Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)
The legislature, in codifying the discovery rule, has also required plaintiffs to pursue their claims diligently by making accrual of a cause of action contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause. (See, e.g., Code Civ. Proc, §§ 340.1, subd. (a) [ within three years of the date the plaintiff discovers or reasonably should have discovered ], 340.15, subd. (a)(2) [ [w]ithin three years from the date the plaintiff discovers or reasonably should have discovered ], 340.2, subd. (a)(2) [ [w]ithin one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known ], 340.5 [ one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered ].)
This policy of charging plaintiffs with presumptive knowledge of the wrongful cause of an injury is consistent with our general policy encouraging plaintiffs to pursue their claims diligently. (Norgart, supra, 21 Cal.4th at p. 395.)
Simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury.
If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light. In order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period. [Emphasis added.]
The plaintiffs have pleaded just those facts. They said:
In order to appreciate the negligent cause of Mr. Steinford’s death, one must have medical training. The factors involved are complex and beyond the understanding of common people. Moreover the medical records did not reveal the actual cause of the death of Mr. Steinford, but rather masked it by reference to wrong explanations. Only an experienced doctor could have ferreted through the medical records to figure out why Mr. Steinford died prematurely.
Tina Steinford is the daughter of Paul Steinford and was very upset at his untimely passing. Ms. Steinford has no medical or nursing training. Upon his death she deduced that the defendants having prescribed Risperdal must have been wrong because of a black box on it warning not to use it on elderly patients. Mr. Steinford was 84 years old at the time it was used on him and at that time demonstrated good recall of the events of his life. Ms. Steinford saw no reason to use Risperdal on her father. Based upon her uninformed suspicion that something was wrong, she sent notices in 2005 to various defendants that she intended to sue them. However, Ms. Steinford was unable to secure a lawyer to represent her and more importantly, was unable to secure a doctor to review the records because she could not afford the fee. (See Part 5 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.