Health Law Daily Patient’s Facebook posting was date from which her personal injury claims accrued
Monday, January 30, 2017

Patient’s Facebook posting was date from which her personal injury claims accrued

By Jeffrey H. Brochin, J.D.

A patient’s Facebook posting in May 2011 in which she claimed to have made the connection between an IUD and her intracranial hypertension, was the date from which her personal injury claims accrued, and her failure to file her complaint within the two-year California statute of limitations barred her claims as untimely, a federal district court in California has ruled. Actual knowledge of causation was not required in order for her cause of action to accrue under the state’s discovery of injury rule (Zamudio-Soto v. Bayer Healthcare Pharmaceuticals, Inc., January 27, 2017, Koh, L.).

Background: In February, 2005, the patient had the IUD Mirena inserted by her physician. The device was intended to remain in place for a five year period during which time it released the progestin hormone levonorgestrel in order to prevent pregnancy. The patient claimed that the device released significantly more of the hormone than the manufacturer acknowledged, and she alleged that this increased the risk of PTC/IIH, a rare disease characterized by intracranial pressure along with symptoms of headaches, tinnitus, blurred vision, papilledema (swelling of the optic disc), and other vision problems. She began experiencing those symptoms in May, 2006, and three years later, in September, 2009, she was examined by an ophthalmologist who diagnosed papilledema and who informed her that her symptoms were probably caused by PTC/IIH. He prescribed a drug for her and referred her to a neuro-ophthalmologist who confirmed the diagnosis of PTC/IIH.

In February 2010, after five years of use, she had her original device replaced with a new Mirena. On May 26, 2011, she made a post on her Facebook page regarding the connection between her Mirena IUD and her PTC/IIH. She included a link to a popular drug information website which described the link between Mirena and PTC/IIH as highly plausible, and stated that a patient with a PTC/IIH diagnosis should have the Mirena IUD removed. However, it was not until April 2012 that she met with a doctor and requested to have the device removed. The procedure did not occur until February 2013. She filed her complaint against the manufacturer in January 2015 asserting nine causes of action. The manufacturer moved for summary judgment for among other reasons, that the claims were untimely under the applicable statute of limitations. The court agreed and granted the motion.

California’s statute of limitations. The court applied California’s two-year statute of limitations for personal injury claims citing the fact that the bulk of the events in the complaint including implantation and removal of the device as well as the diagnosis and treatment of PTC/IIH all occurred in that state. California law applies a two-year statute of limitations for all personal injury claims regardless of the particular legal theory invoked.

Accrual and the Discovery Rule. Ordinarily, a personal injury cause of action accrues and the statute of limitations begins to run at the time of the injury to the patient. However, an important exception to the general rule of accrual is the discovery rule which postpones accrual of a cause of action until the time when the patient discovers, or has had reason to discover, the cause of action. Actual knowledge is not required for a cause of action to accrue under the discovery rule.

Mere suspicion of causation. Under California law, the statute of limitations for personal injury is triggered by suspicion alone, and begins to run when the patient suspects—or should have suspected--that personal injury was caused by wrongdoing. A patient whose complaint showed on its face that the 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.

Vague allegations insufficient. In the instant case, the complaint alleged that the patient suffered her injuries due to PTC/IIH at least as early as September 2009, and that she was diagnosed with PTC/IIH no later than September 16, 2009. Therefore, the January 14, 2015, complaint showed on its face that her claims would be barred without the benefit of the discovery rule. In order to take advantage of the discovery rule exception, she needed to plead facts showing the time and manner of her discovery and her inability to have made the discovery earlier. However, as the court noted, her complaint made no mention at all of the discovery rule, nor of the applicable statute of limitations, nor of any inability to have made discovery of personal injury earlier. Accordingly, the court ruled that vague allegations were not sufficient to show that the patient deserved the benefit of the discovery rule.

Patient’s connection between device and disease. The court relied on the patient’s own deposition testimony to establish that she first made the connection between the Mirena device and her PTC/IIH no later than May 26, 2011. On that date she made a post on her Facebook page regarding the connection and specifically included a link to a medical website which stated that levonorgestrel (including Mirena) posed a severe potential hazard of PTC/IIH and noted a high plausibility. Regardless of the fact that the patient subsequently dismissed the medical website as an unreliable source, the court found that the website was sufficient to give her a suspicion of wrongdoing. In fact, she stated that although her doctor had denied that Mirena was the cause of her PTC/IIH, after reading the medical website she believed that her condition might be connected to Mirena.

In sum, the court concluded that her Facebook posting demonstrated that she was alerted to the possibility that her IUD had caused PTC/IIH and intended to further investigate, and therefore her cause of action arose at the time of the Facebook post on May 26, 2011. Because she did not file her complaint until more than three and a half years later, the court found her claims to be untimely and they granted the manufacturer’s motion for summary judgment.

The case is No. 15-CV-00209-LHK .

Attorneys: Elise Rochelle Sanguinetti (Arias Sanguinetti Stahle & Torrijos, LLP) for Gia Soto-Zamudio. Alicia J. Donahue (Shook, Hardy & Bacon LLP) and Michael Xavier Imbroscio (Covington & Burling LLP) for Bayer Healthcare Pharmaceuticals Inc., Bayer Pharma AG and Bayer Oy.

Companies: Bayer Healthcare Pharmaceuticals Inc.; Bayer Pharma AG; Bayer Oy

MainStory: TopStory CaseDecisions FDCActNews MDeviceNews PLDeviceNews SafetyNews CaliforniaNews

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