Pre-suit notice and the statute of limitations

November 24, 2013

Salah v. St. Joseph Hospital of Orange, 2013 WL 6091605 (Cal.App. 4 Dist. 2013)

In order to file a suit for medical malpractice in a California court, the plaintiff must give the defendant “at least 90 days’ prior notice of the intention to commence the action” that “shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.” Code of Civ. Pro. Section 364 (a) & (b). The purpose of this prerequisite for filing a suit is to establish procedure that encourages the parties “to negotiate outside the structure and atmosphere of the formal litigation process.” Preferred Risk Mutual Ins. Co. v. Reiswig, 980 P.2d 895, 899 (Cal. 1999). For that reason, “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” Code of Civ. Pro. Section 364 (d).

The applicable statute of limitations, Code of Civ. Pro. Section 340.5, provides that “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” The three-year limitations period can be tolled in following cases: “(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.” Id.

In Salah v. St. Joseph Hospital of Orange, 2013 WL 6091605 (Cal.App. 4 Dist. 2013), the plaintiffs’ attorneys sent the defendant hospital a letter notifying it about their intent to sue the hospital for malpractice on the plaintiffs’ behalf and asking it not to contact the plaintiffs directly. This notice was forwarded to the hospital shortly before the expiration of the one-year limitations period. The plaintiffs subsequently used it to extend the limitations period, which in the meantime had expired, for 90 days, pursuant to Code of Civ. Pro. Section 364 (d).

The Appellate Court held that the notice was defective in that it did not specify the legal basis of the contemplated suit and the injuries sustained by the patient. The notice therefore did nothing to promote the evaluation or encourage the resolution of the plaintiffs claims out of court. For that reason, the Court explained, it did not toll the statute of limitations, and the plaintiffs consequently lost their ability to sue the hospital. Their suit against the hospital was time-barred.

Leave a Reply

Your email address will not be published. Required fields are marked *