The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)
It is also worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.
PURSUANT TO CODE OF CIVIL PROCEDURE, SECTION 340.5, PLAINTIFF’S ACTION IS BARRED BY THE STATUTE OF LIMITATIONS.
Code of Civil Procedure, Section 340.5 provides in pertinent part:
In an action for injury…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. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Code of Civil Procedure, Section 340 provides in pertinent part:
Within one year: (3) An action for … battery.
In Gutierrez v. Mofid, (1985) 39 Cal.3d 892, 898, 218 Cal.Rptr. 313, 705 P.2d 886, the plaintiff alleged that she gave consent only to an exploratory operation to remove a tumor on her appendix.
When she awoke, however, she learned that the doctor had done a complete hysterectomy. The Court held that “if one has suffered appreciable harm and knows or suspects that professional blundering is its cause, the fact that an attorney has not yet advised him does not postpone the commencement of the limitations period.”
Moreover, it has been held that facts and events which inform a person that something is wrong, or should be looked into, are usually recognizable by the ordinary person. One example is pain … It is the occurrence of some such cognizable event rather than knowledge of its legal significance that starts the running of statute of limitations. Graham v. Hansen, (1982) 128 Cal.App.3d 965, 180 Cal.Rptr. 604. (See Part 6 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.