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Hollingsworth v. Kofoed5/10/1996
PETERSON, P. J.
Appellant Jesse W. Hollingsworth contends the trial court erred by instructing the jury that appellant's cause of action for medical malpractice was barred if it was not brought within the time period provided by the one-year statute of limitations set forth in Code of Civil Procedure section 340.5. Appellant contends the trial court should instead have held the statute of limitations was tolled while appellant was in prison. We hold, in the published portion of this opinion, that the provisions of former section 352 (now section 352.1), tolling statutes of limitation as to prisoners in custody, are inapplicable to medical malpractice actions which are controlled by the limitations period established by section 340.5. We, therefore, affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
Appellant was imprisoned at the California Medical Facility in Vacaville on August 9, 1990, when he fell through a ceiling while trying to fix a suction fan on an air conditioner. Appellant broke his right ankle. He was treated for the injury by respondent orthopedic surgeon, John Charles Kofoed, M.D., an independent contractor employed to treat certain injuries to prisoners.
The injury to appellant's ankle did not heal properly. As a result, appellant's right foot is bent inward, and he still has to use crutches. Respondent believed the fracture's failure to heal properly was due to appellant's diabetes and an associated lack of proper blood flow to his lower extremities; respondent believed another operation would be necessary to set the fracture correctly.
Appellant, however, believed from about November of 1990 that respondent had done "a bad job " in setting the fracture. In another document appellant prepared on April 28, 1991, he refused to allow respondent to operate again on the ankle.
Appellant brought this action on July 28, 1992, alleging medical malpractice against respondent and others, after appellant had been released from custody for about 9 months, about 21 months after November 1990, and about 16 months after the period in April 1991 when appellant refused to allow respondent to continue to treat his leg, because appellant felt he was the victim of malpractice by respondent. Respondent asserted as an affirmative defense that the action was barred by the one-year discovery statute of limitations set forth in section 340.5.
There were extensive pretrial proceedings, which we briefly summarize. Respondent made a motion for summary judgment based upon the one-year discovery statute of limitations set forth in section 340.5. The trial court denied the motion because respondent had given only 27 days' notice of the motion, not the required 28 days, and because the trial court believed issues of fact existed which would preclude summary judgment.
Later, appellant also made a motion for summary adjudication on the statute of limitations issue, contending section 340.5 was tolled while appellant was in prison, under the tolling provision for prisoners in section 352. The trial court granted this motion, finding the statute of limitations had been tolled during the period when appellant was imprisoned. Respondent filed a petition for writ relief (No. A067340) in this court (Division Five), which we granted; and the trial court vacated its order which had applied tolling to the section 340.5 statute of limitations.
Eventually the matter proceeded to trial. The trial court bifurcated the trial, with the issue of the application of the section 340.5 statute of limitations to be tried first; the trial court also ruled, consistent with our previous order, that the statute of limitations was n
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