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The Statute of Limitations for Medical Malpractice Cases Can be Tricky

The statute of limitations for medical malpractice cases can be confusing to the lay person.  The Court has described it as follows:

CCP § 340.5, provides that the time for commencing an action for injury based on alleged professional negligence by a health care provider shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever time period expires first. Damage is manifested for purposes of commencing the three-year period when it has become evidenced in some significant fashion. A plaintiff must file suit within three years of experiencing harm from the injury. Although the three-year period is tolled for specified reasons under § 340.5, the one-year period is not similarly extended. Thus, once a patient knows, or by reasonable diligence should have known, that he or she was harmed, the patient has one year to bring a suit. The patient is charged with presumptive knowledge of the injury, and the statute commences to run, once he or she 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 or her investigation. Thus, when the patient’s reasonably founded suspicions have been aroused, and he or she has actually become alerted to the necessity for investigation and pursuit of his or her remedies, the one-year period begins.

Warren v. Schecter (1997), 57 Cal. App. 4th 1189

 

Under CCP § 340.5, a patient must bring a medical malpractice suit within one year after he discovers, or should have discovered, his injury, regardless of extenuating circumstances. The term “injury,” as used in § 340.5, means both a person’s physical condition and its negligent cause. Thus, once a patient knows, or by reasonable diligence should have known, that he has been harmed through professional negligence, he has one year to bring his suit. The patient is charged with “presumptive” knowledge of his negligent injury, and the statute commences to run, 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.

Gutierrez v. Mofid (1985), 39 Cal. 3d 892

 

The one-year statute of limitations established by CCP § 340.5 for medical malpractice actions begins to run at the time the plaintiff discovers, or with reasonable diligence should have discovered, both the injurious condition and the defendant’s tortious conduct as the cause of that condition.

When the clock starts running for a medical malpractice claim can vary, depending on the specific circumstances of each case.  Some examples:

In an action by a husband and wife against the doctors who performed a vasectomy upon the husband, the period of limitations commenced with the wife’s discovery she was pregnant, rather than with the birth of her child, in that the wife’s pregnancy should have been sufficient to put both parties on notice the husband’s vasectomy might have been ineffective.

Christ v. Lipsitz (1979), 99 Cal. App. 3d 894

 

In an action by a former hospital patient against the hospital to recover for personal injuries suffered when she allegedly fell out of bed while a patient at the hospital, there was a triable issue of fact concerning the running of the one-year period of limitations contained in CCP § 340.5, and thus the trial court committed reversible error in granting the hospital’s motion for summary judgment on the ground that the one-year period of limitations had run. Plaintiff’s complaint alleged that she did not discover that the fall from the bed was the cause of her injuries until eight days after her fall from the bed, which was less than one year before the filing of her action.

Murillo v. Good Samaritan Hospital (1979), 99 Cal. App. 3d 50

 

In a medical malpractice action against an orthopedic surgeon, the trial court erred in granting the surgeon’s motion for summary judgment based on the 1-year statute of limitations (CCP § 340.5), where plaintiff’s action was filed approximately 10 months after she discovered she had been a victim of medical malpractice, and where the surgeon, although not specifically named as a defendant, was substituted as fictitious Doe I approximately 16 months after the complaint was filed. In interpreting and applying CCP § 474, permitting actions against fictitious defendants, the trial court used an erroneous standard in holding that plaintiff was charged with not only her actual knowledge at the time she filed suit, but information that she could have obtained from the exercise of reasonable diligence which would have enabled her to file suit against the surgeon in timely fashion.

Munoz v. Purdy (1979), 91 Cal. App. 3d 942

 

In a malpractice action against several doctors for damages for paralysis of plaintiff’s foot following surgery for a ruptured disc, in which the complaint was filed more than three years after the operation, the trial court committed reversible error in granting defendants’ motion for summary judgment on the ground the action was barred by the one-year statute of limitations (CCP § 340.5). A trier of fact could reasonably conclude that plaintiff exercised due diligence but nevertheless did not discover the negligent cause of his injury for two years after the operation and within one year before the complaint was filed, where defendants had assured plaintiff his condition was temporary, but that recovery would take a long time, where plaintiff had experienced a gradual recovery over a period of twenty or twenty-one months, where a medical consultant informed plaintiff and his attorney that temporary paralysis could occur in an operation of that type even with the exercise of reasonable care by the surgeon, and expressed the opinion that no meritorious case could be made out until plaintiff’s condition became permanent, and where the complaint was filed within one year after an orthopedic surgeon informed plaintiff that his paralysis had become permanent.

Enfield v. Hunt (1979), 91 Cal. App. 3d 417

 

When the plaintiff in a medical malpractice action alleges the defendant health care provider misdiagnosed or failed to diagnose a preexisting disease or condition, there is no injury for purposes of Code Civ. Proc., § 340.5, until the plaintiff first experiences appreciable harm as a result of the misdiagnosis, which is when the plaintiff first becomes aware that a preexisting disease or condition has developed into a more serious one.

Drexler v. Petersen (2016), 209 Cal. Rptr. 3d 332

 

As you can see, when the time for the statute of limitations begins to run can be variable based on the specific circumstances of each case.  If you think you, or a loved one, may be a victim of medical malpractice, you should contact an attorney immediately for an evaluation.

Mr. Serrano has been admitted to practice before California State and Federal Courts. He was named to the Super Lawyers’ 2012, 2013, 2014, 2015, and 2016 Southern California Rising Stars List, an honor awarded to no more than 2.5% of attorneys in Southern California each year.
View Attorney Jean-Simon Serrano’s Attorney Bio Here.

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