CACI 555 Affirmative Defense—Statute of Limitations—Medical Malpractice—One-Year Limit (Code Civ. Proc., § 340.5)

California Civil Jury Instructions CACI

555 Affirmative Defense—Statute of Limitations—Medical Malpractice—One-Year Limit (Code Civ. Proc., § 340.5)

[Name of defendant] contends that [name of plaintiff]’s lawsuit was not filed within the time set by law. To succeed on this defense, [name of defendant] must prove that before [insert date one year before date of filing], [name of plaintiff] discovered, or knew of facts that would have caused a reasonable person to suspect, that [he/she/nonbinary pronoun] had suffered harm that was caused by someone’s wrongful conduct.

[If, however, [name of plaintiff] proves [insert tolling provision(s) of general applicability, e.g., Code Civ. Proc., §§ 351 [absence from California], 352 [insanity], 352.1 [prisoners], 352.5 [restitution orders], 353.1 [court’s assumption of attorney’s practice], 354 [war], 356 [injunction]], the period within which [name of plaintiff] had to file the lawsuit is extended for the amount of time that [insert tolling provision, e.g., [name of defendant] was absent from California].]

Directions for Use

Use CACI No. 556, Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-Year Limit, if the three-year limitation provision is at issue.

If the notice of intent to sue required by Code of Civil Procedure section 364 is served within 90 days of the date on which the statute of limitations will run, the statute of limitations is tolled for 90 days beyond the end of the limitations period. (See Code Civ. Proc., § 364; Woods v. Young (1991) 53 Cal.3d 315, 325–326 [279 Cal.Rptr. 613, 807 P.2d 455].) Adjust the “date one year before the date of filing” in the instruction accordingly. If there is an issue of fact with regard to compliance with the requirements of section 364, the instruction may need to be modified accordingly.

Give the optional last paragraph if there is a question of fact concerning a tolling provision from the Code of Civil Procedure. If so, the verdict form should ask the jury to find (1) the “discovery” date (the date on which the plaintiff discovered or knew of facts that would have caused a reasonable person to suspect that the person had suffered harm that was caused by someone’s wrongful conduct); (2) whether the tolling provision applies; and (3) if so, for what period of time. The court can then add the additional time to the discovery date and determine whether the action is timely.

Contrary to the otherwise applicable rule (see CACI No. 455, Statute of Limitations—Delayed Discovery), the defendant has been given the burden of proving that the plaintiff discovered or should have discovered the facts alleged to constitute the defendant’s wrongdoing more than one year before filing the action. (See Samuels v. Mix (1999) 22 Cal.4th 1, 8–10 [91 Cal.Rptr.2d 273, 989 P.2d 701] [construing structurally similar Code Civ. Proc., § 340.6, on legal malpractice, to place burden regarding delayed discovery on the defendant and disapproving Burgon v. Kaiser Foundation Hospitals (1979) 93 Cal.App.3d 813 [155 Cal.Rptr. 763], which had reached the opposite result under Code Civ. Proc., § 340.5].) See also CACI No. 610, Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit.

Sources and Authority

Statutes of Limitation for Medical Malpractice. Code of Civil Procedure section 340.5.

Notice of Intent to Commence Action. Code of Civil Procedure section 364(a).

90-Day Extension of Limitation Period. Code of Civil Procedure section 364(d).

“The one-year limitation period of section 340.5 is a codification of the discovery rule, under which a cause of action accrues when the plaintiff is aware, or reasonably should be aware, of ‘injury,’ a term of art which means ‘both the negligent cause and the damaging effect of the alleged wrongful act.’ ” (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290 [170 Cal.Rptr.3d 125].)

“When a plaintiff has information which would put a reasonable person on inquiry, when a plaintiff’s “reasonably founded suspicions [have been] aroused” and the plaintiff has “become alerted to the necessity for investigation and pursuit of her remedies,” the one-year period commences. “Possession of ‘presumptive’ as well as ‘actual’ knowledge will commence the running of the statute.” ’ ” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 823 [16 Cal.Rptr.2d 714], internal citations omitted.)

“[W]hen the plaintiff in a medical malpractice action alleges the defendant health care provider misdiagnosed or failed to diagnose a preexisting disease or condition, there is no injury for purposes of section 340.5 until the plaintiff first experiences appreciable harm as a result of the misdiagnosis, which is when the plaintiff first becomes aware that a preexisting disease or condition has developed into a more serious one.” (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1183–1184 [209 Cal.Rtpr.3d 332].)

“The fact that [plaintiff] contemplated suing [defendants] is strong evidence that [plaintiff] suspected the doctors had not properly diagnosed or treated his headaches. Even with the presence of such suspicions, however, the one-year and three-year limitations periods did not begin to run until [plaintiff] discovered his injury—that is, became aware of additional, appreciable harm from his preexisting condition—and, with respect to the one-year limitations period, also had reason to believe that injury was caused by the wrongdoing of [defendants].” (Drexler, supra, 4 Cal.App.5th at p. 1190, internal citation omitted.)

“We see no reason to apply the second sentence of section 340.5 to the one-year period it does not mention, in addition to the three-year period it does mention. The general purpose of MICRA does not require us to expand that sentence beyond its language.” (Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928, 934 [86 Cal.Rptr.2d 107, 978 P.2d 591] [Code Civ. Proc., § 352.1, which tolls statutes of limitation for prisoners, applies to extend one-year period of Code Civ. Proc., § 340.5].)

“The implications of Belton’s analysis for our case here is inescapable. Like tolling the statute of limitations for confined prisoners under section 352.1, tolling under section 351 for a defendant’s absence from California is of general applicability [and therefore extends the one-year period of Code of Civil Procedure section 340.5]. (For other general tolling provisions, see § 352 [minors or insanity]; § 352.5 [restitution orders]; § 353.1 [court’s assumption of attorney’s practice]; § 354 [war]; § 356 [injunction].)” (Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 643 [75 Cal.Rptr.3d 861].)

“[A] plaintiff’s minority as such does not toll the limitations period of section 340.5. When the Legislature added the separate statute of limitations for minors to section 340.5 in 1975, it clearly intended that the general provision for tolling of statutes of limitation during a person’s minority (§ 352, subd. (a)(1)) should no longer apply to medical malpractice actions.” (Steketee v. Lintz (1985) 38 Cal.3d 46, 53 [210 Cal.Rptr 781, 694 P.2d 1153], internal citations omitted.)

“Section 340.5 creates two separate statutes of limitations, both of which must be satisfied if a plaintiff is to timely file a medical malpractice action. First, the plaintiff must file within one year after she first ‘discovers’ the injury and the negligent cause of that injury. Secondly, she must file within three years after she first experiences harm from the injury. This means that if a plaintiff does not ‘discover’ the negligent cause of her injury until more than three years after she first experiences harm from the injury, she will not be able to bring a malpractice action against the medical practitioner or hospital whose malpractice caused her injury.” (Ashworth v. Mem’l Hosp. (1988) 206 Cal.App.3d 1046, 1054 [254 Cal.Rptr. 104], original italics.)

“That legislative purpose [re: Code Civ. Proc., § 364] is best effectuated by construing section 364(d) as tolling the one-year statute of limitations when section 364(a)’s ninety-day notice of intent to sue is served during, but not before, the last ninety days of the one-year limitations period. Because the statute of limitations is tolled for 90 days and not merely extended by 90 days from the date of service of the notice, this construction results in a period of 1 year and 90 days in which to file the lawsuit. In providing for a waiting period of at least 90 days before suit can be brought, this construction achieves the legislative objective of encouraging negotiated resolutions of disputes.” (Woods, supra, 53 Cal.3d at p. 325.)

“[I]f the act or omission that led to the plaintiff’s injuries was negligence in the maintenance of equipment that, under the prevailing standard of care, was reasonably required to treat or accommodate a physical or mental condition of the patient, the plaintiff’s claim is one of professional negligence under section 340.5. But section 340.5 does not extend to negligence in the maintenance of equipment and premises that are merely convenient for, or incidental to, the provision of medical care to a patient.” (Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88 [201 Cal.Rptr.3d 449, 369 P.3d 229]; see Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153, 157–162 [222 Cal.Rptr.3d 839] [tripping over scale does not involve provision of medical care].)

“[W]hile MICRA is not limited to suits by patients, it ‘applies only to actions alleging injury suffered as a result of negligence in … the provision of medical care to patients.’ Driving to an accident victim is not the same as providing medical care to the victim. A paramedic’s exercise of due care while driving is not ‘necessary or otherwise integrally related to the medical treatment and diagnosis of the patient”, at least when the patient is not in the vehicle.’ ” (Aldana v. Stillwagon (2016) 2 Cal.App.5th 1, 8 [205 Cal.Rptr.3d 719], internal citations omitted.)

Secondary Sources

Haning et al., California Practice Guide: Personal Injury, Ch. 5-B, When To Sue—Statute Of Limitations, ¶ 5:109 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.26, 9.67–9.72
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Professionals, § 31.60 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical Malpractice, § 415.47 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical Malpractice, § 175.45 et seq. (Matthew Bender)
1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 4, Limitation of Actions, 4.27
McDonald, California Medical Malpractice: Law and Practice, §§ 7:1–7:7 (Thomson Reuters)