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Prior to bringing a lawsuit against a physician or medical provider in the State of California, there is a mandatory requirement that notice be provided to the medical provider prior to the initiation of the lawsuit. The Notice of Intent to Sue must be served upon the potential defendant, at least ninety (90) days before the commencement of the lawsuit.  This is codified in Code of Civil Procedure §364 which states as follows:

“(a)      No action based upon the health care providers 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.”

The purpose of the notice is to allow the potential defendant(s) the opportunity to evaluate and potentially resolve any claim in advance of the commencement of litigation.  Another of the underlying purposes was to avoid the element of surprise to the health care provider, as well as provide a reasonable opportunity to prepare a defense.

One of the more interesting aspects of California Code of Civil Procedure §364 is that the underlying statute of limitations for medical malpractice cases can be tolled by the submission of a §364 Notice.  Generally speaking, California Code of Civil Procedure §340.5 states that the action for medical negligence must be brought within one (1) year after the plaintiff discovers, or through the use of reasonable diligence, should have discovered the injury.  If a Code of Civil Procedure  §364 Notice of Intent to sue is filed at an appropriate time, the one (1) year statute of limitations can be tolled for a period of time up to ninety (90) days.   Should a plaintiff submit a §364 Notice of Intent to Sue within the ninety (90) day expiration of the one (1) year statute of limitation, the notice may serve to extend the applicable statute of limitations for a period of ninety (90) days from service of the notice. The timing of the filing of the § 364 Notice of Intent to Sue is critical should an effort be made to extend the statute of limitations.

Finally, the Notice of Intent to Sue is required as to any defendant whose name is known to the plaintiff at the time of the filing of the Notice of Intent to Sue.  Should a defendant be unknown to the plaintiff at the time of the filing of the complaint, and is appropriately identified in the complaint by a fictitious name, the provisions of Code of Civil Procedure §364 are not applicable to that unknown defendant.  Code of Civil Procedure §364(e).

The failure to comply with the providing of the appropriate Notice of Intent to Sue pursuant to Code of Civil Procedure §364 does not invalidate any proceedings that are filed in the Court, nor does it affect the jurisdiction of the Court to render a judgment based upon the purported professional negligence.  The only teeth to the statute is professional discipline to any attorney who fails to comply with the provisions of Code of Civil Procedure §364.

Dealing with the intricacies of the applicable provisions of the California Code of Civil Procedure in the commencement of a medical negligence action can be confusing.  While it may be that the notice requirement is the initial step, it is also critical to determine the date of discovery of the negligent act for purposes of the commencement of litigation.

Should you have questions as to any medical negligence issues, consulting with an attorney is always the best option.  The attorneys at Heiting & Irwin have many years of experience in the field of medical negligence, and can assist in the handling of any viable claims.

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