the evidence on summary judgment made clear, and plaintiff conceded for purposes of argument, that she both knew of her injury and suspected malpractice almost immediately after the operation — almost two years before she filed suit
How later courts described this case
- the evidence on summary judgment made clear, and plaintiff conceded for purposes of argument, that she both knew of her injury and suspected malpractice almost immediately after the operation — almost two years before she filed suit
- “[T]he uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim,” and therefore “[i]t is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action”
- "[I]f one 'has suffered appreciable harm and knows or suspects that professional blundering is its cause, the fact that an attorney has not yet advised him does not postpone commence ment of the limitations period."
- reliance on attorney’s advice does not postpone the time of discovery, thus, extending the limitations period applicable to one who has already come to suspect he is a victim of malpractice
Written by the judges who cited it.
Distinguished
Distinguished by Eidson v. Medtronic, Inc., 40 F. Supp. 3d 1202 (2014)
Finally, the Court notes that four of the cases cited by Defendants, namely Jolly, Norgart, Fox, and Gutierrez, are readily distinguishable from the instant .case.
The opinion
REYNOSO, J.
I dissent.
Since 1979 Court of Appeal case law has been clear, as a matter of statutory interpretation, that the statute of limitations in medical malpractice cases run after one year only if the plaintiffs knew or reasonably should have known that the cause was actionable. (Jones v. Queen of the Valley Hospital (1979) 90 Cal.App.3d 700 [ 153 Cal.Rptr. 662 ].) The three-year statute is absolute. The Legislature, faced with that interpretation, made no change in the statute. The general rule of statutory construction is that, absent statutory change, the interpretation continues as good law. (See Slocum v. Bear Valley Irrigation Co. (1898) 122 Cal. 555, 556 [ 55 P. 403 ]; People v. Hallner (1954) 43 Cal.2d 715, 719 [ 277 P.2d 393 ]; Burt v. Scarborough (1961) 56 Cal.2d 817, 822 [ 17 Cal.Rptr. 146 , 366 P.2d 498 ]; Fullerton v. State Water Resources Control Bd. (1979) 90 Cal.App.3d 590, 602 [ 153 Cal.Rptr. 518 ].) This is not an unalterable rule, of course. However, when the interpretation is reasonable it should not be supplanted by another reasonable interpretation from this court, absent a factor which tips the balance in favor of the new interpretation. Since the unanimous Court of Appeal opinion authored by Presiding Justice Kingsley properly followed the above rule of construction, I adopt the opinion as my own. It reads:
“Plaintiff has sued for damages based on a claim that defendant doctors, employed by defendant hospital, performed a hysterectomy on her without her knowledge or consent. The trial court granted summary judgment for the defendants on the ground of the statute of limitations. We reverse.
“Plaintiff was a patient in defendant hospital. On December 22, 1978, she was operated on by defendant doctors. Her claim is that she had consented to an operation for the removal of her appendix and a tumor but that, while she was under anesthesia, the doctors had also performed a complete hysterectomy.
*904 “In April of 1979, she consulted a well-known firm of attorneys, professionally known as experts in the field of medical malpractice litigation, and was advised that she had no cause of action against the doctors or hospital. Plaintiff continued to feel distressed and angry over the extent of the operation and, finally, after much urging by friends, consulted her present counsel who, on November 21, 1980, filed the present action.
“Section 340.5 of the Code of Civil Procedure provides in pertinent part as follows:
“ ‘In an action for injury or death against a health care provider based upon such person’s alleged 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, whichever occurs first. . . .’
“In Jones v. Queen of the Valley Hospital (1979) 90 Cal.App.3d 700 , we construed and applied that section in a case somewhat similar to the case at bench. In Jones , a child was misdiagnosed by defendant doctors as having only a case of flu, was given medicine and sent home. The child was worse the following morning, was returned to the hospital but died on that trip. It was later discovered that the child was suffering from meningococcemia, for which the simple treatment recommended was inappropriate. As here, parents consulted a firm of attorneys, who, after examining the hospital records, advised them that they had no cause of action. Again as here, the parents were unhappy over the advice, eventually consulted a second attorney, who filed a malpractice suit, but over a year after the misdiagnosis. We held that the statute did not begin to run until the injured person knew both of the medical error and knew, also, that the error was actionable. 1 We can see no difference here.
“‘The Supreme Court denied hearing in Jones . Admittedly plaintiff knew the morning after the operation that a hysterectomy, to which she had not consented, had been performed. But she satisfied the requirement of investigation and was told that the operation, although not consented to, was not actionable. The rule of Jones applies here. The action is not barred by section 340.5.
“The judgment is reversed.” [End of opinion.]
Since I agree with the conclusion of the Court of Appeal I, too, would reverse.
AH further statutory references are to the Code of Civil Procedure unless otherwise indicated.