Jones v. Queen of the Valley Hospital

Opinion

KINGSLEY, Acting P. J.

Plaintiffs appeal from a summary judgment adverse to them in an action for wrongful death. We reverse.

On the evening of June 22, 1975, plaintiffs’ 19-month-old son developed a rash and a high fever. They took the child to defendant hospital where

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he was examined by defendant doctor. The doctor diagnosed the condition as “flu” and told plaintiffs to take the child home and consult their family doctor in the morning. The next morning the child’s condition had become worse and plaintiffs returned to the hospital with him. By the time they reached the hospital, the child had died of meningococcemia. The hospital personnel did not tell plaintiffs the cause of death but, later that day, after consulting their family doctor, they were told the cause and that doctor expressed concern over the quality of service rendered by defendants. In September of 1975, plaintiffs consulted a firm of attorneys about an action against defendants. That firm, after examining the hospital records, advised plaintiffs that they had no cause of action. The plaintiffs, in early 1976, consulted another firm of attorneys who, after submitting the hospital records and the nature of the death to a physician, advised plaintiffs that, in their opinion, a cause of action did exist. This action, filed on January 20, 1977, followed.

On those facts, the trial court granted defendants a summary judgment based on the statute of limitations from which judgment plaintiffs have appealed. We reverse.

The applicable statute is section 340.5 of the Code of Civil Procedure which, in pertinent part, reads as follows: “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.”

The Supreme Court in

Sanchez

v.

South Hoover Hospital