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What is the statute of limitation for medical malpractice?

Most Californians understand that a legal claim for damages must be commenced before the statutory deadline for bringing such claims expires. However, the question of what is the length of time for bringing a medical malpractice case requires a lengthy answer because the law that defines the limitation period contains a number of exceptions.

The general rule is fairly simple. An action for damages caused by an act of negligence by a health care provider must be commenced within three years after the injury occurred or one year after the date on which the plaintiff discovers the injury, whichever is the first to occur. The date of discovery is the date of actual discovery or the date on which the plaintiff, using reasonable diligence, should have discovered the injury. As might be expected, determining the date on which the plaintiff should have discovered the injury can provoke significant differences of opinion.

The prescribed limitation period can be extended - or tolled, to use the legal term - by any of the following: (1) fraud by the alleged tortfeasor; (2) intentional concealment; or (3) the presence of a foreign substance or device having no medical purpose in the person of the plaintiff. If the claim belongs to a minor who was under the age of six when the injury occurred, the malpractice claim must be filed within three years of the injury or on the child's eighth birthday, whichever provides the longer limitation period.

Determining the date on which the limitation begins to run can be difficult. Therefore, anyone who has suffered an injury or lost a loved one due to a health care provider's negligence may wish to seek advice from an attorney who is experienced in medical malpractice litigation.

Source: California Code of Civil Procedure ยง350.5, accessed on July 23, 2017

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