NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

BEDSWORTH, J.

INTRODUCTION

Appellant Vince Olmo is a young man with a knee problem; this much is clear. What is not clear, at least to us on this record, is what kind of a knee problem he has. Olmo sued two doctors and their affiliated medical groups for failing to properly diagnose a knee injury he sustained 10 years ago, the aftermath of which he now alleges will seriously impair, if not preclude, his career as a dancer. The defendants all moved for summary judgment, asserting that the effects of this alleged misdiagnosis were evident more than three years before he filed suit, when Olmo sought treatment for knee pain in 2004. His suit was therefore time-barred. The trial court agreed and granted summary judgment to all defendants.

We now reverse. On this record, we cannot agree that as a matter of law the knee problem for which Olmo sought treatment in 2004 was a significant manifestation of the 2000 misdiagnosis, or that his current knee problem, for which he sought treatment in 2007, is related to the problem for which he sought treatment in 2004. Because triable issues of material fact exist about the relationships between the 2000 injury and the 2004 orthopedic consultation, between the 2004 consultation and the 2007 diagnosis, and between the 2000 injury and the 2007 diagnosis, summary judgment should not have been granted.

FACTS1

In 2000, when he was 10 years old, Olmo stepped into a hole while he was running and injured his right knee. Olmo had two MRI films and some X-rays, and Drs. Morton and Stauber interpreted the MRI films. Olmo was in a cast for several weeks. Once the cast was off, he went back to his normal activities.

In 2004, Olmo sought treatment for knee pain. In the intervening four years, he had become very active in various sports and had become a dancer of some prowess. He was having pain in both knees, the left knee more than the right. He was examined four times by three different orthopedists between October and December 2004. All of the doctors were aware of his previous (2000) injury, and two of the doctors examined the X-rays taken in 2000. All of them observed a malformed right kneecap. One of the doctors spotted a "small flake of bone" on the earlier X-rays of the right knee. So far as the records indicate, however, none of the doctors conclusively connected the right-knee pain that Olmo was experiencing in 2004 with the fragments that Olmo now claims Drs. Morton and Stauber should have seen in the MRI films but missed in 2000. The doctors advised rest and Advil.

Although one of the doctors Olmo saw in 2004 recommended another MRI, he did not have this test, because the pain subsided. Whatever was wrong with him went away after "activity modification" (medicalese for "taking it easy"), and he reported no further knee difficulties for the next two years, even as his level of activity increased.

In March 2007, Olmo again experienced problems with his right knee. This time the situation was more serious. Olmo wanted to pursue a career in jazz and hip hop dance and was enrolled in an "elite dancing studio." He was by this time an "aggressive dancer," who danced 40 hours a week. According to his orthopedist, however, "[i]t is not clear whether the patient's knee structure will allow him to participate in his chosen activity." Olmo testified in deposition that the doctor told him that he would have to have several knee replacements during his lifetime.

On January 29, 2008, Olmo sued Drs. Morton and Stauber, as well as St. Jude Radiology Medical Group and St. Jude Heritage Medical Group for malpractice for failing to properly diagnose and treat his 2000 knee injury. He identified the misdiagnosis as failing to spot osteochondral fragments in his MRI taken in May 2000 and failing to see fracture fragments in an MRI also taken in May 2000. He asserted that his leg should not have been put in a cast, but that the injury required surgery. He now allegedly has mild patellafemoral arthritis because of these undetected fragments. He anticipates that this condition will worsen and he will have to have at least two corrective procedures during his lifetime, "including a total knee replacement or patellafemoral repair."

The doctors and the medical groups moved for summary judgment on the ground that the effects of this alleged misdiagnosis had surfaced in 2004, when Olmo sought treatment for pain in both of his knees, and the action was therefore time-barred. The trial court granted summary judgment, and this timely appeal followed.

DISCUSSION

Our review of a summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) Moreover, "[i]n performing our independent review of a defendant's summary judgment motion, we apply the rules pertaining to summary judgment procedure. A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action (. . . § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.) If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff's opposing evidence, and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant's favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (. . . § 437c, subd. (p)(2); Aguilar, [supra,] 25 Cal.4th at p. 849.) [¶] In determining whether the parties have met their respective burdens, the court must `consider all of the evidence' and `all of the inferences reasonably drawn therefrom,' and `must view such evidence [citations] and inferences [citations] . . . in the light most favorable to the opposing party.' (Aguilar, supra, 25 Cal.4th at pp. 844-845.)" (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121-122.) On review of a summary judgment "`[w]e accept as undisputed facts only those portions of the moving party's evidence that are not contradicted by the opposing party's evidence. . . . In other words, the facts [set forth] in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true.' [Citation.]" (Buxbaum v. Aetna Life & Casualty Co. (2002) 103 Cal.App.4th 434, 441.) A statute of limitations issue usually presents a question of fact; summary judgment on this ground is proper only if uncontradicted facts "are susceptible of only one legitimate inference . . . ." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)

The limitations period for medical malpractice is "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 "Injury" in this context is a term of art. With respect to the one-year limitations period, it refers to both the damaging effect and the negligent cause of the alleged wrongful act. (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759.) With respect to the three-year period, however, "injury" refers to the damaging effect of the wrongful act, regardless of whether the patient realizes or understands the negligent cause. (Id. at p. 760.) The purpose of the three-year period was to put an outside limit on medical malpractice actions. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 432-433.) The three-year period begins to run when there is "appreciable harm or the point in time at which appreciable harm is first manifest." (McNall v. Summers (1994) 25 Cal.App.4th 1300, 1309.) Courts also speak of the time when damage "has become evidenced in some significant fashion" as the starting point of the limitations period. (See, e.g., Marriage & Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1654; Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1201.) An adult plaintiff in a medical malpractice action must clear both limitations hurdles; he or she must bring an action within one year of discovering the effect and cause of the harm and within three years of the onset of appreciable harm or significant physical manifestation of harm. (Hills v. Aronsohn, supra, 152 Cal.App.3d at p. 758.)

The one-year limitations period does not apply to actions in which the alleged injury took place while the plaintiff was a minor. (Steketee v. Linz, Williams & Rothberg (1985) 38 Cal.3d 46, 53, 57.) Respondents therefore rely on the three-year period, asserting that Olmo's appreciable harm or the significant manifestation of his knee injury occurred in 2004, when he sought treatment from the three orthopedists.

We find ourselves in the same position as the court in Photias v. Doerfler, supra, 45 Cal.App.4th 1014. In that case, the plaintiff claimed that a doctor had done nothing about his undescended testicles, first perceived when he was an infant. When a different doctor diagnosed his condition nearly 20 years later, he had an operation to correct it. After the operation, the plaintiff learned he was sterile, and he sued the original doctor. (Id. at p. 1016.) The plaintiff claimed that his injury, sterility, first manifested itself when he was tested after his surgery. The court, however, could not make that call: "Without some degree of medical expertise, it is doubtful that this court can be certain whether sterility might have `become evidenced in some significant fashion' before plaintiff's semen was tested." (Id. at p. 1021, quoting Marriage and Family Center v. Superior Court, supra, 228 Cal.App.3d at p. 1654.)

We likewise lack the medical expertise to determine as a matter of law on this record that the right knee problem for which Olmo sought treatment in 2004 was a significant manifestation of respondents' alleged failure to detect fragments and perform surgery in 2000 or that it represented appreciable harm from this failure. Given that Olmo had, in the intervening years, become active in dance as well as in injury-prone sports such as football, it may be that his right knee problems in 2004 arose from these activities, especially since the condition appears to have cleared up in December 2004 without medical intervention.3 (Cf. McNall v. Summers, supra, 25 Cal.App.4th at p. 1311 ["serious and continuous loss of memory constitutes `injury'" for three-year period].) A condition that disappears after rest and Advil is not likely to be "significant" or "appreciable harm" as a matter of law.

Hills v. Aronsohn, supra, 152 Cal.App.3d 753 and Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, on which respondents rely, illuminate the holes in this record. In Hills, the patient noticed lumps in her breasts eight years after receiving silicone injections. She was told she had silicone granulomatosis and she might have to have surgery to correct the problem. She had the surgery three years later and sued her original doctor the following year. Although a triable issue of fact existed as to whether the one-year limitations period barred her claim, because she may not have discovered the negligent cause of her condition more than a year before she filed suit (Hills v. Aronsohn, supra, 152 Cal.App.3d at pp. 759-760), her claim was time-barred under the three-year period, because the appreciable harm (lumps, soreness) had been apparent for more than three years. (Id. at pp. 762-763.)

In Hills, no one questioned the connection between the silicone injections and the lumps and soreness. If the lumps had turned out to be tumors or cysts unrelated to silicone, they would not have constituted appreciable harm from the injections and would not have triggered the limitations period. Similarly, in Garabet v. Superior Court, supra, 151 Cal.App.4th 1538, the connection between the LASIK surgery and the patient's subsequent eye problems was undisputed. (Id. at p. 1550.) No one suggested anything other than the surgery as the possible cause of the symptoms. Here, by contrast, Olmo vigorously disputes that the 2004 knee problem and the 2007 knee problem are manifestations of the same wrongful act, the 2000 misreading of the MRI.

We cannot, on this record, draw conclusions about Olmo's knee as a matter of law. We cannot simply assume that all knee problems arise from the same source. Respondents could have provided an expert declaration tying together the 2000 injury, the 2004 consultations, and the 2007 diagnosis. They did not. We cannot do it for them.

DISPOSITION

Because triable issues of material fact remain as to the relationship among Olmo's 2000 injury, his treatment in 2004, and the problems he is now experiencing, the motion for summary judgment should have been denied. The judgment appealed from is reversed, and the matter is remanded.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

O'LEARY, J.