STATUE OF LIMITATIONS

MICRA: Knowing When a Claimant Must Act

California’s landmark set of laws governing medical liability, the Medical Injury Compensation Reform Act of 1975 (MICRA) provides not only for a patient’s right to sue his or her physician, but also the responsibility not to sit on that right.

Usually simply referred to as the “statute of limitations,” California Code of Civil Procedure Section 340.5 requires that if an adult is going to sue a physician for professional negligence, that suit must be commenced within “three years after the date of the injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”

This three-year period is “tolled” for only three reasons: fraud, intentional concealment, and the presence of a foreign object in the patient’s body serving no therapeutic purpose. The courts have said that in the absence of any of these exceptions, the three-year outside limit applies “regardless of a patient’s belated discovery of her injury.”

In most instances, it is the one-year limit that allows a defendant to seek dismissal of an untimely suit. The one-year period begins to run when the plaintiff “is aware of both the physical manifestation of the injury and its negligent cause,” according courts interpreting Section 340.5. In fact, the law is even more demanding than the above statement may indicate. That is because the one-year statute will run when a patient (or an heir) forms a suspicion that negligence has caused an injury. In a landmark case from 1988, the California Supreme Court said that “So long as a suspicion (of wrongdoing) exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.”

The law is bit different for minors, to whom the one-year discovery limitation does not apply. Instead, a minor’s action for professional negligence must be brought “within three years from the date of the alleged wrongful act except that actions by a minor under the age of six years shall be commenced within three years or prior to his eighth birthday, whichever provides a longer period.” For example, a birth injury lawsuit can be brought until the child turns eight. A suit for an injury to a 10-year-old child may be brought until the child is 13.

Even 32 years after the passage of MICRA, lawyers are still asking courts to interpret the different provisions of Section 340.5. Such arguing notwithstanding, the law has helped bring some sense of timeliness to litigation over medical care in California.