Statute of Limitations in California for Medical Malpractice
When a California doctor does something wrong, or you think she did, dont wait too long to begin a malpractice lawsuit. A statute of limitations gives you a limited window of time in which to bring suit for medical malpractice. In California, if you do not get your required documents to court during this time, the doctor youre accusing of malpractice has a complete defense against your legal action. No matter how culpable she might be, you must respect the statute of limitations to have a chance of winning your suit.
Considerations
In California, medical malpractice can involve any licensed healthcare provider. It occurs when the provider does not live up to the standard of care for treating a patient, and the patient is injured as a result. Medical malpractice does not necessarily involve an action taken by the medical provider; it can also be something the provider should have done, but did not, such as forgetting required blood tests.
Limitations Period
In California, two alternative limitation periods are set out in the Code of Civil Procedure, section 340.5. The statute provides that the suit must be initiated within 3 years after the date of injury, or 1 year after the date of discovery, whichever occurs first. The date of discovery is the date the patient discovers, or through the use of reasonable diligence should have discovered it.
Discovery
This distinction between date of injury and date of discovery takes into account the fact that not all injuries are readily visible. For example, amputation of the wrong leg would be immediately obvious, but actions such as misdiagnosis or inappropriate drug prescription might not be evident until long after initial treatment. Sometimes only after review by an alternate medical practitioner.
Time of Injury
Depending upon the date of discovery, the 1-year statute might expire before or after the 3-year period. If a patient discovers the injury at the time he is injured, the statutes start to run simultaneously. Since the 1-year statute will expire first, it is the applicable statute.
After Injury
If a patient discovers his injury more than 2 years after it occurred, the 3-year statute will expire first and will be the applicable statute. It will provide a complete defense to a medical malpractice action in California, absent proof of fraud, intentional concealment or the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, according to the statute. If none of those elements are present, the 1-year "discovery" statute cannot extend the 3-year limitations period.
Minors
California law provides an exception to the statute of limitations for medical malpractice when the injured patient is a child under the age of 6. The lawsuit for the child can be brought either within 3 years from the injury, or prior to his 8th birthday, whichever provides the longer period. The statute may be further extended in the case of fraud.
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