintiff’s knee. 

As a result of Defendant Hershey’s failure to protect Plaintiff from infection[,] Plaintiff’s 

knee became seriously infected resulting in extensive surgery to Plaintiff’s knee joint and 

surrounding tissue [and additional subsequent damages].” 
6

Dr. Hershey answered and then brought a motion for summary judgment, 

contending Barrett’s action was barred because it was filed after the applicable statute of 

limitations had expired. He filed a statement of undisputed material facts, and attached 

seven exhibits as evidence in support of his motion.

Barrett responded, indicating he did not dispute 19 of Dr. Hershey’s 20

material facts, nor the exhibits Dr. Hershey had proffered in support of the motion. As to 

the one disputed fact, Barrett maintained the referenced exhibits did not support what Dr. 

Hershey had alleged. The trial court did not weigh in on this disputed fact. It appears to 

have had no relevance, and we have disregarded it. 

In support of his opposition, Barrett included six exhibits. One was a 

January 16, 2019 declaration prepared for purposes of the February 1 summary judgment 

motion hearing. In it, Barrett stated that due to the “severity of [his] condition” he was 

on “substantial painkillers” and in a “tremendous amount of pain.” And, as such, he “was 

not in a frame of mind to appreciate the circumstances leading to [his] infection until the 

end of [his] hospital stay, on or about January 10, 2016.” Barrett declared it was only 

then that he “began to appreciate how Dr. Hershey’s actions could have contributed to 

my receipt [sic] of the infection.” Furthermore, he stated that “[a]t no time before [his] 

discharge did any doctor talk to [him] about how the infection could have been related to 

Dr. Hershey’s . . . falling below the medical standard of care while delivering the 

injection.” 

The trial court granted the motion, ruling Dr. Hershey was “entitled to 

judgment as a matter of law, on the basis that [Barrett’s] complaint is barred by the 

applicable statute of limitations, [section] 340.5.” The “undisputed facts, and the 

evidence offered by [Dr. Hershey] in support of them” comprised the factual basis for the 

court’s ruling. The court found they “establish[ed] that no later than December 31, 2015, 

the facts essential to [Barrett’s] claim were available and obvious to [Barrett]. Those 

facts were sufficient to put a reasonable person on inquiry and begin the limitations 
7

period, [citation]. [Barrett’s section 364 notice] was served over a year later. Therefore, 

[Barrett’s] subsequently-filed Complaint is time-barred, pursuant to [section] 340.5.” 

Judgment was entered in favor of Dr. Hershey, and this appeal ensued.

DISCUSSION

Legal Background

Any party to an action may move for summary judgment. (§ 437c, subd. 

(a)(1); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The 

moving party “bears an initial burden of production to make a prima facie showing of the 

nonexistence of any triable issue of material fact[.]” (Id. at p. 850.) A defendant moving 

for summary judgment may satisfy this initial burden by producing evidence of a 

complete defense. (§ 437c, subd. (p)(2); Aguilar, supra, at p. 853.) “The expiration of 

the applicable statute of limitations is one such complete defense.” (Professional 

Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 965; cf. Norgart v. Upjohn 

Co. (1999) 21 Cal.4th 383, 396 [“The statute of limitations operates in an action as an 

affirmative defense”].) Even so, summary judgment based on an affirmative defense is 

only proper if the moving party shows that the undisputed facts fully establish the 

defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) 

We review a grant of summary judgment de novo. (Aguilar, supra, 25 

Cal.4th at p. 860.) “In practical effect, we assume the role of a trial court and apply the

same rules and standards which govern a trial court’s determination of a motion for

summary judgment.” (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 

Cal.App.4th 1073, 1079.) “‘[W]e examine the facts presented to the trial court and 

determine their effect as a matter of law.’ [Citation.] We review the entire record, 

‘considering all the evidence set forth in the moving and opposition papers except that to 

which objections have been made and sustained.’ [Citation.] Evidence presented in 

opposition to summary judgment is liberally construed, with any doubts about the 

evidence resolved in favor of the party opposing the motion. [Citation.]” (Regents of 
8

University of California. v. Superior Court (2018) 4 Cal.5th 607, 618.) Thus, all 

reasonable inferences must be drawn in favor of the opposing party and “summary 

judgment cannot be granted when the facts are susceptible of more than one reasonable 

inference . . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)

“Although application of the statute of limitations is normally a question of 

fact, the question becomes one of law when the evidence is susceptible of only one 

reasonable conclusion. [Citation.]” (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 778

(Filosa); Brewer v. Remington (2020) 46 Cal.App.5th 14, 28 (Brewer) [“‘whenever 

reasonable minds can draw only one conclusion from the evidence, the question becomes 

one of law.’ [Citation.]”].)

The Statute of Limitations

The parties agree the applicable statute is section 340.5, under which the 

time to commence an action “for injury or death against a health care provider based 

upon such person’s alleged professional negligence” is either three years after the date of 

injury, or one year after “the plaintiff discovers, or through the use of reasonable 

diligence should have discovered, the injury,” whichever occurs first. (§ 340.5.)2

The parties also agree: January 4, 2017, is the date the action was 

commenced; Dr. Hershey’s allegedly negligent conduct occurred on December 16, 2015, 

the day he injected Barrett with the corticosteroid; and section 340.5’s one-year delayed 

discovery rule applies here.

3

The only issue before us is therefore simply stated: When 

2

“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, 

prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the 

duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or 

damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “‘Professional negligence’ means a 

negligent act or omission to act by a health care provider in the rendering of professional services, which act or 

omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the 

scope of services for which the provider is licensed and which are not within any restriction imposed by the 

licensing agency or licensed hospital.” (§ 340.5, subd. (2); see Flores v. Presbyterian Intercommunity Hospital

(2016) 63 Cal.4th 75, 84.) 

3

The fact codefendant Precision Orthopedics, M.C. is alleged to be an employer and not a health 

care provider, and its liability would be derivative, does not affect the statute of limitations issue. (See Lathrop v. 

HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423 [vicariously liable employer is entitled to 
9

did Barrett “discover” his “injury” within the meaning of section 340.5? (Cf. Garabet v. 

Superior Court (2007) 151 Cal.App.4th 1538, 1545 [“With regard to the one-year 

limitation provision, the issue on appeal usually is whether the plaintiff actually 

suspected, or a reasonable person would have suspected, that the injury was caused by 

wrongdoing”].)

Dr. Hershey insists the discovery date was no later than December 24, 

2015, when the first PICC was inserted for long-term intravenous administration of 

antibiotics, and Barrett was unequivocally aware his knee was indeed severely infected. 

Barrett contends the correct date is two weeks later, on January 6, 2016, when Dr. Poudel 

from the infectious disease department noted in Barrett’s chart that “the infection seems 

to have started after an intra-articular injection . . . .” If Barrett is correct, his January 4, 

2017 action was commenced two days before the limitations period elapsed. If he is 

incorrect, and the discovery date is more than two days earlier, the action is time-barred.

Analysis

“‘[T]he term “injury,” as used in section 340.5, means both a “person’s 

physical condition and its ‘negligent cause.’”’ [Citation.] The word ‘injury’ for purposes 

of section 340.5 is a term of art that ‘refer[s] to the damaging effect of the alleged 

wrongful act and not to the act itself.’ [Citation.] The injury is not necessarily the 

ultimate harm suffered, but instead occurs at ‘the point at which “appreciable harm” was

first manifested.’ [Citations.]” (Brewer, supra, 46 Cal.App.5th at p. 24, citing Brown v. 

Bleiberg (1982) 32 Cal.3d 426, 437, fn. 8 [“Plaintiff’s ‘injury’ occurred at the point at 

which ‘appreciable harm’ was first manifested”].)

Here, the “injury” is the infection, and the wrongful act is the allegedly 

unhygienic and professionally negligent manner in which the cortisone injection was 

administered, thereby causing the infection. Our inquiry therefore begins with the 

invoke against the injured plaintiff whatever substantive defenses to liability are available to its health care provider 

employee].) Our analysis therefore equally applies to both respondents.
10

question of what was “‘the point at which “appreciable harm” was first manifested?’ 

[Citations.]” (Brewer, supra, 46 Cal.App.5th at p. 24.) 

“An injury manifests when damage is ‘evidenced in some significant 

fashion; when the damage has clearly surfaced and is noticeable.’ [Citation.]” (Filosa, 

supra, 59 Cal.App.5th at. p. 779.) Here, the infection was evidenced as early as Barrett’s 

December 19, 2015 ER visit, when 120 cc of a “cloudy purulent” fluid was aspirated 

from his knee, which Barrett remarked looked to him like pus. In his deposition, Barrett 

was asked, “So when you saw that pus-looking stuff going into the syringe on December 

19, 2015, you thought ‘I have an infection in my knee’?” and he replied, “Yes, sir.” That 

same day, “[preliminary] report reveal[ed] a white blood cell count of greater than 

60,000,” and Dr. Cole noted in the chart his impression of a “[s]eptic right knee.” Thus, 

by the end of December 19, the infection had “clearly surfaced,” and was “noticeable” –

especially to Barrett, who remarked to his daughter that he wouldn’t be going home that 

day. Moreover, everyone involved knew Barrett had received a cortisone injection into 

the same knee joint only a few days before, and that he had almost immediately thereafter 

began to suffer increased pain and swelling in the joint.

Therefore, “appreciable harm” had “manifested” by December 19, 2015, it 

was noticeable, and Barrett was fully aware of it.

The next question is when did Barrett know, or when should he have 

known, that something “wrong” had possibly caused this injury? “[T]he one-year 

limitation period under section 340.5 requires the plaintiff to file a claim within one year 

of discovering appreciable harm and is, or should be, suspicious of wrongdoing as to the 

cause of that harm.” (Brewer, supra, 46 Cal.App.5th at p. 28, italics added; cf. Knowles 

v. Superior Court (2004) 118 Cal.App.4th 1290, 1295 (Knowles) [“injury” means both a 

person’s physical condition and its negligent cause; “a person need not know of the actual 

negligent cause of an injury; mere suspicion of negligence suffices to trigger the 

limitation period”].) 
11

“[T]he plaintiff discovers the cause of action when he at least suspects a 

factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge 

thereof – when, simply put, he at least ‘suspects . . . that someone has done something 

wrong’ to him [citation], ‘wrong’ being used, not in any technical sense, but rather in 

accordance with its ‘lay understanding’ [citation]. [Fn.] He has reason to suspect when 

he has ‘“‘“notice or information of circumstances to put a reasonable person on

inquiry”’”’ [citation]; he need not know the ‘specific “facts” necessary to establish’ the 

cause of action; rather, he may seek to learn such facts through the ‘process contemplated 

by pretrial discovery’; but, within the applicable limitations period, he must indeed seek 

to learn the facts necessary to bring the cause of action in the first place – he ‘cannot wait 

for’ them ‘to find’ him and ‘sit on’ his ‘rights’; he ‘must go find’ them himself if he can 

and ‘file suit’ if he does [citation].” (Norgart v. Upjohn Co., supra, 21 Cal.4th at pp. 

397-398.)

Barrett maintains he had no reason to suspect negligence as the cause of his 

infection until January 6, 2016, when Dr. Poudel noted in the chart that the “infection 

seems to have started after [an] intra-articular injection[.]” He argues this was allegedly 

the first time a medical professional “evinced at least suspicion that the injection may 

have been the cause,” and that he was first “alerted [to] the possibility that the injection 

might be the cause of the continued and increased pain.” We are not persuaded.

First, the determinative factor is not other medical professionals’

suspicions, it is the plaintiff’s. (See Knowles, supra, 118 Cal.App.4th at p. 1300 [“It is a 

plaintiff’s suspicion of negligence, rather than an expert’s opinion, that triggers the 

limitation period”].)

Second, “[u]nder the one-year limitation period of section 340.5, the 

plaintiff must bring suit within one year after he or she discovers, or should have 

discovered, his or her injury. . . . If the plaintiff has notice or information of 

circumstances that would put a reasonable person on inquiry notice, the limitation period 
12

is activated. [Citation.] When this occurs, the ‘patient is charged with “presumptive”

knowledge of his negligent injury . . . .’ [Citation.]” (Brewer, supra, 46 Cal.App.5th at p. 

24, italics added.) Consequently, “the accrual period under section 340.5 commences 

when there has been, from an objective standard, a manifestation of appreciable harm that 

would put a reasonable person on inquiry notice of wrongdoing.” (Id. at p. 31.)

Barrett repeatedly emphasizes he “was never informed by any medical 

professional that the infection was caused by or related to the injection prior to his 

discharge from care on or about January 10, 2016.” And “[a]t no time prior to his

discharge did any medical professional tell Mr. Barrett that the infection was related to or 

originated at the injection site.” But he provides no authority or argument for why this 

fact conclusively affects the running of the statute. Although such disclosure by a 

“medical professional” would have been sufficient to trigger the running of the statute, it 

does not follow that it was necessary, and the cases Barrett cites do not hold otherwise.

Barrett also argues “[o]nly on January 6, 2016, did [D]octor Poudel note 

that ‘the infection seems to have started after an intra-articular injection’. . . .” This is 

factually inaccurate. The hospital records from Dr. Poudel’s initial consultation with 

Barrett on December 31, 2015 show Dr. Poudel noted in the chart that Barrett had been 

“diagnosed with right septic knee due to Streptococcus gordonii. Onset of symptoms on 

his last [hospital] admission was 24 hours after intra-articular steroid injection.” And 

most importantly, it was in this same December 31 chart entry, not the January 6 entry,

where Dr. Poudel first opined, “[Barrett’s] initial infection seems to have started after 

intra-articular injection . . . .” (Italics added.) 

Yet this exact language is what Barrett now contends was the decisive

event that started the limitations clock running. Thus, he concludes his brief by arguing: 

“In asking for a triggering event, the [t]rial [j]udge said[,] ‘I mean is there any 

conversation? Is there anything in the medical records . . . Did anybody say anything to 

[Barrett]?’ There is in the medical records Dr. Poudel’s statement that that [sic] ‘the 
13

infection seems to have started after an intra-articular injection’ may have been the 

triggering event. [¶] . . . No medical professional before January 6, 2016 alerted [Barrett] 

of the possibility that the injection might be the cause of the continued and increased 

pain. Only on January 6, Dr. Poudel evinced at least a suspicion that the injection may 

have been the cause.” 

But, as we have seen, this same chart entry was actually first made on 

December 31, not January 6. Hoisted by his own petard, it would appear even Barrett is 

hard-pressed to deny that December 31, 2015, is the determinative date, and perforce a 

January 4, 2017 action would be untimely.

Barrett also points out that as late as January 6, Dr. Poudel was still 

“dealing with two separate infections, yeast infection and the septic arthritis,” and that it 

was unusual “‘to have ongoing septic arthritis after [incision and drainage] with a 

different organism especially fungus.’ []” Again, however, it is not Dr. Poudel’s inability 

to explain the full ramifications of Barrett’s injury – a worsening multi-faceted infection

– that is relevant. It was the injection-caused infection that comprised the already 

manifested injury, not its etiology or subsequent complications and secondary effects. 

(Cf. Knowles, supra, 118 Cal.App.4th at p. 1298 [“[C]ourts have rejected the argument 

that the limitations period does not begin to run until a plaintiff learns the specific causal 

mechanism by which he or she has been injured”].) This is particularly true when, as 

here, the complaint does not allege causes of action against Dr. Poudel or the hospital and 

its staff.

Barrett was fully aware of the unsterile circumstances surrounding his 

steroid injection and its almost immediate aftermath, including the worsening pain and 

swelling. When he finally went to the emergency room two days after the injection, he 

was in such severe pain he could barely walk. He watched as the knee was aspirated, and 

he saw what looked to him like pus and knew his knee was infected. He knew his

condition was severe enough to be hospitalized and knew he was not going to be merely 
14

sent home with an antibiotic prescription. He soon became aware he was suffering a 

serious infection in the same knee joint that had been injected just days before, and that 

he was being treated in part by a consulting member of the hospital’s infectious disease 

department. He was released but readmitted when the infection worsened and became 

more complicated. He had two surgical procedures, both intended to deal with an

increasingly serious infection that could reasonably, if not inexorably, be traced back to 

the nonsterile injection he received in Dr. Hershey’s office mere days before. And all 

these events and circumstances occurred on or before December 31, 2015.4

This conclusion is not merely fallacious post hoc ergo propter hoc

reasoning. The only objectively reasonable suspicion was that Barrett’s injury was 

caused by the unsterile administration of the cortisone injection. Unlike the anesthetized

patient who is unaware of her injury until long afterward, or the patient whose x-rays 

were incorrectly read by the radiologist or lab tests incorrectly interpreted by the 

pathologist, here Barrett was an eyewitness to the negligent actions and their almost 

immediate effects. He was a competent adult who had received cortisone injections in 

the past and knew what to expect and what would be unusual. (Compare Filosa, supra,

59 Cal.App.5th at p. 773 [patient who received several false reassurances from physician 

about his symptoms was not on inquiry notice of his illness and injury].)

Even assuming Barrett did not subjectively connect all the proverbial dots

until January 6, 2016, or as he put it in his declaration, he did not “beg[i]n to appreciate”

4

Barrett cites Brown v. Bleiberg, supra, 32 Cal.3d 426 to support an argument he was entitled to 

rely upon Dr. Hershey’s skill and judgment while under his care and therefore had a to exercise only a “diminished” 

degree of diligence in ferreting out the negligent causes of his infection. However, no ferreting was required in this 

case; Barrett was fully aware of all the relevant facts and knew or should have known of their factual significance. 

Brown v. Bleiberg is also factually distinguishable, because it involved a situation where the cause of the plaintiff’s 

injury was the improper surgical removal of portions of the bones of her feet while she was anesthetized for what 

was supposed to be corn surgery. Not only was the plaintiff unaware and not told what the surgeon had done, but 

she was lied to about it. (Id. at pp. 430-431.) More importantly, the plaintiff continued to believe the doctor’s 

explanations for her injuries and the statute was tolled during the time that the defendant continued to make 

reassuring statements to the plaintiff. Here, there is no evidence anyone, let alone Dr. Hershey, told Barrett the 

infection had nothing to do with the injection.
15

the significance of Hershey’s unhygienic conduct because he was not in the right “frame 

of mind,” it is beyond any reasonable dispute that he should have. 

The law provides alternate tests for triggering the limitations period: (1) a 

subjective test requiring actual suspicion by the plaintiff that the injury was caused by 

wrongdoing; or (2) an objective test requiring a showing that a reasonable person would 

have suspected the injury was caused by wrongdoing. (Jolly v. Eli Lilly & Co. (1988) 44

Cal.3d 1103, 1110.) Here, the objective test applies. “For purposes of the one-year 

period, discovery of the injury means the plaintiff has discovered ‘both his or her injury 

and its negligent cause.’ [Citation.] . . . If the plaintiff has notice or information of 

circumstances that would put a reasonable person on inquiry notice, the limitation period 

is activated.’ [Citation.]” (Filosa, supra, 59 Cal.App.5th at p. 779, italics added.) This 

is such a case.

DISPOSITION

Even drawing all reasonable inferences in Barrett’s favor, we find the 

statute of limitations in this matter began to run no later than December 31, 2015. The 

action commenced on January 4, 2017 was therefore time-barred by section 340.5. The 
16

judgment is affirmed. Respondents shall recover their costs. (Cal. Rules of Court, rule 

8.278(a)(1), (2).)

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

MARKS, J.*

*Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI, 

section 6 of the California Constitution.