So You Think You Know the Law…(Answers to the Winter Edition 2011 of Gray Matters)
November 2010
Winter 2011
1. The statute of limitations for medical malpractice is always one year from the date of injury.
False: Code of Civil Procedure section 340.5 provides that the medical malpractice statute of limitations may range upward to three years from injury if the injury is not or cannot immediately be discovered.
2. If a reasonable person knows of facts sufficient to cause them to suspect an injury caused by medical error or malpractice, the statute of limitations is one year from the date the person suspects the injury was caused by malpractice.
True: the one-year statute of limitations includes both a subjective test, (when the plaintiff actually knew or suspected the physical condition and its negligent cause); and an objective test (when a reasonable person in the plaintiff’s position would have known or suspected that there injuries were caused by malpractice or wrongdoing).
The statute of limitations in medical malpractice can begin to run if a plaintiff knew or should have suspected that the injuries were caused by negligence or wrongdoing.
True: the best medical treatment sometimes fails, or it requires long and difficult recuperation, or produces bad side effects. The fact that an operation does not produce hoped-for results does not signify negligence and will not cause commencement of the statute of limitations period. However, when a reasonable person in the plaintiff’s position should have known or suspected that the injuries were caused by negligence or wrongdoing, the one-year statute will begin to run.
The statute of limitations in a wrongful death case involving medical malpractice can extend beyond one year from the date of death.
False: in a case of wrongful death the one-year statute begins to run on the date of death because both the subjective test and the objective test provide that the plaintiff’s knowledge (surviving heirs) should know or suspect that the injury was caused by medical malpractice.
The time for commencement of a medical malpractice action may exceed three years if a foreign body is present which has no diagnostic or therapeutic purpose.
True: Code Of Civil Procedure section 340.5 provides that the outside statute of limitation of three years may be exceeded if a foreign body is present which has no diagnostic or therapeutic purpose, for example, a surgical sponge or medical instrument may be found many years after surgery. The one-year statute does not begin to run until discovery of the foreign body’s presence.
If you have any questions or comments do not hesitate to contact Kevin Park.
Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.
