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Malpractice and neglect -- how does statute of limitations effect me

Concord, CA |

In Jan. 2011 I had wrist surgery on my right wrist for a cyst removal and partial torn ligament. Shortly after starting Pt, my Pt noticed something was wrong. He sent 2 notes to my doctor and during my follow up appointment, my doc said he was wrong, I needed to ouch past the pain to breakup scar tissue. He told me I needed to "fire" my PT. He ordered I see a different PT. Trusting the doc, I continued with a new Pt. While the new Pt said this isn't normal, she said I was making improvements. There were maybe 6 months the doc ordered more Pt without requiring a visit. After almost a year of Pt, the doc ordered another MRI and we found the ligament was completely torn. I tried to get a lawyer and was turned down twice due to statute of limitations. How does that apply since this is ongoing

In the first MRI before my surgery in Jan 2011, the doc told me he wasn't sure if the ligament was a complete or partial tare because the cyst was blocking the view. he told me he wouldn't know until he opened it up to fix. The 2nd MRI was ordered march 2012 where that showed the ligament was completely torn. I understand statute of limitations; however, I don't see how it applies here since treatment has never stopped. Also, is statute of limitations only a year? Doesn't seem like enough time!! There is documentation where the doc put on the order I see the new PT

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Attorney answers 3


In California, pursuant to California Code of Civil Procedure § 340.5, a medical malpractice action for injury or death must be brought within one year from the date the claimant discovered the negligent act, but no more than three years from the date of injury.

Specifically, Code of Civil Procedure Section 340.5 provides as follows:

"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."

For retained foreign body cases, the statute is tolled until the claimant discovers or should have discovered the injury.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.


Since you are having ongoing continuing treatment with the physician, I think it is only reasonable that the two year statute of limitation should start to run from the point in time you knew or should have known of the malpractice. You really need to see an attorney who specializes in medical malpractice. Call your local Bar Association in Contra Costa County and request a referral.

I hope this is helpful.

John N. Kitta

This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.



This was very helpful. Thank you!


The SOL is tricky, but you may still have time to file. Call the San Diego County Bar Association and get a list of med mal attorneys. Good luck!

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