Filed 2/18/14
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION ONE


BRENDAN MAHER,
        Plaintiff and Appellant,
                                                   A135792
v.
COUNTY OF ALAMEDA et al.,                          (Alameda County
                                                   Super. Ct. No. RG11573562)
        Defendants and Respondents.


        Surgeons implanted a biliary stent in plaintiff Brendan Maher during emergency
abdominal surgery in 1996. Maher alleges he was unaware of the stent’s placement until
it was discovered and removed in August 2010 after he sought treatment for abdominal
pain. In April 2011, Maher sued the health care providers who treated him in 1996 and
1997 for professional negligence in not timely removing the stent, or informing him of its
placement and the fact it was designed to be temporary. The defendants successfully
demurred on statute of limitations grounds, and Maher appeals from the ensuing
judgments. He contends the statute of limitations was tolled from 1996 to 2010 under the
“foreign body” exception of Code of Civil Procedure section 340.5 (section 340.5). We
agree, and reverse the judgments of dismissal. We affirm the order sustaining the
demurrer of Alameda County Medical Center (ACMC) to Maher’s separate cause of
action for denial of access to his medical records without leave to amend.
                                   I. BACKGROUND
A. Parties and Pleadings
        Maher filed his original complaint on April 29, 2011, alleging causes of action for
(1) negligence and (2) failure to provide access to his medical records as required by
Health and Safety Code section 123100 et seq. The complaint named as defendants
ACMC, Frederick Wright, M.D., Ralph Bernstein, M.D., Lifelong Medical Care–
Berkeley Primary Care (Lifelong), Vaneida White, M.D.,1 and Doe defendants. Maher
filed a first amended complaint a few days later, naming Alameda County as an
additional defendant and substituting Sutter East Bay Hospitals dba Alta Bates Summit
Medical Center (Alta Bates)2 and J. Dougal MacKinnon for two of the Doe defendants.
Following entry of orders sustaining demurrers by some of the defendants, Maher filed
his second amended complaint (SAC), which is in issue on this appeal.
       The SAC alleged in pertinent part as follows:
       Maher was injured by a gunshot in Berkeley, California on May 24, 1996. He was
transported by ambulance to ACMC at Highland Hospital where he underwent medical
procedures related to his injuries. As part of the procedures to address abdominal injuries
sustained by Maher, a biliary stent was placed in Maher’s body. Maher was unconscious
or otherwise incapacitated secondary to his injuries when the stent was implanted. Maher
remained an inpatient at ACMC until July 10, 1996, when he was transported by
ambulance to Alta Bates for rehabilitative care.3 He remained at Alta Bates until
August 8, 1996. Following his discharge from Alta Bates, Maher received outpatient
treatment from Lifelong and Dr. White until February 12, 1997, which was the last date
he was seen or treated by any of the defendants for his gunshot wound injuries.
       On August 10, 2010, Maher went to the emergency room at Kaiser Hospital in Los
Angeles, California because of abdominal pain and vomiting. Blood tests indicated his
liver enzyme level was consistent with biliary obstruction and followup imaging revealed
the existence of the biliary stent in his body. Maher’s physicians at Kaiser informed
Maher (1) the biliary stent was by design intended to be temporary and should have been


       1
           Sued erroneously as Vanieta White.
       2
           Sued erroneously as Alta Bates—Herrick Hospital.
       3
         The admitting diagnosis of defendant MacKinnon at Alta Bates was alleged to
include the following: “Status post gastrointestinal visceral abdominal injury including
Bilary [sic] stent placement, residual Bilaryoma [sic], liver laceration, diaphragm
laceration and superior vena cava laceration with significant blood loss . . . .”


                                                2
explanted generally between three to six months after being placed, but in no event
should it have been allowed to remain for over 14 years; (2) the stent lost any efficacy it
may have had within one year of placement and had at some point begun to disintegrate
and had already migrated from the site where it was originally placed; and (3) the stent
should be removed immediately. The stent was removed at Kaiser Hospital less than 24
hours after it was discovered.
       Maher was unaware of any stent in his bile duct before August 10, 2010. None of
the health care providers involved in his gunshot wound treatment had informed him of
its placement, the fact it was designed to be temporary, or the need to monitor or remove
it. The defendants breached their duties of care to Maher by, among other things,
negligently failing to inform Maher of these facts, failing to provide him with adequate
discharge instructions or followup treatment, and failing to timely remove the biliary
stent. As a result of defendants’ negligence, Maher sustained injury to his health and
activity, and to his person, causing pain and suffering, and incurred economic and
noneconomic losses, past, present, and future, including future medical treatment and
expenses.
       Maher’s second cause of action for violation of Health and Safety Code
section 123110 alleged that on September 7, 2010, he requested access to his patient
records from ACMC and ACMC failed to comply with its legal duty to allow him to
inspect or copy his records. ACMC responded to Maher on September 13, 2010, stating:
“ ‘Due to California Retention Laws, these records are no longer available.’ ”4
       Defendants demurred to the negligence cause of action on the grounds in part that
it was barred by the three-year statute of limitations for medical negligence claims under
section 340.5.5 Defendant ACMC demurred to the statutory patient records cause of


       4
         According to the SAC, ACMC later produced “writings alleged to be [his]
[p]atient [r]ecord,” apparently in response to a discovery request in this litigation.
       5
         Section 340.5 provides in relevant part: “In an action for injury or death against
a health care provider based upon such person’s alleged professional negligence, the time
for the commencement of action shall be three years after the date of injury or one year

                                              3
action on the grounds Maher failed to adequately allege damages resulting from the
asserted violation, ACMC did not violate the law because it had no duty to retain Maher’s
records beyond seven years, and the statute did not cover records requested by a patient’s
attorney for purposes of bringing a civil action. Maher contended (1) the presence of a
“foreign body” in his person—the biliary stent—which he did not discover until
August 2010, made his negligence claims timely when he filed his original complaint in
April 2011; and (2) he adequately pled a statutory violation and resulting damages.
B. Trial Court Ruling
       The trial court ruled the “foreign body” tolling exception did not apply to the
biliary stent. It held an object intentionally left in the body for a therapeutic purpose
following the completion of a medical procedure does not qualify as a “foreign body” for
purposes of section 340.5. The court found Maher failed to allege a cognizable claim
against ACMC for withholding patient records due to (1) the seven-year medical record
retention period provided for by state regulations, and (2) Maher’s failure to allege any
damage he suffered as a result of the alleged violation in view of the fact he did not
request the records until the stent had already been removed, and he admitted he obtained
the records through discovery. The court sustained the defendants’ demurrers without
leave to amend. This timely appeal from the ensuing judgments followed.
                                     II. DISCUSSION
A. The Foreign Body Exception
       A demurrer tests the sufficiency of a plaintiff’s complaint by raising questions of
law. On appeal, we exercise our independent judgment to determine whether the
complaint states a cause of action. (City of Morgan Hill v. Bay Area Air Quality
Management Dist. (2004) 118 Cal.App.4th 861, 869.) A trial court errs in sustaining a

after the plaintiff discovers, or through the use of reasonable diligence should have
discovered, the injury, whichever occurs first. In no event shall the time for
commencement of legal action exceed three years unless tolled for any of the following:
(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign
body, which has no therapeutic or diagnostic purpose or effect, in the person of the
injured person. . . .” (Italics added.)


                                              4
demurrer when the plaintiff has stated a cause of action under any possible legal theory.
(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966–967.)
       The demurrers to Maher’s medical negligence cause of action raise a question of
statutory interpretation to which certain familiar principles apply. We described these
principles in Chosak v. Alameda County Medical Center (2007) 153 Cal.App.4th 549:
“Our overriding objective when interpreting a statute ‘is to determine the drafter’s intent.’
[Citation.] In making that determination, we look first to the words of the statute because
they ‘ “ ‘generally provide the most reliable indicator of legislative intent.’ ” ’ [Citation.]
‘. . . We begin by examining the statutory language, giving it a plain and commonsense
meaning. [Citation.] We do not, however, consider the statutory language in isolation;
rather, we look to the entire substance of the statutes in order to determine their scope and
purposes. [Citation.] That is, we construe the words in question in context, keeping in
mind the statutes’ nature and obvious purposes. [Citation.] We must harmonize the
various parts of the enactments by considering them in the context of the statutory
framework as a whole.’ [Citation.] [¶] If this analysis demonstrates that the statute’s
language is clear and unambiguous, ‘it governs. . . .’ [Citation.] ‘If the statutory
language permits more than one reasonable interpretation, courts may consider other aids,
such as the statute’s purpose, legislative history, and public policy.’ [Citation.] ‘[I]t is
appropriate to consider ‘the consequences that will flow from a particular interpretation.
[Citation.]’ [Citation.] Where more than one statutory construction is arguably possible,
our ‘policy has long been to favor the construction that leads to the more reasonable
result. [Citation.]’ [Citation.] . . . Thus, our task is to select the construction that
comports most closely with the Legislature’s apparent intent, with a view to promoting
rather than defeating the statute[’s] general purpose, and to avoid a construction that
would lead to unreasonable, impractical, or arbitrary results.’ ” (Id. at pp. 558–559
[construing a different aspect of section 340.5].)
       Section 340.5 was passed in its present form as part of the Medical Injury
Compensation Reform Act (MICRA), enacted in a special session of the Legislature
convened in 1975 to address skyrocketing costs of medical malpractice insurance.


                                                5
(Stats. 1975, 2d Ex. Sess. 1975–1976, ch. 1, § 25, pp. 3969–3970; Proclamation by the
Governor, Stats. 1975, 2d Ex. Sess. 1975–1976, p. 3947.) The cost of obtaining such
insurance threatened at that time to force some hospitals and doctors to close their doors,
curtail their services, or practice without insurance. (Fein v. Permanente Medical Group
(1985) 38 Cal.3d 137, 158.) The amendments made to section 340.5 in 1975 were
intended to address one of the factors considered to be driving malpractice premium
increases—a largely indeterminate statute of limitations for medical malpractice cases in
which the statute did not begin to run on a cause of action for malpractice until the
plaintiff discovered his or her injury and its negligent cause or through the exercise of
reasonable diligence should have discovered it. (Larcher v. Wanless (1976) 18 Cal.3d
646, 654–656 (Larcher); Brown v. Bleiberg (1982) 32 Cal.3d. 426, 432–433.)
       Thus, former section 340.5 had provided the statute of limitations would be “four
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 first occurs,” but also
allowed this limitation period to be tolled “for any period during which [the defendant]
. . . failed to disclose any act, error, or omission upon which such action is based and
which is known or through the use of reasonable diligence should have been known to
him.” (Stats. 1970, ch. 360, § 1, pp. 771–772.) The 1975 amendments to section 340.5
“worked a substantial change” in these tolling provisions. (Young v. Haines (1986)
41 Cal.3d 883, 893.) “The outside limit for initiating malpractice actions, regardless of
the date of discovery, was reduced from four years under the 1970 statute to three years.
More significantly, under the new statute this limit was tolled only for fraud, intentional
concealment, or the presence of nontherapeutic and nondiagnostic foreign bodies.”
(Ibid.) By its use of the phrase “In no event” in the amended statute the Legislature
signaled its intention that the three exceptions it enumerated in section 340.5 were to be
the exclusive grounds for allowing any medical malpractice claim to be brought on behalf
of nonminors more than three years after the date of injury. (Fogarty v. Superior Court
(1981) 117 Cal.App.3d 316, 320.)



                                              6
       Thus, the Legislature sought in MICRA to reduce the cost of malpractice in a
reasonable manner, balancing “ ‘concern over the extended exposure of medical
practitioners to malpractice liability’ ” with “ ‘a desire not to bar potentially worthy
plaintiffs from court before they have a fair chance to bring suit.’ ” (Steketee v. Lintz,
Williams & Rothberg (1985) 38 Cal.3d 46, 56 (Steketee), quoting Larcher, supra,
18 Cal.3d at p. 655, italics added.)6 At the same time, the Legislature’s obvious intention
in 1975 was to curtail tolling of the three-year statute in the great majority of cases.
       The following factors must therefore inform our analysis of the tolling language
found in the statute: First, the Legislature intended to allow tolling in certain narrow
circumstances in which even a diligent plaintiff would be unfairly deprived of the chance
to bring suit. Second, instead of fully explicating the showing required to meet each of
the three tolling exceptions, the Legislature chose instead to merely reference them in a
shorthand list—“fraud,” “intentional concealment,” and “presence of a foreign body.”
By not spelling out the requirements for each exception, the Legislature was clearly
expecting the courts to interpret them in light of prior precedents. We find no indication
in the text of the statute or the context in which it was enacted that the Legislature
intended to broaden the application of tolling in foreign body cases beyond the scope and
rationale of the case law that had developed prior to 1975.
       The seminal pre-1975 California decision recognizing tolling based on the
presence of a foreign body was Huysman v. Kirsch (1936) 6 Cal.2d 302 (Huysman). The
defendant, a physician and surgeon, made an incision in the plaintiff’s abdomen in order
to remove her cancerous uterus. (Id. at pp. 303–304.) The surgery was alleged to have
taken place on January 3, 1931. (Id. at p. 304.) The defendant inserted a nine-inch
rubber tube in the incision for the purpose of draining the wound, and closed the wound
on that date without removing the rubber drainage tube. (Ibid.) The complaint further

       6
        The Supreme Court recognized in Steketee that the quoted language from
Larcher concerned the 1970 amendments to section 340.5, but it nonetheless found the
statement fully applicable to the MICRA amendments. (Steketee, supra, 38 Cal.3d at
p. 56.)


                                              7
alleged that the defendant, without the knowledge or consent of the plaintiff, negligently
allowed the drainage tube to remain enclosed in the plaintiff’s abdomen from “on or
about January 9, 1931,” until 20 months later, at which time the defendant for the first
time removed the tube from her body and the plaintiff first learned the tube had been
permitted to remain in her body by the defendant. (Ibid.) The complaint alleged the
defendant’s negligence in permitting the tube to remain enclosed in the plaintiff’s
abdomen caused her to suffer ongoing painful illness and mental anguish. (Id. at
pp. 304–305.)
       The issue before the Supreme Court in Huysman was whether the complaint, filed
on January 7, 1933, was barred on its face by the one-year statute of limitations for
negligence then in effect. (Huysman, supra, 6 Cal.2d at p. 305.) The defendant’s
position was that his alleged negligence “was his failure to remove the drainage tube after
it had served its purpose, and this failure . . . occurred on January 9, 1931 . . . ,” which
was also the date of injury that started the running of the limitations period. (Id. at
pp. 305–306, italics added.) In other words, the fact pattern the Supreme Court faced in
Huysman is quite similar to that presented here—a claim of medical negligence based on
failing to timely remove a foreign body that has been deliberately left in a patient’s body
following surgery to serve a temporary, postoperative therapeutic purpose. As in this
case, the medical negligence alleged “consisted in leaving the [foreign object] in the
[body] after the purpose for which it had been left therein had been fully accomplished,”
and the issue before the court was whether the cause of action accrued before the plaintiff
learned of its presence. (Id. at p. 307.)
       The Huysman case and the foreign body exception in section 340.5 were carefully
analyzed in Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046 (Ashworth), a
case upon which Maher relies. Ashworth involved a medical malpractice action brought
in 1984 based on the discovery that defendants had left cotton pledgets in the plaintiff’s
body following kidney surgery in 1976. (Id. at pp. 1052–1053.) The defendants claimed
the action was barred by section 340.5. (Ashworth, at pp. 1053–1054.) The appellate



                                              8
court first addressed the origins and application of the foreign body exception in the
statute.
       According to Ashworth, the statutory foreign body exception traces its lineage to
Huysman. (Ashworth, supra, 206 Cal.App.3d at pp. 1055–1056.) The opinion describes
Huysman as setting forth three distinct rationales for concluding that accrual of a medical
negligence cause of action is tolled by the presence of a foreign body: (1) the tort
continued until removal of the foreign object so that the plaintiff’s right of action also
continued, (2) the operation was not complete until all the equipment used in the
operation and been removed, and (3) the patient was unaware of the presence of the
drainage tube until it was removed and could not have gained that knowledge by the
exercise of due care. (Ibid.) According to Ashworth, “[t]he rule and three rationales
announced in Huysman [with one qualification discussed below] constitute the common
law ‘foreign body’ doctrine the California Legislature codified in its 1975 amendment of
section 340.5.” (Id. at pp. 1056, 1057.)
       While noting the appellate courts had focused on Huysman’s third rationale,7 the
Ashworth court emphasized the other two rationales articulated by the Supreme Court
remain viable to prevent the running of the statute of limitations while a “foreign body”
remains present inside a patient, noting in most such situations the three rationales
produced the same result. (Ashworth, supra, 206 Cal.App.3d at pp. 1056–1057.)
Ashworth goes on to observe the statute “added only one qualification,” that the foreign
body “have no ‘therapeutic purpose or effect.’ ” (Id. at p. 1057.) But as to this language,
Ashworth states: “[T]his requirement can be satisfied even if the foreign body had such a
purpose or effect when originally placed in the patient’s body. It is enough the foreign
body was not removed after it had ceased having this therapeutic purpose or effect.

       7
         See Pellett v. Sonotone Corp. (1942) 55 Cal.App.2d 158, a case in which plaster
and cotton used to make a cast of the plaintiff’s ear were inadvertently left in the ear.
Pellett stated the rule as follows: “[I]f a foreign substance is negligently left in the
human body by a defendant, the statute of limitations does not commence to run until the
plaintiff has discovered the fact that a foreign substance has been left in his body or
through the use of reasonable diligence should have discovered it.” (Id. at p. 160.)


                                              9
Otherwise the nine-inch drainage hose left in the patient in Huysman and all the other
sponges, pins, needles, and similar objects left in patients in the paradigm ‘foreign body’
cases would not qualify for the ‘foreign body’ exception. For, in nearly all these cases,
the tube or sponge or other object indeed had a ‘therapeutic purpose or effect’ at the time
it was inserted into the patient’s body . . . . But the continued presence of these items for
weeks, months or years after the wound was closed had no therapeutic value. At some
point these articles only represented a threat of injury. Sensibly, after enactment of
section 340.5 the ‘foreign body’ rule still applies to ‘foreign bodies’ even though they
had a ‘therapeutic purpose or effect’ at the time they were placed in the patient so long
as it can be shown they were allowed to remain there too long.” (Id. at p. 1057, italics
added.) Based on its analysis, the Ashworth court found the plaintiff’s malpractice cause
of action was not barred by section 340.5. (Ashworth, at p. 1059.)
       The post-MICRA cases principally relied upon by defendants are not inconsistent
with Ashworth. (See Hills v. Aronsohn (1984) 152 Cal.App.3d 753 [silicone injections
made for a therapeutic purpose were not foreign objects or substances for tolling
purposes]; Trantafello v. Medical Center of Tarzana (1986) 182 Cal.App.3d 315 [acrylic
substance implanted into the plaintiff’s neck to maintain space between vertebrae was not
a foreign body].) What distinguishes Hills and Trantafello is that in both cases the
substances placed in the patient’s body for a therapeutic purpose were intended to remain
there permanently and for that reason did not come within the statutory foreign body
exception. While Trantafello and Hills contain some language defendants construe to
mean the foreign body exception only applies to objects or substances inadvertently
introduced into the body (see Trantafello, at pp. 319–320 & Hills, at p. 765), such a
suggestion is inconsistent with the facts in Huysman and Ashworth.8

       8
         The parties also discuss Osborne v. County of Los Angeles (1979) 91 Cal.App.3d
366, which was not a foreign body tolling case. The plaintiff in Osborne suffered an
infection stemming from pins and screws placed in his leg to treat injuries he had
suffered in an automobile accident. (Id. at p. 368.) The defendant county’s hospital had
performed surgery to remove the pins and screws in 1968, but was negligent in doing so
and left one screw in the patient’s hip which prevented his infection from healing. (Id. at

                                              10
       In sum, we concur with Ashworth that (1) Huysman established California’s
common law foreign object tolling rule; (2) MICRA codified this exception; and (3) the
“no therapeutic or diagnostic purpose or effect” qualification in section 340.5 means the
foreign body exception does not apply to objects and substances intended to be
permanently implanted, but items temporarily placed in the body as part of a procedure
and meant to be removed at a later time do come within it. Defendants point to no
legislative history or authority suggesting the Legislature intended to abrogate Huysman
by adopting the “therapeutic or diagnostic purpose or effect” language in section 340.5.
In our view, Huysman is still good law and is factually on point with the case before us.
We therefore hold that Maher’s negligence claims should not have been dismissed under
section 340.5.
B. Medical Records
       Maher asserted a cause of action against ACMC under a chapter of the Health and
Safety Code entitled “Patient Access to Health Records” (Health & Saf. Code, § 123100
et seq.; Patient Access Law). Maher alleged he incurred attorney fees and other
unspecified damages by reason of ACMC’s failure to timely provide access to the
records. ACMC demurred in part on the ground there was no violation of the Patient
Access Law because its provisions were enacted to facilitate the provision of medical
care, and Maher did not allege he was deprived of information needed to make health
care decisions. We agree ACMC did not violate the statute, and we further find Maher
cannot amend his complaint to state a viable cause of action under either the Patient
Access Law or a related statute—Evidence Code section 1158—which concerns attorney
access to a client’s medical records in anticipation of litigation.




pp. 368–369.) Applying the pre-1975 discovery rule, the Court of Appeal found the
negligence occurred in 1968 when the hospital failed to remove the screw, but that the
plaintiff’s cause of action was tolled until 1976 when he learned for the first time his
ongoing medical problems stemmed from its presence in his hip. (Osborne, at p. 370.)
The Osborne court made no interpretation of the foreign body exception in section 340.5.


                                              11
       Health and Safety Code section 123110, subdivision (a) provides any “adult
patient” or “patient representative” is “entitled to inspect patient records upon presenting
to the health care provider a written request for those records and upon payment of
reasonable clerical costs incurred in locating and making the records available.” For
purposes of the Patient Access Law, “patient” is defined as a “patient or former patient”
of the health care provider, and “patient representative” is defined as a parent or guardian
of a minor patient, the guardian or conservator of the person of an adult patient, the
beneficiary or personal representative of a deceased patient, or an agent as defined in
Probate Code section 4607 to the extent necessary for the agent to fulfill his or her
defined duties under the Probate Code. (Health & Saf. Code, § 123105, subds. (c), (e).)
In this case, however, Maher alleged he requested review of his records “by and through
his attorney.” Maher’s attorneys are neither patients nor patient representatives entitled
to obtain his medical records under the provisions of the Patient Access Law. (Cf.
Bugarin v. Chartone, Inc. (2006) 135 Cal.App.4th 1558, 1564–1565 [finding attorneys
for patients were intended to be excluded from the similarly worded federal regulation
pertaining to access to medical records].)
       This is consistent with the legislative intent reflected in the findings and
declarations section of the Patient Access Law: “The Legislature finds and declares that
every person having ultimate responsibility for decisions respecting his or her own health
care also possesses a concomitant right of access to complete information respecting his
or her condition and care provided. Similarly, persons having responsibility for decisions
respecting the health care of others should, in general, have access to information on the
patient’s condition and care. It is, therefore, the intent of the Legislature in enacting this
chapter to establish procedures for providing access to health care records or summaries
of those records by patients and by those persons having responsibility for decisions
respecting the health care of others.” (Health & Saf. Code, § 123100, italics added.)
Thus, in our view, the Patient Access Law was not intended to provide redress for
patients whose attorneys are seeking access to medical records in contemplation of



                                              12
litigation against the health care provider. Such access is instead governed by Evidence
Code section 1158.9
       Evidence Code section 1158 states in relevant part: “Whenever, prior to the filing
of any action . . . , an attorney at law or his or her representative presents a written
authorization therefor signed by an adult patient . . . , a [health care provider] shall make
all of the patient’s records under his, hers or its custody or control available for inspection
and copying by the attorney at law or his, or her, representative, promptly upon the
presentation of the written authorization.” The apparent purpose of section 1158 is to
permit a patient to evaluate the treatment he or she received before determining whether
to bring an action against the medical provider. (Thornburg v. Superior Court (2006)
138 Cal.App.4th 43, 50 (Thornburg).)
       Evidence Code section 1158 contemplates a proceeding to enforce its provisions
as follows: “Failure to make the records available, during business hours, within five
days after the presentation of the written authorization, may subject the person or entity
having custody or control of the records to liability for all reasonable expenses, including
attorney’s fees, incurred in any proceeding to enforce this section.” In other words, the
remedy for a violation of section 1158 is to bring a “proceeding” to enforce its
requirements. Maher thus would have been entitled to assert a cause of action seeking to
compel ACMC to provide the medical records he was seeking in contemplation of this
action.10 If successful, he would be entitled to the attorney fees and expenses he
reasonably incurred in the litigation to enforce the statute, or to any excess copying

       9
         Maher points out one provision of the Patient Access Law contemplates requests
for records of medical services rendered to support an appeal regarding eligibility under
public benefits programs such as Medi-Cal and SSI (Supplemental Security Income).
(See Health & Saf. Code, § 123110, subd. (d).) We decline to construe this as completely
abrogating the legislative declaration that this law—in contrast to Evidence Code
section 1158—was primarily intended to further the patient’s health care, not to facilitate
prelitigation discovery.
       10
         As recognized in Thornburg, a patient can also bring a claim to recover copying
costs charged in excess of those allowed by the statute. (Thornburg, supra,
138 Cal.App.4th at p. 46.)


                                              13
charges imposed. Section 1158 contemplates no other remedy, such as consequential
damages caused by a delay in obtaining access to the records, or attorney fees other than
those incurred in a proceeding to enforce its provisions.
       The Patient Access Law also contains no express language authorizing an award
of consequential damages. It provides in relevant part: “Any patient or representative
aggrieved by a violation of [Health and Safety Code] Section 123110 may, in addition to
any other remedy provided by law, bring an action against the health care provider to
enforce the obligations prescribed by Section 123110. Any judgment rendered in the
action may, in the discretion of the court, include an award of costs and reasonable
attorney fees to the prevailing party.” (Health & Saf. Code, § 123120, italics added.)
Thus, the Patient Access Law contemplates a proceeding to secure access to one’s
medical records, and a discretionary award of attorney fees and costs to the prevailing
party in that proceeding. We do not believe section 123120 authorizes the remedy Maher
seeks—an award of prelitigation attorney fees or investigation costs as consequential
damages for the failure to timely provide access to medical records. If for no other
reason, Maher had a duty to mitigate any such damages by promptly initiating a
proceeding to enforce his access rights. He could have promptly applied to the court for
an order to show cause why the records should not be produced. (Code Civ. Proc.,
§ 1985.7.) He cannot recover alleged consequential costs that could have been avoided
by timely pursuing such a remedy.
       For these reasons, we conclude ACMC’s demurrer to Maher’s medical records
cause of action was properly sustained without leave to amend. Maher did not allege
facts showing a violation of the Patient Access Law or compensable damages, and there
is no reasonable possibility the defects could have been cured by amendment.
(Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1498.)
                                   III. DISPOSITION
       The judgments in favor of defendants are reversed. The portion of the trial court’s
April 25, 2012 order sustaining ACMC’s demurrer to Maher’s second cause of action
without leave to amend is affirmed. Costs on appeal to Maher.


                                            14
                                 _________________________
                                 Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




                            15
Trial Court: Alameda County Superior Court

Trial Judge: Hon. George C. Hernandez

Counsel:

Law Office of Edward A. Judge, Edward A. Judge; Roubinian Law Group and Leon V.
Roubinian for Plaintiff and Appellant.

Andrada & Associates, J. Randall Andrada, Valerie Ly and Teresa Rie Morimoto for
Defendant and Respondent County of Alameda.

Galloway, Lucchese, Everson & Picchi, Karen A. Sparks and Martin J. Everson for
Defendants and Respondents Alameda County Medical Center and Ralph Bernstein,
M.D.

Manning & Kass Ellrod, Ramirez, Trester, Thomas A. Trapani; Oium Reyen & Pryor and
Virgil F. Pryor for Defendants and Respondents Lifelong Medical Care–Berkeley
Primary Care and Vaneida White, M.D.

Hassard Bonnington, B. Thomas French, Robyn Schanzenback and J. Julia Hansen for
Defendant and Respondent Sutter East Bay Hospitals dba Alta Bates Summit Medical
Center.
