Metropolitan News-Enterprise


Wednesday, September 4, 2019


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Delayed Discovery Rule Applies to Medical Battery Suit—C.A.

Opinion Resuscitates 2015 Action Brought Based on 2003 Fetal Surgery


By a MetNews Staff Writer


The delayed discovery rule, tolling the statute of limitation until the plaintiff becomes aware or should realize the existence of a cause of action, applies to a medical battery, the First District Court of Appeal has held, reviving an action brought by a woman in 2015 based on procedures performed in 2003.

Div. Five, in an opinion by Justice Henry E. Needham Jr., reversed a judgment by a San Francisco Superior Court judge dismissing an action brought by Alycesun Daley against the Regents of the University of California and three medical doctors. The judge ruled that the lawsuit was bnarred by the two-year statute of limitation for battery actions, contained in Code of Civil Procedure §335.1.

Daley insisted she did realize she had a cause of action until she contacted The Killino Firm, P.C., a downtown Los Angeles personal injury law firm in response to its Facebook posting in September 2014. The posting sought communication with women who had undergone procedures at the Fetal Treatment Center of the University of California-San Francisco as part of a trial trial sponsored by an institute of the National Institutes of Health.

The plaintiff was pregnant with twins in 2003 and agreed to undergo surgery in an attempt to save the fetusus, one of which was drawing blood from the other. Eventually the fetuses had to be aborted and neither survived.

Dailey’s complaint is that incisions were used rather than the needle puncturing to which she consented. She claims physical and emotional suffering.

Needham wrote:

“Section 335.1, defining the limitations period for battery, does not specify whether commencement of the period may be postponed due to the plaintiff’s lack of discovery. While the discovery rule is sometimes expressly incorporated in some form into a statute…, it may also be applied by the courts based on common law….In fact, courts have often been the first to announce the application of the discovery rule to a genre of claims, with the Legislature later codifying the rule into a statute.”

He went on to say that neither the defendants not the triall judge explained who the delayed discovery rule shoud not be applied to a medical battery action. The purpose of the rule, Needhan noted, is to protect persons who have been injured but do not gain lack an awareness of having a cause of action until the limitations period has expied.

“That possibility may well arise in cases of medical battery, where aggrieved patients may be unconscious at the time of the surgery and unable to realize what occurred, especially if the evidence is sealed within their body,” he said. “And while we are certainly cognizant of the policy in favor of protecting parties from having to defend against stale claims, the discovery rule avoids this peril by delaying accrual of the cause of action only until the patient has knowledge of facts that place the patient on inquiry that the injury was caused by wrongdoing.”

In an unpublished portion of the opinion, Needham dealt with the defendants’ contention that Daley was actually suing for medical malpractice. Under the Medical Injury Compensation Reform Act of 1975, such an action would be time-barred.

Code of Civil Procedure §340.5 requires actions for medical negligence to be brought within three years of an injury, with tolling permitted only “(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 be brought within three years after injury under the circumstances.” None of the exceptions to no-tolling applies, Needham observed.

Differentiating medical battery from medical malpractice, he said:

“(1) treatment without consent is a battery; (2) treatment without informed consent is professional negligence; and (3) treatment that otherwise does not meet professional standards is professional negligence.”

Daley adequately pled a cause of action for battery, the jurist declared. He remarked:

“While respondents believe the procedures Daley received were not substantially different from the ones to which she consented and thus she cannot prove medical battery, that does not mean her claim is not for medical battery. And if Daley ends up failing to prove she received a substantially different procedure, she will lose on the merits of her battery claim anyway; her claim will not be transformed into one for negligence.”

The case is Daley v. Regents of the University of California, 2019 S.O.S. 2400.


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