Medical Malpractice: Statute of Limitations
Maher v. County of Alameda, (First District, February 18, 2014) — Cal.Rptr.3d —-, 2014 WL 605904
A man who suffered severe complications from a temporary biliary stent which had been inadvertently left in his abdomen following surgery, filed suit against the physicians who had performed the surgery and the medical center. The plaintiff alleged that he was unaware of the presence of the stent, which should have been explanted after 3 to 6 months, until 14 years later when it began to disintegrate and migrate.
The defendants demurred to the complaint, contending that the action was barred by Code of Civil Procedure section 340.5, which provides that in an action for injury or death against a health care provider based upon 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, but in no event exceeding three years. The plaintiff opposed the demurrer, arguing that the statute had been tolled by the “foreign body” exception in the statute which provides for a tolling in the event of “the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.”
The trial court sustained the demurrer without leave to amend, ruling that an object intentionally left in the body for a therapeutic purpose following the completion of a medical procedure does not qualify as a “foreign body” for purposes of section 340.5. However, the court of appeal reversed, holding that, consistent with common law predating the statute, the exception applies to objects and substances temporarily placed in the body but meant to be later removed:
What distinguishes Hills and Trantafello is that in both cases the substances placed in the patient’s body for a therapeutic purpose were intended to remain there permanently and for that reason did not come within the statutory foreign body exception. While Trantafello and Hills contain some language defendants construe to mean the foreign body exception only applies to objects or substances inadvertently introduced into the body (see Trantafello, at pp. 319–320, 227 Cal.Rptr. 84 & Hills, at p. 765, 199 Cal.Rptr. 816), such a suggestion is inconsistent with the facts in Huysman and Ashworth.8
In sum, we concur with Ashworth that (1) Huysman established California’s common law foreign object tolling rule; (2) MICRA codified this exception; and (3) the “no therapeutic or diagnostic purpose or effect” qualification in section 340.5 means the foreign body exception does not apply to objects and substances intended to be permanently implanted, but items temporarily placed in the body as part of a procedure and meant to be removed at a later time do come within it. Defendants point to no legislative history or authority suggesting the Legislature intended to abrogate Huysman by adopting the “therapeutic or diagnostic purpose or effect” language in section 340.5. In our view, Huysman is still good law and is factually on point with the case before us. We therefore hold that Maher’s negligence claims should not have been dismissed under section 340.5.