Medical Malpractice — Advance Payment Tolling

By on August 31, 2015 - Comments off

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Blevin v. Coastal Surgical Institute, — Cal.Rptr.3d —-, 15 Cal. Daily Op. Serv. 310, 2015 Daily Journal D.A.R. 383

A patient who developed a bacterial infection after knee surgery as a result of contaminated surgical equipment filed an action for medical malpractice against the surgical facility where the surgery was performed. The defendant contended that the action, which was filed over 15 months after the surgery, was barred by the one-year limitations period of Code of Civil Procedure section 340.5.  In opposition, the plaintiff argued that because the defendant had paid for his medical expenses incurred in treating the infection when he was not represented by counsel, and had not advised him of the statute of limitations, the statute was tolled under Insurance Code Section 11583.

The trial court ruled that section 11583 tolled the one-year statute of limitations and the court of appeal affirmed, holding in a case of first impression that that the tolling provisions of section 11583 apply to the one-year limitations period for medical malpractice actions:

Section 11583 “is primarily designed to encourage early payment of damages without fear of admitting liability. [Citation.] The legislative purpose of the written notice requirement is to prevent an injury victim from being lulled into a false sense of complacency about the need to sue because an advance or partial payment by the defendant or his insurer shows their apparent cooperativeness.”…

Appellant contends that section 11583 does not apply to medical malpractice actions: “Code of Civil Procedure sections 340.5 [hereafter section 340.5] and 364 [hereafter section 364] provide statute of limitations and tolling provisions for medical malpractice cases. They are specific and unique to medical malpractice cases and no others.”…

Pursuant to Belton v. Bowers Ambulance Service,[(1999) 20 Cal.4th 928],  the tolling provisions of section 11583 apply to the one-year limitations period of section 340.5. In Belton our Supreme Court held that a similar provision for prisoners tolled the same statute of limitations. … The court reasoned: “No tolling provision outside of MICRA can extend the three-year maximum time period that section 340.5 establishes. [Citations.] … Here, however, [the plaintiff] filed his complaint after the one-year statutory period expired but well within the statute’s three-year maximum.

Appellant asserts that, if section 11583 applies to medical malpractice actions, it was required “to advise [respondent] when the statute [of limitations would] expire[ ].” Such a requirement, appellant argues, “would open up ‘a can of worms.’”  But section 11583 requires no more than that the payor notify the payee in writing of the applicable statute of limitations, not the actual expiration date. Thus, it would have been sufficient if appellant had informed respondent in writing of the three-year and one-year periods as provided in section 340.5. At oral argument, appellant asserted that the application of section 11583 to medical malpractice actions would forever expose doctors to potential suit. Not so. As indicated by our Supreme Court in Belton…, the maximum three-year limitations period is not altered by our holding.


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