Daley

I. FACTS AND PROCEDURAL BACKGROUND

A. Daley’s Complaint Daley filed a complaint alleging battery and intentional infliction of emotional distress against defendants and respondents Diana Farmer, M.D., Hanmin Lee, M.D., Robert Ball, M.D., and their employer, The Regents of the University of California. Daley alleged that she agreed to participate in a NIH trial study that compared treatments for TTTS. One of those treatments, SFLP, involved the entry of a trocar (tube) percutaneously (through the skin), the passage of a fetoscope through the trocar to provide visibility inside the uterus, and the use of a laser to photocoagulate (seal) certain blood vessels. Respondents, however, allegedly performed a “substantially different procedure” on her, using an open laparotomy and open hysterotomy, in which the fetoscope was inserted by cutting open Daley’s abdomen and exposing the uterus. Respondents also used a trocar measuring five millimeters in diameter, which was larger than the instrument required by the NIH protocol. Daley alleged that respondents’ approach was the proximate cause of the death of her twin fetuses. B. Dismissal by the Trial Court and Reversal on Appeal In October…