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
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
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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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