Medical Malpractice Lawsuit Filed By Family

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.

The California Supreme Court declared that:

Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her…[T]he limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry … So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her. (emphasis added) Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1110, 245 Cal.Rptr. 658, 751 P.2d 923 (1988).

“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. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFFS FAILED TO MEET THE REQUIREMENTS OF CODE OF CIVIL PROCEDURE §474 AND, THEREFORE, THIS ACTION IS BARRED BY CCP 340.5.

Code of Civil Procedure, Section 474 provides that:

When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint … and when his true name is discovered, the pleading or proceeding must be amended accordingly.

Pursuant to Code of Civil Procedure section 474, when the defendant’s name is discovered and he is substituted by amendment, he is considered a party to the action from its commencement so that the statute of limitations stops running on the date the original complaint was filed. Olden v. Hatchell (1984) 154 Cal.App.3d 1032; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 599. However, in order for the statute to stop running, the plaintiff must actually be ignorant of the name or identity of the fictitiously named defendant at the time the complaint was filed. Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1464; Streicher v. Tommy’s Electric Co. (1985) 164 Cal.App.3d 876, 882. The lack of knowledge of the name or identity must be real and not feigned. Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1465; Munoz v. Purdy (1979) 91 Cal.App.3d 942, 947. (See Pat 7 of 7.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.