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ANN H. LARSON, ESQ. (State Bar No. 176461) I
ADAM M. STODDARD, ESQ. (State Bar No. 272691)
CRADDICK, CANDLAND & CONTI
A Professional Corporation
2420 Camino Ramon, Suite 202
San Ramon, CA 94583-4202
Telephone: (925) 838-1100
Facsimile: (925) 743-0729
E-mail: alarson@ccclawfirm.com BY
TES GT CLE
Attorneys for Defendant, A. GRAHAM
RENEE HILLIARD, M.D.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF CONTRA COSTA
SARAH GOODWIN, No. MSC16-01206
Plaintiff, CASE ASSIGNED TO HON. EDWARD
G. WEIL, DEPT, 39 FOR ALL
vs. PURPOSES
RENEE HILLIARD, M.D., et al. DECLARATION OF ADAM M.
STODDARD IN SUPPORT OF
Defendants. REPLY TO OPPOSITION TO
DEFENDANT, RENEE HILLIARD,
M.D.’S DEMURRER TO
COMPLAINT
Date: December 5, 2016
Time: 9:00 a.m.
Dept: 39
Complaint Filed: June 22, 2016
Trial Date: None
I, ADAM M. STODDARD, declare:
1. Iam an attorney licensed to practice in the State of California, and am an
associate in the law firm of Craddick, Candland & Conti, attorneys of record for defendant,
RENEE HILLIARD, M.D., in the above-entitled matter. If called upon as a witness, I could
competently testify to the information contained herein.
1
DECLARATION OF ADAM M. STODDARD IN SUPPORT OF REPLY TO OPPOSITION TO DEFENDANT,
RENEE HILLIARD, M.D.’S DEMURRER TO COMPLAINT
E2. Defendant served the demurrer on October 20, 2016.
3. Plaintiff served her opposition on November 18, 2016 by United States Postal
Service pursuant to the proof of service appended to the opposition.
4, Defendant did not receive plaintiff s opposition until November 28, 2016. A ttue
and correct copy of the opposition which identifies the date stamp received is attached hereto as
Exhibit “A.”
5. Defendant’s reply brief was due on or before November 28, 2016.
I declare under penalty of perjury that the foregoing is true and correct,
Executed this 28" day of November, 2016, at San on, California.
M. STODDARD
2
DECLARATION OF ADAM M. STODDARD IN SUPPORT OF REPLY TO OPPOSITION TO DEFENDANT,
RENEE HILLIARD, M.D.’S DEMURRER TO COMPLAINTEXHIBIT AEXHIBIT A,
> ®@ 00L0-LLe (98) woo euMOCIEIN TS SWILLIAM CAMPISI JR. SBN 114690
LAW OFFICE OF WILLIAM CAMPISI JR.
1932 BONITA AVENUE
BERKELEY, CA 94704
Tel: (510) 549-3112
Fax: (510) 549-9260
Email: campisi@campisi-law.com
Attorney for Plaintiff
SARAH GOODWIN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF CONTRA COSTA
UNLIMITED JURISDICTION
SARAH GOODWIN, CASE NO. MSC16-0126
, Plaintiff
vs. . .
RENEE HILLIARD, M D, and DOES L
through 100,
Date: December 5,2016 -
Time: 9:00 a.m.
. Dept. 39...
Defendants. ~
ere rere
Trial Date: None
Plaintiff opposes defendant Renee Hilliard, M.D.’s demurrer to her complaint. Defendant’s
demurrer is based on the claim that the allegations of the complaint establish that plaintiff's claims
are barred by the statute of limitations. Defendant’s argument is without merit.
Plaintiff began treatment with Dr. Hilliard in about May 2011 for a left pelvic cyst which
caused plaintiff substantial pain. Complaint, 47.
Ultimately, Dr. Hilliard advised plaintiff to undergo surgery to remove the left pelvic cyst.
Plaintiff underwent that surgery performed by Dr. Hilliard on 2/3/12. Complaint, (7.
After performing the surgery, Dr. Hilliard informed plaintiff that she had removed plaintiff’ s
left Fallopian tube during the surgery. Complaint, {{7. The Complaint alleges that this statement
was false in that, in fact, only a portion of plaintitt s left Fallopian tube had. been surgically removed
and that portion of that tube remained i in her body. Complaint, 746;
After the surgery, the complaint alleges that plaintiff continued to suffer abdominal pain for
Plaintiffs Opposition to Defendant’s Demurrer
PLAINTIFF'S OPPOSITION TO
DEFENDANT’S DEMURRER
Complaint Filed: June 22, 20163 years while she was under the care of Dr. Hilliard. Complaint, 7.
Paragraph 8 of the complaint pleads a general negligence allegation with regard to the
medical advice to undergo surgery, that the surgery itself was performed negligently, and that the
post-surgical care was negligent. Complaint, (8.
Paragraphs 8 and 9 of the Complaint additionally plead that with respect to plaintiff's
continuing pain after the surgery it was caused by “post-operative inflammation of that portion of
her left Fallopian tube that was: left is her body after the surgery,” and that Dr. Hilliard negligently
diagnosed plaintiff's post-operative pain as being caused by endometriosis. Complaint, 8 and 9.
Paragraphs 8 and 9 further plead that the Dr. Hilliard continued to negligently and careless
treat plaintiff for the wrong diagnosis for the next three years. Complaint, 78 and 9.
Paragraph 11 pleads that in about May or June 2015, plaintiff sought a consultation with
another physician who informed her that her problem was being caused by inflammation of that
portion of the Fallopian tube which Dr. Hilliard had not surgically removed on 2/3/12. Plaintiff
under went surgery to remove the remaining portion of her Fallopian tube on June 24, 2015.
Complaint, J11.
Thus, the Complaint pleads that Dr. Hilliard was negligently treating plaintiff for
, endometriosis and that plaintiff was taking Lupron for endometriosis prescribed by Dr. Hilliard for
about 3 years, Complaint, (10, lines 27-28, which brings her through May or June 2015, and during
2. of those 3 years she was negligently treated for endometriosis by Dr. Hilliard with Lupron,
Complaint, 99, 10.
Tn paragraph 5 of the Complaint, plaintiff alleges that she served a “Notice of Intent to Sue”
on March 23, 2016. That Notice served to extend the statute of limitations by 90 days. Because the
complaint pleads that plaintiff sought a second opinion in about May or June, based on that pleading [
the earliest date on which plaintiff could have terminated her patient-physician relationship with Dr.
Hilliard was on May 1, 2015. Assume on that date it was discovered by this second doctor that the
true cause of her pelvic pain was the inflamed stump of her left Fallopian tube and not
endometriosis, Further assume on that date that plaintiff decided that her patient-physician
relationship with Dr. Hilliard was over. Then, on that date, May 1, 2015, her statute would have
Plaintiffs Opposition to Defendant’s Demurrer Page 2Co Mm IY HA RF wD NY
RPM NB ew ew ew Be ee ee
BRS Ge QaAARE SE RES
commenced to accrue. Absent serving a Notice of Intent to Sue on March 23, 2016, plaintiff's
statute would have expired on May 1, 2016. However, given that the Notice of Intent to Sue
extended the statute by 90 days, the statute was extended to August 1, 2016. Based on the pleading
the statute of limitations could not and did not run before that date.
LEGAL ARGUMENT
L DEFENDANT ARGUES THAT THE DELAYED DISCOVERY RULE IS NOT
APPLICABLE TO PLAINTIVE’S CIRCUMSTANCES. THAT CLAIM IS WITHOUT
MERIT. THE CONTINUING DOCTOR-PATIENT RELATIONSHIP DOCTRINE
BARRED TBE ACCRUAL OF THE STATUTE OF LIVOTATIONS UNTIL THE
RELATIONSHIP TERMINATED
In Huysman v. Kirsch (1936) 6 Cal.2d 302, the California Supreme Court held that the
statute of limitations for a patient to bring a lawsuit against her doctor did not begin to accrue while
the patient remained under the care of her doctor who was advising the patient about the medical
problem for which the doctor had provided negligent treatment. In Huysman, the defendant surgeon.
performed a hysterectomy on plaintiff on 1/3/1931, and apart of the operation left in place a
“rubber” drainage tube about 9 inches in length and % inch in diameter in her abdomen. Plaintiff
was unaware of the presence of the drainage tube inside of her abdomen. Plaintiff continued to treat
with this surgeon until 12/12/1932. Id, at 304. On 9/26/1932, the surgeon removed the drainage
tube. Plaintiff learned about the presence of the drainage tube in her body on that date.
‘I her complaint, the plaintiff alleged that within days after the operation she had suffered
“qumerous running, painful sores, continually discharging pus, and requiring constant care and
attention,” and ever since about the date of the operation plaintiff “was made sick, and still is sick
and will continue sick for an indefinite period of time... .” Id, at 304 and 305.
The plaintiff ended her patient-doctor relationship with this surgeon on 12/12/1932, Id. at
304, and she filed suit against him on 1/7/1933, Id. at305. The surgeon demurrerred to the
complaint on the grounds that it was barred by the statute of limitations. The surgical plan had been
to remove the drainage tube on 1/9/1931, 6 days after the surgery, but the surgeon had negligently
failed to remove it. The surgeon contended that the statute of limitations began to run on 1/9/1931,
|| Plaintiffs Opposition to Defendant’s Demurrer Page 3the date of his negligence. The trial court granted the demurrer and dismissed the action. The
District Court of Appeal recognized the injustice of that ruling but believed that under the law it had
no option but to affirm the trial court’s judgment in favor of the surgeon.
The Supreme Court reversed. Looking to other jurisdictions, the Court cited with approval a
holding from a Georgia Supreme Court case in which that court held that
Indeed, it would be inconsistent to say that the plaintiff might sue for her injuries
while the surgeon was still in charge of the case, and advising and assuring her that
. properpatience would witness a compieté recovery . . . ..It woild impose upon her an,
umproper burden to hold that, in order to prevent the statute from running against her
right of action, she must sue while she was following the advice of the surgeon, and
upon which she all the time relied.
Id. at 309
In Trombley v Kolts (1938) 29 Cal. App.2d 699, the trial court entered judgment in favor of
the defendant on the grounds that plaintiff's claims were barred by the statute of limitations. The
Appellate Court reversed. In that case, the plaintiff underwent surgery on 2/12/1932. During the
surgery the surgeon caused a skin clip to become embedded in plaintiffs body and it was not
removed until October 1934, a period of about thirty-two months. During most of that time plaintiff
remained the patient of the defendant surgeon. Because plaintiff suffered from indigestion and
gastritis, plaintiff asked the defendant what he thought about colonic treatments and the defendant
advised her that there was no harni in trying them, but that she would have to find a doctor who
performed those treatments. Plaintiff then found a chiropractor who performed such treatment.
During the course of consulting the chiropractor about colonic treatment the chiropractor ordered an
abdominal x-ray. The x-ray showed the presence of the clip in plaintiff's abdomen. Plaintiffthen
went back to the defendant surgeon with that information, and provided the x-rays to the surgeon.
| The surgeon advised her not to worry about the clip because he told her that it is not the source of
her trouble and “it will never cause you any trouble.” These events took place in about November
1932, about 10 months after the surgery. Plaintiff continued to consult with the defendant surgeon
regarding her condition until September 1934, when plaintiff terminated the relationship with the
defendant. Trombley, supra, at 707 - 709.
In reversing the trial court judgment, the Court of Appeal cited Huysman, supra, for its
holding that a patient cannot be expected to sue the physician upon whom she is relying, in good
Plaintiff's Opposition to Defendant’s Demurrer Page 4Ce AHA HA BBY
Boe ek
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BAX RBRRBBEBSESEAR
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| faith, to care for her, It held that “. . . the-statute should be tolled during all the time she was under
the care of respondent [Note: The term “Respondent” refers to the defendant surgeon who today
would be called the “Appellee.”] and consulted only with him with reference to the condition
produced by the presence ofthe skin clip. in her body.” Trombley, supra, at 709.
In Sanchez v, South Hoover Hospital (1976), the California Supreme Court considered the
‘effect of the then récently adopted statute of limitations, Code of Civil Procedure §340.5, on the
“delayed discovery. rules,” One-issue it considered was when should statute begin to run on a claim
for medical malpractice. The Court adopted a “notice” rulé but carved out the same exception set
forth in Huysman, supra, and Trombley, supra.
[2][3] Possession of “presumptive” as well as “actual” knowledge will commence the
running of the statute. The applicable principle has been expressed as follows: “when.
the plaintiff has notice or information of circumstances to put a reasonable person on
inquiry, or has the opportunity to obtain knowledge from sources open to his
investigation . . the statute commences to run: ” (Citations)
[4][5} On the other hand, the patient is fully entitled to rely upon the physician's
professional skill and judgment while under his care, and-has little choice but to do
so, It follows, accordingly, that during the continuance of this professional
relationship, which is fiduciary in nature, the degree of diligence required of a patient
in ferreting out and learning of the negligent causes of his condition is diminished.
(Citations) This principal is not confined to the physician-patient relationship alone
but exists in other. contexts as well, in which it is generally.held that existence of the
trust relationship limits the duty ef inquiry. (Citations)
Sanchez, supra, at 101, 102.
This action is on fours with each, of these cases, in particular, Trombley. Plaintiff went to see
defendant because she was suffering from pelvic pain. Defendant recommended surgery which she
| performed, Defendant, without consent, partlally removed plaintiff's left Fallopian tube, but told
plaintiff that she removed plaintiffs Fallopian tube which led plaintiff to believe that she had
removed the entire tube.
When the surgery did not prove successful in relieving plaintiff's pain, defendant came to the
} diagnosis that plaintiff was suffering from endometriosis. Plaintiff clearly trusted and relied on
defendant because plaintiff took a powerful, dangerous drug to treat endometriosis for 2 years out of
the three years she continued to remain under the care of defendant after the surgery. Clearly,
plaintiff trusted defendant to care for her, and she trusted that defendant had correctly diagnosed her
condition, and she agreed to the treatment with Lupron to treat her condition.
Plaintiff's Opposition to Defendant’s Demurrer Page 5ee Ss a
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1 80
Under these circumstances, defendant cannot reasonably claim that plaintiff was somehow
put on inquiry notice that the defendant had committed negligence. Plaintiff could not know that part
of her Fallopian tube remained in her body after the surgery fc she had no reason to suspect that it
remained after being told it had been removed, Plaintiff had not reason to suspect that
endometriosis was the wrong diagnosis. For 50% of women who have it, endometriosis is a chronic
illness causing pelvic pain. Thus, the fact that the problem was not “cured” was not at all unusual
and that fact, by itself, would not put-any woman on inquiry ofies that her doctor diagnosis was
incorrect,
Thus, under all three cases cited above, two of them being California Supreme Court
decisions, the statute of limitations was tolled during the period of time that plaintiff was relying on
||| defendant to care for her problem of pelvic pain.
Defendant’s reliance on Norgart v, The Upjohn Company (1999) 21 Cal4th 383 and Fox v.
Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797 is misplaced. The circumstances in both of those
cases did not involve a relationship of trust and reliance by a patient with her doctor. The defendant
in Norgart was a drug company. In that case there was no fiduciary relationship between a patient
and her doctor at issue. A patient, just like a client of an attorney, is allowed to rely on and trust that
her doctor or her lawyer would possess the knowledge and skill necessary to provide the services
that she requires without the need “to investigate” whether or not the services being provided are
negligent.
Onthe other hand, theze-is wo fiduciary-relationshiip betweeri a drug.manufacturer ahd a
person who takes a medication made by that manufacturer and, therefore, different rules apply. Not
surprisingly, Norgart did not consider the issue of whether a continuing patient-doctor relationship
tolls the accrual of the statute of limitations when the patient is relying on her doctor to treat the
problem which, unknown to the patient, has or is being treated negligently by her doctor. There is
absolutely no discussion of the effect of that circumstance on the statute of limitations in Norgart
because that was not an issue considered in that case.
Likewise, reliance by defendant on Fox y. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797
is misplaced. In that case, the California Supreme Court held that the accrual of a cause of action
Plaintiffs Opposition to Defendant’s Demurrer Page 6om IN A mH BW YW Ee
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against a medical device manufacturer will be tolled if the plaintiff has no basis to know or suspect
that her doctor, whom she had sued for medical malpractice, used a defective device during the
course of treatment which caused her injury. In Fox, the Court permitted the plaintiff to sue the
manufacturer because she had no reason to know or discover that her surgeon had used a defective
product in caring for her which had injured her.
There is a fundamental difference between the application of the “discovery rule” in the
context of a continuing patient-physician relationship as opposed to. when there is no such
continuing relationship. When there is no such relationship, a patient who continues to suffer ill-
effects from a medical problem after treatment has been provided for that problem has a duty of
inquiry to determine whether the treatment failed because her doctor was negligent, or some drug or
medical device caused harm, By contrast, when the patient continues treatment with doctor, and
the doctor is advising the patient about the nature and care and treatment of the medical problem for
which the patient received, unknowingly, negligent treatment, and when the patient trusts and relies
on the doctor in continuing treatment with the doctor, there is no duty of inquiry while that
relationship continues.
That is the rule announced in the cases cited by plaintiff. In this case, as long as plaintiff was
relying on and trusting the defendant to treat her for her pelvic pain the accrual date for the running
of the statute of limitations was tolled, Defendant’s demurrer must be denied.
The same rule applies to plaintiff's other causes of action. The accrual date did not begin to
ran untit the termination of thy plaintiff's relationship. with Dr. Hilliard which did rict-ovcur earlier | |
than May 1, 2015 based on the pleadings.
‘CONCLUSION +
In conclusion, the plaintiff contends that the pleadings are adequate to show that the date for
the accrual of plaintiff's statute of limitations was no earlier than May 1, 2015. With that date as the
accrual date, and with the extension for service of the Notice of Intent to Sue, the last date for
plaintiff to file her complaint was August 1, 2016, She filed her complaint on June 20, 2016 which
was well within the statute.
However, if the court requires that the complaint state these facts more clearly than it does,
Plaintiff's Opposition to Defendant’s Demurrer Page 7Co me YN AH eR wD KY
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and requires that plaintiff state the exact date on which she terminated her relationship with Dr,
Hilliard, plaintiff requests leave to file a First Amended Complaint containing Yhat information.
Dated: November 18, 2016 gf .
William Campisi ir.
aay for Pati (i
Plaintiffs Opposition to Defendant’s Demurrer Page 8CERTIFICATE OF SERVICE
I declare that I am employed in the county of Alameda, California. I am over the age of
eighteen years and not a party to the within cause; my business address is 1932 Bonita Avenue,
California 94704. On November 18, 2016, I served the following:
PLAINTIFE’S OPPOSITION TO DEFENDANT’S DEMURRER
on the parties to said action by placing a true copy thereof, enclosed in a sealed envelope,
. addressed as follows:
Anne H. Larson
Adam M. Stoddard
Craddick, Candland & Conti
2420 Camino Ramon, Suite 202
San Ramon, CA 94583
XX (BY MAIL) By placing a true copy thereof enclosed in a sealed envelope deposited
with the United States Postal Service on that same day with first class postage thereon fully
prepaid at Berkeley, California, in the ordinary course of business to the addresses listed above.
__ (PERSONAL SERVICE) I delivered a true copy thereof, such addressed envelope(s),
by hand, to the office of the addressee(s)
__(VIA FACSIMILE AND U.S. MAIL) I caused such document(s) to be transmitted by
facsimile on the parties to said action, confirmed receipt of the facsimile, and also placed a true
copy of each of the documents thereof in a sealed enveloped addressed as listed above for
mailing. By placing a true copy thereof, enclosed in a sealed envelope deposited with the United
States Postal Service on that same day with first class postage thereon fully prepaid at Berkeley,
California, in the ordinary course of business to the addresses listed above.
declaration was executed on November 18, 201659t
tina Acampora Vaughns
See28 |
PROOF OF SERVICE
syed in the County of Contra Costa, State of Cali
party to the ican action. My business address is 2420 Camiino Ratnoti, Suite 202, San‘Ramon, California, 94583- |
:, Lam over the age: of 18' years and nota
4202,
On November28, 2016, I served the attached: DECLARATION OF ADAM M. STODDARD IN
SUPPORT OF REPLY LO OPPOSITION TO DEFENDANT, RENEE HILLIARD, M.D.’S DEMURRER
TO COMPLAINT on the parties to said action by placifig.a true copy of exh of the document(s) thereof ifi agedled
‘envelope addressed as listed below:
For: Plaintiff Sarah Goodwin
William Canpisi, Esq.
Law Offices of William Campisi, Jr.
1932 Bonita Street .
Berkeley, CA 94704
(BY MAIL) I ar readily familiar with the firm's practice of collection and processing
correspondence for mailing. Urider that: pr , it would be deposited with the Uni
Postal Service on that same day with. fist class postage thereon fully prepaid at San: anion,
| California, in the ordinary course of business.
(OVERNIGHT MAIL) I deposited said addressed envelopé( a box or facility
‘ly maintained by Federal Express, in an envelope or package designated by Federal
s witli delivery fees paid or provided for.
(PERSONAL SERVICE) I delivered such addressed envelope(s); by hand, to the
offiee of the addressee(s).
(VIA FACSIMILE AND U.S. MAIL) I catised such document(s). to.be transmitted
by. facsimile on the partiés to said action, confirmed receipt of the facsimile, and also placed. a
truié copy of each of the documents thereof in a sealed envelope addiessed.as listed above for
mailitig, [am readily familiar with the firm's practice of collection and processing
correspondence for mailing. Under that practicé, it would be deposited with the United States
Postal Service on that same day with first class postage thereon fully prepaid at San Ramon,
| California, inthe ordinary coutse of business.
= (E-SERVICE), Leaused such documient(s), astequired by the Court’s Order
dating Blectronie Filinig and Service, fo be served on the above-named patties to this action
~service (i,¢., LEXISINEXIS, ONE LEGAL/PACER. . The tratismission, was reported |
thout error. A copy of the LE INE LEGAL/PACER filing receipt |
with the document in ow filé,
above-naniéd parties to this action by
s-mail to the email address(es) listed above.
san November 28,; F016.
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ANN H. LARSON, ESQ. (State Bar No. 176461) I ADAM M. STODDARD, ESQ. (State Bar No. 272691) CRADDICK, CANDLAND & CONTI A Professional Corporation 2420 Camino Ramon, Suite 202 San Ramon, CA 94583-4202 Telephone: (925) 838-1100 Facsimile: (925) 743-0729 E-mail: alarson@ccclawfirm.com BY TES GT CLE Attorneys for Defendant, A. GRAHAM RENEE HILLIARD, M.D. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF CONTRA COSTA SARAH GOODWIN, No. MSC16-01206 Plaintiff, CASE ASSIGNED TO HON. EDWARD G. WEIL, DEPT, 39 FOR ALL vs. PURPOSES RENEE HILLIARD, M.D., et al. DECLARATION OF ADAM M. STODDARD IN SUPPORT OF Defendants. REPLY TO OPPOSITION TO DEFENDANT, RENEE HILLIARD, M.D.’S DEMURRER TO COMPLAINT Date: December 5, 2016 Time: 9:00 a.m. Dept: 39 Complaint Filed: June 22, 2016 Trial Date: None I, ADAM M. STODDARD, declare: 1. Iam an attorney licensed to practice in the State of California, and am an associate in the law firm of Craddick, Candland & Conti, attorneys of record for defendant, RENEE HILLIARD, M.D., in the above-entitled matter. If called upon as a witness, I could competently testify to the information contained herein. 1 DECLARATION OF ADAM M. STODDARD IN SUPPORT OF REPLY TO OPPOSITION TO DEFENDANT, RENEE HILLIARD, M.D.’S DEMURRER TO COMPLAINT E2. Defendant served the demurrer on October 20, 2016. 3. Plaintiff served her opposition on November 18, 2016 by United States Postal Service pursuant to the proof of service appended to the opposition. 4, Defendant did not receive plaintiff s opposition until November 28, 2016. A ttue and correct copy of the opposition which identifies the date stamp received is attached hereto as Exhibit “A.” 5. Defendant’s reply brief was due on or before November 28, 2016. I declare under penalty of perjury that the foregoing is true and correct, Executed this 28" day of November, 2016, at San on, California. M. STODDARD 2 DECLARATION OF ADAM M. STODDARD IN SUPPORT OF REPLY TO OPPOSITION TO DEFENDANT, RENEE HILLIARD, M.D.’S DEMURRER TO COMPLAINTEXHIBIT AEXHIBIT A, > ®@ 00L0-LLe (98) woo euMOCIEIN TS SWILLIAM CAMPISI JR. SBN 114690 LAW OFFICE OF WILLIAM CAMPISI JR. 1932 BONITA AVENUE BERKELEY, CA 94704 Tel: (510) 549-3112 Fax: (510) 549-9260 Email: campisi@campisi-law.com Attorney for Plaintiff SARAH GOODWIN SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF CONTRA COSTA UNLIMITED JURISDICTION SARAH GOODWIN, CASE NO. MSC16-0126 , Plaintiff vs. . . RENEE HILLIARD, M D, and DOES L through 100, Date: December 5,2016 - Time: 9:00 a.m. . Dept. 39... Defendants. ~ ere rere Trial Date: None Plaintiff opposes defendant Renee Hilliard, M.D.’s demurrer to her complaint. Defendant’s demurrer is based on the claim that the allegations of the complaint establish that plaintiff's claims are barred by the statute of limitations. Defendant’s argument is without merit. Plaintiff began treatment with Dr. Hilliard in about May 2011 for a left pelvic cyst which caused plaintiff substantial pain. Complaint, 47. Ultimately, Dr. Hilliard advised plaintiff to undergo surgery to remove the left pelvic cyst. Plaintiff underwent that surgery performed by Dr. Hilliard on 2/3/12. Complaint, (7. After performing the surgery, Dr. Hilliard informed plaintiff that she had removed plaintiff’ s left Fallopian tube during the surgery. Complaint, {{7. The Complaint alleges that this statement was false in that, in fact, only a portion of plaintitt s left Fallopian tube had. been surgically removed and that portion of that tube remained i in her body. Complaint, 746; After the surgery, the complaint alleges that plaintiff continued to suffer abdominal pain for Plaintiffs Opposition to Defendant’s Demurrer PLAINTIFF'S OPPOSITION TO DEFENDANT’S DEMURRER Complaint Filed: June 22, 20163 years while she was under the care of Dr. Hilliard. Complaint, 7. Paragraph 8 of the complaint pleads a general negligence allegation with regard to the medical advice to undergo surgery, that the surgery itself was performed negligently, and that the post-surgical care was negligent. Complaint, (8. Paragraphs 8 and 9 of the Complaint additionally plead that with respect to plaintiff's continuing pain after the surgery it was caused by “post-operative inflammation of that portion of her left Fallopian tube that was: left is her body after the surgery,” and that Dr. Hilliard negligently diagnosed plaintiff's post-operative pain as being caused by endometriosis. Complaint, 8 and 9. Paragraphs 8 and 9 further plead that the Dr. Hilliard continued to negligently and careless treat plaintiff for the wrong diagnosis for the next three years. Complaint, 78 and 9. Paragraph 11 pleads that in about May or June 2015, plaintiff sought a consultation with another physician who informed her that her problem was being caused by inflammation of that portion of the Fallopian tube which Dr. Hilliard had not surgically removed on 2/3/12. Plaintiff under went surgery to remove the remaining portion of her Fallopian tube on June 24, 2015. Complaint, J11. Thus, the Complaint pleads that Dr. Hilliard was negligently treating plaintiff for , endometriosis and that plaintiff was taking Lupron for endometriosis prescribed by Dr. Hilliard for about 3 years, Complaint, (10, lines 27-28, which brings her through May or June 2015, and during 2. of those 3 years she was negligently treated for endometriosis by Dr. Hilliard with Lupron, Complaint, 99, 10. Tn paragraph 5 of the Complaint, plaintiff alleges that she served a “Notice of Intent to Sue” on March 23, 2016. That Notice served to extend the statute of limitations by 90 days. Because the complaint pleads that plaintiff sought a second opinion in about May or June, based on that pleading [ the earliest date on which plaintiff could have terminated her patient-physician relationship with Dr. Hilliard was on May 1, 2015. Assume on that date it was discovered by this second doctor that the true cause of her pelvic pain was the inflamed stump of her left Fallopian tube and not endometriosis, Further assume on that date that plaintiff decided that her patient-physician relationship with Dr. Hilliard was over. Then, on that date, May 1, 2015, her statute would have Plaintiffs Opposition to Defendant’s Demurrer Page 2Co Mm IY HA RF wD NY RPM NB ew ew ew Be ee ee BRS Ge QaAARE SE RES commenced to accrue. Absent serving a Notice of Intent to Sue on March 23, 2016, plaintiff's statute would have expired on May 1, 2016. However, given that the Notice of Intent to Sue extended the statute by 90 days, the statute was extended to August 1, 2016. Based on the pleading the statute of limitations could not and did not run before that date. LEGAL ARGUMENT L DEFENDANT ARGUES THAT THE DELAYED DISCOVERY RULE IS NOT APPLICABLE TO PLAINTIVE’S CIRCUMSTANCES. THAT CLAIM IS WITHOUT MERIT. THE CONTINUING DOCTOR-PATIENT RELATIONSHIP DOCTRINE BARRED TBE ACCRUAL OF THE STATUTE OF LIVOTATIONS UNTIL THE RELATIONSHIP TERMINATED In Huysman v. Kirsch (1936) 6 Cal.2d 302, the California Supreme Court held that the statute of limitations for a patient to bring a lawsuit against her doctor did not begin to accrue while the patient remained under the care of her doctor who was advising the patient about the medical problem for which the doctor had provided negligent treatment. In Huysman, the defendant surgeon. performed a hysterectomy on plaintiff on 1/3/1931, and apart of the operation left in place a “rubber” drainage tube about 9 inches in length and % inch in diameter in her abdomen. Plaintiff was unaware of the presence of the drainage tube inside of her abdomen. Plaintiff continued to treat with this surgeon until 12/12/1932. Id, at 304. On 9/26/1932, the surgeon removed the drainage tube. Plaintiff learned about the presence of the drainage tube in her body on that date. ‘I her complaint, the plaintiff alleged that within days after the operation she had suffered “qumerous running, painful sores, continually discharging pus, and requiring constant care and attention,” and ever since about the date of the operation plaintiff “was made sick, and still is sick and will continue sick for an indefinite period of time... .” Id, at 304 and 305. The plaintiff ended her patient-doctor relationship with this surgeon on 12/12/1932, Id. at 304, and she filed suit against him on 1/7/1933, Id. at305. The surgeon demurrerred to the complaint on the grounds that it was barred by the statute of limitations. The surgical plan had been to remove the drainage tube on 1/9/1931, 6 days after the surgery, but the surgeon had negligently failed to remove it. The surgeon contended that the statute of limitations began to run on 1/9/1931, || Plaintiffs Opposition to Defendant’s Demurrer Page 3the date of his negligence. The trial court granted the demurrer and dismissed the action. The District Court of Appeal recognized the injustice of that ruling but believed that under the law it had no option but to affirm the trial court’s judgment in favor of the surgeon. The Supreme Court reversed. Looking to other jurisdictions, the Court cited with approval a holding from a Georgia Supreme Court case in which that court held that Indeed, it would be inconsistent to say that the plaintiff might sue for her injuries while the surgeon was still in charge of the case, and advising and assuring her that . properpatience would witness a compieté recovery . . . ..It woild impose upon her an, umproper burden to hold that, in order to prevent the statute from running against her right of action, she must sue while she was following the advice of the surgeon, and upon which she all the time relied. Id. at 309 In Trombley v Kolts (1938) 29 Cal. App.2d 699, the trial court entered judgment in favor of the defendant on the grounds that plaintiff's claims were barred by the statute of limitations. The Appellate Court reversed. In that case, the plaintiff underwent surgery on 2/12/1932. During the surgery the surgeon caused a skin clip to become embedded in plaintiffs body and it was not removed until October 1934, a period of about thirty-two months. During most of that time plaintiff remained the patient of the defendant surgeon. Because plaintiff suffered from indigestion and gastritis, plaintiff asked the defendant what he thought about colonic treatments and the defendant advised her that there was no harni in trying them, but that she would have to find a doctor who performed those treatments. Plaintiff then found a chiropractor who performed such treatment. During the course of consulting the chiropractor about colonic treatment the chiropractor ordered an abdominal x-ray. The x-ray showed the presence of the clip in plaintiff's abdomen. Plaintiffthen went back to the defendant surgeon with that information, and provided the x-rays to the surgeon. | The surgeon advised her not to worry about the clip because he told her that it is not the source of her trouble and “it will never cause you any trouble.” These events took place in about November 1932, about 10 months after the surgery. Plaintiff continued to consult with the defendant surgeon regarding her condition until September 1934, when plaintiff terminated the relationship with the defendant. Trombley, supra, at 707 - 709. In reversing the trial court judgment, the Court of Appeal cited Huysman, supra, for its holding that a patient cannot be expected to sue the physician upon whom she is relying, in good Plaintiff's Opposition to Defendant’s Demurrer Page 4Ce AHA HA BBY Boe ek UA BW NY BS S Nn NY YN NY NY ND BAX RBRRBBEBSESEAR a | faith, to care for her, It held that “. . . the-statute should be tolled during all the time she was under the care of respondent [Note: The term “Respondent” refers to the defendant surgeon who today would be called the “Appellee.”] and consulted only with him with reference to the condition produced by the presence ofthe skin clip. in her body.” Trombley, supra, at 709. In Sanchez v, South Hoover Hospital (1976), the California Supreme Court considered the ‘effect of the then récently adopted statute of limitations, Code of Civil Procedure §340.5, on the “delayed discovery. rules,” One-issue it considered was when should statute begin to run on a claim for medical malpractice. The Court adopted a “notice” rulé but carved out the same exception set forth in Huysman, supra, and Trombley, supra. [2][3] Possession of “presumptive” as well as “actual” knowledge will commence the running of the statute. The applicable principle has been expressed as follows: “when. the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation . . the statute commences to run: ” (Citations) [4][5} On the other hand, the patient is fully entitled to rely upon the physician's professional skill and judgment while under his care, and-has little choice but to do so, It follows, accordingly, that during the continuance of this professional relationship, which is fiduciary in nature, the degree of diligence required of a patient in ferreting out and learning of the negligent causes of his condition is diminished. (Citations) This principal is not confined to the physician-patient relationship alone but exists in other. contexts as well, in which it is generally.held that existence of the trust relationship limits the duty ef inquiry. (Citations) Sanchez, supra, at 101, 102. This action is on fours with each, of these cases, in particular, Trombley. Plaintiff went to see defendant because she was suffering from pelvic pain. Defendant recommended surgery which she | performed, Defendant, without consent, partlally removed plaintiff's left Fallopian tube, but told plaintiff that she removed plaintiffs Fallopian tube which led plaintiff to believe that she had removed the entire tube. When the surgery did not prove successful in relieving plaintiff's pain, defendant came to the } diagnosis that plaintiff was suffering from endometriosis. Plaintiff clearly trusted and relied on defendant because plaintiff took a powerful, dangerous drug to treat endometriosis for 2 years out of the three years she continued to remain under the care of defendant after the surgery. Clearly, plaintiff trusted defendant to care for her, and she trusted that defendant had correctly diagnosed her condition, and she agreed to the treatment with Lupron to treat her condition. Plaintiff's Opposition to Defendant’s Demurrer Page 5ee Ss a oe AWA UW BF BY FE DS yvN wy yey YN RYN WY 2IA aA FSH SS: oo YD A Rw Ww 1 80 Under these circumstances, defendant cannot reasonably claim that plaintiff was somehow put on inquiry notice that the defendant had committed negligence. Plaintiff could not know that part of her Fallopian tube remained in her body after the surgery fc she had no reason to suspect that it remained after being told it had been removed, Plaintiff had not reason to suspect that endometriosis was the wrong diagnosis. For 50% of women who have it, endometriosis is a chronic illness causing pelvic pain. Thus, the fact that the problem was not “cured” was not at all unusual and that fact, by itself, would not put-any woman on inquiry ofies that her doctor diagnosis was incorrect, Thus, under all three cases cited above, two of them being California Supreme Court decisions, the statute of limitations was tolled during the period of time that plaintiff was relying on ||| defendant to care for her problem of pelvic pain. Defendant’s reliance on Norgart v, The Upjohn Company (1999) 21 Cal4th 383 and Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797 is misplaced. The circumstances in both of those cases did not involve a relationship of trust and reliance by a patient with her doctor. The defendant in Norgart was a drug company. In that case there was no fiduciary relationship between a patient and her doctor at issue. A patient, just like a client of an attorney, is allowed to rely on and trust that her doctor or her lawyer would possess the knowledge and skill necessary to provide the services that she requires without the need “to investigate” whether or not the services being provided are negligent. Onthe other hand, theze-is wo fiduciary-relationshiip betweeri a drug.manufacturer ahd a person who takes a medication made by that manufacturer and, therefore, different rules apply. Not surprisingly, Norgart did not consider the issue of whether a continuing patient-doctor relationship tolls the accrual of the statute of limitations when the patient is relying on her doctor to treat the problem which, unknown to the patient, has or is being treated negligently by her doctor. There is absolutely no discussion of the effect of that circumstance on the statute of limitations in Norgart because that was not an issue considered in that case. Likewise, reliance by defendant on Fox y. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797 is misplaced. In that case, the California Supreme Court held that the accrual of a cause of action Plaintiffs Opposition to Defendant’s Demurrer Page 6om IN A mH BW YW Ee ee a ae eo eo YT DNA BR Hw He SG against a medical device manufacturer will be tolled if the plaintiff has no basis to know or suspect that her doctor, whom she had sued for medical malpractice, used a defective device during the course of treatment which caused her injury. In Fox, the Court permitted the plaintiff to sue the manufacturer because she had no reason to know or discover that her surgeon had used a defective product in caring for her which had injured her. There is a fundamental difference between the application of the “discovery rule” in the context of a continuing patient-physician relationship as opposed to. when there is no such continuing relationship. When there is no such relationship, a patient who continues to suffer ill- effects from a medical problem after treatment has been provided for that problem has a duty of inquiry to determine whether the treatment failed because her doctor was negligent, or some drug or medical device caused harm, By contrast, when the patient continues treatment with doctor, and the doctor is advising the patient about the nature and care and treatment of the medical problem for which the patient received, unknowingly, negligent treatment, and when the patient trusts and relies on the doctor in continuing treatment with the doctor, there is no duty of inquiry while that relationship continues. That is the rule announced in the cases cited by plaintiff. In this case, as long as plaintiff was relying on and trusting the defendant to treat her for her pelvic pain the accrual date for the running of the statute of limitations was tolled, Defendant’s demurrer must be denied. The same rule applies to plaintiff's other causes of action. The accrual date did not begin to ran untit the termination of thy plaintiff's relationship. with Dr. Hilliard which did rict-ovcur earlier | | than May 1, 2015 based on the pleadings. ‘CONCLUSION + In conclusion, the plaintiff contends that the pleadings are adequate to show that the date for the accrual of plaintiff's statute of limitations was no earlier than May 1, 2015. With that date as the accrual date, and with the extension for service of the Notice of Intent to Sue, the last date for plaintiff to file her complaint was August 1, 2016, She filed her complaint on June 20, 2016 which was well within the statute. However, if the court requires that the complaint state these facts more clearly than it does, Plaintiff's Opposition to Defendant’s Demurrer Page 7Co me YN AH eR wD KY o ll and requires that plaintiff state the exact date on which she terminated her relationship with Dr, Hilliard, plaintiff requests leave to file a First Amended Complaint containing Yhat information. Dated: November 18, 2016 gf . William Campisi ir. aay for Pati (i Plaintiffs Opposition to Defendant’s Demurrer Page 8CERTIFICATE OF SERVICE I declare that I am employed in the county of Alameda, California. I am over the age of eighteen years and not a party to the within cause; my business address is 1932 Bonita Avenue, California 94704. On November 18, 2016, I served the following: PLAINTIFE’S OPPOSITION TO DEFENDANT’S DEMURRER on the parties to said action by placing a true copy thereof, enclosed in a sealed envelope, . addressed as follows: Anne H. Larson Adam M. Stoddard Craddick, Candland & Conti 2420 Camino Ramon, Suite 202 San Ramon, CA 94583 XX (BY MAIL) By placing a true copy thereof enclosed in a sealed envelope deposited with the United States Postal Service on that same day with first class postage thereon fully prepaid at Berkeley, California, in the ordinary course of business to the addresses listed above. __ (PERSONAL SERVICE) I delivered a true copy thereof, such addressed envelope(s), by hand, to the office of the addressee(s) __(VIA FACSIMILE AND U.S. MAIL) I caused such document(s) to be transmitted by facsimile on the parties to said action, confirmed receipt of the facsimile, and also placed a true copy of each of the documents thereof in a sealed enveloped addressed as listed above for mailing. By placing a true copy thereof, enclosed in a sealed envelope deposited with the United States Postal Service on that same day with first class postage thereon fully prepaid at Berkeley, California, in the ordinary course of business to the addresses listed above. declaration was executed on November 18, 201659t tina Acampora Vaughns See28 | PROOF OF SERVICE syed in the County of Contra Costa, State of Cali party to the ican action. My business address is 2420 Camiino Ratnoti, Suite 202, San‘Ramon, California, 94583- | :, Lam over the age: of 18' years and nota 4202, On November28, 2016, I served the attached: DECLARATION OF ADAM M. STODDARD IN SUPPORT OF REPLY LO OPPOSITION TO DEFENDANT, RENEE HILLIARD, M.D.’S DEMURRER TO COMPLAINT on the parties to said action by placifig.a true copy of exh of the document(s) thereof ifi agedled ‘envelope addressed as listed below: For: Plaintiff Sarah Goodwin William Canpisi, Esq. Law Offices of William Campisi, Jr. 1932 Bonita Street . Berkeley, CA 94704 (BY MAIL) I ar readily familiar with the firm's practice of collection and processing correspondence for mailing. Urider that: pr , it would be deposited with the Uni Postal Service on that same day with. fist class postage thereon fully prepaid at San: anion, | California, in the ordinary course of business. (OVERNIGHT MAIL) I deposited said addressed envelopé( a box or facility ‘ly maintained by Federal Express, in an envelope or package designated by Federal s witli delivery fees paid or provided for. (PERSONAL SERVICE) I delivered such addressed envelope(s); by hand, to the offiee of the addressee(s). (VIA FACSIMILE AND U.S. MAIL) I catised such document(s). to.be transmitted by. facsimile on the partiés to said action, confirmed receipt of the facsimile, and also placed. a truié copy of each of the documents thereof in a sealed envelope addiessed.as listed above for mailitig, [am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practicé, it would be deposited with the United States Postal Service on that same day with first class postage thereon fully prepaid at San Ramon, | California, inthe ordinary coutse of business. = (E-SERVICE), Leaused such documient(s), astequired by the Court’s Order dating Blectronie Filinig and Service, fo be served on the above-named patties to this action ~service (i,¢., LEXISINEXIS, ONE LEGAL/PACER. . The tratismission, was reported | thout error. A copy of the LE INE LEGAL/PACER filing receipt | with the document in ow filé, above-naniéd parties to this action by s-mail to the email address(es) listed above. san November 28,; F016.