Brandi Fox filed a medical malpractice claim arising out of severe complications from gastric bypass surgery. During the course of discovery, the plaintiff learned that one of the devices had failed during the procedure, and attempted to add the manufacturer. The court applied a “delayed-discovery rule” under which the statute of limitations does not begin to run on a subsequent claim if the plaintiff pleads and proves that reasonable investigation at the time of initial discovery would not have revealed a factual basis for that particular cause of action. “As the allegations in this case illustrate, diligent plaintiff’s investigation may only disclose an action for one type of tort (e.g., medical malpractice) and facts supporting an entirely different type of tort action (e.g., products liability) may, through no fault of the plaintiff, only come to light at a later date. Although both claims seek to redress the same physical injury to the plaintiff, they are based on two distinct types of wrongdoing and should be treated separately in that regard.” Fox v. Ethicon Endo-Surgery Inc., 110 P.3d 914, 925 (Cal. 2005).
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