The ''Foreign Body'' Exception Regarding the Limitations Period

In Ashworth v. Memorial Hospital (1988) 206 Cal. App. 3d 1046, 254 Cal. Rptr. 104, the Second District Court of Appeal held that in cases involving the "foreign body" exception the one-year limitations period does not commence until the patient discovers, or through reasonable diligence would have discovered, the existence of the "foreign body" and its negligent cause of his injury. (Ashworth, supra, 206 Cal. App. 3d at p. 1058.) The plaintiff in Ashworth brought a medical malpractice action after discovering her doctor had left "cotton pledgets" or "sponges" in her body during an operation to remove kidney stones. Noting the "unique characteristics" of this form of malpractice and the Legislature's special treatment of the "foreign body" exception, the court held the statute of limitations did not begin to run until the plaintiff was aware of the cotton pledgets and the role they played in her ailments. (Ashworth, at p. 1059.) As the court explained in Ashworth: "It is said the statutory 'foreign body' exception only tolls the three-year outside limitations period and not the one-year 'discovery' period. (Hills v. Aronshon (1984) 152 Cal. App. 3d 753, 761.) What this means, of course, is that the 'foreign body' exception in section 340.5 lifts the three-year outside limit entirely if a nontherapeutic 'foreign body' has been left inside a patient. It gives that patient an unlimited time to discover or to use reasonable diligence to discover the presence of the 'foreign body.' But once the patient discovers or through reasonable diligence would have discovered the 'foreign body' and its role in her injury she only has one year to file her lawsuit against the practitioners responsible for leaving the 'foreign body' inside her. That is, the patient is not free to completely ignore the statute of limitations just because she finds out her doctor left something inside her body which is causing her harm. She must still act within one year of her discovery the 'foreign body' exists and is the negligent cause of her injury." ( Ashworth, supra, 206 Cal. App. 3d at p. 1058.)