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Court of Appeal, Fourth District, Division 1, California.

Karen Kay LARCHER, etc., et al., Plaintiffs and Appellants, v. John P. WANLESS et al., Defendants and Respondents.

Civ. 14314.

Decided: March 23, 1976

Harney, Bambic & Moore, Los Angeles, Schall, Butler, Boudreau & Gore, Inc., by W. J. Schall, San Diego, for plaintiffs and appellants. Holt, Rhoades & Hollywood by Dan H. Deuprey, San Diego, for defendants and respondents.

Karen Kay Larcher, et al., plaintiffs, appeal a judgment of dismissal following an order granting a motion to strike their complaint for wrongful death against defendants John P. Wanless, M.D., et al.

The wrongful death action was filed in March 1974, within one year of the decedent's death, but more than four years after the alleged act of malpractice, which was the prescribing of Ortho Novum contraceptives. The trial court held the action was barred by the statute of limitations under Code of Civil Procedure section 340.5.

Code of Civil Procedure section 340.5 states:

‘In an action for injury or death against a physician . . . or a licensed hospital as the employer of any such person . . . [the action must be commenced within] four years after the date of injury or one year after the plaintiff discovers, or . . . should have discovered, the injury, whichever first occurs.’ [Emphasis added.]

Larcher, et al argue their action was timely filed because in a wrongful death action the ‘date of injury’ refers to the date of death.

In the opening phrase of the statute a distinction is made between an action for personal injury and an action for wrongful death. Having first distinguished the two actions, the statute then twice refers to injury alone as the event which begins the running of the limitations period for either type of action. If the Legislature intended to preserve an indefinite length of time in which a wrongful death action might accrue, which was the situation before section 340.5 became law (Kaiser Foundation Hospitals v. Superior Court, 254 Cal.App.2d 327, 333, 62 Cal.Rptr. 330), it could have achieved its purpose by specifying death as the event which begins the limitations period. Instead, the Legislature omitted any reference to death as commencing the period of limitations and this omission is repeated in its most recent amendment to the statute.1

Actions for injury or death caused by malpractice are no longer governed by Code of Civil Procedure section 340(3) (Witkin, Cal.Proc. Vol. II, § 317, p. 1153). Section 340(3) limited either type of action to one year but did not designate the occurrence which would start the running of the limitations period. Judicial interpretation placed the beginning of the period at the date of the ‘injury’, which was the date the harm manifested itself (Marsh v. Industrial Acc. Com., 217 Cal. 338, 345, 18 P.2d 933; Huysman v. Kirsch, 6 Cal.2d 302, 309, 312, 57 P.2d 908; Rawlings v. Harris, 265 Cal.App.2d 452, 455, 71 Cal.Rptr. 288; Agnew v. Larson, 82 Cal.App.2d 176, 179, 185 P.2d 851).

Section 340.5 supersedes this line of cases by expressly providing the limitations period runs for one year after the injury is discovered.2 Thus, the date of injury no longer necessarily coincides with the date of discovery, but may precede it. Under section 340.5 the date of injury is the date on which the alleged act or omission constituting professional negligence occurs.

The determination injury is the act of malpractice is further supported by the apparent purpose of section 340.5. In construing a statute, the objective to be sought is of prime consideration (People ex rel S. F. Bay Etc. Com. v. Town of Emeryville, 69 Cal.2d 533, 543–544, 72 Cal.Rptr. 790, 446 P.2d 790). Section 340.5 imposes a maximum period of four years from the date of injury to bring any type of action. No such limitation is contained in section 340(3). The effect of this new provision may enable insurance companies to restrict their reserves according to the four year limitation and may result in economies in the cost of malpractice insurance (2 Prac.Law J., 663, 668 (9171)), rather than indefinite exposure to liability for unknown causes.3

Unless the limitations period is tolled, section 340.5 bars a cause of action for any death occurring more than four years after the causal injury (Neel v. Magana, Olney, Levy, Cathcart ? Gelfand, 6 Cal.3d 176, 181, 98 Cal.Rptr. 837, 491 P.2d 421).

We hold in a death case the date of injury causing the death is the time when the limitations period begins.

Larcher, et al complain the limitation on wrongful death actions based on medical malpractice favor health care providers as a class, and violates the constitutional requirement of equal protection of laws.

A wrongful death action is a statutory creation (Code Civ.Proc., § 377) rather than a constitutional right. Moreover, this theory was not raised in the trial court so as to allow wanless, et al to present thoroughly facts on which the court could determine whether a rational basis for the classification exists, such as, to name a few, the increasing cost of medical and health care, the skyrocketing cost of malpractice insurance, and a shortage of medical doctors. Generally theories which neither the trial court nor Wanless, et al had any opportunity to consider at the trial level are not properly presentable for the first time on appeal (Rivas v. Ayala, 208 Cal.App.2d 239, 242–243, 25 Cal.Rptr. 48).

Larcher, et al next contend the statute of limitations was tolled by Code of Civil Procedure section 352 as to the three plaintiffs who were minors when the action was filed.

Code of Civil Procedure section 352 expressly relates only to actions which have actually accrued. No cause of action for wrongful death accrued against anyone to whom section 340.5 applies, because the death occurred more than four years after the alleged causal injury. The limitations period is not tolled on a nonexistent cause of action.

Lastly, Larcher, et al claim Rees-Stealy Medical Clinic as the employer of its codefendants is not protected by section 340.5 because it is a clinic rather than a licensed hospital.

Wanless, et al do not contest this argument. However, they contend any liability of the clinic arises under the doctrine of respondeat superior, and the dismissal of the action against its agents bars any further action against the clinic as their principal.

The statute of limitations operates on the remedy and does not extinguish the right (Mitchell v. County Sanitation Dist., 150 Cal.App.2d 366, 370, 309 P.2d 930). The clinic was not exonerated by the procedural bar which was found to exist in favor of its agents. When this lawsuit was filed, Code of Civil Procedure section 340.5 neither applied to Rees-Stealy as a clinic nor as an employer of those to whom the statute does apply.4

The judgment is reversed as to Rees-Stealy Medical Clinic and affirmed as to all other defendants.


1.  1975–76 Second Extraordinary Session, Ch. 2, § 1.192.

2.  ‘. . . or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.’

3.  Although other extrinsic aids to determine legislative intent are generally more persuasive (Friends of Mammoth v. Board of Supervisions, 8 Cal.3d 247, 258, 104 Cal.Rptr. 761, 502 P.2d 1049), the interpretation of an absolute limit being placed on all actions is supported by sworn declarations of Senators Song, Biddle and Bradley, who voted in 1970 for passage of section 340.5. (In 1970 Biddle was an Assemblyman.) In connection with this lawsuit, they declared the Legislature intended section 340.5 to be the sole and exclusive statute of limitations for all actions based on malpractice whether they be for personal injury or for wrongful death, and to place an absolute time limit on the commencement of such actions.

4.  In 1975 section 340.5 was amended to cover ‘a health care provider’, defined to include a licensed clinic.

GERALD BROWN, Presiding Justice.

COUGHLIN* and WHELAN,* JJ., Assigned, concur.

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