Fen-Phen California Warning: Silent Injury - Secret Disease made worse by California's Two Year Statute of Limitations that Starts Running When Injury is First Suspected
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Fen-Phen California Warning: Silent Injury - Secret Disease made worse by California's Two Year Statute of Limitations that Starts Running When Injury is First Suspected

California's two-year statute of limitations in personal injury cases begin to run upon the date of the injury or when a person discovers an injury has occurred. Anyone with a valid, enforceable and collectible claim, who files one day after the two year statute of limitations period, is facing dismissal of an outlawed claim.

But, in the case of injury caused by Fen-Phen, the injury is not readily apparent and the statute does not begin to run until the plaintiff knows or should reasonable knowledge of the injury, its cause and a suspicion of wrongdoing. Suspicion is examined from an objective standpoint; the issue is what a reasonable person would know or suspect under the facts of your case. And that is the problem faced by anyone who was treated with Fen-Phen for weight loss.

In a study by the U.S.Food and Drug Administration of 284 patients, 32.8% had valve pathology or injury. Twenty-two percent had taken the diet drugs for less than 3 months, twenty-two percent had taken the drug for more 3 to 5 months and thirty-five percent for more than six months.

When these patients were examined in their doctor's office only 17% had injured heart valves that could be heard by stethoscope. These murmurs occurred as a result of regurgitation of blood through the tricuspid, mitral and aortic valves. Instead of the heart being able to efficiently and continuously move blood through the heart, these damaged valves were unable to close completely and blood would actually "backflow" against normal blood flow, decreasing the efficiency of the heart and increasing its burden.

Despite the fact that only 17% had audible cardiac murmurs, further testing by echocardiogram showed value injury and pathology in 32.8% of the patients. For every patient who had a murmur that could be heard by stethoscope there was another patient who had an injured valve or valves that could not be heard.

Assume a patient has taken Fen-Phen, visits their doctor because in August, 1997 they heard news reports of heart damage caused by Fen-Phen. They suspect they might have some injury to the valves of their heart because of shortness of breath when walking, fatigue on exertion, ankle swelling and occasional palpitations [all symptoms of a heart condition], and call their doctor's office for an appointment. They report to their doctor their symptoms and their suspicion that Fen-Phen is the cause, because they never had this condition before taking Fen-Phen. They are examined in the doctor's office,but the doctor is not able to hear a murmur and reassures the patient that they have not suffered any injury but because of their symptoms it would be wise to begin a course of medication "just to prevent any problem." The doctor and patient agree to have the patient return for follow-up visits to monitor the condition.

Finally in September, 1999, two years after the patient first suspect injury and reported symptoms of heart disease, an echocardiogram is performed and it shows valve damage. The doctor then concludes that the valve damage was caused by Fen-Phen because the previous history shows no other contributing or causal factors: no smoking, no family history, and no reported murmurs.

Is it too late to sue the manufacture and diet doctor for causing this permanent and life-threatening injury?

That is what the manufacturers and the doctor prescribing Fen-Phen will argue.

It has happened in other cases, even though California law recognizes "delayed discovery" which allows an action for personal injuries to be brought more than one year after a wrongful act, but within one year after the injury is discovered.

When "delayed discovery" by the plaintiff can be proven, the two year statute of limitations is extended and does not begin to run until the injury is known.

But, there have been astonishing decisions under this case law which defendant manufacturers and doctors will claim that it is too late for the patient to sue.

Under California law whenever there is knowledge of an injury, and facts which would cause a reasonable person to merely suspect negligence on the part of someone, the statutory clock begins ticking, even when an informed professionals render contrary opinions or the plaintiff truly has no personal appreciation of the fact that he/she has been injured by someone's wrongful conduct.

Two California Courts of Appeal concerning the claims of breast implant recipients' against the implant manufacturers demonstrate how little suspicion is necessary to cause the statute of limitations clock to begin running and the importance to consult an experienced lawyer whenever an injury has been suffered to carefully calculate when the statute of limitations begins to run.

In these two cases, the courts held that the plaintiffs should have suspected that their injuries were caused by the breast implants more than one year prior to filing suit, despite each plaintiff's claims that she did not have such a suspicion, but more importantly even though one plaintiff was told by her doctor that her implants were safe.

The key cases are Goldrich v. Natural Y Surgical Specialties (1994) 25 Cal. App. 4th 772, 31 Cal. Rptr. 2d 162 and Bristol-Myers Squibb Company v. Superior Court (1995) 32 Cal. App. 4th 959, 38 Cal. Rptr. 2d 298.

The starting point for an understanding of delayed discovery is the California Supreme Court's decision in Jolly v. Eli Lilly and Company (1988) 44 Cal. 3d 1103, 245 Cal. Rptr. 658, which is the basis for the Goldrich and Bristol-Myers Squibb decisions.

In Jolly, a DES case, the court stated that pursuant to California's discovery rule, " the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause . . . . A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her." Id at 1109.

In rejecting the view that discovery requires actual or imputed knowledge of facts establishing wrongful conduct, the court held that, "the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her . . . [T]he limitations period begins once the plaintiff "has notice or information of circumstances to put a reasonable person on inquiry [citations omitted]. A plaintiff need not be aware of the specific facts necessary to establish the claim. . . Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." 44 Cal. 3d at 1110.

Under California law a suspicion of wrongdoing, coupled with knowledge of the harm and its cause, will commence the limitations period and once that occurs, a complaint must be filed within two years.

The facts supporting the court's determination that the plaintiff in Jolly had a suspicion of wrongdoing were contained in her deposition: "Plaintiff stated that as early as 1978 she was interested in 'obtaining more information' about DES because she wanted to 'make a claim'; she felt that someone had done something wrong to her concerning DES, that it was a defective drug and that she should be compensated." Id, at 1112. Plaintiff did not bring her suit until early 1991. Under these facts, summary judgment on the statute of limitations issue was proper as a matter of law. In other words, because Jolly knew something in 1978, she had to sue by 1979. She filed in 1991 and was twelve years late.

The Jolly principle was applied in Goldrich , 25 Cal. App. 4th 772, to bar the plaintiff's claims on statute of limitations grounds. Mrs. Goldrich underwent her first breast reconstructive surgery with implantation of polyurethane foam implants in July 1983, and had an immediate severe local reaction. She had both implants replaced in November 1983, and in December of that year had an implant extruding from a nipple graft. Over the next year, she consulted with three specialists who recommended the removal of her implants, and had four subsequent surgeries, culminating with the removal of both implants in December 1984. At that time, the surgeon noted that her right implant was ruptured. Mrs. Goldrich sued Cox-Uphoff and other defendants in July 1986.

The court in Goldrich held that summary judgment [which dismissed the case from court] was properly granted on the ground that Mrs. Goldrich's claim was time-barred. The court stated that by December 1984, Mrs. Goldrich "must have suspected or certainly should have suspected that she had been harmed and she must have suspected or certainly should have suspected that her harm was caused by the implants." Id at 780. The court also rejected the suggestion that, on these facts, she did not have a very strong suspicion of wrongdoing by December 1984.

The court also rejected Mrs. Goldrich's argument that the trial could have erred in considering her knowledge (actual or imputed) of the cause of the injury, and should have instead focused on when she acquired a suspicion of wrongdoing. Dismissing any "semantical differences" between the two as immaterial, the court concluded that by December 1984, Mrs. Goldrich suspected or reasonably should have suspected that her injury was caused by problems with her implants.

The court also rejected Mrs. Goldrich's claims that she believed that her problems were due to her body rejecting the implants rather than problems with the implants themselves. Even though she had not been warned about the possibility of a defective implant (she had been told that they would last a lifetime), the court stated that a "reasonable woman would have been suspicious about the implants." Id at 780. The fact that three breast implant specialists recommended permanent removal of her implants, the court observed, is itself sufficient to make a reasonable person suspicious. This was all that was required to commence the running of her statute. Under California law if she had filed by December 1985 she would have been able to go forward with her case. Her July 1986 filing was seven months too late and her claims were outlawed.

In Bristol-Myers Squibb Company v. Superior Court (1995) 32 Cal. App. 4th 959, 38 Cal. Rptr. 2d 298 the court held that when a plaintiff has knowledge of injury and a suspicion of wrongdoing, the statute of limitations begins to run as to all potential defendants, whether or not they are known to plaintiff.

Here the plaintiff had silicone gel breast implants implanted in 1976. Following a severe injury to her chest area in 1982, she noticed that her right breast appeared smaller and that she had a lump under her right arm. When her plastic surgeon told her that the lump could not be silicone, she was dissatisfied and sought a second opinion. Shortly thereafter, a second doctor confirmed her suspicions that the implant was ruptured and that the lump in her arm was silicone. Her surgeon was unable to remove all of the migrated silicone. In 1984, Ms. Jones had additional arm problems including ulcerations, which, according to one doctor, were caused by silicone migration. Ms. Jones had filed a complaint against the individual who had injured her, and in 1983 had consulted attorneys regarding possible malpractice claims against her plastic surgeon. She did not file suit against the implant manufacturer until April 1991.

The Bristol-Myers Squibb court cited Jolly and Goldrich in holding that Ms. Jones' statute of limitation had been triggered by no later than 1984 or 1985. The Jolly test was set forth as follows: (1) knowledge of injury, and (2) knowledge of facts creating, or which in a reasonable person would create, a suspicion of negligence on the part of someone. Id at 965.

By 1982, Ms. Jones had knowledge of the rupture of her implant and migration of silicone (knowledge of injury). She had considered a malpractice action against her doctor in 1983 (suspicion of wrongdoing). At that time, she had an obligation to pursue her legal remedy since "as a matter of law the plaintiff knew of her damage and injury and knew or at least actually suspected that someone had been negligent." Id at 966.

The court also cited examples of cases in which it could not be held, as a matter of law, that the plaintiff should reasonably have suspected wrongdoing. For example, the court stated that the mere fact that an operation does not produce hoped-for results does not signify negligence and will not cause commencement of the statutory period. Unjian v. Betman (1989) 208 Cal. App. 3d 881, 256 Cal. Rptr. 478. In addition, the statute will not begin running in cases where there is a logical explanation for the injury which does not indicate negligence on anyone's part. Hills v. Aronsohn (1984) 152 Cal. App. 3d 753, 199 Cal. Rptr. 816 (nodes in breast implants were reasonably explained to plaintiff as the occasional non-negligent results of silicone injections).

In any event, by 1984 or 1985 Ms. Jones was suffering from ulcerations in her arm caused by silicone; by this time, she was certainly aware of facts requiring the commencement of an action. Id.

According to the court, Ms. Jones' statute of limitations began to run in 1984 or 1985, with respect to her malpractice action as well as her action against the implant manufacturer. Jones argued that while she may have had cause to sue her doctor, she had no reason to believe that she and an action against the implant manufacturer. She had been told and believed that the silicone was biological inert and felt that her injuries were caused by the person who battered her or by her physician.

The court rejected these arguments, holding that when a plaintiff has cause to sue based on knowledge or suspicion of negligence the statute starts to run as to all potential defendants. Id. All that is required is an objective suspicion of negligence; it is not necessary that the plaintiff be able to identify the negligent party.

Under California law whenever there is knowledge of an injury, and facts which would cause a reasonable person to merely suspect negligence on the part of someone, the statutory clock begins ticking, even when an informed professional opines to the contrary.

For this reason, anyone who was treated with Fen-Phen must have an echocardiogram at the earliest possible date to determine whether they have suffered any valve damage. To rely on an office examination when a FDA study shows that only one-half of those people with valve injury can be discovered by stethoscope is not wise.

As a solid precaution to avoid jeopardizing the patient's legal right to seek compensation for suffering a life-threatening and permanent injury that can progress and lead to heart surgery, an echocardiogram should be completed within the one year after the patient first suspected heart injury and if that test shows valve damage, the patient should immediately contact The Alexander Law Group, LLP, LLP, 152 North Third Street, San Jose, CA 95112, 408.289.1776, immediately so that a complaint promptly can be filed in the Superior Court to avoid the statute of limitations defense that would destroy an otherwise valid claim.

If you or a family member have been wrongfully injured call us at 1.888.777.1776 or use this form, delays can hurt your case, so please don't hesitate to contact us.

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