Braham v. Sorenson

Opinion

BEACH, J.

Plaintiff appeals from a judgment dismissing her wrongful death action against defendant physicians after the trial court sustained a demurrer to the complaint, without leave to amend, based upon the running of the statute of limitations on plaintiff’s action. We affirm.

Background:

Plaintiff is the widow of Robert A. Braham, who died on March 29, 1978, at a hospital. Plaintiff alleged in her complaint that the decedent was admitted to the hospital on March 14, 1978, based on defendant

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physicians’ diagnosis that he had pneumonitis. Following his discharge from the hospital on March 27, 1978, the decedent’s condition worsened, and on March 29, 1978, he was rushed by ambulance to the hospital’s emergency room. There, he died of cardiac arrest. Plaintiff alleged that the decedent’s death was proximately caused by the negligent treatment given him.

On March 22, 1979, plaintiff served defendants with a notice of intention to sue, and on July 19, 1979, she filed the instant medical malpractice action.

Issue on Appeal:

Plaintiff contends the action was filed timely and therefore the dismissal was improper.

Discussion:

Under Code of Civil Procedure section 340.5,

1

a medical malpractice action must be brought within three years after the date of injury or one year after the plaintiff discovered or should have discovered the injury, whichever occurs first. In an action for wrongful death, as is involved here, the word “injury,” as used in the statute, refers to the death.

(Larcher

v.

Wanless

(1976) 18 Cal.3d 646, 659 [135 Cal.Rptr. 75, 557 P.2d 507].)

Thus, the basic statute of limitations applicable to the appellant’s cause of action here is one year. There are two other statutes which affect the one-year basic period. One of these is section 364, which provides that before filing an action such as at bench, a plaintiff must give notice. Subdivision (a) of that section provides: “No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days prior notice of the intention to commence the action.” The effect of that provision is to prohibit or stay the commencement of the action for at least 90 days. This is a statutory prohibition. As such it thereby in turn triggers the operation of another separate statute, section 356, which reads: “When the commencement of an action is stayed by ... statutory prohibition, the time of the . .. prohibition is not part of the time limited for the commencement of the action.” The effect of this statute is to ex