Whiteside v. Regents of University of California

Opinion

KINGSLEY, Acting P. J.

Plaintiff brought a suit against the Regents, alleging a cause of action for medical malpractice occurring while he was a patient at a hospital owned and operated by the Regents. The trial court sustained a demurrer and dismissed the action on the ground of a statute of limitations. Plaintiff has appealed; we reverse.

Plaintiff was born on April 7, 1962. In June of 1971, when plaintiff was about nine years of age, his parents took him to the hospital for treatment. It is alleged that the hospital staff failed properly to diagnose his condition, as a result of which wrong diagnosis he was not given the proper treatment and, for lack of that treatment, was rendered permanently blind. By an amendment, filed pursuant to a stipulation and an order of court dated May 17, 1982, it is alleged as follows:

[856]

Plaintiff Michael Thomas Whiteside attained his age of majority on April 7, 1980. At all times herein mentioned the parents of Michael Thomas Whiteside refused to allow a lawsuit to be brought on his behalf for the injuries set forth below. On December 4, 1980, within one year after plaintiff had reached majority, he instituted the present action.

I

At the time of the alleged malpractice, the applicable statute of limitations were:

Section 340.5 of the Code of Civil Procedure, which as amended in 1970, read as follows: “In an action for injury or death against a physician or surgeon . . . based upon such person’s alleged professional negligence, or for rendering professional services without consent, or for error or omission in such person’s practice, four 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 first occurs. This time limitation shall be tolled for any period during which such person has failed to disclose any act, error, or omission upon which such action is based and which is known or through the use of reasonable diligence should have been known to him”; and (2) section 352, amended in the same year as section 340.5 was amended. For many years, section 352 had provided that the time when a person was under the age of majority was “not a part of the time limited for the commencement of” an action. The 1970 amendment left that portion of the statute unchanged, changing the section only by adding a provision applicable specifically to actions against public entities not here applicable.