CACI No. 555. Affirmative Defense - Statute of Limitations - Medical Malpractice - One- Year Limit (Code Civ. Proc., § 340.5)

Judicial Council of California Civil Jury Instructions (2023 edition)

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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].]
New April 2009; Revised May 2020
Directions for Use
Use CACI No. 556, Affırmative 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
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
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, Affırmative Defense - Statute of Limitations - Attorney
Malpractice - One-Year Limit.
Sources and Authority
Statutes of Limitation for Medical Malpractice. Code of Civil Procedure section
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].)
“Injury from the failure to diagnose a latent, progressive condition occurs ‘when
the undiagnosed condition develops into a more serious condition,’ and that more
serious condition is made manifest by an appreciable increase or alteration in
symptoms. A patient’s concerns or suspicions about a diagnosis do not trigger
the statute of limitations when no more serious condition is manifest and no lack
of diligence is shown.” (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 781
[273 Cal.Rptr.3d 731], internal citations omitted.)
“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. Memorial Hospital (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)
McDonald, California Medical Malpractice: Law and Practice, §§ 7:1-7:7 (Thomson

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