Barry P. Goldberg, is called regularly about every kind of medical malpractice imaginable. Some of the first questions asked in those calls concern whether the potential claim is timely or possibly barred by the statute of limitations. The essential inquiry is when did the plaintiff suspect the doctor was negligent, not when did he or she learn precisely how he was negligent. So we are clear from a starting point, the statute of limitations for a medical malpractice action is set forth in the Code of Civil Procedure sections 340.5 and 364. Section 340.5 specifies:
"In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action 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 occurs first."
Section 364 extends the time for commencement of the action by 90 days when notice of an intention to commence an action is provided within 90 days of the expiration of the applicable statute of limitations. (§ 364 (d).)
Most of the questions litigated are about "injury" and "discovery." The California Supreme Court has indicated that by common law tradition, the term "injury," as used in section 340.5, means both "a person's physical condition and its negligent cause." (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99; see also Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64; Brown v. Bleiberg (1982) 32 Cal.3d 426, 433–435.) "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." (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896.) "The malpractice litigant is required to diligently pursue her claim through discovery of the cause of her injury. And if she fails to do so she faces the prospect that the action will be time barred." (Artal v. Allen (2003) 111 Cal.App.4th 273, 279.)
A very typical analysis is presented in Dolan v. Borelli (1993) 13 Cal.App.4th 816 (Dolan) where the Court found the statutory period began to run when the plaintiff suspected wrongdoing. In Dolan, the plaintiff suffered from carpal tunnel syndrome and sought medical treatment from the defendant doctor. (Id. at p. 820.) Two months after her surgery, her symptoms were significantly worse than before the surgery and she believed something had gone wrong. The plaintiff consulted an attorney and told him she believed the defendant doctor had done something wrong. A second surgery was performed 4 months later, and the plaintiff discovered that the defendant had failed to release her carpal tunnel ligament. (Id.) The trial court granted summary judgment in favor of the doctor, finding that the plaintiff was put on inquiry notice of the negligent cause of her injury no later than when she told the attorney she believed the doctor had done something wrong. (Id. at p. 821.)
In Dolan, the Plaintiff appealed, contending that the lower court erred because she neither reasonably could have discovered nor did discover that defendant had not released her right carpal tunnel ligament until the second operation. The court affirmed the lower court's judgment, holding the plaintiff should have discovered defendant's negligence after the first operation and filed her complaint within a year of such time because plaintiff suspected something had gone wrong with the operation. (Dolan, supra, 13 Cal.App.4th at p. 824.) The court reasoned, "the essential inquiry is when did [the plaintiff] suspect [the doctor] was negligent, not when did she learn precisely how he was negligent." (Ibid.)
As in Dolan¸ any potential plaintiff must be concerned with when he or she suspected that the doctor was negligent. It is not when the plaintiff decided to stop seeking treatment from that doctor.
As in Dolan, "the essential inquiry is when did [the plaintiff] suspect [the doctor] was negligent, not when did she learn precisely how he was negligent." (Dolan, supra, 13 Cal.App.4th at p. 824.) Further, the statute of limitations is not tolled pending medical confirmation. (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1300 "It is a plaintiff's suspicion of negligence, rather than an expert's opinion, that triggers the limitation period" (orig. emphasis).