Code of Civil Procedure § 340.5 – Statute of Limitations for Medical Malpractice
Free Consultation Request
Code of Civil Procedure § 340.5 – Statute of Limitations for Medical Malpractice
Code of Civil Procedure § 340.5
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.
For the purposes of this section:
(1) “Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider;
(2) “Professional negligence” means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.
(Amended by Stats. 1975, 2nd Ex. Sess., Ch. 2.)
Code of Civil Procedure – CCP
PART 2. OF CIVIL ACTIONS [307 – 1062.34]
( Part 2 enacted 1872. )
TITLE 2. OF THE TIME OF COMMENCING CIVIL ACTIONS [312 – 366.3]
( Title 2 enacted 1872. )
CHAPTER 3. The Time of Commencing Actions Other Than for the Recovery of Real Property [335 – 349.4]
( Chapter 3 enacted 1872. )
Code of Civil Procedure § 340.5 Summary
This statute sets the statute of limitations for medical malpractice actions. It provides that:
An action for injury or death against a health care provider based on alleged professional negligence must be commenced within three years after the date of injury, or
One year after the plaintiff discovers, or through reasonable diligence should have discovered, the injury,
Whichever occurs first.
There are specific exceptions for cases involving fraud, intentional concealment, or the presence of a foreign body with no therapeutic or diagnostic purpose.
Key Legal Concepts
A. “Professional Negligence”
Defined as a negligent act or omission by a healthcare provider in rendering services that are within the scope of their license.
This includes doctors, nurses, hospitals, clinics, and certain therapists.
B. “Date of Injury”
This typically refers to when the malpractice occurred, not when it was discovered.
C. “Discovery Rule”
Plaintiffs have one year from the date they knew or reasonably should have known of the injury and its connection to medical negligence.
This discovery rule is crucial in cases where harm is not immediately apparent (e.g., surgical instruments left inside the body).
Summary Cheat Sheet
| Element | Rule |
|---|---|
| Basic Limit | 3 years from injury or 1 year from discovery — whichever is earlier |
| Tolling for Fraud | Delayed until discovery |
| Tolling for Minors | Until age 8 (if under 6) |
| Tolling for Foreign Objects | 1 year from discovery regardless of injury date |
| Key for Discovery | When the patient “suspected or should have suspected” malpractice |
Tolling Provisions (Pauses the Clock)
The statute of limitations may be tolled (paused) under certain conditions:
| Tolling Situation | How Long is It Tolled? |
|---|---|
| Fraudulent concealment by the healthcare provider | Until the fraud is (or should have been) discovered |
| Minor plaintiff (under 6 years old) | Up to age 8, unless the injury occurred during birth |
| Mentally incapacitated plaintiff | For the duration of the incapacity (rarely granted) |
| Foreign object cases (e.g., surgical sponge) | One year from the discovery, no matter how long after surgery |
