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STATUTES OF LIMITATION (TIME DEADLINES TO FILE A MALPRACTICE ACTION)

Short Summary of Law: Medical malpractice actions lawsuits generally must filed with the Court within 1 year from the date that the injured person knew, or reasonably should have known, of the injury and of its negligent cause, whichever occurs first.  

Statutes of Limitations ("SOL") are laws that limit how much time you have to file a lawsuit against a defendant.   

Statute of Limitation laws and application of laws can be complex and riddled with exceptions and time extenders and time shorteners.  Therefore, on the one hand, you should always seek legal consultation before arriving at any final conclusions. On the other hand, you should never slumber on your rights and procrastinate or delay seeking legal counsel or taking action because, in many cases, the statutory time limit can be less than your preliminary research may indicate.

I have received numerous contacts or telephone calls from people who delayed too long to initiate an action and were,  therefore, forever barred from asserting an action against a potential negligent medical professional. Therefore, I urge you, at a minimum, to seek experienced medical malpractice legal counsel to ascertain what your time limits are.  

Under California law, regarding medical malpractice actions involving injury or death, a lawsuit filed with the Court must be commenced within:

The three-year limitation period above may be tolled (extended or lengthened) if there is fraud or intentional concealment by a defendant, or when a foreign object with no therapeutic purpose (examples, sponge, surgical knife, etc.) is left in the human body.  See Code of Civil Procedure Section 340.5.   See also Ashworth v. Memorial Hosp. of Long Beach (1988) 206 Cal. App. 3d 1046.

But if the child is under the six years old, the action must be commenced either within three years or before the child's eighth birthday, whichever provides the longer time period. Strangely, in some cases, this law creates a potentially shorter statute of limitations for children than for adults.   Therefore, the Courts have begun to carve out means to extend the time a child may bring a malpractice action on the theory or rationale that not to do so would be to deny minors "equal protection" of the law. Photias v. Doerfler (1996) 45 Cal. App. 4th 1014, Katz v. Children's Hospital of Orange County, 28 F.3d 1520 (9th Cir. 1994)

CCP Section 340.5 applies in a wrongful death action as well as a personal injury action. (Ferguson v. Dragul (1986) 187 Cal.App.3d 702, 708; see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 405, fn. 5.) The statute does not begin to run until the decedent’s death. Larcher v. Wanless (1976) 18 Cal.3d 646, 659; Ferguson, supra, 187 Cal.App.3d at pp. 708-709;.

If you wish to bring a malpractice claim against a government entity or its employees, you will be required to file a claim against that entity within six (6) months from the date of the incident since governmental entities have restrictive claim statutes of their own.

However, so much uncertainty concerning in calculating statute of limitations in medical malpractice cases, it is urged that you take the necessary steps to file a lawsuit within the shortest possible period applicable and without regard to the CCP Section 364 statute of limitations extension provision.

List of other Statute of Limitations specific articles on this website:

California_Statute_of_Limitations

Exceptions_to_Statute_of_Limitations_Tolling -_California

Accrual Statute of Limitations - California

Legal Malpractice Statute of Limitations

Defamation Statute of Limitations - California

Fraud Statute of Limitation - California

Government Claim Statute of Limitations_California

Wrongful Death Statute of Limitations

Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change. No legal advice is given and no attorney/client or other relationship is established or intended.  The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is recommend that readers of this information consult with their own counsel prior to relying on any information on this website.

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