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

Aaron DONABEDIAN, a minor, By and Through Julieann DONABEDIAN, his guardian ad litem, Plaintiff, v. Gene A. MANZER, M.D., Redwood Medical Clinic, Sequoia Hospital District, Defendants.


Decided: March 26, 1984

Freidberg Law Corporation, Rex-Ann S. Gualco, Sacramento, for plaintiff. Anderson, Galloway & Lucchese, Martin J. Everson, Oakland, Richard G. Logan, Oakland, for defendants Gene A. Manzer, M.D. and Redwood Medical Clinic. Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Michael J. Brady, Mark G. Bonino, Redwood City, for defendant Sequoia Hosp. Dist.

On this appeal we are concerned with the interpretation of the state's medical malpractice statute of limitations, adopted 1975, by the amendment to Code of Civil Procedure section 340.5 (hereafter simply section 340.5).

Our task, indeed our only task, is to determine the legislative intent, and purpose, in the 1975 amendment to section 340.5.

“The fundamental rule of statutory construction is that the court should ascertain the legislative intent so as to effectuate the purpose of the law. ”  (Moore v. Panish (1982) 32 Cal.3d 535, 541, 186 Cal.Rptr. 475, 652 P.2d 32;  Enterprises Residents etc. Committee v. Brennan (1978) 22 Cal.3d 767, 771–772, 151 Cal.Rptr. 1, 587 P.2d 658;  People v. Navarro (1972) 7 Cal.3d 248, 273, 102 Cal.Rptr. 137, 497 P.2d 481.)

Plaintiff Aaron Donabedian, a 10-year-old quadriplegic boy, commenced an action, January 31, 1980, against the several above-named defendants for damages for medical malpractice, alleging that his physical disability proximately resulted from their negligence in and about the circumstances of his birth on February 23, 1970.

The second amended complaint (hereafter complaint), as found relevant, alleged the following:

“The statute of limitations so far as it relates to the within causes of action is tolled in that the negligence and tort of the defendants named here was known only to the said defendants and CONCEALED from the plaintiff and his parents.   After the birth of plaintiff, the relationship of doctor and patient was a continuing one until September 1974, and plaintiff's parents were unaware of the cause and nature of the injuries sustained by plaintiff.   In addition, plaintiff's mother exercised reasonable diligence in attempting to discover the negligent cause of plaintiff's injuries;  namely, Julieann Donabedian, plaintiff's mother, consulted an attorney sometime after February 2, 1974, and in January 1975, this attorney refused to accept employment.   In addition, she consulted physicians in this matter inquiring as to the cause of plaintiff's injuries and was never informed that plaintiff's injuries were a result of negligence at or prior to his birth.   Plaintiff's parents were unaware that plaintiff had a cause of action until sometime after September 27, 1979, when all medical records were reviewed by plaintiff's present attorneys.”  (Our emphasis.)

General demurrers to the complaint were filed by the defendants on the ground, among others, that the purported causes of action were barred by Code of Civil Procedure section 340.5.

The demurrers were sustained by the superior court without leave to amend.   The ruling was attended by the following judicial comment:  “There is no evidence of a legislative intent to allow exceptions other than those listed in Section 340.5 of the Code of Civil Procedure in medical malpractice actions by minors.  Civil Code Section 29 is no longer controlling.”

The appeal is from the judgment dismissing the action, which was thereafter entered.

Having considered the record before us and the contentions of the respective parties, we conclude, for the reasons we now state, that the judgment should be reversed and the cause remanded to the superior court, thus to give plaintiff an opportunity to amend his complaint stating, if he can, a cause of action in accordance with the views expressed in this opinion.

“In general, a statute of limitations is enacted as a matter of public policy ․, to afford repose by giving security and stability to human affairs.”  (Valley Circle Estates v. VTN Consolidated, Inc. (1983) 33 Cal.3d 604, 615, 189 Cal.Rptr. 871, 659 P.2d 1160.)  “Statutes of limitations ․ are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.   The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.”  (Telegraphers v. Ry. Express Agency (1944) 321 U.S. 342, 348–349, 64 S.Ct. 582, 586, 88 L.Ed. 788;  Lackner v. LaCroix (1979) 25 Cal.3d 747, 751, 159 Cal.Rptr. 693, 602 P.2d 393.)

But nevertheless the growth of our law, in what has seemed to be proper cases and where conflicting public interests appeared, has extended statutes of limitations beyond their original statutory terms.   Particularly in the field of torts, statutes of limitations have been held to commence running, not upon commission of the wrongful act, but upon its later discovery, or accrual of injury, or damage therefrom, or such point as the wrongful act, or injury, or damage, reasonably should have been discovered.   The exception has come to be known as the common-law “rule of discovery.”   And where a cause of action was vested in a minor, the statute of limitations thereon was judicially, and later legislatively, held to commence running upon his attainment of the age of majority.  (See Code Civ.Proc., § 352, subd. (a)(1).)

Under these exceptions, it will be seen, the “rule of discovery” might extend the statute of limitations throughout a tort claimant's lifetime, and the claim of a child at least throughout the period of his minority of 18 years.

Such statutes also came to be known as “open ended” and “long tailed.”

Yet, since it was a rare tort whose wrongful act and injury were not soon discovered and an action thereon promptly commenced, such extensions of and exceptions to the statutes appeared to be in the public interest, and to effect substantial justice in the infrequent cases to which they applied.

But about 10 years ago growing concern arose that the application of such rules to medical malpractice cases and the attending cost of medical malpractice insurance was substantially contributing to the accelerating costs of medical care.   The matter received judicial recognition by Larcher v. Wanless (1976) 18 Cal.3d 646, 655, 135 Cal.Rptr. 75, 557 P.2d 507, pointing out that:  “Concern [had arisen] that this ‘open-ended’ statute of limitations was contributing to the costs of medical malpractice insurance.”

Finally, in 1975, California's Governor issued a proclamation convening the state's Legislature in extraordinary session.   He stated (our emphasis):


“The cost of medical malpractice insurance has risen to levels which many physicians and surgeons find intolerable.   The inability of doctors to obtain such insurance at reasonable rates is endangering the health of the people of this State, and threatens the closing of many hospitals.   The longer term consequences of such closings could seriously limit the health care provided to hundreds of thousands of our citizens.

“In my judgment, no lasting solution is possible without sacrifice and fundamental reform.   It is critical that the Legislature enact laws which will change the relationship between the people and the medical profession, the legal profession and the insurance industry, and thereby reduce the costs which underlie these high insurance premiums.

“Therefore, in convening this extraordinary session, I ask the Legislature to consider:  [among other things] setting a reasonable statute of limitations for the filing of malpractice claims.”  (See Stats.1975.)

At the extraordinary session, the Legislature found itself in agreement.   It declared (again, the emphasis is ours):

“The Legislature finds and declares that there is a major health care crisis in the State of California attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system, severe hardships for the medically indigent, denial of access for the economically marginal, and depletion of physicians such as to substantially worsen the quality of health care available to citizens of this state.   The Legislature, acting within the scope of its police powers, finds the statutory remedy herein provided is intended to provide an adequate and reasonable remedy within the limits of what the foregoing public health and safety considerations permit now and into the foreseeable future.”  (Stats.1975, Vol. 2, Second Extraordinary Session, ch. 2, § 12.5, p. 4007.)

It is patent that the “sacrifice and fundamental reform,” so sought, was the sacrifice of the benevolent “open-ended” extensions of the statute of limitations for medical malpractice claimants, for the greater public good of affordable “health care available to citizens of this state.”

The Legislature thereupon amended Code of Civil Procedure section 340.5 to read, in relevant part, as follows:

“In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three 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 occurs first.   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.   Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.   Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.”

We are aided in our analysis of the problem before us by holdings of the state's high court.

Middleton v. Imperial Insurance Co. (1983) 34 Cal.3d 134, 139, 193 Cal.Rptr. 144, 666 P.2d 1, holds:

“The 1975 amendments to section 340.5 shortened the outside limit to three years and provided that it could be tolled (1) upon proof of fraud, (2) for intentional concealment, or (3) for the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the injured person.   It further provided for tolling for minors under the age of six and for any time during which the parents and insurers have committed fraud or collusion in failing to bring an action on behalf of the minor.”  (Our emphasis.)

Brown v. Bleiberg (1982) 32 Cal.3d 426, 437, 186 Cal.Rptr. 228, 651 P.2d 815, states:

“[S]ection 340.5 now specifies an outside limit on the period after plaintiff's injury in which an action for ‘professional negligence’ may be commenced, regardless of the patient's belated discovery of the cause of action.”  (Our emphasis.)

 We read these holdings, as was manifestly intended by the Legislature, as declaring that except as expressly there stated, section 340.5 has, in respect of medical malpractice actions, (1) abolished the previously existent and above-described “open-ended” provisions, and (2) fixed the basic statute of limitations at one year with application of the “rule of discovery” to an outside limit of three years, except (as noted) where otherwise expressly provided.

But nevertheless the statute, as we are told by Kite v. Campbell (1983) 142 Cal.App.3d 793, 801, 191 Cal.Rptr. 363, is “not a model of clarity.”  (Our emphasis.)   And such confusion as is engendered by it is, we think, compounded by the many disparate opinions of the state's Courts of Appeal purporting to interpret it.   We briefly discuss them.

First, and critical to the appeal before us, is the question whether section 340.5 applies to prenatal injuries such as suffered by Aaron, claimed to have been proximately caused by medical malpractice.   It will be remembered that a trial court dispute was whether Civil Code section 29 was any “longer controlling.”

Civil Code section 29, as amended in 1941, provides:

“A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth;  but any action by or on behalf of a minor for personal injuries sustained prior to or in the course of his birth must be brought within six years from the date of the birth of the minor, and the time such minor is under any disability mentioned in Section 352 of the Code of Civil Procedure shall not be excluded in computing the time limited for commencement of the action.”

(Section 352 of the Code of Civil Procedure is the above-noted “open-ended” statute tolling the statute of limitations throughout one's minority.)

We also find application of the “open-ended” provisions of Civil Code section 29 to be wholly at odds with the 1975 amendment to Code of Civil Procedure section 340.5, and with the legislative intent and purpose in enacting it.

We find ourselves advised unequivocally that section 29 is today's applicable statute of limitations on a minor's action for damages for negligently inflicted prenatal injuries.  (Segura v. Brundage (1979) 91 Cal.App.3d 19, 24, 153 Cal.Rptr. 777.)

But there are contrary holdings.  “[S]ection 340.5 supplants the period of limitations of Civil Code section 29 in medical malpractice actions” based on prenatal injuries (Knox v. Superior Court (1983) 140 Cal.App.3d 782, 786, 189 Cal.Rptr. 800);  and, in such an action “section 340.5 supplants the period of limitations of Civil Code section 29.”  (Kelemen v. Superior Court (1982) 136 Cal.App.3d 861, 867, 186 Cal.Rptr. 566.)

Moreover:  “When two or more statutes concern the same subject matter and are in irreconcilable conflict the doctrine of implied repeal provides that the most recently enacted statute expresses the will of the Legislature, and thus to the extent of the conflict impliedly repeals the earlier enactment.”  (In re Thierry S. (1977) 19 Cal.3d 727, 744, 139 Cal.Rptr. 708, 566 P.2d 610;  and see Santa Barbara Federation of Teachers v. Santa Barbara High Sch. Dist. (1977) 76 Cal.App.3d 223, 226, 142 Cal.Rptr. 749;  Adams v. Superior Court (1970) 8 Cal.App.3d 569, 572, 87 Cal.Rptr. 667.)

 We opine that the above-noted holdings of Kelemen v. Superior Court and Knox v. Superior Court correctly state the law.   There was no error in the ruling of the trial court that “Civil Code section 29 is no longer controlling” in minors' medical malpractice actions.

Similar appellate court discordancies are found in various other interpretations of section 340.5.   Some hold that the “rule of discovery” continues in its application to medical malpractice actions under section 340.5;  others expressly hold that it does not.  (See, e.g., Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 407, 408, 163 Cal.Rptr. 711, vis a vis Sevilla v. Stearns-Roger, Inc. (1980) 101 Cal.App.3d 608, 611, 161 Cal.Rptr. 700, and Scott v. County of Los Angeles (1977) 73 Cal.App.3d 476, 484, 140 Cal.Rptr. 785.)   Other authority says that the statute creates a basic “three-year statute of limitations for minors, but a one-year basic statute for adults” (Kite v. Campbell, supra, 142 Cal.App.3d 793, 191 Cal.Rptr. 363, passim ), while yet another appears to observe a one-year basic statute of limitations for all, with an additional reasonable discovery period of two years (Lamont v. Wolfe (1983) 142 Cal.App.3d 375, 378, 190 Cal.Rptr. 874).   Other such disagreements arise whether section 340.5's limitations period runs from the date of the tortious act, or the date one “discovers his injury and its negligent cause” thus to reinstate the open-ended “rule of discovery.”  (See Dillashaw v. Ayerst Laboratories, Inc. (1983) 141 Cal.App.3d 35, 40, 190 Cal.Rptr. 68.)   There are other such conflicts, their resolution here becomes unnecessary.*

We proceed, as best we can, to analyze and interpret section 340.5, insofar as it seems necessary to resolve the issue before us.   We do so, in the light of the clearly expressed gubernatorial and legislative intent, and purpose of “sacrifice and fundamental reform” in “setting a reasonable statute of limitations for the filing of [medical] malpractice claims.”

 We accordingly hold that section 340.5 provides, for adults and minors alike, a basic statute of limitations of one year, or one year after the claimant discovers, or through the use of reasonable diligence should have discovered, the tortious act;  provided that the statute has an outside, and absolute, limit of three years from the date of the tortious act.   There are certain express exceptions to the above rule.   As to all claimants, the statute will be 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.”   As to those three exceptions, the action must be commenced within one year of discovery, or within one year of the time discovery reasonably should have been made.   Additional express exceptions, applicable to minors alone, are that:  “[A]ctions by a minor under the full age of six years shall be commenced within three years from the date of the wrongful act or prior to his eighth birthday whichever provides a longer period.   Such time limitation shall be tolled for minors for any period during which the parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence;”  as to such latter exceptions, in our resolution of the appeal's issues, we need not, and do not, determine at what point the action must be brought.

 We are, of course, aware of the holdings, 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.”  (See Whitfield v. Roth (1974) 10 Cal.3d 874, 885, 112 Cal.Rptr. 540, 519 P.2d 588.)   And we have noted that section 340.5's periods of limitations run, ambiguously, from “the date of the injury” (often held to mean the date of the damaging effect of the alleged wrongful act and not the act itself;  see Larcher v. Wanless, supra, 18 Cal.3d 646, 656, 135 Cal.Rptr. 75, 557 P.2d 507), and elsewhere, from “the date of the wrongful act.”   We opine that here the Legislature used the terms interchangeably to mean the “date of the alleged wrongful act.”   To hold otherwise would restore the open-ended “rule of discovery” to the medical malpractice statute of limitations, a result patently contrary to the legislative purpose and intent.

We have considered Aaron's arguments that giving effect to section 340.5 denies him his Fourteenth Amendment, and California Constitution, article I, section 7, due process and equal protection rights.

 No argument attends the due process contention except a bare recital, as above.   Otherwise finding no merit in the contention we treat the point as waived.  (See, 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 425, p. 4391.)

 On the issue of equal protection, we, as did the Governor and Legislature, discern a fundamental and compelling state interest in reviewing and modifying the earlier medical malpractice statutes of limitations, and that the 1975 amendment to section 340.5 was reasonably found necessary to further that interest.   The amended statute thus meets the stricter of constitutional equal protection tests, which arguendo, we apply.  (See In re Hop (1981) 29 Cal.3d 82, 92–94, 171 Cal.Rptr. 721, 623 P.2d 282;  Hawkins v. Superior Court (1978) 22 Cal.3d 584, 592, 150 Cal.Rptr. 435, 586 P.2d 916.)   Further, we observe that a similar attack on the statute was held in Kite v. Campbell supra, 142 Cal.App.3d 793, 800, 191 Cal.Rptr. 363 to lack merit.

 We are unpersuaded by Aaron's insistent argument, and proffered authority, that section 340.5's first sentence (q.v.) applies only to medical malpractice claims of adults, and that as to such claims of minors, the statute's third sentence (q.v.) is controlling.   A fair reading of the statute in light of its legislative purpose makes patent that, as to all medical malpractice claimants, adults and minors alike, its basic one-year limitations period is extended for not more than two additional years in the event of reasonable nondiscovery (1st sentence).   It is extended indefinitely only for fraud, intentional concealment, or presence of a foreign body (2d sentence) and may, although we do not here make that determination, be extended indefinitely for minors alone, for any period during which the parent or guardian and defendant's insurer or health care provider have committed undiscovered fraud or collusion (4th sentence).

To indulge the instant argument necessarily leads to the absurd conclusion that the Legislature intended adults only, and not minors, to have the benefit of the belated discovery, and of the fraud, intentional concealment, and foreign body provisions, of the statute.   Such an unreasonable purpose will not be attributed to the Legislature.  (In re Eric J. (1979) 25 Cal.3d 522, 537, 159 Cal.Rptr. 317, 601 P.2d 549.)

 Another contention of Aaron is that, assuming the application of section 340.5 to his case, nevertheless the rule announced by Rosefield Packing Co. v. Superior Court (1935) 4 Cal.2d 120, 122–123, 47 P.2d 716, applies:  “[T]here must be a reasonable time permitted for the party affected to avail himself of his remedy before the statute [as to him] takes effect.”

As noted, Aaron was born February 23, 1970.  Section 340.5, as amended, became operative December 12, 1975, and it permitted his action (3d sentence) at any time before his eighth birthday.   The action was commenced January 31, 1980, more than four years after the statute's operative date, and more than twenty-three months after Aaron's eighth birthday.

We observe that a similarly situated minor's action filed sixteen months after the operative date of section 340.5 was held to be untimely (Washington v. Nelson (1979) 100 Cal.App.3d 47, 49, 53, fn. 4, 160 Cal.Rptr. 644), while such a minor's claim against a public entity filed eight months after the amended statute's operative date was held to be filed within a reasonable time (Osborne v. Los Angeles County (1979) 91 Cal.App.3d 366, 371, 154 Cal.Rptr. 129).

From our analysis of section 340.5 and its one-year basic period of limitations, we are impelled to hold that a reasonable time for the commencement of an action by one situated as was Aaron, would be within one year after the statute's operative date, or before his eighth birthday, whichever was the longer period.

 We have considered the separate contention of defendant Sequoia Hospital District, a public entity, that Aaron had not timely (within 100 days) filed a claim under the state's Tort Claims Act (Gov.Code, § 911.2).   The complaint alleged that Aaron and his parents were unaware of the tortious cause of the injuries, and the concealment thereof, until after September 27, 1979, and that on December 27, 1979 a claim for damages for personal injuries was made to Sequoia Hospital District on behalf of Aaron.

Government Code section 901 provides:  “For the purpose of computing the time limits prescribed by Section 911.2, 911.4, 912, and 945.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon.”  (Emphasis added.)   Thus, the time for commencement of the 100-day statutory period for filing a section 911.2 claim against a public entity is co-extensive with that for commencement of the period of the statute of limitations under Code of Civil Procedure section 340.5.   The required claim was therefore allegedly timely filed.

 Finally, we observe that the complaint alleged that defendants had concealed from Aaron and his mother the alleged tortious cause of Aaron's injuries.   Without an allegation of intentional concealment it appears, as found by the trial court, that the action was probably barred by the statute of limitations.   But it may be that Aaron is able to plead, if permitted, that the tortious causation of his injuries was intentionally concealed from himself and his parents, and that his action was commenced within a reasonable time after discovery of such concealment.   In such event Aaron's action would not be barred by the statute of limitations of section 340.5.

We therefore think it would serve the interest of justice to reverse the judgment of dismissal, and remand the cause to the superior court, thus to enable Aaron, if he can, to appropriately amend his complaint.

The judgment is reversed.   The cause is remanded to the superior court for further proceedings not inconsistent with the views we have expressed.


FOOTNOTE.   We have been keenly aware that many of the parties' briefs' cited authorities dealt with the earlier unamended pre-1975 section 340.5, and preceded the 1975 medical malpractice crisis and its resultant legislation.   Such authorities have not been considered by us.

ELKINGTON, Associate Justice.

RACANELLI, P.J., and NEWSOM, J., concur.

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