Kaplan v. Mamelak
Filed April 29, 2008, Second District, Div. Eight
Cite as 2008 SOS 2562

Dismissal of the Medical Malpractice Case Reversed and Remanded

Adam Mamelak, M.D. (Mamelak) operated on Larry Kaplan’s (Kaplan) spine. The operation was intended to excise the herniated portion of disk T8-9 in his spine.

Mamelak operated on a wrong disk. Instead of the targeted and correct T8-9, he operated on the disks between the sixth and seventh (T6-7) and seventh and eighth thoracic vertebrae (T7-8). The MRI findings confirmed this mistake.

On September 11, 2002, Mamelak and Kaplan discussed their treatment options. Kaplan agreed to undergo a second operation.

Mamelak reoperated on Kaplan, but again mislocated the herniation and operated on the wrong disk.

Following the second surgery, Kaplan sought treatment from a different neurosurgeon that operated on the correct disk. However, the repeated operations caused Kaplan to suffer lingering pain and limited mobility in his back.

On September 17, 2003 or one year and six days after the September 11 conversation, Kaplan served his notice of his intent to sue Mamelak for medical malpractice. Eventually, he filed his complaint less than 90 days later on December 15, 2003.

Mamelak, in his answer, contended that the one-year statute of limitations for medical malpractice barred Kaplan’s complaint. Mamelak claimed that Kaplan knew from the September 11 conversation that Mamelak had injured him by operating on the wrong disks.

Thus, Kaplan’s notice of intent to sue served on September 17, 2003, was six days late. As there is no 90-day extension to file his complaint, it rendered his complaint filed three months too late.

The jury tried the statute of limitations defense. The jury reached a unanimous verdict in favor of Mamelak. Following the jury’s verdict, the court ruled that Kaplan’s complaint was untimely under the one-year statute of limitations for medical malpractice. The court entered judgment in favor of the Mamelak.

Thus, appeal followed.

The California Court of Appeal directed the trial court to:

1. Vacate its orders sustaining the demurrers to the battery causes of action and denying the motion to compel discovery, and


2. Overrule the demurrers and grant the motion to compel.

The above findings are discussed as follows:

The consent form signed by Kaplan gave Mamelak permission to operate only on disk T8-9, a surgery the form described as a “thoracic eight-nine transverse pedicular diskectomy.” A patient need not give open-ended consent when agreeing to medical care. Instead, he may impose limitations that the physician ordinarily must abide.

The fact that Mamelak operated on the wrong disk within inches of the correct disk was a "substantially different procedure than that to which plaintiff consented was a factual question for a finder of fact to decide. The same constituted battery and not mere negligence.

On the issue of timeliness of the notice of intent, Kaplan served his notice on September 17, 2003 – six days late if the one-year statute of limitations running from September 11, 2002 was not tolled.

Pursuant to Mamelak’s testimony, he was outside California not more than three days during the statute of limitations period. Considering this, it pushed back the last day for Kaplan to serve timely his notice of intent to September 14, 2003.

Mamelak’s possible absence for three more days would have made a world of difference to the timeliness of Kaplan’s notice of intent to sue and, thus, his complaint.

Denial of discovery with respect to Mamelak's possible out-of-state travel constituted prejudicial error where Kaplan's complaint was had been filed six days late.

In sum, the appeal court reversed and remanded the case for further proceedings.