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Is there any way to file mal practice past one year of incident?

Asked over 2 years ago - San Diego, CA

I had a pterygium removal which got complicated due to a pre-op injection of Mitomyacin C. It's a toxin that the first doctor left in my eye for over 5 months. I moved to a secondary doc. to have removal completed where he found a plastic tube left in my eye from the first doc. He performed a 3 part surgery. 1. reintroduce living tissue from what toxin had killed, 2. remove foreign body, 3. original pterygium removal.

The doctor could not treat aggressively due to what the first doctor had done and now re-growth has started and is causing blurred/impaired vision. I am a photographer. This initial procedure with the toxic happened last year on Halloween. Now that further complications have arose, is there any way to extend the malpractice statute past one year to give time to file?

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Attorney answers (4)

Pamela Koslyn

Reputation Level 20

Answered over 2 years ago. Business Attorney in Los Angeles, CA.

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In CA, you have 1 year from the date you knew or should have known that a negligent act caused you harm in which to file suit. Even if your condition hasn't stablized and your damages are still somewhat unknown, you should preserve your rights by making sure you file suit before your year is up.

Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

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John Robert Mittelman

Reputation Level 9

Answered over 2 years ago. Medical Malpractice Attorney in Temecula, CA.

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California Code of Civil Procedure section 340.6 allows for an extended period for filing a malpractice claim where a foreign body has been left inside your body that has no therapeutic or diagnostic purpose or effect. Where this occurs, the one-year statute of limitations referred to above is tolled until the foreign body is discovered.

It is important to note that if you did not suspect or discover or a reasonable person would not have suspected or discovered your injury was due to medical negligence, then a three-year statute of limitations applies to malpractice claims: "the time for the commencement of a malpractice action shall be three years after the date of injury." If there is no tolling as discussed above (there are two other situations that may toll the statute), the three year portion of the statute presents the OUTSIDE LIMIT for filing suit.

Also, for general understanding of this area, there are different time limits for minors, depending upon the age at which they were injured and/or when such injuries are discovered.

Simple, no?

I suggest you contact a knowledgeable malpractice attorney to discuss how the statute applies in YOUR SITUATION.

John Mittelman

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John Robert Mittelman

Reputation Level 9

Answered over 2 years ago. Medical Malpractice Attorney in Temecula, CA.

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Sorry, the correct section for medical malpractice statute of limitations is Code of Civil Procedure Section 340.5, NOT 340.6.

John Mittelman

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Donald A Green

Reputation Level 10

Answered about 2 years ago. Medical Malpractice Attorney in Carlsbad, CA.

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In your situation I think so. The statute is tolled until negligence is discovered, but needs to be filed within one year of that discovery date, or within three years after the negligent act. I handle this type of malpractice and am in the San DIego region if you'd like to discuss: (760) 431-5290.

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