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Why You Shouldn’t Try to Settle Your Medical Malpractice Claim Before You Call a Lawyer

medical malpractice

I’ve written numerous times about how the medical malpractice laws in California are greatly stacked against plaintiffs – short statute of limitations, $250,000 general damages cap, and cases such as Flores v. Presbyterian Hospital where a defective hospital bed was found to be “medical malpractice” and governed by MICRA’s exceedingly pro-doctor provisions and Cuevas v. Contra Costa County where the jury’s award for mental retardation caused by a doctor during delivery was dramatically reduced by the Courts.

Here we go again:

A brand-new case (Opinion filed July 7, 2017) Kumari v. The Hospital Committee for the Livermore-Pleasanton Areas (2017) Cal. App. LEXIS 607, has made it once again more difficult for plaintiffs.

On October 29, 2013, Ms. Kumari, after giving birth, weak and unable to walk on her own, was being accompanied down the hallway at the hospital.  The nurse assigned to her care abruptly left Ms. Kumari unattended.  Ms. Kumari fell and suffered a fracture to her right shoulder.

On February 19, 2014, Ms. Kumari sent the hospital a letter, outlining her complaints, seeking compensation, and indicated she would “move to the court after 20 days” if she did not receive compensation.

In August of 2014, the Hospital denied Ms. Kumari’s claim concluding that they were not liable for her injuries.

On October 27, 2014, Ms. Kumari hired an attorney who immediately sent a letter to the defendants, pursuant to Code of Civil Procedure Section 364.  This notice is often referred to as a “letter of intent” which is sent to defendants in medical practice matters to inform them of the plaintiff’s intent to bring a lawsuit.  This letter also has the following effect:

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 Civil Procedure Section 364(d) [emphasis added].

Thus, when Ms. Kumari’s attorney sent the letter on October 27, 2015 (the day she hired the attorney), it was believed that the statute of limitations would be extended from October 29 ,2015 to approximately 90 days from October 27, 2015 – on or about January 25, 2016.

Ms. Kumari’s attorneys filed suit against the hospital on January 23, 2015 – approximately 15 months from the date of her injury and within 90 days of having sent the C.C.P. Section 364 letter.

The hospital promptly moved to have the case dismissed for having been filed after the 1 year statute of limitations.

The Trial Court granted the hospital’s motion for summary judgment and dismissed Ms. Kumari’s action.  She appealed and the Court of Appeals recently affirmed.  The Court held, among other things:

  • Kumari’s informal letter, sent in February 2015, satisfied the conditions to make it a letter of intent pursuant to Code of Civil Procedure Section 364 and thus the statute of limitations expired on October 29, 2015.
  • Whether Kumari intended her February 2015 letter to constitute a letter of intent under Section 364 is immaterial.
  • The 364 Letter of Intent sent by Kumari’s attorney was “surplusage” and did not extend the one year statute of limitations
  • The hospital should be awarded their costs on appeal, payable by Ms. Kumari

For this reason, it is inadvisable that you attempt to resolve your medical malpractice claim on your own.  Ms. Kumari, in her own attempt, sent a letter which had the effect of removing her attorney’s ability to extend the statute of limitations by 90 days.  The statute of limitations in medical malpractice cases is already very short and unforgiving in California.  With this new ruling, attorneys who practice medical malpractice, such as Heiting and Irwin, will be very wary about using Section 364 for fear the client may have, inadvertently, already done so, removing the ability to toll the statute of limitations by up to 90 days.

The end result of the Kumari case is that the portion of Section 364, which provided some relief to plaintiffs from the draconian statute of limitations, is effectively repealed.  Who will want to rely on it when it is possible that the Court could find that some communication your client had with the hospital or doctor constitutes notice under Section 364?

Mr. Serrano has been admitted to practice before California State and Federal Courts. He was named to the Super Lawyers’ 2012, 2013, 2014, 2015, and 2016 Southern California Rising Stars List, an honor awarded to no more than 2.5% of attorneys in Southern California each year.
View Attorney Jean-Simon Serrano’s Attorney Bio Here.

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