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MEDICAL MALPRACTICE STATUTE OF LIMITATIONS: MINOR PATIENTS

The time limit, or statute of limitation, for a medical malpractice matter in California is typically found at Code of Civil Procedure, Section 340.5, which reads, in pertinent part:

“Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.

Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.”

This statute’s plain language seems to suggest there are several potential deadlines for a minor patient’s claim.  Much of the distinction may depend on the age of the minor patient at the time of the harm.  For example, in a 1985 case entitled Steketee v. Lintz, Williams & Rothberg, the Court wrote this on the issue:

“Under CCP § 340.5, which prescribes the statute of limitations for medical malpractice actions and provides “[a]ctions by a minor shall be commenced within three years from the date of the alleged wrongful act,” the phrase “actions by a minor” does not refer to the plaintiff’s age at the time the action is filed rather than at the time the wrongful act occurred.

The language of § 340.5, the rules of statutory construction, and public policy require that § 340.5 be construed to permit a person subjected as a minor to the professional negligence of a health care provider a period of at least three years from the date of the wrongful act in which to file an action, regardless of when the age of majority is reached or the injury is discovered.” 

Steketee v. Lintz, Williams & Rothberg (Cal. Feb. 21, 1985), 38 Cal. 3d 46, 210 Cal. Rptr. 781, 694 P.2d 1153, 1985 Cal. LEXIS 248.

When I am evaluating the potential medical malpractice claim of a minor patient, I know it is important to find out the age of the patient during the entirety of the medical care being complained of, in order to assist me in determining the statute of limitations that would apply.  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. An experienced, knowledgeable attorney is the best resource for this inquiry and should be consulted as soon as practicable

The time limit, or statute of limitation, for a medical malpractice matter in California is typically found at Code of Civil Procedure, Section 340.5, which reads, in pertinent part:

“Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.

Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.”

This statute’s plain language seems to suggest there are several potential deadlines for a minor patient’s claim.  Much of the distinction may depend on the age of the minor patient at the time of the harm.  For example, in a 1985 case entitled Steketee v. Lintz, Williams & Rothberg, the Court wrote this on the issue:

“Under CCP § 340.5, which prescribes the statute of limitations for medical malpractice actions and provides “[a]ctions by a minor shall be commenced within three years from the date of the alleged wrongful act,” the phrase “actions by a minor” does not refer to the plaintiff’s age at the time the action is filed rather than at the time the wrongful act occurred.

The language of § 340.5, the rules of statutory construction, and public policy require that § 340.5 be construed to permit a person subjected as a minor to the professional negligence of a health care provider a period of at least three years from the date of the wrongful act in which to file an action, regardless of when the age of majority is reached or the injury is discovered.” 

Steketee v. Lintz, Williams & Rothberg (Cal. Feb. 21, 1985), 38 Cal. 3d 46, 210 Cal. Rptr. 781, 694 P.2d 1153, 1985 Cal. LEXIS 248.

When I am evaluating the potential medical malpractice claim of a minor patient, I know it is important to find out the age of the patient during the entirety of the medical care being complained of, in order to assist me in determining the statute of limitations that would apply.  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. An experienced, knowledgeable attorney is the best resource for this inquiry and should be consulted as soon as practicable.

Sara Morgan

Ms. Morgan obtained her Juris Doctor from Chapman University School of Law in Orange, California. She contributes to the improvement of both the local and legal communities, having provided pro- and low-bono legal services, and volunteering at legal clinics and other programs serving the community. View Attorney Sara Morgan's Attorney Bio Here.

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