Larcher v. Wanless

Decision Date23 December 1976
Citation557 P.2d 507,135 Cal.Rptr. 75,18 Cal.3d 646
CourtCalifornia Supreme Court
Parties, 557 P.2d 507 Karen Kay LARCHER, a minor, etc., et al., Plaintiffs and Appellants, v. John F. WANLESS et al., Defendants and Respondents. L.A. 30627.

Harney & Moore, Harney, Bambic & Moore, Los Angeles, Schall, Butler, Boudreau & Gore, San Diego, David M. Harney, Los Angeles, and W. J. Schall, San Diego, for plaintiffs and appellants.

Holt, Rhoades & Hollywood, Dan H. Deuprey, Higgs, Fletcher & Mack, David D. Randolph and Gregg C. Sindici, San Diego, for defendants and respondents.

Hassard, Bonnington, Rogers & Huber, Howard Hassard, Charles F. Bond II, San Francisco, Musick, Peeler & Garrett, and James E. Ludlam, Los Angeles, as amici curiae on behalf of defendants and respondents.

MOSK, Associate Justice.

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: "in 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." 1 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. We conclude that as applied to wrongful death actions arising from alleged medical malpractice, "injury" as used in section 340.5 refers to the death, with its allegedly wrongful cause, which gives rise to the lawsuit. 2

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. 3

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. 4 The court treated the motion to strike, which was accompanied by affidavits and an exhibit, as a motion for summary judgment. (See Vesely v. Sager (1971) 5 Cal.3d 153, 167-169, 95 Cal.Rptr. 623, 486 P.2d 151.) Finding no triable issue of fact regarding the application of the statute, the court entered judgment for defendants.

Defendants' motion was based in part on facts stated in the complaint. 5 The complaint alleges that between February 1966 and July 1968 defendant doctors negligently prescribed for plaintiffs' decedent an oral contraceptive known as "Ortho Novum." It further alleges that decedent was a patient of defendants "from approximately 1965 up to and including 1970."

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 husband seeking to recover for personal injuries and loss of services from the manufacturers and distributors of Ortho Novum. The complaint therein alleged that as a result of decedent's ingestion of Ortho Novum she had "during the month of July, 1968 . . . experienced a complete loss of consciousness, requiring brain surgery" and that thereafter she "was severely paralyzed and unable to care for her person."

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 throughout section 340.5 refers to the harm suffered by the direct victim of the malpractice, whether or not the limitation period is applied in a suit brought by that victim or by his heirs after his death. According to this view, the one-year period for any possible wrongful death action would begin with the discovery by the heirs that the patient had been injured by an act of malpractice. 6 If the victim died within a year after this event, his heirs would have the remainder of the year in which to file a wrongful death claim; 7 if the victim died more than a year after his heirs discovered that he had been negligently injured, section 340.5 would assume a substantive aspect and totally eliminate the rights which the heirs would otherwise have under Code of Civil Procedure section 377 to recover for his wrongful death.

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. 8 Furthermore, since the discovery of "injury" resulting from medical malpractice is often nearly contemporaneous with the act of malpractice itself, section 340.5 would, in those situations, relieve medical practitioners of all liability to the heirs of their patients, so long as the fatal miscarriage of duty produced death in no less than one year. 9 We have found no persuasive evidence of a legislative purpose to so truncate the recovery rights of the heirs of malpractice victims. The documented history of section 340.5 offers little hint of the intended meaning of the word "injury" in the context of wrongful death actions. 10 Furthermore, the statutory and case law context in which section 340.5 was enacted supports plaintiffs' more restrained interpretation of the Legislature's intent.

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, 548, 519 P.2d 588, 596; 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 negligent cause. (Wohlgemuth, supra; 2 Witkin, op. cit. supra, § 310, p. 1153.)

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...

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