Statutes of Limitation

Medical Malpractice: Statute of Limitations

By on December 29, 2014 - Comments off

Maher v. County of Alameda, (First District, February 18, 2014) — Cal.Rptr.3d —-, 2014 WL 605904

A man who suffered severe complications from a temporary biliary stent which had been inadvertently left in his abdomen following surgery, filed suit against the physicians who had performed the surgery and the medical center. The plaintiff alleged that he was unaware of the presence of the stent, which should have been explanted after 3 to 6 months, until 14 years later when it began to disintegrate and migrate.

The defendants demurred to the complaint, contending that the action was barred by Code of Civil Procedure section 340.5, which provides that in an action for injury or death against a health care provider based upon 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, but in no event exceeding three years. The plaintiff opposed the demurrer, arguing that the statute had been tolled by the “foreign body” exception in the statute which provides for a tolling in the event of “the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.”

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Statutes of Limitation: Equitable Tolling

By on June 11, 2012 - Comments off

Scharer v. San Luis Equine Hospital, Inc., (Fourth District, February 28, 2012) — Cal.Rptr.3d —- ; 2012 WL 661684

The owner of a show horse which required euthanasia following surgery filed an action for malpractice against a veterinary hospital and three veterinarians. The defendants moved for judgment on the pleadings based upon the fact that the complaint had been filed 17 days beyond the one year statute for veterinary malpractice provided in Code of Civil Procedure § 340(c). The plaintiff opposed the motion, arguing that the because she had sent a pre-lawsuit notice of intent to sue under § 364, which requires such notice in actions against health care providers in certain professional negligence cases, the statute should have been extended an additional 90 days.

The trial court granted the motion, finding that the notice provisions of § 364 are not applicable to property damage claims. The court of appeal affirmed, rejecting the plaintiff’s contention that the statute was equitably tolled by the notice of intent to sue: Read the rest »


Statutes of Limitations: Delayed Discovery

By on May 20, 2008 - Comments off

Unruh-Haxton v. Regents of the University of California (2008) 162 Cal.App.4th 343, 76 Cal.Rptr.3d 146

Several patients who received fertility treatments filed an action against a medical center and the University of California, alleging that their physicians had been stealing and selling human genetic material including eggs and pre-embryos. Asserting causes of action for fraud, conversion and intentional infliction of emotional distress, the plaintiffs alleged that they were unaware they were potential victims until several years after receiving the treatments.

The trial court sustained the defendants’ demurrers, taking upon judicial notice of approximately 100 news articles and press releases regarding the scandal, determining that the plaintiffs should have suspected wrongdoing, (i.e., constructive suspicion), much sooner than alleged in the complaints. However, the court of appeal reversed, holding that the media coverage alone did not, as a matter of law, establish constructive suspicion on the part of the plaintiffs: Read the rest »