CACI No. 556. Affirmative Defense - Statute of Limitations - Medical Malpractice - Three- Year Limit (Code Civ. Proc., § 340.5)

Judicial Council of California Civil Jury Instructions (2020 edition)

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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/nonbinary pronoun/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; Revised November 2017
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.
If the claim involves a diagnosis error, the cause of action accrues when the plaintiff
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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].)
Sources and Authority
• 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
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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
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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.)
Secondary Sources
Haning et al., California Practice Guide: Personal Injury, Ch. 1-B, First Steps in
Handling a Personal Injury Case - Initial Evaluation of Case: Decision to Accept or
Reject Employment or Undertake Further Evaluation of Claim, ¶ 1:67.1 (The Rutter
Group)
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
McDonald, California Medical Malpractice: Law and Practice, §§ 7:1-7:7 (Thomson
Reuters)
557-599. Reserved for Future Use
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