California Code of Civil Procedure section 340.5 sets forth the applicable statute of limitations for medical malpractice actions. (See Graham v. Hansen (1982) 128 Cal.App.3d 965, 972, 180 Cal.Rptr. 604). This section provides that a plaintiff must commence his or her action "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." (See California Code of Civil Procedure section 340.5).

Although the three-year limitations period is tolled for proof of fraud, intentional concealment, or the presence of a foreign body, the one-year period is not. Accordingly, a medical malpractice suit must be filed within one year after the patient discovers or should have discovered the "injury," regardless of extenuating circumstances. (See Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897, 218 Cal.Rptr. 313). The term "injury" as used in section 340.5, "means both a person's physical condition and its negligent cause." (See Knowles v. Superior Court (Serafina Labo) (2004) 118 Cal.App.4th 1290, 1295, 13 Cal.Rptr.3d 700, 703; Gutierrez v. Mofid (1985) 39 Cal.3d 892, 218 Cal.Rptr. 313). 

Accordingly, the one-year statute of limitations begins to run "when the plaintiff suspects or should suspect that her injury was caused by wrongdoing." (See Kitzig v. Norquist (2000) 81 Cal.App.4th 1384, 1391, 97 Cal.Rptr.2d 762, 767, quoting Jolly v. Eli Lilly Co. (1988) 44 Cal.3d 1103, 1110, 245 Cal.Rptr. 658; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398, 87 Cal.Rptr.2d 453). "In general, once a patient knows, or by reasonable diligence should have known, that he has been harmed through professional negligence, he has one year to bring his suit." (See Barber v. Superior Court (Eckhardt) (1991) 234 Cal.App.3d 1076, 1082, quoting Gutierrez v. Mofid (1985) 39 Ca.3d 892, 896, 218 Cal.Rptr. 313, internal quotations omitted). 

"[T]he limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry." (See Jolly, supra, at 1111). "[A] person need not know of the of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period." (See Knowles, supra, at 1295, citing Norgart, supra, at 397-398, and Jolly, supra, at 1110-1111, emphasis in original). "[A] 'presumptive' knowledge is inferred when the patient becomes aware of facts which would put a reasonable person on inquiry, or the patient's suspicions are aroused and she is alerted to the need for investigation." (See Barber, supra, at 1082-1083). 

Because "the means of knowledge are equivalent to knowledge, constructive knowledge will commence the running of the statute of limitations, even though it might not have occurred to plaintiff to bring suit," "(f)acts and events which inform a person that something is wrong, or should be looked into, are usually recognizable by the ordinary person. One example is pain." (See Graham, supra, at 973-974, quoting from McGee v. Weinberg (1979) 97 Cal.App.3d 798, 804, 159 Cal.Rptr. 86, brackets added). "It is the occurrence of some such cognizable event rather than knowledge of its legal significance that starts the running of the statute of limitations." (Id.).

In California, an injured person's cause of action is usually not lost by reason of the person's death.  Unless otherwise provided by statute, it survives subject to the applicable limitations period and passes to the decedent's successor in interest, who can assert the cause of action on behalf of the decedent.  (See California Code of Civil Procedure sections 377.20(a) and 377.30).  California Code of Civil Procedure sections 377.10, et seq. establish rules relating to these kind of actions, which are commonly called survivor (or "survivorship") actions.  (See California Code of Civil Procedure section 377.10 et seq.).

"In the typical survivor action, the damages recoverable by a personal representative or successor in interest on a decedent's cause of action are limited by statute to 'the loss or damage that the decedent sustained or
incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.'"  (See Quiroz v. Seventh  Ave. Center (2006) 140 Cal.App.4th 1256, 1264-1265, 45 Cal.Rptr.3d 222, italics in original, citing California Code of Civil Procedure section 377.34).

California Code of Civil Procedure sections 377.60 et seq., by contrast, establish rules regarding what are commonly called "wrongful death" actions, and are actions brought by either the decedent's spouse, domestic
partner, and/or other statutorily specified family members on their own behalf, or the decedent's personal representative on their behalf, for "the death of a person caused by the wrongful act of another."  (See California Code of Civil Procedure section 377.60 et seq.).

Simply put, "[a] cause of action for wrongful death is a statutory claim that compensates specified heirs of the decedent for losses [they] suffered as a result of a decedent's death."  (See San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1550, 53 Cal.Rptr.3d 722, 726, brackets added).  "Because a wrongful death action compensates an heir for his or her own independent pecuniary losses, it is one for 'personal injury to the heir.'

Thus, in a wrongful death action the 'injury' is not the general loss of the decedent, but the particular loss of the decedent to each individual claimant."  (See San Diego Gas & Electric Co., supra, 146 Cal.App.4th 1545, at 1551).  "Damages awarded to an heir in a wrongful death action are in the nature of compensation for personal injury to the heir.  A plaintiff in a wrongful death action is entitled to recover damages for his own pecuniary loss, which may include (1) the loss of the decedent's financial support, services, training and advice, and (2) the pecuniary value of the decedent's society and companionship - but he may not recover for such things as the grief or sorrow attendant upon the death of a loved one, or for his sad emotions, or for the sentimental value of the loss.  The damages recoverable in wrongful death are expressly limited to those not
recoverable in a survival action under Code of Civil Procedure section 377.34."  (See Quiroz, supra, 140 Cal.App.4th 1256, 1264, internal citations and punctuation omitted).

In California, there are three basic types of written discovery that are commonly used, and a couple of unique written discovery procedures that are rarely used and not discussed here.  The three common methods are very briefly defined below.

Inspection Demands

An "Inspection Demand" (more commonly called a "Request for Production of  Documents") seeks copies of the documents it describes, that the responding party may already  have, or have the right to obtain.  (See California Code of Civil Procedure section 2031.010. et seq.). 

Written Interrogatories

Written interrogatories (which can take the  form of either "Specially Prepared Interrogatories" or check box Form  Interrogatories that are created under the authority of the Judicial Counsel) are sets of written questions that the responding parety must answer in writing, and under oath.  (See California Code of Civil Procedure section 2030.010 et seq.).

Requests For Admission

"Requests for Admission" are written requests asking the responding party to admit certain important facts, or the genuineness of certain documents.  (See California Code of Civil Procedure section 2033.010 et seq.).
"Litigation" refers to the sometimes complicated procedure by which a lawsuit is filed, proceeds through the courts, and is ultimately decided.  It includes, but is not limited to the pleading phase (in which the lawsuit is filed and responded to), the pre-trial discovery phase (in which evidence and information is obtained), the pre-trial law and motion phase (in which the parties ask the Court for some form of relief and/or oppose such requests), trial (in which the parties present their case to the trier of fact and seek to introduce and/or exclude evidence), judgment (the formal statement of the ruling), post-trial law and motion practice (in which the parties may ask the Court to reconsider a decision or order a new trial, reduce awards, award costs and attorney's fees, and the like), the appellate practice phase (in which the parties ask a higher court to review the case and affirm/uphold or reverse/overturn a decision of the lower court and/or jury), and the enforcement of judgments phase (in which a party seeks to collect money damages and/or enforce a final order of the court).  There is, of course, some overlap between and among these general categories.

Litigation is a rule-bound, time-sensitive, technically involved, sometimes daunting, and always expensive process that few laypeople would willingly choose if they believed that there was any reasonable alternative.  Not all lawyers are litigators.  We tend to gravitate to practice areas that fit our unique personalities and skill sets.  Because litigation is procedurally complicated and often contentious, many lawyers choose to spend their time practicing in less stressful arenas, such as drafting of wills, trusts, contracts, and the like, employment or corporate law, etc.  Others thrive in an adversarial environment and specialize in the ultimate litigation experience, which is taking cases to trial, either on behalf of a Plaintiff or a Defendant.  Very few cases and a statistically small percentage of lawyers ever actually make it to trial, however, due to the crushing cost of litigation and trial.  The field of lawyers that do regularly try cases is small, however, and tends to be dominated by a few aging giants and young guns.

I have been a litigator for all of my thirteen-year legal career, and a trial attorney for the past several years.  I am neither an aging giant nor a young gun.  I am a respected and skilled litigator and trial attorney with above-average writing and verbal skills, who hates to lose.  I work hard for my clients and try to always remember that what may be a typical day at the office or in court for me can be the worst day of their lives.

I have often thought that one reason that many people do not like lawyers in general (and litigators/trial attorneys in particular) is that we are like undertakers; our clients rarely meet us under good circumstances.  They are usually seeking to vindicate rights that they feel have been unjustly denied them, or defend against legal challenges or criminal prosecutions that they feel have been unjustly pursued against them.  Either way, many consciously or subconsciously resent having to hire a lawyer to represent them in what is usually an emotionally difficult, confusing, and expensive process.

My goal is to take the procedural and technical burdens of dealing with a civil lawsuit, criminal prosecution, or family law matter off of my clients' plates, so they can return to their personal lives and businesses and let me manage the legal end of things.  I tell my clients that when I need their attention - either to help with responses to written discovery requests, prepare for and sit in a deposition, or prepare for and attend a hearing or trial - I will come to them and ask them for it.  I tell them that to the extent that they can do so, they should focus on their family, friends, and businesses because that is what they do best, and leave the legal details to me because that is what I do best.  In short, I try my very best to be their Paladin.

    A Clean, Well-Lighted Place.

    This blog is intended to be a clean, well-lighted place to share my thoughts about the practice of law, litigation, and trials.


    November 2012