Duncan

Plaintiffs and appellants Russell Duncan (Duncan) and Shari Duncan (Mrs. Duncan) (collectively the Duncans) appeal from the judgment entered after the trial court granted summary judgment in favor of defendant and respondent Yemelyan Spivak, M.D. (Spivak). Duncan contends the trial court erred in concluding the one-year limitations period set forth in Code of Civil Procedure section 340.5 [1] rendered his medical malpractice claim time-barred. As more fully explained below, section 340.5 sets forth a three-year and a one-year limitations period. The statute provides in pertinent part that regardless of the three-year limitation period, "... the time for the commencement of action shall be ... one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first." Section 340.5 goes on to exclude from its limitation periods any claim in which the plaintiff can show "the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person."

In the first part of this opinion we conclude that a staple used during Duncan's hernia surgery is not a…