Ashworth

In this opinion we hold the statutory “foreign body exception” delays the start of the medical malpractice statute of limitations (Code Civ. Proc., § 340.5) until the patient discovers or through reasonable diligence would have discovered the “foreign body” itself and its role as the negligent cause of her suffering. We further hold this tolling continues even though the plaintiff has filed an earlier action based on other forms of malpractice occurring during the same medical treatment where this earlier action has been dismissed without prejudice.

Statement of Facts and Proceedings Below

In January of 1976 appellant Julia Ashworth (Mrs. Ashworth) experienced severe pains in her right side. She went to respondent Memorial Hospital of Long Beach (Hospital) and was referred to a urologist, Dr. John W. Barloon. Dr. Barloon diagnosed the cause of Mrs. Ashworth’s pain as kidney stones. On February 11, 1976, Dr. Barloon operated to remove these stones from her left kidney. He was assisted in this surgery by respondent Dr. Richard Carlisle (Dr. Carlisle), who was his associate.

By mid-March 1976, Mrs. Ashworth was experiencing severe pain on her right side again. She went to…