(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.)
C.C.P. §340.5 GOVERNS DELIVERY MALPRACTICE AND EXTENDS THE LIMITATIONS PERIOD TO THE CHILD’S EIGHTH BIRTHDAY
It is firmly established that an infant’s claim for medical malpractice – whether the injury is prior to, contemporaneous with or subsequent to birth – is subject to the limitations period of C.C.P. §340.5, governing medical malpractice actions generally and medical malpractice actions by minors specifically, and that C.C.P. §340.4 has no bearing on such actions.
3 Witkin, Cal. Procedure 4th, Actions §542, discussing prenatal injuries, observes that C.C.P. §340.5, part of the Medical Injury Compensation Reform Act, does not expressly refer to former Civil Code §29 or C.C.P. §340.4, but supplants their period of limitations in medical malpractice actions. (Emphasis in original.) Haning, Flahavan, Kelly, et al., California Practice Guide – Personal Injury (Rutter 2006) §5:138, likewise states:
Neither C.C.P. §352 nor C.C.P. §340.4 applies to minors’ actions predicated on medical malpractice. Even if the claim alleges prenatal injury, the altogether different limitations period contained in C.C.P. §340.5 is controlling. [Young v. Haines (1986) 41 Cal.3d 883, 226 Cal.Rptr. 547; Photias v. Doerfler (1996) 45 Cal.App.4th 1014, 1018-1020, 53 Cal.Rptr.2d 202, 204-205]
Hence, C.C.P. §340.4 governs prenatal injuries from general negligence, products liability, etc., but not medical malpractice. It was enacted to abolish the common law rule that an unborn child has no independent existence and, therefore, no right of action for injuries suffered before its birth, but at a time when there was no distinction in limitations rules between medical malpractice and other negligence claims. Young v. Haines (1986) 41 Cal.3d 883, 892, 226 Cal.Rptr. 547. 5 Witkin, Summary Cal. Law 10th, Torts, §728, pg. 1053. The adoption of MICRA in 1975, with its distinct limitations rules, overrode any role that §340/4 might have had in medical malpractice cases.
Young v. Haines, supra, 41 Cal.3d 883, held that §340.5 applied to an action for injuries incurred during birth as a result of hypoxic birth trauma. The Supreme Court found that §340.5, was the later, more specific statute and as part of an interrelated legislative scheme enacted to deal specifically with all medical malpractice claims must be found controlling over former Civil Code §29 (re-codified as C.C.P. §340.4)
Section 340.5 is part of an interrelated legislative scheme enacted to deal specifically with all medical malpractice claims. As such, it is the later, more specific statute which must be found controlling over an earlier statute, even though the earlier statute would by its terms cover the present situation [Id at 894, emphasis added]
Universal misleadingly refers to §340.4 as the later statute, but as the notes to that section indicate, it simply reenacts former Civil Code §29 without substantive change. Such re-enactment creates a very strong presumption that the Legislature intended to adopt the prior construction of §340.4. Robinson v. FEHC (1992) 2 Cal.4th 226, 235, 5 Cal.Rptr.2d 782. The contention that §340.4 is the more specific provision is manifestly incorrect, as Young held in the above quotation.
§340.5 states in relevant part:
…. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.
This language is clearly tailored to medical malpractice claims and thus applies to injuries during birth. Young, supra; Knox v. Superior Court (1983) 189 Cal.Rptr. 800, 140 Cal.App.3d 782 (provision of §340.5 permitting minor to bring negligence action against health care provider either within three years of injuries or prior to minor’s eighth birthday applies to minor’s cause of action for prenatal medical malpractice, and limitations of former Civil Code §29 (now §340.4) for personal injuries sustained prior to or in course of minor’s birth did not apply.); Kelemen v. Superior Court (1982) 186 Cal.Rptr. 566, 136 Cal.App.3d 861 (same for medical malpractice before and during birth.) (See Part 6 of 12.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.