Wrongful Death

Can someone please tell me what the statute of limitations is on a wrongful death in southern California? My 6 month old baby died 5 years ago on May 17, 1996. A few months ago I came across her autopsy report that has now led me to believe she died because of her doctors actions. I'm trying to get all of her medical records from the hospital. Is it too late to take action against the doctor?

[I AM ALWAYS LIABLE]

Originally posted by Linkann
Can someone please tell me what the statute of limitations is on a wrongful death in southern California? My 6 month old baby died 5 years ago on May 17, 1996. A few months ago I came across her autopsy report that has now led me to believe she died because of her doctors actions. I'm trying to get all of her medical records from the hospital. Is it too late to take action against the doctor?

My response:

In California, there are two statutes of limitations in Code of Civil Procedure (CCP) §340.5, both of which a plaintiff must satisfy. [Trantafello v Medical Center of Tarzana (1986, 2nd Dist) 182 Cal App 3d 315, 227 Cal Rptr 84] If a malpractice litigant brings an action within 3 years from the date of injury, he or she must still satisfy the 1-year limitations period or the action is barred. Conversely, if the action is properly brought within 1 year of reasonable discovery, the action is nevertheless barred if the 3-year period is not also satisfied. [Hills v Aronsohn (1984, 2nd Dist) 152 Cal App 3d 753, 199 Cal Rptr 816]

The two periods are not triggered by the same event. [Hills v Aronsohn (1984, 2nd Dist) 152 Cal App 3d 753, 199 Cal Rptr 816] The 3-year limitation period in CCP §340.5 is set in motion by the date of injury [Tresemer v Barke (1978, 2nd Dist) 86 Cal App 3d 656, 150 Cal Rptr 384], specifically by the date of the damaging effect of the wrongful act rather than the date of the act itself [Steingart v White (1988, 2nd Dist) 198 Cal App 3d 406, 243 Cal Rptr 678]. A plaintiff’s injury, for the purpose of deciding when the 3-year statute of limitations set forth in CCP §340.5 commences, occurs at the point at which appreciable harm first manifests itself physically. [Brown v Bleiberg (1982) 32 Cal 3d 426, 186 Cal Rptr 228, 651 P2d 815] The period commences to run when the plaintiff is aware of the physical manifestations of the injury without regard to awareness of the negligent cause. [Hills v Aronsohn (1984, 2nd Dist) 152 Cal App 3d 753, 199 Cal Rptr 816]

For example, the 3-year statute of limitations did not bar the action of a patient whose physician had allegedly failed to diagnose a lump in the patient’s breast as cancerous, even though the patient filed her action more than 4 years after the physician’s alleged misdiagnosis. The patient’s injury did not manifest itself until another physician subsequently diagnosed the cancer, and the patient filed her action within 3 years of the correct diagnosis. [Steingart v White (1988, 2nd Dist) 198 Cal App 3d 406, 243 Cal Rptr 678] By contrast, a plaintiff who admitted that she had experienced soreness and had noticed lumps in her breasts, and had visited a physician because of these symptoms, more than 3 years before filing suit for negligent injection of silicone, was barred from maintaining her action by the 3-year statute of CCP §340.5. [Hills v Aronsohn (1984, 2nd Dist) 152 Cal App 3d 753, 199 Cal Rptr 816]

Although the courts in Hills and Steingart focused on the plaintiff’s awareness of the manifestation of his or her injury, one court of appeal has stated that damage is manifested, for the purpose of the commencement of the 3-year period, when it is evidenced in some significant fashion, regardless of whether the patient himself or herself actually becomes aware of the injury. For example, an action by a patient who allegedly suffered psychological and emotional injuries as a result of her former psychotherapist’s having induced her to have sexual intercourse with him was barred by the 3-year statute because the damage was clearly manifest and recognized by the patient’s successor psychiatrist at least 4 years prior to the filing of the action. The fact that the patient herself did not recognize or understand her injury until a later time, within 3 years of the date of complaint, did not foreclose application of the statute. [Marriage & Family Center v Superior Court (1991, 4th Dist) 228 Cal App 3d 1647, 279 Cal Rptr 475]


Commencement of 1-year limitations period of CCP §340.5

The 1-year limitation period in CCP §340.5 is set in motion by the date the injury and its cause were discovered, or with due care and diligence should have been discovered. [Hills v Aronsohn (1984, 2nd Dist) 152 Cal App 3d 753, 199 Cal Rptr 816] The 1-year period commences to run not simply when the plaintiff is or should be aware of his or her injury, but also requires that the plaintiff understand the negligent cause of the injury. [Marriage & Family Center v Superior Court (1991, 4th Dist) 228 Cal App 3d 1647, 279 Cal Rptr 475]

The term "injury," as used in CCP §340.5 to define the beginning of the 1-year limitations period, 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 or she has been harmed through professional negligence, the patient has 1 year to bring suit. The patient is charged with presumptive knowledge of the negligent injury, and the statute commences to run, once the patient has notice or information of circumstances to put a reasonable person on inquiry, or the opportunity to obtain knowledge from sources open to investigation by the patient. In other words, when the patient’s reasonably founded suspicions have been aroused and the patient has actually become alerted to the necessity for investigation and pursuit of remedies, the 1-year period for suit begins. [Gutierrez v Mofid (1985) 39 Cal 3d 892, 218 Cal Rptr 313, 705 P2d 886]


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For example, an action by a man who experienced pain and paralysis in his leg and foot following surgery to correct a back injury was barred by the 1-year statute of limitations because the plaintiff had failed to exercise due diligence to discover the cause of the pain and the paralysis within a year of becoming aware of his condition. Contrary to the assurances given to him before the surgery, the patient was dramatically worse after the surgery. In addition, the patient had failed to ask each of the several doctors whom he consulted the cause of his symptoms, even though the severity and duration of the symptoms were sufficient to put him on notice to inquire. [Enfield v Hunt (1984, 2nd Dist) 162 Cal App 3d 302, 208 Cal Rptr 584]

The question of when a plaintiff should have discovered his or her injury and the tortious cause of the injury, and thus when his or her cause of action for professional negligence accrued, is one of fact, unless reasonable minds could draw only one conclusion from the evidence. [Brown v Bleiberg (1982) 32 Cal 3d 426, 186 Cal Rptr 228, 651 P2d 815] Even when an injury following medical treatment is obvious, a triable issue may exist as to whether the plaintiff should have discovered the injury for the purpose of CCP §340.5 because there may be nothing to connect the injury to a defendant’s negligence. This is especially true in cases in which the plaintiff continues under the defendant’s care, does inquire about the cause of the injury, and is given an explanation inconsistent with negligence on the defendant’s part. Therefore, when the physician-patient relationship continues after the time of injury, the physician’s acts may diminish the patient’s duty to discover the injury and its negligent cause. [Unjian v Berman (1989, 2nd Dist) 208 Cal App 3d 881, 256 Cal Rptr 478]

As applied to wrongful death actions arising from alleged medical malpractice, "injury" as used in CCP §340.5 refers to the death, with its allegedly wrongful cause, that gives rise to the lawsuit. Thus, an action for a wrongful death, allegedly due to negligent prescription of certain contraceptives, filed by the plaintiffs within 3 months of their decedent’s death, was properly brought within the 1-year period of limitations, even though the evidence indicated that, over 1 year before the plaintiffs filed their action, the decedent and one of the plaintiffs had discovered a relationship between the use of the contraceptive and the physical harm that the decedent had suffered prior to her death. [Larcher v Wanless (1976) 18 Cal 3d 646, 135 Cal Rptr 75, 557 P2d 507]


Tolling of CCP §340.5 provisions

Pursuant to CCP §340.5, the time for commencement of legal action based on the professional negligence of a health care provider may not exceed 3 years unless tolled for any of the following: (1) on proof of fraud; (2) intentional concealment; or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Only the 3-year period established by CCP §340.5, not the 1-year period, may be tolled by fraud, concealment, or the presence of a foreign body. [Gutierrez v Mofid (1985) 39 Cal 3d 892, 218 Cal Rptr 313, 705 P2d 886] Nondiscovery will toll the running of the 1-year period, but concealment by the defendant will not toll this period if discovery has occurred. [Young v Haines (1986) 41 Cal 3d 883, 226 Cal Rptr 547, 718 P2d 909] Thus, regardless of extenuating circumstances, the patient must bring suit within 1 year after he or she discovers, or should have discovered, the injury. Furthermore, the 1-year period is not delayed, suspended, or tolled when a plaintiff with actual or constructive knowledge of the facts underlying the malpractice claim is told by an attorney that there is no legal remedy. [Gutierrez v Mofid (1985) 39 Cal 3d 892, 218 Cal Rptr 313, 705 P2d 886 (1-year period began when patient, whose doctors had performed hysterectomy rather than simple operation to which she had consented, was told by other doctor that she was victim of malpractice, even though lawyer whom she then consulted told her she had no remedy)]

Concealment will, however, toll the 3-year outer time limit set forth in CCP §340.5 for initiating an action. [Young v Haines (1986) 41 Cal 3d 883, 226 Cal Rptr 547, 718 P2d 909] Whether intentional concealment has occurred is a question for the trier of fact. [Brown v Bleiberg (1982) 32 Cal 3d 426, 186 Cal Rptr 228, 651 P2d 815 (question of fact whether podiatrist and other physician had intentionally misrepresented nature of foot operation performed on patient in order to conceal her cause of action)] Intentional concealment is something more than a failure to obtain the patient’s informed consent. It occurs, if at all, either at or subsequent to the time that the medical procedure is undertaken. [Trantafello v Medical Center of Tarzana (1986, 2nd Dist) 182 Cal App 3d 315, 227 Cal Rptr 84]


Good luck to you.

IAAL