How has the statute of limitations been tolled in medical malpractice cases?

"Common law" tolling provisions have traditionally been incorporated into statute of limitation provisions. Prior to the enactment of Code of Civil Procedure section 340.5 in 1970, the limitation period for medical malpractice actions was the one year term applicable to actions for personal injury or death under Code of Civil Procedure section 340, subdivision 3. However, a judicially created tolling rule tolled the commencement of this period until the plaintiff either discovered his injury and its negligent cause or could have discovered the injury and its cause by exercising reasonable diligence. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 96-97, 132 Cal.Rptr. 657, 553 P.2d 1129.) For a minor, the statute of limitations was tolled completely during the period of his minority under Code of Civil Procedure section 352.

Civil Code section 29 was amended in 1941 to limit to a period of six years from date of birth the time during which an action on behalf of a minor for personal injuries sustained prior to or in the course of his birth could be brought. This time period was specifically not tolled by operation of Code of Civil Procedure section 352. However, our courts concluded that the six year period was "extended 'by any legal ground not specifically excluded in the section itself.' [Citation.] And one such legal ground is the common law delayed discovery rule in malpractice cases." (Segura v. Brundage (1979) 91 Cal.App.3d 19, 27, 153

Page 369