Is a Request to Preserve Evidence a Section 364 Notice Letter?
Section 364 of the Civil Code reads (in part):
(a) No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.
(b) No particular form of notice is required, but it 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.
(c) The notice may be served in the manner prescribed in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2.
(d) 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.
This section essentially requires 2 things: (1) that you notify a healthcare professional that you intend to sue them at least 90 days before you file suit; and (2) if the statute of limitations will expire within the 90 days notice, the statute of limitations is extended such that the healthcare professional has 90 days notice before you file.
Thus, depending on the time 364 notice is given, it can have the effect of extending the statute of limitations in medical negligence matters. The closer to the statute of limitations you send out the notice of intent to sue, the more time by which the statute is extended (up to 90 days). It should also be noted that if you send out the notice of intent to sue more than 90 days before the expiration of the statute of limitations, it does nothing to extend the statute of limitations.
Let’s pivot to 364(b) which indicates that “no particular form of notice is required.” This is likely so that injured parties have less hoops to jump through when giving proper notice. There’s no particular form that needs to be signed and no “magic language” per se other than the requirement that the notice (however formed) “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.”
These vagaries surrounding 364(b) gave rise to a recent case, in interpreting what constituted proper notice and when it was given. (McGovern v. BHC Fremont Hospital, Inc. 2022 Cal. App. LEXIS 1074.
In McGovern, the plaintiff was assaulted by another patient while hospitalized on November 7, 2015. On March 9, 2016, the plaintiff’s counsel sent a letter to the hospital outlining what had happened to the plaintiff and requested that the hospital preserve all evidence. The letter went on to indicate that said evidence would be gathered and presented to the hospital’s insurance carrier with a pre-litigation demand.
On October 27, 2016, McGovern’s attorneys sent the hospital a letter titled “Notice of Intent to Commence Action for Medical Negligence Pursuant to Code of Civil Procedure Section 364.”
Suit was filed on January 20, 2017 in McGovern. The trial court granted the hospital’s motion for summary judgment, finding that the March 9, 2017 letter constituted the notice required by Section 364 and thus the statute of limitations had expired when the case was later filed on January 20, 2017.
On Appeal, the Court of Appeal for the 1st District found for the plaintiff, holding:
 Professional negligence causes of action against a hospital, arising from an assault by one patient against another, were timely filed under Code Civ. Proc., § 340.5, because a letter from the claimant’s counsel requesting preservation of evidence, describing injuries without specificity, and making no demand for settlement was not a Code Civ. Proc., § 364, notice of intention to commence an action, and counsel later provided a valid notice tolling limitations.
McGovern v. BHC Fremont Hospital, Inc. 2022 Cal. App. LEXIS 1074
Among other things, the Court reasoned, “the March 9 letter does not state, nor even imply, that McGovern was giving “notice of the intention to commence [an] action.” McGovern v. BHC Fremont Hospital, Inc. 2022 Cal. App. LEXIS 1074, at *9.
Moreover, the March 9 letter also fails to comport with section 364’s requirement that the notice set forth “the type of loss sustained, including with specificity the nature of the injuries suffered.” (§ 364, subd. (b).) The letter contains only a vague statement that McGovern “sustained injuries to her head, and back, including a broken clavicle,” and that her injuries were “serious.” McGovern v. BHC Fremont Hospital, Inc. 2022 Cal. App. LEXIS 1074, at *11.
If you or a loved one has been involved in an instance of medical negligence, do not delay! As you can see from the McGovern case, time is of the essence! Important facts may need to be gathered quickly and time limits are strict and short! Call the attorneys at Heiting & Irwin as soon as possible at (951) 682-6400 or visit us online at www.hilegalgroup.com.