 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Russell v. Stanford University Hospital5/6/1996
BAMATTRE-MANOUKIAN, J.:
Code of Civil Procedure section 340.5, as amended by the 1975 Medical Injury Compensation Reform Act (MICRA), requires than an action for injury or death based upon a health care provider's alleged professional negligence be commenced within three years after the date of injury, or one year after the plaintiff discovers or with reasonable diligence should have discovered the injury, whichever period expires first.
Code of Civil Procedure section 364, enacted by MICRA, provides that no such action may be commenced unless the defendant has been given at least 90 days' prior notice of intention to commence the action. Subdivision (d) of section 364 provides that "if the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice."
In Woods v. Young (1991) 53 Cal. 3d 315, 807 P.2d 455, 279 Cal. Rptr. 613, the Supreme Court held that when section 364's 90-day notice of intent was served within the last 90 days of section 340.5's one-year discovery period, the one-year period would be tolled for 90 days and not merely extended by 90 days from the date of notice, with the result that in such a case a plaintiff would have a period of one year and 90 days from actual or constructive discovery in which to commence the lawsuit. (53 Cal. 3d at p. 325.) The Supreme Court explicitly noted that section 340.5's three-year outside limitation period was not in issue in that case.
In the medical malpractice action before us the plaintiff discovered her injury, in the requisite sense, less than a year before the end of the three-year period, gave her section 364 notice 51 days before the end of the three-year period, and commenced her action 90 days after her section 364 notice and 39 days more than three years after the date of injury. Had the three-year period been tolled for 90 days, as the one-year period was held to be tolled in Woods, the plaintiff's complaint would have been timely.
But section 340.5 also provides that "in no event shall the time for commencement of legal action exceed three years unless tolled for any of" three specific circumstances which do not include giving of a section 364 notice within the last 90 days of the three-year period. Read literally, section 340.5's in-no-event provision directly conflicts with section 364's extension provision with respect to the three-year period. Taking the position that the in-no-event provision precluded extension of the three-year period, the defendants moved for summary judgment on the ground that the plaintiff's action was time-barred. The superior court granted the motion.
The plaintiff appeals. To reconcile the apparently conflicting provisions of sections 340.5 and 364 we have applied settled principles of statutory construction. Under these principles we hold that a section 364 notice given 90 days or less before the end of section 340.5's three year period operates, notwithstanding section 340.5's in-no-event provision, to toll the three-year period in the manner described by the Supreme Court, with respect to the one-year discovery period, in Woods.
Our Conclusion differs from that reached in Rewald v. San Pedro Peninsula Hospital (1994) 27 Cal. App. 4th 480, 483, 487, decided after the plaintiff commenced this action but before the defendants moved for summary judgment. In Rewald the Court of Appeal concluded that a section 364 notice given less than 90 days before section 340.5's three-year period expired could not operate to toll (or, implicitly, to extend) the three-year period. The superior court, as required by A
Page 1 2 3 4 5 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|