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4698 REVIEW DENIED A surgeon's performing a substantially different treatment than that to which plaintiff consented could lead to liability for battery; whether surgical removal of nearby but different disks was substantially different from surgical removal of the spinal disk at T8 - 9, which is the procedure to which plaintiff consented, is a question of fact; under CCP section 351, the one year discovery statute of limitations on medical malpractice is tolled during any period defendant was absent from the state after the cause of action arose, so plaintiff should be given an opportunity to question defendant about whether he was absent from the state after the surgery. (Note: See Heritage v Chrustawka, in which CCP section 351 was declared unconstitutional by a different panel.)CitationKAPLAN v MAMELAK (Wrong Disk) 162 CA4 637 [See: CCP 340.5, 351; Cobbs v Grant 1972 8 C3 229; Perry v Shaw 88 CA4 658, T/AT 6/01; Belton v Bowers 20 C4 928, T/AT 8/99; Heritage v Chrustawka 160 CA4 754, P/AT 5/08]
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