Call v. Kezirian

Opinion

Plaintiff appeals from an order of dismissal, entered after an order sustaining without leave to amend, a demurrer to her first amended complaint (hereinafter complaint). We reverse.

Elizabeth Call was born with chromosomal anomalies known as Down’s Syndrome. The complaint against Dr. Kezirian and Does alleges careless diagnosing and examining and treatment, and particularly, negligence for failure to diagnose the embryonic abnormality, advise of the condition, and to recommend a therapeutic abortion to plaintiff's parents.

Kezirian demurred on the grounds: (1) that plaintiff failed to state a cause of action (Code Civ. Proc., § 430.10) in that the cause of action is barred by the statute of limitations in Civil Code section 29 and (2) that plaintiff’s cause of action depends on an allegation that defendants-respondents should have committed an illegal act (advise the parents to have an abortion).

In the amended complaint plaintiff attempted to allege facts which show that through the exercise of reasonable diligence her parents did not discover their cause of action prior to March 1979. Plaintiff alleged that the six-year old statute of limitations in Civil Code section 29 does not run until the discovery of the alleged negligence and they did not discover the negligence until an attorney advised them that Down’s Syndrome (also called Mongolism) can be discovered through amniocentesis.

Plaintiff also opposed the demurrer on the grounds that Civil Code section 29 is an unconstitutional denial of equal protection in that it sets up an arbitrary classification of a minor’s rights.

Plaintiff asserts also that she did not fall within the purview of Civil Code section 29 in that this statute is only applicable when the cause of action alleges “injury” prior to birth or during birth. Plaintiff alleges that defendant did not cause the mongolism (the injury) but that he failed to detect the connection through the procedure of amniocentesis thereby precluding the parents from having an abortion performed.

Plaintiff also contends that the doctor has a duty to inform his patient of potential birth defects in order to permit the parents to get a therapeutic abortion, even though these events in this case occurred pri- or to the United States Supreme Court’s ruling in Roe v. Wade (1973)

The court sustained the demurrer without leave to amend on the grounds that the cause of action was barred by the statute of limitations and because no cause of action existed for failure to advise of potential birth defects and for failure to recommend a eugenic abortion prior to Roe v. Wade. The instant complaint had been filed more than seven years after plaintiff’s birth.

Since, as we set forth below, we conclude that the complaint alleges facts which, if accepted by a trial jury, would serve to toll any applicable statute of limitations, we need not, and do not, here consider the contentions as to the constitutionality or applicability of section 29. For the purposes of this opinion only, we assume that section 29 is constitutional and applicable to the facts of this case.

Although the complaint alleges that defendant had a duty, not only to diagnose the abnormality and to advise the parents of that fact, it also alleges that the doctor had a duty to advise the parents to have an abortion.

We do not feel that it is necessary, in this case, to pass on the issue so presented. It is alleged that, if the parents had been seasonably advised of the abnormality, the mother would have gone to some jurisdiction where an abortion was legal. We hold here only that an attending physician is under a duty, when treating a middle-aged woman, to test for Down’s Syndrome and to advise the parents of the results of that test, leaving to the parents the decision as to seeking an abortion or permitting the fetus to develop to the point of delivery. The allegations charging a greater duty can be eliminated by amendment.

I

n Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811 [ 165 Cal.Rptr. 477 ], the appellate court held that a child had a cause of action for damages for pain and suffering to be endured in its life

Therefore, since special damages may be received in a case such as this, plaintiff should have been permitted to amend her prayer to limit her demand to the kind of damages that Turpin held may be recovered.

We turn, then, to the issues of whether the complaint alleges facts sufficient to toll a statute of limitations. As we have said above, we conclude that it does.

Civil Code section 29 reads as follows: “A child conceived but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth; but any action by or on behalf of a minor for personal injuries sustained prior to or in the course of birth must be brought within six years from the date of birth of the minor, and the time such minor is under any disability mentioned in Section 352 of the Code of Civil Procedure shall not be excluded in computing the time limited for the commencement of the action.”

Plaintiff made the following allegation in attempt to toll Civil Code section 29.

“Plaintiff’s parents, Maria E. Call and Richard Call, did not discover the negligent cause of plaintiff’s .injuries, nor through the exercise of reasonable diligence could have discovered it, at anytime earlier than six years prior to the filing of this action; that at no time prior to retain

The question before us is whether the allegation that plaintiffs injuries were not discovered until attorneys conducted an investigation sufficient to toll the statute for purposes of demurrer, or whether, plaintiffs parents, in the exercise of reasonable diligence, should have discovered the alleged negligence earlier, since Down’s Syndrome (also known as Mongolism) is detectable at birth.

The allegations in a complaint are treated as true for the purposes of ruling on a demurrer (Custodio v. Bauer (1967) 251 Cal.App.2d 303 [ 59 Cal.Rptr. 463 , 27 A.L.R.3d 884 ]; Berman v. Allan (1979) 80 N.J. 421 [ 404 A.2d 8 ]) and a demurrer should not be sustained without leave to amend if there is a reasonable possibility that a defect in the complaint can be cured by amendment. (Minsky v. Los Angeles (1974) 11 Cal.3d 113 [ 113 Cal.Rptr. 102 , 520 P.2d 726 ].)

Plaintiff alleges that the statute did not begin to run until March 9, 1979, when plaintiffs parents retained counsel, alleging that it was at this time the plaintiffs parents first discovered the existence of a cause of action. Although plaintiffs allegations must be taken as true for purposes of demurrer, if it appears on the face of the complaint that plaintiff should have discovered the alleged negligence at an earlier time such that the statute would not be tolled, plaintiffs cause of action would be barred by the running of the statute of limitations.

Where plaintiff is a minor, it is not the knowledge or lack thereof of the minor, but the knowledge or lack thereof of the minor’s parents which determines the time of the accrual of the cause of action. (Segura v. Brundage (1979) 91 Cal.App.3d 19 [ 153 Cal.Rptr. 777 ]; Whitfield v. Roth (1974) 10 Cal.3d 874 [ 112 Cal.Rptr. 540 , 519 P.2d 588 ].) When plaintiff has notice or information of circumstances to put a reasonable person on inquiry or has the opportunity to obtain knowl

Therefore, unless the complaint herein shows on its face that, in the exercise of due diligence, plaintiff’s parents should have discovered the doctor’s alleged negligence, and plaintiff’s parents failed to do so, the issue of whether or not they should have realized earlier that their doctor could have detected Down’s Syndrome by performing amniocentesis, is a question of fact and the demurrer should not have been granted.

Respondent argues that, as a matter of law, the parents should have realized in the exercise of due diligence that they had a cause of action at the time the Down’s Syndrome was detected. He argues that Down’s Syndrome is detectable and diagnosable at birth, and as such, any possible negligence in failing to perform amniocentesis and in failing to warn plaintiff’s parents of the condition either was apparent at birth, or plaintiff’s parents in the exercise of reasonable diligence should have been put on notice at the time of birth. Respondent argues that the statute of limitations should not have been tolled and that plaintiff’s parents, in the exercise of reasonable diligence, should have investigated the situation prior to the time they consulted an attorney, since Down’s Syndrome is apparent at birth.

Respondent analogizes to the case of McGee v. Weinberg (1979) 97 Cal.App.3d 798 [ 159 Cal.Rptr 86 ], where a former wife sued her attorney for malpractice, alleging that the attorney failed to provide that her

The McGee court held that it was the knowledge of the facts, rather than the discovery of the legal theory, that was the test of whether the statute of limitations was tolled, and that the plaintiffs former wife in the McGee case had knowledge of the facts giving rise to the malpractice action, when she failed to receive any insurance proceeds after her former husband’s death. Respondent argues that it is the facts that trigger the operations of the statute, and belief that there is a legal cause of action, or discovery of a legal theory, is immaterial. (McGee v. Weinberg (1979) 97 Cal.App.3d 798 [ 159 Cal.Rptr. 86 ].) Stating the matter another way, respondent argues that it is facts and events which inform a person that something is wrong and should be looked into, and it is the occurrence of some such cognizable event rather than knowledge of its legal significance that starts the running of the statute of limitations. (McGee v. Weinberg, supra, at p. 804.)

Respondent correctly states the law of when the statute of limitations begins to run, but that rule does not aid him in his position.

Respondent in the instant case argues that plaintiffs parents herein also had knowledge of the facts (that the baby Elizabeth was born with Down’s Syndrome baby, and the fact that the parents herein had no knowledge of the theory (that defendant doctor should have ordered amniocentesis and advised the mother to get an abortion) was not controlling.

We do not think the analogy to McGee is persuasive. In McGee the former wife knew she did not receive money at her husband’s death, but she also knew the damage was caused by the negligence of the lawyer (p. 804), even though she did not know that she had a legal cause of action, and she did not know an applicable legal theory. (McGee v. Weinberg, supra, 97 Cal.App.3d at p. 804.) The parents in the instant case did know the baby was born with Down’s Syndrome, but the parents did not know the Down’s Syndrome could have been predicted if her doctor had performed amniocentesis. Thus, in the case at bar, the mother knew merely that she gave birth to a Down’s Syndrome baby, but she did not have before her the additional and critical fact that the condition could have been predicted by amniocentesis. Merely knowing that the mother gave birth to a Down’s Syndrome baby would not be a sufficient fact or event to put a reasonable person on notice that the

Several cases are consistent with our position that the statute of limitations did not begin to run merely because the parents had knowledge that the mother gave birth to a Down’s Syndrome baby.

In Warrington v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 564 [ 80 Cal.Rptr. 130 ], the statute of limitations for personal injuries allegedly suffered by ingestion of a drug did not begin to run until after the connection between the drug and the illness had been suggested to plaintiff by her attorney, where plaintiff therein had the right to rely on defendant’s representation and was lulled into a false sense of security by it. The Warrington court said where an intelligent person cannot, without specialized knowledge, have been made aware of the cause of action, no cause of action begins to accrue until the person knew or should have known of the alleged negligence.

In the case at bench, an intelligent person would not necessarily know the birth of a Down’s Syndrome child could be predicted by performing amniocentesis, without specialized knowledge about that particular medical test. Thus, the statute of limitations would not begin to run until they had such specialized knowledge.

In Whitfield v. Roth (1974) 10 Cal.3d 874 [ 112 Cal.Rptr. 540 , 519 P.2d 588 ] plaintiff was a minor and suffered a stroke and the parents sued after the 100-day statutory limit. The court cited Wozniak v. Peninsula Hospital (1969) 1 Cal.App.3d 716 [ 82 Cal.Rptr. 84 ], stating that while the parents in Wozniak were aware of the child’s abnormal physical and mental condition they had no specific information that the condition was due either to the operation itself or the lack of hospital care. Similarly, in the case at bench, although the Calls had knowledge