Personal Injury Lawyer Blog
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 medical malpractice case and its proceedings.)
It is worth noting that situations similar to those described in this medical negligence case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.
Plaintiff’s Complaint for Professional Negligence is Barred by the Statute of Limitations.
A complaint is subject to a demurrer under Code of Civil Procedure § 430.10, subparagraph (e), if the facts alleged in the complaint and matters of which the court is entitled to take judicial notice show the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995; Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.
The statute of limitations for medical malpractice claims is set out in Code of Civil Procedure §340.5. It provides, in pertinent part:
In an action for injury or death by 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 use of reasonable diligence should have discovered, the injury, whichever occurs first. C.C.P. §340.5. (emphasis added)
Plaintiff’s complaint does not set forth the date of decedent’s death. The first cause of action stated that decedent was treated on various dates in 2006. According to Exhibit B attached to NMC’s Request for Judicial Notice, decedent died on May 10, 2006.
Generally the statute of limitations with respect to a cause of action for wrongful death commences to run as of the date of death. Larcher v. Wanless (1976) 18 Cal.3d 646, 656-657.
Decedent Abigail Hill’s date of death was May 10, 2006. The May 17, 2006 Alameda County Sheriff’s Office’s Coroner’s Investigative Report states: plaintiff Vernon Hill came into the Coroner’s Bureau … requesting that we investigate [Abigail Hill’s] death and perform a private autopsy. As well, the May 17, 2006 report reveals that the decedent’s family believes there was negligence and/or foul play involved in decedent’s death.
Plaintiff filed the complaint on May 11, 2009. The complaint was filed three years after the death, and two years beyond the statute of limitations. Plaintiff’s wrongful death claim is barred by the one-year period of limitation set forth in Code of Civil Procedure §340.5. Given plaintiff’s belief at the time of his mother’s death that medical negligence caused her death, plaintiff’s complaint is also barred by the three-year period of limitation set for in Code of Civil Procedure §340.5. (See Part 5 of 6.)
For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.