Metropolitan News-Enterprise


Tuesday, May 10, 2005


Page 1


S.C. Takes Broad View of Malpractice Statute of Limitations




The statute of limitations for medically related causes of action does not necessarily begin to run against all potential defendants once the plaintiff realizes he or she has a possible claim against one of them, the California Supreme Court ruled yesterday.

The decision, delivered in a unanimous opinion by Justice Carlos Moreno, allows a products liability claim to proceed against the manufacturer of a surgical tool, filed more than 2 1/2 years after the surgery.

  The high court agreed with the Fifth District Court of Appeal that Brandi R. Fox’s claim may have been timely based on her contention that the facts supporting liability were not discovered until she took discovery in a malpractice suit against the surgeon.

  In so ruling, the Fifth District and the high court rejected the “bright line rule of imputed simultaneous discovery of causes of action” set forth by the Fourth District in Bristol-Myers Squibb Co. v. Superior Court (1995) 32 Cal.App.4th 959.

Malpractice Claim

In suing her surgeon, Fox claimed that his negligence caused a perforation of her small intestine and subsequent complications. Three months after the doctor gave his deposition, in which he testified the perforation may have been caused by a malfunctioning stapler, she amended her complaint to add a complaint against the stapler manufacturer.

Fresno Superior Court Judge Stephen Kane sustained the demurrer, saying the amendment was untimely under Bristol-Myers Squibb  and Norgart v. Upjohn Co. (1999) 21 Cal.4th 383. Kane held that once the plaintiff knew or had reason to know that she was a victim of negligence, the statute of limitations began to run against all defendants.

But the high court agreed with the Fifth District that Fox was entitled to attempt to prove her claims that she was never told, and never had reason to believe, that an instrument malfunction may have been the cause of the perforation, prior to the doctor’s deposition being taken. If that is the case, the Moreno said, her claim against the manufacturer is timely.

“We conclude that, under the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action,” the justice said. “In that case, the statute of limitations for that cause of action will be tolled until such time as a reasonable investigation would have revealed its factual basis.  We disapprove the decision in Bristol-Myers Squibb v. Superior Court... to the extent that it holds to the contrary.”

Norgart Distinguished

Moreno rejected the suggestion that Norgart, in which the high court held that a suit by the family of a suicide victim, six years after her death, against the maker of the controversial sleep drug Halcion was barred, forecloses Fox’s claim. The Norgart court, while rejecting the contention that the action was timely because the relationship between the drug and the death wasn’t readily apparent earlier, was dealing with a different issue, the justice said.

There is a critical distinction, Moreno explained, “between a plaintiff’s ignorance of the identity of the person who committed a suspected wrong and ignorance of the existence of a cause of action.”

The case was argued by Lynette D. Hecker of Fresno for the plaintiff, Sharon J. Arkin of Robinson, Calcagnie & Robinson in Newport Beach for the Consumer Attorneys of California as amicus in support of the plaintiff, and San Francisco lawyer Alan J. Lazarus for the defendant. David S. Ettinger and Andrea M. Gauthier of Encino’s Horvitz & Levy authored an amicus brief for the California Medical Association, California Dental Association and California Healthcare Association as amici in support of the defendant.

The case is Fox v. Ethicon Endo-Surgical, Inc., 05 S.O.S. 2326.


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