Kleefeld v. Superior Court

Opinion

ANDERSON, P. J.

Petitioner Richard Frank Kleefeld, D.C. (defendant), contends a malpractice action against him is barred by the one-year statute of limitations found in Code of Civil Procedure section 340.5 (section 340.5). We agree and issue the peremptory writ he requests.

On October 17, 1990, Darline Cunningham died of a ruptured aortic aneurysm. Five days later, her husband, real party in interest, William Cunningham (plaintiff), contacted the Board of Chiropractic Examiners (Board) expressing his concern that defendant may have excessively treated his wife. In an interview with a Board investigator on January 15, 1991, plaintiff further expressed his view that inappropriate treatment by defendant might be the cause of his wife’s death.

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An investigation commenced which ultimately led to the discipline of defendant.

[1683]

On July 20,1992, real party served notice of his intention to commence an action against defendant in accordance with section 364 of the Code of Civil Procedure and on October 21, 1992, two years after his wife’s death, plaintiff filed his complaint.

Defendant moved for summary judgment on the ground that the action was barred by section 340.5. That section provides in relevant part that an action for injury or death against a health care provider must be commenced within “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. . . .” Defendant took the position that the one-year limitation applied since plaintiff had the requisite knowledge at the time of his wife’s death as evidenced by his contact with the Board.

The court denied the motion on the ground that a triable issue of fact exists as to whether plaintiff used reasonable diligence in ascertaining if care given by defendant was within the standard of care and as to whether plaintiff could have known of sufficient facts prior to August 30,1991, when he was informed of the Board’s decision disciplining defendant.