The California Code of Civil Procedure section 340.5 provides the statute of limitations for an action against a health care provider stating: “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 Drexler v. Petersen (2016) 4 Cal.App.5th 1181 (Drexler), litigated by Partner Michael T. Karikomi, the question arose as to whether even a strongly developed suspicion of wrongdoing necessarily commences the statute of limitations if that suspicion is not linked to any appreciable harm (damaging effect/worsening symptoms). (Id. at pp. 1196–1198)

Drexler sought treatment from his primary care physician (PCP) and a neurologist for headaches and neck pain between 2006 and 2011, which were diagnosed as symptoms due to tension, stress or carpal tunnel issues. (Id. at pp. 1184–1186) In 2013, an emergency room doctor diagnosed Drexler with a brain tumor and the tumor’s removal required severance of Drexler’s cranial nerves, causing severe, life-long injuries. (Id. at pp. 1184, 1187.) In July 2013, Drexler filed suit against the PCP, neurologist, and the hospital they worked for (referred to collectively as “Defendants”) in an action for medical malpractice. (Id. at pp. 1184, 1188.) Drexler testified that he never believed his headaches were due to the diagnosed issues and the Defendants argued that Drexler was barred by the statute of limitations because Drexler’s disbelief was a “suspicion of wrongdoing” and a manifestation of appreciable harm occurred during their treatment of Drexler because of an increase of symptomology. (Id. at pp. 1196–1197.)

The Court, however, held that the summary judgment in favor of the Defendants by the trial court was in error because the evidence did not show that Drexler’s headaches were getting worse during his treatment by the Defendants (Id. at pp. 1196–1197.) and a new trial was ordered to address the factual issue of when the appreciable harm manifested to trigger the statute of limitations. (Id. at p. 1197.)

The decision in Drexler was recently applied in Brewer v. Remington (Mar. 4, 2020, No. F076467) ___Cal.App.5th___ [2020 Cal. App. LEXIS 181] (Brewer). In Brewer, there was evidence that the patient was already suffering paralysis and loss of sensation when she sought care from a neurosurgeon and that she had no reason to suspect she suffered harm from his care until she received discovery and an expert opinion; the persistence of her symptoms during the neurosurgeon’s care, without more, did not trigger the statute of limitations as a matter of law.  http://sos.metnews.com/sos.cgi?0320//F076467

By Katya Zavala, March 12, 2020.