What is the tolling of the statute of limitations in medical malpractice cases?

Section 340.5 establishes the statute of limitations in medical malpractice lawsuits. It reads in part: "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." Under the plain wording of the statute, the shorter of the two limitation periods determines whether the action is timely filed. (Ngo v. County of Los Angeles (1989) 207 Cal.App.3d 946, 948.) Stated another way, "[a] plaintiff in a medical malpractice action must satisfy the requirements of both the one-year and the three-year limitations periods." (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189.)

Section 352.1, a special tolling provision relating to prisoners, provides in part: "If a person entitled to bring an action ... is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years." ( 352.1, subd. (a).) In other words, section 352.1 grants a two-year tolling of the statute of limitations to persons serving less than a life sentence. (See Brooks v. Mercy Hospital (2016) 1 Cal.App.5th 1, 7-8 [trial court failed to apply 352.1 and committed reversible error in sustaining demurrer on statute of limitations grounds].)

Page 12