CACI 556 Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-Year Limit (Code Civ. Proc., § 340.5)

New April 2009; Revised November 2017

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Use CACI No. 555, Affirmative Defense—Statute of Limitations—Medical Malpractice—One-Year Limit, if the one-year limitation provision is at issue.

If no tolling provision from Code of Civil Procedure section 340.5 is at issue, read only the first paragraph. Read the rest of the instruction if there is a question of fact concerning a tolling provision. If so, the verdict form should ask the jury to find (1) the date on which the alleged injury occurred; (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 date of injury and determine whether the action is timely.

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 limitation period. (See Code Civ. Proc., § 364; Russell v. Stanford Univ. Hosp. (1997) 15 Cal.4th 783, 789–790 [64 Cal.Rptr.2d 97, 937 P.2d 640].) 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.

If the claim involves a diagnosis error, the cause of action accrues when the plaintiff first experiences “appreciable harm” as a result of the defendant’s diagnosis error. Appreciable harm occurs when the plaintiff first becomes aware, or reasonably should have become 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, 1194 [209 Cal.Rptr.3d 332].) When this has occurred is a question of fact for the jury unless the facts are undisputed. (Id. at p. 1197.) Appreciable harm determines when the injury occurred to complete the cause of action; it is not a question of delayed discovery. Therefore, appreciable harm is required to trigger the three-year limitation period of Code of Civil Procedure section 340.5. (Steingart v. White (1988) 198 Cal.App.3d 406, 414–417 [243 Cal.Rptr. 678].)

•Three-Year Limitation Period for Medical Malpractice. Code of Civil Procedure section 340.5.

•“No tolling provision outside of MICRA can extend the three-year maximum time period that section 340.5 establishes.” (Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928, 931 [86 Cal.Rptr.2d 107, 978 P.2d 591]; see also Fogarty v. Superior Court (1981) 117 Cal.App.3d 316, 319–321 [172 Cal.Rptr. 594] [Code Civ. Proc., § 352 does not toll statute for insanity].)

•“The three-year limitations period of section 340.5 provides an outer limit which terminates all malpractice liability and it commences to run when the patient is aware of the physical manifestation of her injury without regard to awareness of the negligent cause.” (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 760 [199 Cal.Rptr. 816].)

•“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.)

•“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.)

•“The same considerations of legislative intent that compelled us, in [Woods v. Young (1991) 53 Cal.3d 315, 325–326 [279 Cal.Rptr. 613, 807 P.2d 455]], to construe Code of Civil Procedure section 364, subdivision (d), as ‘tolling’ the one-year limitations period also apply to the three-year limitation. Unless the limitations period is so construed, the legislative purpose of reducing the cost and increasing the efficiency of medical malpractice litigation by, among other things, encouraging negotiated resolution of disputes will be frustrated. Moreover, a plaintiff’s attorney who gives notice within the last 90 days of the 3-year limitations period will confront the dilemma we addressed in Woods, i.e., a choice between preserving the plaintiff’s cause of action by violating the 90-day notice period under Code of Civil Procedure section 364, subdivision (d)—thereby invoking potential disciplinary proceedings by the State Bar—and forfeiting the client’s cause of action. In the absence of tolling, the practical effect of the statute would be to shorten the statutory limitations period from three years to two years and nine months. As in the case of the one-year limitation, we discern no legislative intent to do so.” (Russell, supra, 15 Cal.4th at pp. 789–790.)

•“[T]he ‘no therapeutic or diagnostic purpose or effect’ qualification in section 340.5 means the foreign body exception does not apply to objects and substances intended to be permanently implanted, but items temporarily placed in the body as part of a procedure and meant to be removed at a later time do come within it.” (Maher v. County of Alameda (2014) 223 Cal.App.4th 1340, 1352 [168 Cal.Rptr.3d 56].)

•“[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.)

•“[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, supra, 4 Cal.App.5th 1183–1184.)

•“Applying the well-settled definition of injury set forth in the cases cited ante to the facts here, it must be concluded [plaintiff] suffered no damaging affect or appreciable harm from [defendant]’s asserted neglect until [doctor] discovered her cancer in April 1985. Her complaint was therefore timely with respect to the three-year limit.” (Steingart, supra, 198 Cal.App.3d at p. 414.)