Personal Injury Law

Sacramento Nursing Facility Doctors Sued For Malpractice, Part 3 of 8

By Moseley Collins, Esq.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

The Complaint Properly Explains the Basis for Tolling (Due to Delayed Discovery) and Should be Allowed to Proceed.

The delayed discovery rule allows a plaintiff to bring a claim beyond the one year limitation period for medical malpractice if the criteria is met. The issue in this case is whether a plaintiff who does not have a reasonable basis for suing within one year and is trying diligently to determine the facts is precluded from suing later when the facts are discovered within the outer three year limit. The case law says that the plaintiffs can proceed.

A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (Code Civ. Proc, § 312 [ Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued ]; Norgart, supra, 21 Cal.4th at p. 397.) In other words, statutes of limitation do not begin to run until a cause of action accrues. (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 487;
Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 806.)

The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have "information of circumstances to put [them] on inquiry" or "if they have" the opportunity to obtain knowledge from sources open to [their] investigation.

Full post as published by Sacramento Injury Lawyer Blog on January 30, 2010 (boomark / email).