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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
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.

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

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