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Is there statute of limitations for medical malpractice for failure to diagnose?

Beverly Hills, CA |

I had severe symptoms for 4 months including a cough that wouldn't go away, night sweats, chronic fever, bone pain, jaundice, swelling of limbs, distended abdomen, etc. I saw my primary care physician every two weeks and was prescribed allergy medicine, inhalers, etc. Finally I went to the ER when my fevers would reach 104 and the ER doc ordered extensive testing right away. I was hospitalized, diagnosed with Stage IV leukemia and nearly died. I'm in remission now and this was 6 years ago. Is the doctor liable at all for failure to diagnose when there is plenty of documentation showing the symptoms I complained of at each visit?

Attorney Answers 4


  1. "Is there statute of limitations for medical malpractice for failure to diagnose?" --- Yes. See Code of Civil Procedure section 340.5 which reads in pertinent part: "In an action for injury or death against 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 the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. 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. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence."

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  2. In a nutshell, the SOL for medical malpractice in California is either one year from discovery of the malpractice, or three years -- which ever is shorter. Unfortunately, it sounds like you're beyond the applicable SOL.

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  3. In your state, 1 yr from discovery of the malpractice, or 3 yrs, which ever is shorter


  4. Sorry for your experience. Way too late to file now.

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