California Civil Jury Instructions (CACI)

556. Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-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 [name of plaintiff]’s alleged injury occurred before [insert date three years before date of filing].

[If, however, [name of plaintiff] proves

[Choose one or more of the following options:]

[that [he/she/it] did not discover the alleged wrongful act or omission because [name of defendant] acted fraudulently[,/; or]]

[that [name of defendant] intentionally concealed facts constituting the wrongful act or omission[,/; or]]

[that the alleged wrongful act or omission involved the presence of an object that had no therapeutic or diagnostic purpose or effect in [name of plaintiff]’s body[,/;]]

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] intentionally concealed the facts].]

New April 2009

Directions for Use

Use CACI No. 555, Affırmative 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.

Sources and Authority

  • Code of Civil Procedure 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. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.

    For the purposes of this section:

    (1) “Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider;

    (2) “Professional negligence” means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.

  • “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].)
  • “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.)

Secondary Sources

Haning et al., California Practice Guide: Personal Injury (The Rutter Group) ¶ 1:67.1

California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.26, 9.67–9.72

4 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

1 California Medical Malpractice: Law and Practice (Thomson Reuters West) §§ 7:1–7:7