DONNA SUE TRESEMER, Plaintiff and Appellant, v. MORTON BARKE, Defendant and Respondent, 86 Cal. App. 3d 656

Summary

Plaintiff patient filed an action against defendant doctor for willful misconduct and medical malpractice stemming from the insertion of an intrauterine device in plaintiff. Based on the third amended complaint and the fact that plaintiff filed no written oppositions to defendant's motion to strike and motion for summary judgment, the trial court granted summary judgment to defendant. The trial court held that the statute of limitations, under Cal. Civ. Proc. Code §§ 340.5 and 340(3), barred the action, the action was without merit, and plaintiff had presented no triable issue of fact. The court found that the statute of limitations did not apply, because it was a separate duty to act and not necessarily a malpractice that was involved. The court held that "injury" was not synonymous with "wrongful act" and while defendant was not guilty of wrongful act, he was possibly liable for failure to warn. The court reversed the judgment, holding that defendant failed to prove that plaintiff's ...