Kaplan v. Mamelak

162 Cal. App. 4th 637, 75 Cal. Rptr. 3d 861 (2008)



General statutory tolling provisions apply to the one-year statute of limitations in the Medical Injury Compensation Reform Act (MICRA), the legislative scheme covering medical malpractice. Code Civ. Proc., § 340.5. The listing of specified tolling rules in § 340.5 implicitly excludes others, but these limits apply only to tolling rules which extend the total limitations period beyond three years.


Appellant Larry Kaplan suffered pain from a herniated disk in his spine. Kaplan sought treatment from respondent neurosurgeon Adam Mamelak, M.D. After recovering from surgery, appellant continued to suffer pain. Respondent thus ordered an MRI of appellant's spine. The MRI showed the protrusion causing appellant's pain from the herniation at T8-9 remained, because respondent had operated on the wrong disks. On September 17, 2003, one year and six days after the September 11 conversation, appellant served his notice of his intent to sue respondent for medical malpractice. Respondent answered the complaint with the affirmative defense that the one-year statute of limitations for medical malpractice barred appellant's complaint. The trial court refused to allow discovery regarding the time respondent was out of state, and entered judgment for respondent. 


Did the trial Court err by finding that the the statute of limitations had expired?




The dispute on which this appeal turns is whether the notice of intent was timely. To be timely, appellant needed to serve his notice sometime during the final 90 days of the one-year statute of limitations period. Here, appellant served his notice on September 17, 2003—six days late if the one-year statute of limitations running from September 11, 2002, was not tolled. Without the benefit of discovery, appellant drew from respondent trial testimony that he was outside California no more than three days during the statute of limitations period—pushing back the last day for appellant to timely serve his notice of intent to September 14, 2003. Respondent's possible absence from the state for three more days—merely a long weekend perhaps—would have made a world of difference to the timeliness of appellant's notice of intent to sue and, thus, to his complaint. Thus, the trial court's misreading of the law to deny appellant discovery on respondent's time outside California prevented appellant from gathering evidence and preparing for trial on a dispositive issue.

The trial court's error was not harmless. The jury found appellant was on notice on September 11, 2002, of respondent's wrongdoing. Applying that finding, appellant had one year until September 11, 2003, to file his malpractice complaint. Both appellant and respondent agree that appellant's service of a timely notice of intent to sue would have added 90 days to the time appellant could file his complaint. 

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