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This statute establishes different deadlines for adult patients and minor patients.  Most interpretations of this section conclude that an adult patient generally has anywhere from one to three years to file a lawsuit.  Sometimes, the adult patient’s deadline might expire 3 years after the “date of injury”; other times, it might expire 1 year after the patient “discovers, or through the use of reasonable diligence should have discovered, the injury”.  These phrases have different and significant legal meanings.  The proper period is whichever is the shortest.

Some of the cases that assist in understanding when the time periods end include Ashworth v. Memorial Hospital and Robinson v. Kaiser Foundation Hospitals. According to Ashworth:

CCP § 340.5, creates two separate statutes of limitations, both of which must be satisfied if a plaintiff is to timely file a medical malpractice action. First, the plaintiff must file within one year after discovery of the injury and the negligent cause of it. Secondly, the action must be filed within three years after first experiencing harm from the injury. Thus, if a patient does not discover the negligent cause of injury until more than three years after first experiencing harm from it, in the usual case he or she will not be able to bring a malpractice action against the medical practitioner or hospital whose malpractice caused the injury.

Ashworth v. Memorial Hospital (Cal. App. 2d Dist. Dec. 21, 1988), 206 Cal. App. 3d 1046 (emphasis added)

The one-year limitations period of CCP § 340.5 (professional negligence of health care provider), commences once a plaintiff knows, or by reasonable diligence should have known, that he was harmed through professional negligence. The plaintiff is charged with presumptive knowledge of the negligent injury, and the statute commences, once he has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation. In other words, when a plaintiff’s reasonably founded suspicions have been aroused and the plaintiff has become alerted to the necessity for investigation and pursuit of the plaintiff’s remedies, the one-year period begins.

Robinson v. Kaiser Foundation Hospitals (1990, 2nd Dist.) 220 Cal. App. 3d 561 (emphasis added).

It is necessary to evaluate the facts of each individual case, including the patient’s recollection, that of any witnesses, and the content of the relevant medical records.  As will be discussed at a later time, there are exceptions to the rules for adult patients, and different rules for minor patients.  An experienced, knowledgeable attorney is the best resource for this inquiry and should be consulted as soon as practicable.

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