The Discovery Rule and the One-year Statute of Limitations for Medical Malpractice Actions.
California Code of Civil Procedure section 340.5 sets forth the applicable statute of limitations for medical malpractice actions. (See Graham v. Hansen (1982) 128 Cal.App.3d 965, 972, 180 Cal.Rptr. 604). This section provides that a plaintiff must commence his or her action "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." (See California Code of Civil Procedure section 340.5). Although the three-year limitations period is tolled for proof of fraud, intentional concealment, or the presence of a foreign body, the one-year period is not. Accordingly, a medical malpractice suit must be filed within one year after the patient discovers or should have discovered the "injury," regardless of extenuating circumstances. (See Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897, 218 Cal.Rptr. 313). The term "injury" as used in section 340.5, "means both a person's physical condition and its negligent cause." (See Knowles v. Superior Court (Serafina Labo) (2004) 118 Cal.App.4th 1290, 1295, 13 Cal.Rptr.3d 700, 703; Gutierrez v. Mofid (1985) 39 Cal.3d 892, 218 Cal.Rptr. 313). Accordingly, the one-year statute of limitations begins to run "when the plaintiff suspects or should suspect that her injury was caused by wrongdoing." (See Kitzig v. Norquist (2000) 81 Cal.App.4th 1384, 1391, 97 Cal.Rptr.2d 762, 767, quoting Jolly v. Eli Lilly Co. (1988) 44 Cal.3d 1103, 1110, 245 Cal.Rptr. 658; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398, 87 Cal.Rptr.2d 453). "In general, once a patient knows, or by reasonable diligence should have known, that he has been harmed through professional negligence, he has one year to bring his suit." (See Barber v. Superior Court (Eckhardt) (1991) 234 Cal.App.3d 1076, 1082, quoting Gutierrez v. Mofid (1985) 39 Ca.3d 892, 896, 218 Cal.Rptr. 313, internal quotations omitted). "[T]he limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry." (See Jolly, supra, at 1111). "[A] person need not know of the of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period." (See Knowles, supra, at 1295, citing Norgart, supra, at 397-398, and Jolly, supra, at 1110-1111, emphasis in original). "[A] 'presumptive' knowledge is inferred when the patient becomes aware of facts which would put a reasonable person on inquiry, or the patient's suspicions are aroused and she is alerted to the need for investigation." (See Barber, supra, at 1082-1083). Because "the means of knowledge are equivalent to knowledge, constructive knowledge will commence the running of the statute of limitations, even though it might not have occurred to plaintiff to bring suit." (See Graham, supra, at 973, citing cases). "Facts and events which inform a person that something is wrong, or should be looked into, are usually recognizable by the ordinary person. One example is pain." (See Graham, supra, at 974, quoting from McGee v. Weinberg (1979) 97 Cal.App.3d 798, 804, 159 Cal.Rptr. 86). "It is the occurrence of some such cognizable event rather than knowledge of its legal significance that starts the running of the statute of limitations." (Id.).