California court allows delayed discovery of medical device claim.

When an injured plaintiff files a cause of action, the statute of limitations does not necessarily begin to run on all other possible claims related to the injury, the California Supreme Court has ruled.

Applying the delayed-discovery rule, the court held that the statute of limitations does not begin to run on a subsequent claim if "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." (Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914 (Cal. 2005).)

In April 1999, Dr. Herbert Gladen performed Roux-en-Y gastric bypass surgery on Brandi Fox. When she had to return to the hospital because of complications, Gladen did exploratory surgery and found that a perforation at the closure of the small intestine was allowing fluid to leak into her abdominal cavity. Fox required additional medical care and remained hospitalized until March 2000.

She sued Gladen and the Fresno, California, hospital for malpractice in June 2000. Over a year later, in his August 2001 deposition, Gladen testified that he used an "Ethicon GIA-type stapler" in the surgery. He said the perforation had occurred at the stapled closure and that he had seen that model of surgical stapler cause postsurgery leaks before.

Three months later, Fox amended her complaint to add a products liability cause of action against Ethicon EndoSurgery, Inc., the stapler manufacturer. She alleged that she had no reason to suspect a product defect had contributed to her injury until Gladen gave his deposition testimony.

Ethicon argued that the claim was time-barred by the state's one-year statute of limitations on products liability claims. Fox offered to file a second amended complaint to further explain that she was not told during postsurgical care that the stapler could have caused the problem and that she first discovered the possible products claim during the doctor's deposition.

In June 2002, the trial court refused to allow Fox to amend her complaint, relying on the bright-line rule created by Bristol-Myers Squibb Co. v. Superior Court. (38 Cal. Rptr. 298 (Ct. App. 1995).) Superior Court Judge Joseph Kane held that when Fox filed her initial medical negligence suit, the statute of limitations began to run on all other possible defendants and claims, including her products liability claim. The court of appeal reversed that ruling and the California Supreme Court agreed.

Writing for the unanimous court, Associate Judge Carlos Moreno noted that plaintiffs must "conduct a reasonable investigation of all potential causes" of their injury. "[I]f a plaintiff's reasonable and diligent investigation discloses only one kind of wrongdoing when the injury was actually caused by tortious conduct of a wholly different sort, the discovery rule postpones accrual of the statute of limitations on the newly discovered claim," he said.

Sharon Arkin of Newport Beach, who filed an amicus brief supporting the plaintiff on behalf of the Consumer Attorneys of California, said the ruling is significant because conflicting appellate court decisions needed to be resolved.

"Applying the 'discover one/discover all' rule would impose significant burdens on the parties and the courts and would, ironically, have led to the requirement of filing frivolous lawsuits," she said. "This is because every time there was a malpractice case, the plaintiff, in order to protect potential but undiscovered claims, would have to sue every manufacturer of every piece of equipment used by the doctor. In an auto accident case, the plaintiff would have to sue not only the adverse driver, but the car manufacturer, the component manufacturers, and the public entity that designed the road--just in case."