Is there a separate medical malpractice claim arising out of a second act of negligence?

California, United States of America


The following excerpt is from Trimble v. Fightlin, F071493 (Cal. App. 2017):

However, the complaint alleged a second act of negligence: obliterating plaintiff's ureter. In summary judgment proceedings, plaintiff asserted that this second act of negligence likely occurred during the second surgery.4 This act gives rise to a separate medical malpractice claim, distinct from the claim concerning the guidewire. (See Ashworth v. Memorial Hospital, supra, 206 Cal.App.3d at p. 1060 [under section 340.5, "a medical malpractice cause of action is defined as a single specific act which proximately causes injury"].) As a result, the fact that plaintiff "discovered" the factual

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basis for his malpractice claim regarding the first surgery sometime between July and September 2012 does not mean plaintiff simultaneously "discovered" the factual basis for his malpractice claim regarding the second surgery. In other words, " '[d]iscovery' of other specific negligent acts and their presumed consequences did not represent 'discovery' of this negligent act and its consequences." (Ashworth v. Memorial Hospital, supra, 206 Cal.App.3d at p. 1060, original italics.)

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