About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

28 Ins. Counsel J. 269 (1961)
The Statute of Limitations in California Medical Malpractice Cases

handle is hein.journals/defcon28 and id is 271 raw text is: INSURANCE COUNSEL JOURNAL The Statute of Limitations in California Medical Malpractice Cases STERLING HUTCHESON AND DONALD G. SMEDLEY San Diego, California L N 1936 the California Supreme Court, in Huysman v. Kirsch, 6 Cal. 2d 302, 57 P. 2d 908 (1936), adopted the rule that in med- ical malpractice cases the statute of limita- tions does not necessarily commence to run on the date the defendant commits his al- legedly wrongful act. Rather, the statute starts only on the date that the plaintiff dis- covers, or in the exercise of reasonable dili- gence should have discovered, the cause of his ill health or injury. This rule was apparently the creation of the court, for the opinion in Huysman cites no previous malpractice authority. Instead, the court bases its rule upon analogy to in- dustrial accident decisions, holding that where an employee contracts silicosis from prolonged exposure to dust, the statute of limitations commences to run on his right to an award only when he discovers that he has the disease. In the twenty-four years since Huysman was decided the appellate courts of Cali- fornia have rendered fourteen following de- cisions, each dealing with the question of whether the plaintiff had discovered, more than one year before commencing his ac- tion, sufficient information concerning his cause of action to start the running of the limitations period. In all, then, there have been fifteen decisions on the question. In only three of them did the defendant medi- cal practitioner succeed with his conten- tion that plaintiff's action was barred. This note analyses those cases* from the viewpoint of the defense lawyer, with pri- mary emphasis on the question, Just what is it that plaintiff must discover in order to start the running of the statute? Introductory Comment Several points warrant introductory com- ment. Where plaintiff's cause of action de- pends upon factual causes, the statute of *See addendum, discussing an additional case. STERLING HUTCHESON is a partner in the San Diego law firm of Gray, Cary, Ames & Frye. He was born in Nanking, China, where his father was a medical missionary. He received his education at schools in Houston, Tex- as, and Pottstown, Penn- sylvania, and graduated from Princeton Universi- ty. He took his law at Stanford University where he was on the Law Re- view. Mr. Hutcheson has been engaged in the de- fense of malpractice cases for ten years as well as in general litigation. He is a member of the Interna- tional Association of Insurance Counsel and is on its Malpractice Committee and is currently chair- man of the San Diego County Bar Association Medi- cal-Legal Committee. • DONALD G. SMEDLEY is al- SO with the firm of Gray, Cary, Ames & Frye. Mr. Smedley, a native San Diegan, who completed his education at San Diego schools and graduated from San Diego State Col- lege, received his LL.B. degree from the Universi- ty of California at Berk- ley in 1951. He was elected to the Order of the Coif and is a member of the San Diego County Bar As- sociation and California Bar Association. limitations does not commence to run until plaintiff discovers those facts. It would ap- pear that the estoppel rule is essentially dif- ferent, in theory, from the Huysman mal- practice rule, although in three decisions in- volving malpractice the estoppel rule actual- ly was the basis of the court's ruling. Those three cases are discussed at the end of this note, separately from the fifteen cases ap- plying the Huysman rule. Next, it should be noted that the facts in the Huysman case involved a drainage Page 269 April, 1961

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most