Dujardin v. Ventura County Gen. Hosp.

• Citation: 69 Cal.App.3d 350,138 Cal.Rptr. 20
• Court: California Court of Appeals
• Decision Date: 25 April 1977
• Parties: Zilla Ann DUJARDIN et al., Plaintiffs and Appellants, v. VENTURA COUNTY GENERAL HOSPITAL and County of Ventura, Defendants and Respondents. Civ. 48841.

Page 20

138 Cal.Rptr. 20

69 Cal.App.3d 350

Zilla Ann DUJARDIN et al., Plaintiffs and Appellants, v. VENTURA COUNTY GENERAL HOSPITAL and County of Ventura, Defendants and Respondents.

Civ. 48841.

Court of Appeal, Second District, Division 5, California.

April 25, 1977.

Robert J. Herman, Oxnard, for plaintiffs and appellants.

Don Dewberry, Ventura, and Richard B. Swinney, Los Angeles, for defendants and respondents.

HASTINGS, Associate Justice.

This is an appeal by Zilla Ann and William Dujardin (appellants) and their minor child, Dorothy Mae Dujardin (Dorothy Mae) from a judgment of dismissal based upon the trial court's order sustaining a demurrer by the Court of Ventura and Ventura County General Hospital (respondents) without leave to amend.

The appellants, Zilla Ann and William, had several children and desired to limit the size of their family for reasons which included their modest financial resources. They sought advice on birth control methods from the Ventura Health Clinic, a county facility. A Health clinic employee prescribed an intrauterine device (IUD) for Zilla Ann known as a Dalkon shield, and inserted the IUD during April, 1973.

During approximately October 1973, Zilla Ann became pregnant. The pregnancy was uterine and the appellant Dorothy Mae was born on July 19, 1974, with various birth defects.

Appellants allege that in late November 1974, the Federal Food and Drug Administration (FDA) released reports in which it found that certain IUD's, including the type represented by the Dalkon shield, were unsafe and were voluntarily being removed from the market.

On January 15, 1975, a claim was filed with the County of Ventura pursuant to Government Code section 910. By letter dated March 3, 1975, appellants were notified that their claim had been rejected by operation of law on March 1, 1975. (Gov.Code, § 912.4.) On July 18, 1975, appellants filed a complaint for negligence, breach of warranty and strict liability in tort against the manufacturer of the IUD and the respondents herein.

Respondents' demurrer and points and authorities filed November 12, 1975, was based on the ground that appellants did not comply with the mandatory statutory claim provisions of Government Code section 911.2. ¹ Respondents contend that appellants' action accrued not later than Dorothy Mae's date of birth on July 19, 1974, therefore their claim filed January 15, 1975 was not within the 100-day period.

Appellants maintain that the cause of action did not accrue until November, 1974, when they first discovered the possible cause of their injuries after release of the FDA reports.

Timely compliance with the claim filing requirements and rejection of the claim by the governmental agency must be pleaded in a complaint in order to state a cause of action. (Whitfield v. Roth, 10 Cal.3d 874, 833, 112 Cal.Rptr. 540, 519 P.2d 588; Wilson v. People ex rel. Dept. Pub. Wks., 271 Cal.App.2d 665, 668, 76 Cal.Rptr. 906; Burgdorf v. Funder, 246 Cal.App.2d 443, 446--447, 54 Cal.Rptr. 805; Gov.Code, § 945.4.) Since the complaint in this action stated that a claim was filed on January 15, 1975, and rejected by operation of law on March 1, 1975, the primary question which requires determination is when appellants' cause of action accrued. If the cause of action did not accrue until November, appellants were within the 100-day time limitation. If the cause of action accrued in July, as respondents contend, the time limitation was not met.

The accrual time of actions for purposes of the claim filing requirement are governed by the Code of Civil Procedure sections which relate to the particular actions. (Gov.Code, § 901; Whitfield v. Roth, supra, 10 Cal.3d 874, 884--885, 112 Cal.Rptr. 540, 519 P.2d 588; Wozniak v. Peninsula Hospital, 1 Cal.App.3d 716, 722, 82 Cal.Rptr. 84.)

Personal injury actions, including malpractice claims, are governed by Code of Civil Procedure section 340, subdivision 3. The rules for determining the time of accrual for such actions are well settled. A cause of action normally accrues at the time the injury occurs. However, in medical malpractice cases, among others, the cause of action does not accrue until the plaintiff discovers the injury and its negligent cause. This modification of the general principle, commonly called the discovery rule, also has its limitations. If, through the exercise of reasonable diligence the injured party should have discovered the injury and its cause, their failure to do so will not prevent the running of the statute. (Whitfield v. Roth, supra, 10 Cal.3d p. 885, 112 Cal.Rptr. 540, 519 P.2d 588; Wozniak v. Peninsula Hospital, supra, 1 Cal.App.3d p. 772, 82 Cal.Rptr. 84; Warrington v. Charles Pfizer & Co., 274 Cal.App.2d 564, 570, 80 Cal.Rptr. 130; Weinstock v. Eissler, 224 Cal.App.2d 212, 226--227, 36 Cal.Rptr. 537.)

In order to properly raise the issue of belated discovery, the plaintiff must state in his complaint when the discovery was made, the circumstances surrounding the discovery, and facts which show that the failure to make an earlier discovery was reasonable, justifiable and not a result of plaintiff's failure to investigate or to act. (Weinstock v. Eissler, supra, at pp. 227--228, 36 Cal.Rptr. 537; Mock v. Santa Monica Hospital, 187 Cal.App.2d 57, 64--65, 9 Cal.Rptr. 555; Myers v. Stevenson, 125 Cal.App.2d 399, 403, 270 P.2d 885.) An examination of the complaints in the instant action indicates that appellants did allege facts sufficient to satisfy these pleading requirements and raised the issue of belated discovery. ²

Once the belated discovery is properly pleaded, the question becomes whether the failure to discover the injury and its negligent cause earlier was justifiable and reasonable so as to prevent the running of the statute of limitations. Because the question of belated discovery depends on the facts and circumstances surrounding the negligent act and the subsequent events leading to discovery, the issue is ordinarily one of fact for a court or jury to decide. The inquiry on appeal from a dismissal after a successful demurrer without leave to amend must be whether the trial court could determine, as a matter of law, that the failure to earlier discover the cause of action was due to appellants' failure to investigate or act with reasonable diligence.

The facts of this case do not justify the court's sustaining of the demurrer. There are two sources of injury alleged in the complaint. One claim of injury appears to be based solely upon the occurrence of pregnancy. The second alleged injury is predicated upon the fact that the pregnancy was terminated prematurely and that the child was born with birth defects. With regard to the first injury, appellants indicate that they were aware that birth control devices are not foolproof. In other words, appellants realized that IUD's were not 100 percent effective and that there was some risk that Zilla Ann might become pregnant, thereby they had no reason to believe that the birth might have been caused by a defective Dalkon shield until they read the information released by the FDA in November 1974.

As to the injuries claimed to have resulted from the premature birth and birth defects, appellants allege that they have information that these injuries resulted from the unsafe character of the Dalkon shield. Again, appellants assert that their suspicions were first raised by the FDA reports released in November.

The causes of action for all of the parents' injuries are governed by Code of Civil Procedure section 340, subdivision 3. Appellants rely on the case of Warrington v. Charles Pfizer & Co., supra, 274 Cal.App.2d 564, 80 Cal.Rptr. 130, in support of their belated discovery.

In the Warrington case, the plaintiff appealed from a judgment of dismissal which followed defendants' successful demurrer based on the one-year statute of limitations in Code of Civil Procedure section 340, subdivision 3. The plaintiff, during her pregnancy, had taken a drug prescribed by her doctor and manufactured by the defendant. The plaintiff had suffered various physical ailments during and after the pregnancy, and the child developed cerebral palsy. The action related only to the mother's injuries. The pregnancy terminated with an apparently normal birth on August 9, 1963. On March 13, 1965, plaintiff consulted with an attorney regarding her son's condition. She mentioned to that attorney her ailments during pregnancy and, in response to his questions, told him about the drug. Her attorney raised the possibility that the drug was the cause of plaintiff's illness. The action was filed on March 4, 1966.

On appeal the court found that the defendant had represented to the public and the medical profession that the drug was safe and that plaintiff's doctor, relying on those representations, repeated them to the plaintiff. Plaintiff, in turn, relied on those representations and as a consequence did not discover the cause of action until March, 1966. In addition, the defendant failed to give the plaintiff any notice of the insidious effect the drug could have and therefore, the plaintiff did not suspect the cause of her illness. The reviewing court thereupon held that the belated discovery was reasonable and the cause of action had not accrued until March 13, 1965, the date appellant's suspicions were first aroused.

Respondents in the case at bar attempt to distinguish Warrington; they state that the representation in Warrington was that a certain drug was safe, whereas in the instant action, the only representation was that the prescribed method of birth control was proper. Respondents contend that, 'appellants' complaint fails to allege that respondents made any other representations to appellants.' This argument is without merit. Appellants first cause of action alleges that defendants represented that the Dalkon shield was an effective method of birth control. Appellants second cause of action alleges that defe...