Legal Question in Medical Malpractice in California

I have a client who has a now 3 year old daughter whom she believes may have birth related 'deficits' arising from a late term performed C-Section, beyond as I recall the 40th week. It has taken quite some time to get copies of the voluminous medical records, and today is the 3rd year of her birth.

I believe there is an exception to the 1 and 3 year statute because as it should apply to minors below the age of six, the malpractice action must be filed within three years of the date the injury occurred or before the minor's eighth birthday, whichever period is greater.

Is this correct?


Asked on 4/16/14, 3:52 pm

2 Answers from Attorneys

Joel Selik www.SelikLaw.com

That is correct but you need to consult with an attorney right away to review the facts and times. You should not wait for records or anything else.

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Answered on 4/16/14, 3:57 pm
Armen Tashjian Law Offices of Armen M. Tashjian

Here are the relevant sections:

340.4. An action by or on behalf of a minor for personal injuries sustained before or in the course of his or her birth must be commenced within six years after the date of birth, and the time the minor is under any disability mentioned in Section 352 shall not be excluded in computing the time limited for the commencement of the action.

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.

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Answered on 4/17/14, 1:46 am


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