Case Name: Ogburn v. Stanford University School of Medicine
Case No.: 2015-1-CV-275304

Plaintiff Stephen Ogburn is a sixty-year-old retired architect with a history of chronic, recurrent major depressive disorder. (First Amended Complaint (“FAC”), ¶ 6.) In October 2012, employees and/or agents of defendant Stanford Hospital, including defendant Charles Debattista, D.M.H., M.D., recommended that plaintiff participate in a deep brain stimulation (“DBS”) study known as the BROADEN Trial. (Id. at ¶ 8.) Defendants should have known that plaintiff had no capacity to consent to the use and implantation of the DBS system because he was a member of a vulnerable population suffering from ongoing chronic depressive disorder that interfered with his ability to fully comprehend the risks associated with participation in the Trial. (Id. at ¶ 15.)

On November 30, 2012, plaintiff underwent an operation that was conducted by defendant Jaimie Henderson, M.D. for implantation of the DBS system. (FAC, ¶ 16.) Within two weeks, plaintiff reported numerous side effects including but not limited to headaches, chest tightness, fatigue, upset stomach, feelings of being lost and dazed, and lack of energy. (Id. at ¶ 18.) Within a couple of months after the implantation, plaintiff experienced additional symptoms including but not limited to unrelenting front and bilateral head pain, burning and wincing pain over the right temporal parietal region which radiated to the front of his head, increased temperature of his head, jaw pain and clenching, and other symptoms. (Id. at ¶ 19.) Plaintiff continued to treat with the defendants through October of 2013 and complained consistently of his symptoms, as well as of his unimproved depression. (Id. at ¶¶ 21-22.) However, defendants refused to remove the DBS system from plaintiff’s body. (Id. at ¶ 22.)

In October 2013, plaintiff was diagnosed by Dr. Mackey, the Chief of Stanford Hospital’s Division of Pain Management, with injuries to his lesser occipital nerve and spinal accessory nerve (along with related muscle atrophy), which were ultimately determined to have been “caused by the leads in [his] brain that were implanted during the Operation….” (FAC, ¶¶ 24-25.) Also in the fall of 2013, the Food and Drug Administration suspended the Trial because it failed a “futility analysis,” which considers whether an experimental treatment has a reasonable chance of improving upon current treatments. (Id. at ¶ 26.) On December 4, 2013, the DBS system was removed from plaintiff’s body. (Id. at ¶ 27.) This did not provide plaintiff with relief and he continues to suffer from unremitting pain. (Id. at ¶ 28.)

Plaintiff filed his original complaint in this action on January 5, 2015. The Court sustained with leave to amend a demurrer by defendants The Board of Trustees of the Leland Stanford Junior University, Stanford Health Care, Dr. Debattista, and Dr. Henderson (the “Moving Defendants”) on the ground that plaintiff’s claims were barred by the statute of limitations. Plaintiff filed the FAC on March 24, 2016, asserting the following claims: (1) negligence in plaintiff’s care, (2) negligence in conducting the Trial, (3) intentional assault and battery and lack of informed consent, (4) breach of fiduciary duty, (5) common law fraud/intentional misrepresentation, (6) negligence in oversight of the Trial by Stanford’s Institutional Review Board, (7) intentional and negligent infliction of emotional distress, and (8) punitive damages.

On April 26, 2016, the Moving Defendants demurred to and moved to strike portions of the FAC. Those motions are now at issue.

I. Demurrer

The Moving Defendants renew their contention that plaintiff’s claims are barred by the statute of limitations. (Code Civ. Proc., § 430.10, subd. (e).) They also demur to the entire complaint on the ground that plaintiff lacks standing to bring this action because his claims are preempted by federal law. (Ibid.) Finally, they demur to each individual cause of action for failure to state a claim and uncertainty. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

As an initial matter, the Moving Defendants have clearly modified the size and/or kerning of the font used in the memorandum of points and authorities supporting their demurrer in order to fit an oversize brief within the applicable page limitations. The defendants are ordered to use a 12-point typeface in standard format in the future. The Court may exercise its discretion to strike any future pleading that does not comply with this directive. (See Code Civ. Proc., § 436, subd. (b) [court may strike a pleading not in conformity with a court order].)

A. Applicable Statute of Limitations

The Court held in its ruling on the Moving Defendants’ previous demurrer that “all of [plaintiff’s] causes of action are subject to the limitations period of Section 340.5,” which provides:

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.

(Code Civ. Proc., § 340.5.) If the plaintiff serves a required notice of his or her intention to bring a claim within 90 days of the expiration of the statute, the time for the commencement of the action is extended by 90 days. (Code Civ. Proc., § 364, subd. (d).)

Despite the Court’s ruling, plaintiff continues to maintain that Code of Civil Procedure section 335.1, the general two-year statute for personal injury actions, might instead apply to his action or some unspecified portion thereof. (See Opp., pp. 5-6.) It is consequently worth addressing this issue in more detail.

As noted by the Court’s prior order, it is the fundamental nature or “gravamen” of a cause of action, rather than the form in which it is pleaded or the relief demanded by the plaintiff, that determines the applicable statute of limitations. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22-23.)

Plaintiff’s claims for medical negligence, whether arising from negligent care, negligent conduct or oversight of the Trial, lack of informed consent, or negligent infliction of emotional distress, are clearly subject to the statute of limitations established by section 340.5. (See Code Civ. Proc., § 340.5(2) [statute applies to “a negligent act or omission to act by a health care provider in the rendering of professional services …”]; Thomas v. Hickman (E.D. Cal., May 5, 2009, No. 1:06-CV-0215 AWI SMS) 2009 WL 1273190, at *17 [“California Civil Procedure Code § 340.5 provides the time limit for bringing a cause of action under the doctrine of informed consent.”], citing Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1200.) This does not appear to be in dispute.

While plaintiff attempts to reframe his lack of informed consent claim as one for breach of fiduciary duty and/or fraud, courts have rejected such attempts to avoid professional negligence statutes. (See Hydro-Mill Co., Inc. v. Hayward, Tilton and Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1159-1160 [where gravamen of claim is for professional negligence, the applicable statute may not be extended by denominating the claim one for breach of fiduciary duty]; Tell v. Taylor (1961) 191 Cal.App.2d 266, 271 [“even though the plaintiff alleges false representations on the part of the physician or fraudulent concealment, our courts have always treated the action as one for malpractice”].) The gravamen of these claims is lack of informed consent, which sounds in negligence. (See Cobbs v. Grant (1972) 8 Cal.3d 229, 239-241.)
Similarly, within his third cause of action, plaintiff attempts to state a claim for medical battery on the theory that he “had no capacity to consent to the use and implantation of the DBS System or participation in the Trial, because he was suffering from ongoing chronic depressive disorder that interfered with his ability to fully comprehend the [associated] risks ….” (FAC, ¶ 52.) Plaintiff provides no authority supporting this unique theory of medical battery, which, although not addressed by defendants’ demurrer, the Court is not inclined to think would state a claim separate and apart from one for lack of informed consent. (See Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266-1270 [the “gist” of medical battery “is that the doctor has intentionally touched the patient without consent or in a manner that exceeds the consent and without justification”]; Cobbs v. Grant (1972) 8 Cal.3d 229, 240-241 [“The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.”].)

Regardless, any claim for an intentional tort (including plaintiff’s remaining theory of intentional infliction of emotional distress) would be subject to the same delayed discovery analysis set forth below. These claims accrued when plaintiff’s operation took place in November 2012, and plaintiff did not file suit until January 2015, more than two years later. Contrary to the statute governing medical negligence claims, the statute for any intentional tort was not extended by plaintiff’s service of notice of his intention to sue. (See Noble v. Superior Court (Katz) (1987) 191 Cal.App.3d 1189, 1192-1194 [statute of limitations on a claim for medical battery is not extended by service of notice under section 364].)

B. Delayed Discovery

Here, plaintiff alleges that he served a notice of his intent to sue on October 7, 2014. (FAC, ¶ 31.) If timely, the notice extended plaintiff’s time to sue for medical negligence until January 5, 2015, the date this action was filed.

The Moving Defendants contend that the one-year statute lapsed in December 2012 or January 2013, well over 90 days before plaintiff served his notice. They urge that in light of the long list of severe symptoms plaintiff admittedly began to experience “[w]ithin a couple months of the implantation,” the statute began to run in January 2013, three months after the implantation, at the latest.

“In a suit for medical malpractice the one-year statute of limitations commences to run when the plaintiff discovers the injury and its negligent cause or through the exercise of reasonable diligence should have discovered them.” (Enfield v. Hunt (1979) 91 Cal.App.3d 417, 419.) The issue “is usually a question of fact but may be a question of law when the allegations of the complaint bearing on whether the plaintiffs had constructive notice of allegedly undiscovered facts are susceptible to only one legitimate inference.” (Christ v. Lipsitz (1979) 99 Cal.App.3d 894, 898.) 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.” (Ibid.; see also Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 [“[A] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. … [T]he burden [is] on the plaintiff to show diligence; conclusory allegations will not withstand demurrer.”], internal citation and quotation marks omitted.)

Plaintiff fails to include the required discovery allegations here, merely pleading in the negative that “there is no allegation that [he] knew or should have known when he was experiencing these issues [following the surgery] that they were the result of the Defendants’ negligence ….” (FAC, ¶ 23.) Presumably, plaintiff’s position is that he discovered his injury in October 2013, when he was diagnosed with nerve damage caused by the implantation of the DBS system and left defendants’ care. However, the FAC indicates that plaintiff experienced “unrelenting” head pain and other severe symptoms within “a couple of months after the implementation” of the DBS system in his head; he complained consistently of his symptoms to defendants; and defendants simply “refused to remove the DBS system.” (Id. at ¶¶ 19, 22.) These allegations establish that plaintiff was on inquiry notice of his injuries from the implantation and their allegedly negligent cause within a “couple” of months of the procedure, while he did not serve notice of his claims until almost two years after the operation.

Plaintiff contends that the statute was tolled as long as he remained in a doctor-patient relationship with the defendants, citing a footnote in Gray v. Reeves (1977) 76 Cal.App.3d 567 for the proposition that “[i]t is the general rule the statute of limitations does not run while the doctor-patient relationship continues.” (At p. 577, fn. 3.) The statement in Gray, however, is dictum, given that the plaintiff in that action was no longer under the defendant’s care during the relevant time period. (Id. at p. 577.) It is true that “the degree of diligence required of a patient in ferreting out and learning of the negligent causes of his condition is diminished” during the doctor-patient relationship. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102.) However, the Supreme Court has expressly recognized that the statute may nevertheless commence to run while the plaintiff remains under the defendant’s care. (See ibid. [where plaintiff’s “reasonably founded suspicions were undeniably aroused …, both by her own recognition of her symptoms and by external corroboration” and “[p]laintiff admits she did not accept defendant Pilson’s assurances at face value[,] … it is arguable that plaintiff was on notice of defendants’ negligence” during the doctor-patient relationship].) The issue is likely to be a factual one where the defendant reassures the plaintiff that his or her symptoms are normal or gives an explanation designed to allay any suspicion of negligence. (See ibid.; Enfield v. Hunt (1979) 91 Cal.App.3d 417, 422-423 [issue of fact where “plaintiff was still under defendants’ care and defendants were repeatedly assuring him that the condition would eventually correct itself”]; Brown v. Bleiberg (1982) 32 Cal.3d 426, 435 [issue of fact where plaintiff had persistent pain but doctor “told her that her condition would improve”]; Unjian v. Berman (1989) 208 Cal.App.3d 881, 885 [issue of plaintiff’s reasonableness is factual “where the plaintiff continues under the doctor’s care, does inquire about the cause of his apparent injury and is given an explanation calculated to allay any suspicion of negligence on the doctor’s part”].)

Here, plaintiff does not allege that defendants reassured him. Rather, he indicates that they “refused” to remove the DBS system. Plaintiff also does not allege that he lacked suspicion of defendants’ negligence at the time he began to complain to them of his severe symptoms and unimproved depression. Notably, he emphasizes repeatedly that he does not allege that he did have knowledge or suspicion of negligence. Plaintiff’s silence on this point does not insulate his complaint from demurrer; it is his burden to “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.” (Christ v. Lipsitz, supra, 99 Cal.App.3d at p. 898.)

Defendants’ demurrer is accordingly SUSTAINED WITHOUT LEAVE TO AMEND on the ground that plaintiff’s claims are barred by the statute of limitations.

II. Motion to Strike

In light of the ruling above, the motion to strike is DENIED AS MOOT.