California’s Delayed Discovery Rule in the Medical Malpractice Context

California’s Delayed Discovery Rule in the Medical Malpractice Context

Statutes of limitations are an integral component of the legal system enacted as a matter of public policy and designed “to give defendants reasonable repose, that is, to protect parties from defending stale claims [and] to require plaintiffs to diligently pursue their claims.”[1] In California, there is an important exception to the general rule that a cause of action accrues when appreciable harm occurs. This is known as the Delayed Discovery Rule. The Rule applies in certain circumstances where it is not reasonably possible for a person to discover the cause of injury or even know that an injury has occurred, until an extended period of time after the act which caused the alleged injury.  In these situations, the Delayed Discovery Rule operates to “postpone the accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.”[2]  The principal purpose of the rule permitting postponed accrual of certain causes of action is to protect aggrieved parties who, with justification, are ignorant of their right to sue.[3]

The Medical Malpractice Context

The Delayed Discovery Rule is particularly applicable in medical malpractice litigation. Specifically, where it is  difficult for plaintiffs to immediately detect or comprehend the breach or the resulting injuries (e.g., where the cause or the injuries are hidden for a substantial period of time). Often a plaintiff will invoke the rule in situations where symptoms of an injury allegedly caused by malpractice were present soon after treatment, but plaintiff did not realize the connection until after the deadline to file suit.

While the delayed discovery rule protects Plaintiffs that find themselves in situations where alleged malpractice is not readily obvious, it does impose a level of diligence on a plaintiff. “Plaintiffs must conduct a reasonable investigation after becoming aware of an injury and are charged with knowledge of information that would have been revealed by such an investigation.”[4]  “A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.”[5]

Even a reasonable suspicion of a claim is sufficient to trigger accrual.[6]  A plaintiff has reason to know a potential claim exists when he or she has reason to suspect a factual basis for its elements.  In other words, “suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.”[7] “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights.  So long as suspicion exists, it is clear that the Plaintiff must go find the facts; she cannot wait for the facts to find her.”[8]

In medical malpractice cases, Plaintiffs regularly try to hide behind the fiduciary relationship with the physician defendant, arguing that they were entitled to rely on representations made by the fiduciary.  However, while the degree of diligence required is diminished during the continuance of a professional relationship such as this, this degree is not extinguished.[9]  A plaintiff can be on notice of alleged wrongdoing of a physician long before the termination of the physician-patient relationship.  And this notice is the operative event that triggers accrual.

Pleading Requirements

In order to invoke the discovery rule, a plaintiff must plead specific facts as to: “(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.”[10]  “In order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.”[11]


The law provides important protections against delayed medical malpractice claims that should be explored., Plaintiffs may not take advantage of the Delayed Discovery Rule where there is information giving rise to a reasonable suspicion of wrongdoing and the possible connection to Plaintiffs’ injuries.  Plaintiffs are required to diligently investigate any such suspicion and act promptly.  A Plaintiff must also properly plead facts as to why the injury could not be discovered earlier.

[1] Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 (citing Davies v. Krasna (1975) 14 Cal.3d 502, 512)

[2] WA Southwest2, LLC v. First American Title Insurance Co. (2015) 240 Cal.App.4th 148, 156

[3] Seelenfreund v. Terminix of Northern Calif., Inc. (1978) 84 Cal.App.3d 133, 138.

[4] Fox v. Ethicon Endo Surgery, Inc. (2005) 35 Cal.4th 797, 807

[5] Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at 1109.

[6] Fox, supra, 35 Cal.4th at 807.

[7] Id.

[8] Id.

[9] Enfield v. Hunt (1984) 162 Cal.App.3d 302

[10] WA Southwest2, LLC v. First American Title Insurance Co., supra, at 157.

[11] Nguyen v. W. Digital Corp., 229 Cal.App.4th 1522, 53 (2014).

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