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Daley v. The Regents of University of California

California Court of Appeals, First District, Fifth Division

August 30, 2019

ALYCESUN DALEY, Plaintiff and Appellant,


          Superior Court of the City and County No. CGC-15-544501 of San Francisco Suzanne R. Bolanos, J. Trial Judge.

          The Killino Firm, Eileen G. Mungcal, Jodi C. Page, and Jeffrey B. Killino; Arias Sanguinetti Wang & Torrijos, Elise Sanguinetti for Plaintiff and Appellant.

          Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, and Cassidy C. Davenport; Donnelly Nelson Depolo & Murray, Donnelly Nelson Depolo Murray & Efremsky, David A. Depolo, Sonja M. Dahl, and Frances Burns for Defendant and Respondent.

          NEEDHAM, J.

         Alycesun Daley (Daley) appeals from a judgment entered after the trial court dismissed her case as time-barred. She contends the court erred because the discovery rule postponed the accrual of her medical battery cause of action (and the start of the limitations period under Code of Civil Procedure section 335.1) for several years. Respondents disagree and, by cross-appeal, contend that Daley's claims actually sound in professional negligence, so they are time-barred anyway under Code of Civil Procedure section 340.5, which explicitly restricts the time to bring an action to three years after injury under the circumstances of this case.[1]

         We will reverse the judgment. In the published portion of our opinion, we explain that the trial court erred to the extent it concluded that the discovery rule is inapplicable to medical battery claims as a matter of law. In the non-published portion of the opinion, we find no basis in the record for concluding that Daley's claim cannot sound in battery.


         A. Daley and TTTS

         In April 2003, Daley learned that she was pregnant with twins. Her physician at the University of Utah Medical Center informed her that she had a condition called twin-twin transfusion syndrome (TTTS), which is a congenital condition involving a circulation abnormality in twins growing from a single placenta. In essence, blood is unevenly transfused by intertwin vascular connections from the “donor” twin to the “recipient” twin; one twin receives too much circulation and fluid, and the other twin does not receive enough. Over time, the recipient twin develops a form of heart failure, while the donor twin stops growing.

         Standard therapy for TTTS in the United States has been amnioreduction, which removes amniotic fluid from the recipient fetus by inserting a needle into the amniotic sac. Daley underwent amnioreduction in Utah, but it did not successfully treat her TTTS.

         Daley thereafter agreed to participate in a national clinical trial sponsored by an institute of the National Institutes of Health (NIH). The trial was designed to evaluate the efficacy of selective fetoscopic laser surgery in treating TTTS, by comparing its effects against the effects of amnioreduction.

         The University of Utah conducted the formal informed consent process for Daley's enrollment into the study. Daley reviewed and signed a consent form to participate in the “prospective randomized multicenter trial of amnioreduction vs. selective fetoscopic laser for the treatment of twin-twin transfusion syndrome.” The consent form explained that she would receive either a treatment of serial amnioreductions or a treatment of laser ablation of blood vessels inside the uterus. The form described amnioreduction as a procedure during which “a needle [is used] to draw off fluid from the bag of water.” It described “[s]elective fetoscopic laser photocoagulation” as “the use of a laser beam to block or seal the vessels (photocoagulate) on the surface of the placenta so that the twins can no longer share the vessels, ” to be performed by “using an instrument inserted through the mother's abdominal wall into the amniotic sac called a fetoscope.” The form further explained, “[a] 4-mm (about 4 inches) incision is made in the skin to allow ultrasound-guided placement of a 4-mm narrow tube into the amniotic sac.” (Four millimeters is not “about 4 inches, ” but less than one-sixth of an inch.) The procedure was to be performed at the Fetal Treatment Center (FTC) of the University of California-San Francisco (UCSF).

         B. Surgeries at UCSF

         Of critical importance in this case-and the focus of Daley's allegations of battery-are the means by which surgeons might gain access to the placenta through the uterus to perform the laser ablation of the blood vessels. Daley contends that selective fetoscopic laser surgery for TTTS is “percutaneous, ” in that a narrow 4mm tube (trocar) is punctured through a 4mm incision in the mother's abdomen and into the uterus to access the placenta; a fetoscope is then used to laser-coagulate certain connecting vessels on the surface of the placenta, which seals the vessels and cures the TTTS. Open fetal surgery, as alleged here, is different: instead of a 4mm puncture, the surgeons make a two-inch (or longer) incision through the mother's abdomen to expose the uterus (laparotomy), suture the uterus, make incisions into the uterus, and expand a 5mm radial trocar to open the uterus (hysterotomy); the connecting vessels on the placenta are then laser-coagulated to cure the TTTS. Daley contends the performance of open fetal surgery on study patients violated NIH protocol, the consent forms, and UCSF hospital policy.[2]

         1. First Laser Ablation

         Dr. Diana Farmer performed the first laser ablation procedure on Daley on July 31, 2003. Dr. Farmer recalled having a detailed discussion with Daley about the procedure, the risks, and the alternatives. Daley also signed an authorization form for Dr. Farmer to perform the laser ablation. The form did not specify the details of the procedure, such as the way the placenta would be accessed.

         Rather than performing percutaneous laser surgery, Dr. Farmer, assisted by Dr. Ball, allegedly performed an open laparotomy and open hysterotomy, followed by laser ablation of the inter-twin vascular connections. Specifically, Dr. Farmer made a 3-4 inch incision in Daley's abdomen to expose the uterine wall, placed two stay sutures under ultrasound guidance into the wall, and inserted a trocar into her uterus. According to hospital records, two arterial venous anastomoses (connected blood vessels) were identified and cauterized with the laser until no blood flow could be seen in the vessels from the donor twin to the recipient twin, but the procedure was terminated after Dr. Farmer believed she observed chorioamnionic separation. The surgery had been complicated by significant uterine bleeding, and it was not successful in resolving the blood flow that caused the TTTS.

         Dr. Ball informed Daley that the physicians were willing to offer the surgery a second time because, in Daley's words, “there were things that they had learned in the first surgery and they could improve on it in the second surgery.” Dr. Farmer told Daley that Dr. Hanmin Lee would attempt to gain access through the incisions she had made during the first procedure and would try again to ablate the vessels that were causing the TTTS. Daley signed an authorization form to “redo laser ablation for persistant [sic] TTTS.”

         2. Second Laser Ablation

         On August 7, 2003, Dr. Lee, assisted by Dr. Ball, performed the second laser ablation surgery on Daley, again by laparotomy. Dr. Lee made an incision through the old laparotomy incision, placed a 5-mm trocar through the same site in the uterus, and laser-ablated an artery coming from the donor twin. This second procedure was successful in modifying the blood flow to the twins.

         C. Death of Daley's Twins

         Daley returned to Utah for the remainder of her pregnancy care. In August 2003, and allegedly as a result of the procedures the FTC surgeons at UCSF performed, Daley developed a bacterial infection of the membranes surrounding the fetus (chorioamnionitis) and the membranes ruptured prematurely. Delivery of the twins was induced, and neither twin was able to survive outside the womb.

         D. Daley's Complaint

         About 11 years later in September 2014, Daley saw a posting on Facebook by The Killino Firm, P.C. (her current attorneys), asking mothers who participated in the NIH TTTS trial at UCSF to call the firm. Daley responded and, in March 2015, filed her lawsuit against Dr. Farmer, Dr. Lee, Dr. Ball, and the Regents.

         1. Daley's Allegations

         Daley asserted claims against the individual doctors for medical battery and intentional infliction of emotional distress, and alleged that the Regents were liable under a theory of respondeat superior. According to her complaint, Daley had consented to a percutaneous surgery (with access to the organs established by a needle puncture), but defendants instead performed an open laparotomy and open hysterotomy, procedures to which she did not consent (or which were substantially different than the procedures to which she consented). Daley alleged that, as a result of the performed procedures, she suffered preterm labor, chorioamnionitis, fetal deaths, and physical and emotional pain.

         2. Respondents' Demurrer

         Respondents filed a demurrer to Daley's complaint, contending that Daley failed to allege facts sufficient to state a cause of action for medical battery or intentional infliction of emotional distress. Specifically, respondents urged that medical battery requires proof of a procedure that was substantially different than the procedure to which the patient consented, and the complaint did not contain facts showing that the laser ablations performed on Daley were substantially different than the laser ablations to which she agreed. Respondents added that Daley failed to allege facts that would toll the two-year statute of limitations for battery (§ 335.1), and that the claim for intentional infliction of emotional distress was time-barred as well. Daley filed an opposition. The court overruled the demurrer.

         3. Respondents' ...

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