When the plaintiff in a medical malpractice action alleges the defendant misdiagnosed or failed to diagnose a preexisting disease or condition, the plaintiff suffers injury from the alleged malpractice, and, if the plaintiff has already discovered the malpractice, CCP 340.5’s one-year limitations period begins to run when the plaintiff first becomes aware that a preexisting disease or condition has developed into a more serious one. Here, the plaintiff suffered debilitating headaches and other pains. He didn’t believe defendant’s diagnosis of nothing serious and consulted a lawyer about suing defendant. But it wasn’t until several years later that he discovered the headaches were due to a brain tumor which had increased in size during the time since defendant’s misdiagnosis, requiring surgery that left plaintiff with permanent nerve damage. Summary judgment for defendant is reversed as a question of fact exists as to when plaintiff discovered that his pre-existing headache condition had worsened.
California Court of Appeal, Second District, Division 7 (Segal, J.); October 31, 2016; 2016 WL 6407973