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Reviewed by Kanwar Partap Singh Gill, MD · sources checked
The first deadline question is not simply, “When did the treatment happen?” A reliable assessment identifies the injury, discovery, defendant, patient age, forum, and any governmental or federal status. Several time limits can apply to the same facts. A request for records, a complaint to the Medical Board, an insurer's investigation, or ongoing settlement discussions should not be assumed to stop any of them.
The ordinary adult rule: two clocks
Code of Civil Procedure section 340.5 generally requires an action for injury or death against a health care provider based on professional negligence to begin within three years after the date of injury or one year after the plaintiff discovers, or through reasonable diligence should have discovered, the injury, whichever occurs first.
The one-year period can become decisive long before three years have passed. Discovery is not necessarily postponed until a lawyer agrees to take the case or an expert supplies a definitive opinion. A plaintiff's knowledge of harm and reason to suspect a wrongful cause require close factual examination. The statutory “injury” date also can present a legal issue; it should not automatically be equated with the date of the last appointment.
The three-year outer period has specified exceptions for fraud, intentional concealment, and the presence of a foreign body with no therapeutic or diagnostic purpose or effect. These are not interchangeable with ordinary nondisclosure or an adverse outcome. A device deliberately implanted for treatment is not automatically a qualifying foreign body merely because a later problem develops.
Children require their own calculation
Section 340.5 contains a special minors provision: generally three years from the alleged wrongful act, with a longer period for a child under six where the statute permits filing before the eighth birthday. The precise wording, the child's age at the event, and relevant constitutional and case-law treatment matter. The statute also addresses tolling where a parent or guardian and the provider or insurer commit fraud or collusion in failing to bring the action.
Do not assume that every California medical malpractice claim is tolled until age 18. Birth-related injuries, claims by parents, derivative or death claims, and public-entity procedures can introduce additional issues. Each claimant and cause of action needs a separate calculation.
What section 364 notice must accomplish
The notice must communicate the legal basis of the claim and the type of loss sustained, including the nature of the injuries with appropriate specificity. No particular form is required, but the recipients, contents, service method, and proof of service should be documented. A notice to one potential defendant should not casually be treated as adequate notice to every other entity or person.
The notice normally precedes commencement by at least 90 days. Section 364(d) addresses notice served within the final 90 days of the applicable limitations period. Its literal wording must be read with controlling interpretation. For the one-year discovery period, Woods v. Young holds that notice served during the final 90 days tolls that period for 90 days. In that situation the calculation is not simply “90 days from the date the notice was sent.” Notice served earlier in the one-year period does not generate the same extension. Notice served after a claim has already expired does not revive it.
The three-year limit, the statutory notice rule, other tolling doctrines, and any special governmental deadline must still be reconciled. A website calculator should not promise a filing date from the treatment date alone.
Section 365 is equally important: failure to comply with the notice chapter does not invalidate the proceedings or affect the court's jurisdiction to render judgment. Noncompliance therefore should not be described as automatic dismissal solely for lack of notice. It can expose counsel to discipline, and it does not cure an independently expired limitations period.
Governmental and federal deadlines
For claims within California's Government Claims Act, a personal-injury or death claim generally must be presented to the responsible public entity within six months after accrual, subject to the governing statutes. A lawsuit generally must await compliance with the claim-presentation requirements. A proper written rejection commonly triggers a separate six-month period to sue under Government Code section 945.6. Different rules can apply when no compliant rejection is given. Late-claim procedures exist, but have their own requirements and should never be treated as a routine extension.
For a covered Federal Tort Claims Act claim, a written administrative claim generally must be presented to the appropriate federal agency within two years after accrual. A claim must include a sum certain and satisfy presentment requirements. A claimant ordinarily cannot sue until a final denial or the passage of six months without final agency action. A mailed final denial generally starts the separate six-month period specified in 28 U.S.C. section 2401(b). California section 364 notice is not a substitute for federal administrative presentment.
A practical deadline worksheet
Record the event date, first injury, first knowledge or suspicion, later discoveries, patient age, every potential defendant, public or federal status, arbitration terms, notice dates, government claim dates, rejection dates, and the person responsible for calendaring. Preserve the documents supporting each date. Counsel should identify both the primary calculation and any disputed alternative, rather than using the most favorable possible date as the only deadline.