## Facts

- In August 1972, a gynecologist inserted a Dalkon Shield intrauterine device (IUD) into the patient.
- The patient alleged the physician did not adequately inform her of risks at insertion and, after dangers became known, failed to warn her or advise removal.
- By the mid-1970s, information in medical sources and public reports linked the Dalkon Shield to serious complications and it was being withdrawn from the market.
- In April 1975, another physician attempted removal; the record indicated complications associated with the device and/or removal.
- The patient sued on April 12, 1976, alleging (as relevant to this appeal) willful misconduct and medical malpractice against the inserting physician, including a theory based on failure to warn after insertion.

## Issues

1. Whether the physician established as a matter of law that the claims were barred by the medical-malpractice and personal-injury limitation periods.
2. Whether the physician’s summary-judgment showing conclusively negated liability or established a complete defense.
3. Whether a physician who prescribed and inserted a device has a continuing duty to warn a patient of later-discovered material risks and to advise appropriate remedial steps.
4. Whether the record could support willful misconduct, as distinct from negligence, based on what the physician knew or should have known.

## Decision

- The Court of Appeal reversed summary judgment for the physician in substantial part.
- The physician’s moving papers did not establish, as a matter of law, that the action was time-barred under the applicable limitation statutes.
- The record did not eliminate triable issues on when the patient discovered, or reasonably should have discovered, the negligent cause of injury.
- The court recognized that a physician may owe a continuing duty to warn of later-discovered dangers of a previously prescribed device; whether that duty existed and was breached presented triable fact issues.
- The court treated the willful-misconduct theory more skeptically than negligence-based malpractice, indicating a higher factual showing is required.

## Legal Principles

- A defendant seeking summary judgment must conclusively negate an essential element of the plaintiff’s case or establish a complete defense; doubts and reasonable inferences are resolved against the moving party.
- In medical-injury cases governed by discovery-based accrual, whether and when a plaintiff discovered (or should have discovered) the negligent cause of injury is commonly a fact question that may preclude summary judgment.
- A physician’s duty of care may extend beyond the initial treatment when a device remains in the patient’s body and significant new risks later become known; reasonable steps to warn and advise may be required.
- Willful misconduct requires more than lack of due care; it entails awareness of probable injury and a conscious failure to act to avoid harm.

## Conclusion

The court held that summary judgment was improper because the physician did not conclusively establish a limitations defense or negate malpractice liability, and because triable issues existed regarding a physician’s continuing duty to warn a patient about later-known, serious risks of an implanted contraceptive device.


Tresemer v. Barke, 86 Cal. App. 3d 656 (Cal. Ct. App. 1978)