Gami v. Mullikin Medical Center9/8/1993
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT DISTRICT, DIVISION THREE
Nos. B061197, B063306
1993.CA.42464 ; 22 Cal. Rptr. 2d 819; 18 Cal. App. 4th 870
Decided: September 8, 1993.
NANDINI GAMI, A MINOR, ETC., ET AL., PLAINTIFFS AND APPELLANTS,
v.
MULLIKIN MEDICAL CENTER ET AL., DEFENDANTS AND RESPONDENTS.
Superior Court of Los Angeles County, Nos. VC001647, VC001648 and VC001649, William J. Birney and James W. Edson, Judges.
Nathaniel J. Friedman for Plaintiffs and Appellants.
O'Flaherty & Belgum, Horvitz & Levy, David M. Axelrad and Lisa R. Jaskol for Defendants and Respondents.
Opinion by Kitching, J., with Croskey, Acting P. J., and Hinz, J., Concurring.
Kitching
I. INTRODUCTION
This is an appeal from the dismissal of three consolidated medical malpractice actions brought by parents, individually, and on behalf of their minor daughter, alleging damages for negligence and for wrongful life arising from the birth of a child with neural tube defects, commonly known
as spina bifida. Plaintiffs and appellants Raksha and Naran Gami (the Gamis) appeal the judgment (order of dismissal) sustaining defendants' and respondents', Mullikin Medical Center, Juan Jose Arce, M.D., and Sylvia Arellanes (defendants), demurrers without leave to amend. Plaintiff and appellant Nandini Gami (Nandini), by her guardian ad litem Naran Gami, appeals the judgment on the pleadings entered in favor of defendants in an action for wrongful life.
As to the parents, the trial court sustained defendants' demurrers on grounds that the Gamis' actions were barred by the one-year statute of limitations period pursuant to Code of Civil Procedure section 340.5. We need not resolve the issue of whether the Gamis properly pleaded a claim for negligent infliction of emotional distress, because we conclude that their actions were barred by the one-year statute of limitations period. Accordingly, the judgment is affirmed.
As to the child, the trial court granted defendants' motion for judgment on the pleadings, without leave to amend, on the ground that, as a matter of law, Nandini was unable to state a cause of action for wrongful life under Turpin v. Sortini (1982) 31 Cal. 3d 220 [182 Cal. Rptr. 337, 643 P.2d 954], because Turpin involved a preconception tort and this case involved a postconception tort. We conclude that under the facts of this case, the holding in Turpin is applicable to actions alleging injuries resulting from postconception torts. Because Nandini may be able to state a cause of action against defendants for wrongful life, the judgment is reversed.
II. FACTUAL AND PROCEDURAL BACKGROUND
According to the allegations of the consolidated operative pleadings, Raksha was under the care of Dr. Juan Jose Arce at the Mullikin Medical
Center during her pregnancy. On or about October 11, 1988, during her first trimester, she submitted a blood sample for alpha fetoprotein (AFP) testing. The blood proved unsuitable for testing. However, neither the hospital, nor the doctor, nor his secretary, Sylvia Arellanes, advised Raksha to provide a second sample. Defendants' negligent failure to communicate this information to Raksha deprived her of an opportunity to learn whether t
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