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Daley v. Regents of the University of California, et al. (Aug. 30, 2019, A153501) __Cal.App.5th__ [2019 WL 4127269]

The medical battery statute of limitations is tolled by the discovery rule.

Plaintiff Alycesun Daley was pregnant with twins who suffered from twin-twin transfusion syndrome (TTTS), a congenital condition involving inter-twin vascular connections. As part of a National Institute of Health clinical study, she underwent two fetoscopic laser surgeries to treat the TTTS at UCSF’s Fetal Treatment Center. After the second surgery, she developed a bacterial infection which led to an induced delivery. Neither twin survived.

Eleven years later, Daley sued her doctors and the Regents for medical battery, claiming she consented to percutaneous surgery (where the uterus is accessed via a needle puncture), but the surgeons exceeded the scope of her consent by performing open fetal surgery (where a subcutaneous incision is made in the abdominal wall to access the uterus), which caused her bacterial infection. The trial court sustained a demurrer based on the two-year statute of limitations, ruling that the discovery rule—which delays accrual of a cause of action until a plaintiff has a reason to know or at least suspect wrongdoing caused her injury—does not apply to a medical battery claim.

The Court of Appeal reversed, holding that the discovery rule applies to medical battery claims, and may be particularly applicable to claims of a sedated plaintiff who does not learn of potential wrongdoing before the limitations period expires. The court remanded for a determination of whether Daley could not have reasonably discovered facts supporting her claim within the limitations period.

The bulletin describing the Court of Appeal’s decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission. For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.

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