The “discovery rule” postpones the accrual of a claim and commencement of a limitations period until the plaintiff discovers or has a reason to discover the claim. In Daley v. Regents of the University of California (August 30, 2019, A153501), Division Five of the First District Court of Appeal extended the discovery rule to medical battery claims. The appellate court explained that even where Code of Civil Procedure 335.1, the two year statute of limitations, fails to expressly specify the discovery rule applies, courts have historically applied the discovery rule to various claims based upon common law. The court also concluded that the primary purpose of the discovery rule, protection of persons who are justifiably ignorant of their right to sue, applies to medical battery claims. After all, an aggrieved patient may be unconscious during a surgery and thus unable to realize what happened, particularly if the evidence is sealed within the body.
The plaintiff who was pregnant with twins consented to one type of surgical treatment for the babies, but her doctors conducted a different type of surgery on her. Afterwards she developed an infection and the doctors induced delivery. The twins did not survive. Eleven years later, the plaintiff sued her doctors and the Regents for medical battery. The defendants asserted that the plaintiff’s claim was time barred. The trial court agreed, announced it would not allow evidence of delayed discovery at trial, and dismissed the case as time-barred. The Court of Appeal reversed, in a partially published opinion. The entire opinion is attached.
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