California Civil Jury Instructions (CACI) (2017)

556. Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-Year Limit (Code Civ. Proc., § 340.5)

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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:]
2. [that [he/she/it] did not discover the alleged wrongful act or
omission because [name of defendant] acted fraudulently[,/; or]]
2. [that [name of defendant] intentionally concealed facts constituting
the wrongful act or omission[,/; or]]
2. [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
• 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].)
• “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.)
• “[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].)
• “[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) 205 Cal.Rptr.3d 719, 2
Cal.App.5th 1, 8], internal citations omitted.)
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