 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Fox v. Ethicon Endo-Surgical11/4/2003
Appellant Brandi Fox (Fox) filed a medical malpractice action against her surgeon, asserting his negligence during surgery caused a perforation of her small intestine and subsequent complications. During his deposition, the surgeon first raised the possibility that the perforation was caused by a malfunctioning stapler. Fox then filed an amended complaint asserting a products liability cause of action against the manufacturer of the stapler, respondent Ethicon Endo-Surgery, Inc. (Ethicon). The amended complaint was filed three months after the deposition, but 31 months after the initial surgery.
Ethicon filed a demurrer, asserting the cause of action was time barred by the one-year statute of limitations. The trial court sustained the demurrer without leave to amend based on the principle of imputed simultaneous discovery of causes of action, i.e., " hen a plaintiff has cause to sue based on knowledge or suspicion of negligence the statute [of limitations] begins to run as to all potential defendants." (Bristol-Myers Squibb Co. v. Superior Court (1995) 32 Cal.App.4th 959, 966, disapproved on other grounds in Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 410, fn. 8.)
Although we agree with the result reached in Bristol-Myers Squibb, we reject its bright line rule of imputed simultaneous discovery of causes of action and conclude the delayed discovery of Fox's products liability claim should be analyzed based on the facts and circumstances relevant to that claim. Therefore, Fox should be given an opportunity to allege facts explaining why she did not have reason to discover earlier the factual basis of her products liability claim. Accordingly, we reverse judgment and direct the trial court to grant Fox leave to amend.
FACTS AND PROCEEDINGS
On April 10, 1999, Fox underwent gastric bypass surgery performed by Dr. Herbert Gladen. During this surgery, Fox was unconscious as the result of general anesthesia and, thus, did not observe the procedures or equipment used. After the surgery--the record is not clear as to the exact length of time--Fox went home. However, she returned to the hospital a few days after the surgery because she did not feel well.
Her condition deteriorated, and she was taken to the operating room for exploratory surgery. Dr. Gladen found a perforation or leak at the staple closure of the proximal jejunum and attempted to close it. Dr. Gladen's operative report for the exploration and remedial action states, "no reason could be identified for the perforation. *fn2" Subsequently, Fox remained hospitalized until March 4, 2000, and apparently required additional surgeries.
On April 6, 2000, in accordance with Code of Civil Procedure section 364, Fox served a "Notice of Intent to Commence Action" on Dr. Gladen and the two hospitals where the surgery and subsequent care took place. Prelitigation discussions with these health care providers did not resolve Fox's claim of professional negligence.
On June 28, 2000, Fox filed a complaint in Fresno County Superior Court for medical malpractice against Dr. Gladen and the two hospitals alleging that "Defendants lacked the necessary knowledge and skill to properly care for [Fox's] condition and were negligent and unskillful in the diagnosis, treatment and prescription procedures utilized in treating condition. The negligence claimed is for negligently performing pre-surgical, surgical, and post-surgical care so as to cause injuries and damages to ... Fox."
The complaint was filed on the Judicial Council form for personal injury complaints and named as defendants Dr. Gladen, the two hospitals, and Does 1 to 100, inclusive. The complaint alleged, "
Page 1 2 3 4 5 6 7 8 9 10 11 12 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|