In its opinion filed on October 31, 2016, the Court of Appeal of the State of California Second Appellate District Division Seven (“Appellate Court”) held that when 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.
Code of Civil Procedure Section 340.5
Section 340.5 provides: “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.” A plaintiff in a California medical malpractice action must satisfy the requirements of both the one-year and the three-year limitations periods.
The Alleged Underlying Facts
In the case the Appellate Court was deciding, the California medical malpractice plaintiff alleged that the two defendant doctors negligently misdiagnosed the cause of his headaches. When an emergency room doctor finally diagnosed a brain tumor as the cause of his headaches, the plaintiff needed emergency surgery but by that time, his tumor had grown so large that surgeons had to sever his cranial nerves to remove it, which caused him to suffer loss of vision in his left eye, deafness in his left ear, facial paralysis, loss of musculature and strength, depression, and sexual dysfunction.
In response to the medical malpractice defendants’ motion for summary judgment, the trial granted the defendants’ motion on the ground that section 340.5 barred the plaintiff’s medical malpractice lawsuit. The plaintiff appealed.
The Appellate Court stated that the “injury” commences both the three-year and the one-year limitations periods set forth in section 340.5. The meaning of the word “injury” as used in section 340.5 designates the event which starts the running of the overall three-year limitation period, and the discovery of which is the basis of the shorter one-year limitation. The term “injury” as used in section 340.5 means both a person’s physical condition and its negligent cause. The one-year limitations period, however, does not begin to run until the plaintiff discovers both his or her injury and its negligent cause.
The Appellate Court stated that even though the plaintiff had consulted with a medical malpractice attorney in January 2011 to determine whether he could sue his doctors for malpractice, which indicated a suspicion of wrongdoing by that time, the one-year and three-year limitations periods did not begin to run until the 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 the defendant doctors.
As the Appellate Court pointed out, in most cases, the plaintiff discovers his or her injury prior to, or contemporaneously with, learning its negligent cause. However, the Appellate Court stated that the issue in this appeal is not whether the plaintiff had actual or constructive knowledge of the doctors’ alleged wrongdoing, but when the plaintiff discovered his injury.
Because the word “injury” in section 340.5 refers to the damaging effect of the alleged wrongful act and not to the act itself, the date of injury could be much later than the date of the wrongful act where the plaintiff suffers no physical harm until months or years after the wrongful act. The injury, however, is not necessarily the ultimate harm suffered but instead occurs at the point at which appreciable harm is first manifested (“manifested” is that point at which the damage has become evidenced in some significant fashion; when the damage has clearly surfaced and is noticeable). When a patient experiences appreciable harm before the ultimate harm, that appreciable harm will start the limitations period.
The Appellate Court stated that when a plaintiff brings a medical malpractice action based on the defendant’s failure to diagnose, or misdiagnosis of, a latent, progressive condition, identification of the “injury” is more difficult. The Appellate Court stated that for medical malpractice claims involving failure to diagnose or treat a preexisting condition, the plaintiff in such a case may discover the injury when the undiagnosed condition develops into a more serious condition, but before it causes the ultimate harm. With the worsening of the plaintiff’s condition, or an increase in or appearance of significant new symptoms, the plaintiff with a pre-existing condition either actually (subjectively) discovers, or reasonably (objectively) should be aware of, the physical manifestation of his or her injury.
Whether measured subjectively or objectively, when a plaintiff discovers that a preexisting condition has developed into a more serious condition is often a factual issue. The Appellate Court held that because the evidence was not undisputed that the plaintiff discovered his injury more than one year before he filed his California medical malpractice action, the defendant doctors were not entitled to summary judgment under section 340.5.
Source Drexler v. Petersen, B259375
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