In personal injury law, a statute of limitations is a deadline for filing a lawsuit seeking compensation. In California, the general rule is codified in the California Code of Civil Procedure section 335.1. It states to file the lawsuit within two years of the occurrence that gave rise to a person’s injuries and damages. For medical malpractice cases, it’s one year. In nearly all personal injury cases, filing the lawsuit outside of the allowable period, it’s subject to a motion to dismiss as a result of a failure to timely file. California’s discovery rule allows a plaintiff to file and maintain a personal injury lawsuit after the statute of limitations has expired. It operates to suspend the statute of limitations during that time when a plaintiff didn’t or couldn’t discover through the exercise of reasonable diligence, the injuries that are the basis of his or her personal injury lawsuit.
Why is there a statute of limitations?
Courts prefer to deal with accident cases while they’re still fresh. Over a long period of time, recollections of events can get fuzzy or witnesses and evidence can die or disappear. It could be fundamentally unfair to permit a personal injury lawsuit to proceed. Especially when someone files 10 years after the date. Despite the facts of the case showing that it could have been filed a month after the crash.
Invoking the Delayed Discovery Rule
Pursuant to California Civil Instruction 455, a plaintiff can invoke the delayed discovery rule if he or she can prove the following:
- The plaintiff did not discover, and did not know of facts that would have caused a reasonable person to suspect, that he or she had suffered harm that was caused by someone’s wrongful conduct.
- He or she did not discover, and did not know the facts that would have caused a reasonable person to suspect, that he or she had suffered harm that was caused by someone’s wrongful conduct, or
- Did not discover, and a reasonable and diligent investigation would not have disclosed that carelessness and negligence contributed to his or her being harmed.
An Example of the Application of the Discovery Rule
Here’s an example of how to apply the delayed discovery rule in California. On January 1, of 2020, a man has an emergency surgery. Without realizing it, the surgeon leaves an instrument inside of him and closes him up. Two years later, the individual experiences excruciating abdominal pain at the surgical site. The surgical instrument clearly shows on an x-ray, and a second emergency surgery takes place. The medical malpractice statute of limitations in California is only one year.
So, the man might have a limitations problem. However, he had no idea that he was carrying around a surgical instrument. That is, until his pain at the surgical site returned. He filed a medical malpractice lawsuit a month after his second surgery. However, it was more than two years after the first one. The presiding judge rules that out of fairness and equity, the medical malpractice case should proceed. The man acted diligently as soon as he discovered that the instrument was still in his body.
The delayed discovery rule is most often in the context of medical malpractice cases. If you believe the delayed discovery rule covers your cause of action, don’t delay. Contact us at Maison Law, and we can arrange for a free consultation with our California personal injury lawyer. We still might be able to build a solid case to get you the justice that you deserve. Regardless of the fact that the statute of limitations has already expired.
Contact a California Personal Injury Lawyer Today
If you sustain injury in an accident, you might wonder if you’ll have to cover the cost of recovery alone. Make sure you have an attorney from Maison Law watching over every document exchange and communication you have with them.
After an accident involving a serious injury or the tragic loss of life in California, contact attorney Martin Gasparian for a free, no-obligation case consultation for your family. Mr. Gasparian takes a hands-on approach to every case and only gives victims advice that’s in their best interest.
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