We are here called upon to construe Code of Civil Procedure section 340.5, the statute of limitations for medical malpractice suits, as it applies to wrongful death actions.
At the time this action arose, section 340.5 provided in relevant part: "[i]n an action for injury or death against a physician or surgeon ... based upon such person's alleged professional negligence ... [the statute of limitations shall be] four years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever first occurs."
The instant controversy centers on the meaning of the word "injury" as used in the statute to designate the event which starts the running of the overall four-year limitation period, and the discovery of which is the basis of the shorter one-year limitation.
Plaintiffs, heirs of Mrs. Virginia Larcher, allege that malpractice committed by defendant doctors caused her death. They also seek a judgment against a medical clinic in which the doctors allegedly worked.
The court granted a motion to strike all causes of action against these defendants, apparently on the ground that plaintiffs were barred by the one-year limitation of section 340.5.
Defendants' motion was based in part on facts stated in the complaint.
Presented by defendants with their motion was evidence which tended to show that the decedent and at least one of the plaintiffs — decedent's husband — were made aware of the physical harm allegedly produced by the malpractice as early as July 1968. This evidence was the file in a product liability action initiated in July 1972 by decedent and her
The earlier complaint clearly revealed that decedent and her husband, as well as the attorney for all the plaintiffs in this action, were aware of the potentially negligent cause of decedent's injuries no later than the July 1972 date when the prior lawsuit was filed. Indeed, the 1972 complaint states that "within one year from the date of filing the within action ... plaintiff first discovered that there was a relationship between the use of the medication described and the injury suffered...." Defendants also introduced the affidavit of one Dr. Assam which declared that in August 1972 he had "fully discussed" with the attorney for the plaintiffs here "the possible causal relationship between the medical condition of plaintiffs' decedent and the use by plaintiffs' decedent of a drug known as Ortho Novum...."
The death of decedent, according to the complaint filed in the instant matter, occurred on January 12, 1974. The present wrongful death action was promptly filed slightly more than two months later, on March 21, 1974. On March 25, 1974, the earlier product liability action of decedent and her husband was dismissed with prejudice.
The trial court apparently concluded that, even tested by summary judgment standards, the foregoing evidence established the plaintiffs "discovered" their decedent's injury some time in 1972, over a year before the filing of the wrongful death action.
Plaintiffs do not dispute this factual determination. Instead they contend the trial court erred in ruling that in a wrongful death action the one-year period of section 340.5 begins to run on the discovery by plaintiffs of their decedent's injuries. It is plaintiffs' theory that the word "injury" in the statute should be read to relate the commencement of the one-year period to the discovery by plaintiffs of the specific "injury" on which their suit is based, namely the allegedly wrongful death of their decedent.
Under the interpretation given section 340.5 by both the trial court and the defendants, on the other hand, the word "injury" as used
Clearly the trial court's interpretation of the word "injury" in section 340.5 can produce a harsh result. It would bar many otherwise meritorious causes by the heirs of malpractice victims, simply because the victim remained alive for a year after the discovery of his maltreatment. And this result would follow, not from a lack of diligence by the heirs, but because the one-year limitation period operated to extinguish the cause of action before it ever accrued — i.e., before the heirs had any opportunity to file suit.
We have found no persuasive evidence of a legislative purpose to so truncate the recovery rights of the heirs of malpractice victims.
Prior to 1970, when section 340.5 was enacted, the statute of limitations for personal injury and wrongful death litigation was provided by Code of Civil Procedure section 340, subdivision 3. That statute set the limitation period for both kinds of actions at one year, but failed to identify the event which triggered the running of the period. However, judicial decisions firmly established the principle that "`In a suit for malpractice the statute of limitations commences to run when the plaintiff discovers the injury and its negligent cause or through the exercise of reasonable diligence should have discovered it.'" (Italics deleted.) (Whitfield v. Roth (1974) 10 Cal.3d 874, 885 [112 Cal.Rptr. 540, 519 P.2d 588]; see also Huysman v. Kirsch (1936) 6 Cal.2d 302, 312 [57 P.2d 908]; Comment (1974) 2 Pacific L.J. 663, 665-666.)
This rule of "delayed accrual" applied to medical malpractice actions for wrongful death, as well as those for personal injuries. (Wohlgemuth v. Meyer (1956) 139 Cal.App.2d 326, 331 [293 P.2d 816].) In personal injury suits, of course, the statute was triggered by the plaintiff's discovery of the negligent cause of his own physical injury. (See Huysman, supra; 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 316, pp. 1158-1160.) However, in wrongful death actions the limitation period began to run only upon the death of the decedent and the discovery of that death's
In both types of malpractice actions the "discovery doctrine," as judicially developed prior to 1970, could thus operate to postpone the commencement of the limitation period indefinitely, i.e., as long as the plaintiff had no knowledge — whether actual or presumptive — of the negligent cause either of his injury or of his decedent's death. Concern that this "open-ended" statute of limitations was contributing to the costs of medical malpractice insurance led to repeated legislative efforts to modify the statute. (See Comment (1974) 2 Pacific L.J. 663, 667-671.)
One of these proposals, Senate Bill No. 362 of the 1970 Regular Session, provided an absolute maximum four-year period from the date of injury in which to commence a malpractice action regardless of whether the plaintiff knew or should have known the cause of the injury. (Id. at p. 669.) This bill eventually became section 340.5, but not before the Legislature had added a tolling provision which substantially abrogated the absolute quality of the limitation period. (Id. at pp. 669-671.)
Defendants seem to argue from the premise that the undiluted purpose of section 340.5 was to lower malpractice insurance rates by enabling insurers to reduce the amount of reserves they need maintain to meet potential claims. They urge that because a statute of limitations in wrongful death actions which extinguishes a large number of claims before they accrue might substantially curtail malpractice exposure, the legislation should be construed in conformity with that end.
In the absence of any explicit statutory provision or persuasive legislative history it would be groundless speculation to assume, as defendants invite us to do, that the sole purpose of section 340.5 was to reduce the potential malpractice liability of doctors, and hence that the section should be read to drastically alter the previous statute of limitations for wrongful death actions.
On the contrary, when the Legislature approved section 340.5 it acted against a backdrop of statutory and judge-made law which indicated that the relevant "injury" in wrongful death actions, for statute of limitations purposes, was the death of the plaintiff's decedent. As noted above, it was well established prior to 1970 that the statute of limitations for wrongful death actions began to run on the decedent's death (Marks v. Reissinger (1917) 35 Cal.App. 44, 50-53 [169 P. 243]) or, in medical malpractice cases, on the discovery of that death's negligent cause (Wohlgemuth v. Meyer (1956) supra, 139 Cal.App.2d 326).
This background of well-established principles regarding the statute of limitations and the concept of "injury" in wrongful death actions suggests that section 340.5 has a more limited purpose than urged by defendants. The objective is to circumscribe the "discovery" doctrine as it had previously been applied in wrongful death litigation, in the same way that section 340.5 modified the doctrine in personal injury cases.
Defendants insist this interpretation of the statute is at odds with its language. They point out that at the outset of section 340.5 the Legislature refers to actions for "injury or death." According to defendants, the statute thereby makes a rigid distinction between the injury to and the death of a medical patient. Apparently invoking the maxim inclusio unius est exclusio alterius, defendants conclude that the statute's later use of the single word "injury" in describing the limitation periods impliedly excludes a reference to the patient's death.
The maxim, however, must give way before the evidence of a contrary legislative intent identified hereinabove. (Fields v. Eu (1976) ante, pp. 322, 332 [134 Cal.Rptr. 367, 556 P.2d 729].) In addition, defendants' argument assumes that by use of the word "or" the Legislature intended to connote mutual exclusion. This premise is contradicted by the language which immediately followed the reference to "injury or death" in the statute as originally enacted. The Legislature there set forth a long list of partially overlapping classes of medical practitioners and tortious acts to which the statute applied.
The judgment appealed from is reversed.
Wright, C.J., McComb, J., Tobriner, J., Sullivan, J., Clark, J., and Richardson, J., concurred.
The Legislature made significant changes in this section in 1975. The limitation period was shortened from four to three years after the date of injury, while the alternative one-year period was retained. The tolling provisions of the statute were altered substantially, and language was added governing actions brought by minors. The scope of the statute was modified to include actions against "a health care provider based upon such person's alleged professional negligence," and definitions of "health care provider" and "professional negligence" were added.
However, the language we construe here, providing that the limitation periods begin on "the date of injury" or the date "the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury," remains unchanged in the 1975 revision.
Defendants further contend that the voluntary dismissal with prejudice of plaintiff Basil Larcher's earlier product liability action operates to bar his present suit for wrongful death. However, this defense was not presented to the trial court, and the circumstances of the dismissal are not apparent from the record before us. Defendants' claim clearly "`contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial.'" (Ward v. Taggert (1959) 51 Cal.2d 736, 742 [336 P.2d 534].) We therefore express no view on the point.