Tuesday, January 13, 2015
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C.A. Applies Tolling Statute to Medical Malpractice Claims
By KENNETH OFGANG, Staff Writer
A statute that tolls the statute of limitations on a claim where the defendant has paid an unrepresented injured party a portion of his or her damages and has not advised the injured party of the filing deadline applies to the one-year limitation for the filing of medical malpractice suits, the Court of Appeal for this district ruled yesterday.
Div. Six affirmed a judgment for more than $285,000 against a Pismo Beach surgical facility. Jurors agreed that the plaintiff suffered an infection after knee surgery because bacteria later found on a sponge used during the surgery “survived the sterilization process” performed by the defendant’s employees.
The surgery took place in September 2010. Coastal Surgery Institute paid Charles Blevins a little over $4,000 the following month to cover medical expenses for treatment of the infection.
In January 2012, Blevins sued for malpractice. Coastal conceded that it paid Blevins 15 months earlier, that Blevins was not represented by counsel at the time, and that it did not advise him of the one-year statute of limitations, but argued that the statute nonetheless barred his claim.
Timely Action
The plaintiff’s counsel argued the action was timely under Insurance Code §11583, which provides for tolling of the statute of limitations in situations like Blevins’. The defense argued that §11583 does not apply to medical malpractice actions.
San Luis Obispo Superior Court Judge Martin Tangeman agreed with the plaintiff, as did Justice Kenneth Yegan in his opinion for the Court of Appeal.
Yegan rejected the argument that by enacting specific tolling provisions as part of the Medical Injury Compensation Reform Act of 1975, the Legislature intended to make all other tolling provisions inapplicable to suits governed by MICRA.
MICRA provides that a malpractice suit must be brought within three years of the malpractice, or within one year of when the plaintiff discovered it or would have discovered it by the exercise of due diligence, whichever is earlier.
It also provides, however, that:
“In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.”
There is also a 90-day tolling period that applies when the plaintiff gives notice of intent to sue before the original limitations period expires.
Non-MICRA Statute
The correct reading of the statutes, Yegan said, is that a non-MICRA statute of limitations may not toll the three-year period, but may toll the one-year period.
He cited Belton v. Bowers Ambulance Service (1999) 20 Cal.4th 928, in which the court held that the one-year period was tolled during the time that the plaintiff was a prisoner, pursuant to a non-MICRA tolling provision.
Applying §11583 does not expose medical professionals to endless liability, nor would it “open up a can of worms” by requiring defendants to calculate statute of limitations dates, as contended by the defendant, Yegan said. Defendants still have the protection of the three-year statute, the justice noted, and are only required to notify the potential plaintiff of the existence of the statute, not the limitations date.
Defendant’s Claim Rejected
Yegan went on to reject the defendant’s claim that the jury should have been allowed to determine whether the payment to Blevins was mutually intended to be a full settlement, rendering §11583 inapplicable. Given the lack of a signed release, the justice said, a ruling for the defendant on that issue would be inconsistent with the remedial purpose of the statute.
Nor, he said, did Tangeman err in rejecting a proposed defense instruction on the liability of the sponge manufacturer, which paid Blevins a $100,000 settlement that was deducted from the damages found by the jury. The defendant, Yegan concluded, failed to present substantial evidence that the sponges were defective when the manufacturer put them on the market.
The defense, Yegan explained, claimed that the sponges failed to kill the bacteria because they lacked an adequate amount of preservative. But there was no testimony as to how much preservative was necessary, the justice noted.
The case is Coastal Surgery Institute v. Blevins, 15 S.O.S. 169.
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