Daily Blast July 7, 2017

Attached is a new medical malpractice case dealing with the notice of intent to sue requirement under Code of Civil Procedure section 364 that might be of interest. The Court of Appeal, First Appellate District, Division Five in Kumari v. The Hospital Committee for the Livermore-Pleasanton Areas (July 6, 2017, A148351) ___ Cal.App.5th ___, held that an author’s subjective motivation for writing a letter to a health care provider is irrelevant when determining whether that letter is a notice of intent to sue under section 364. (Slip opn., p. 2.)

On October 29, 2013, plaintiff fell and sustained an injury to her shoulder while she was hospitalized after giving birth. On February 19, 2014, plaintiff sent defendant ValleyCare Health System a detailed letter describing her injury and the basis for her medical negligence claim. She requested $240,000 and stated she would “move to the court” if she did not receive a check. Plaintiff then hired a lawyer who sent defendant a letter pursuant to section 364, on October 27, 2014. Then, on January 23, 2015, more than a year after her injury, plaintiff sued defendant. The trial court granted defendant’s summary judgment motion concluding plaintiff’s letter constituted a notice of intent to sue pursuant to section 364. Because plaintiff sent the letter more than 90 days before expiration of the limitations period, it did not extend the one-year statute of limitations. (Slip opn., pp. 1-3.)

The Court of Appeal affirmed. The court explained it did not matter that plaintiff’s letter was informal because section 364, subdivision (b) does not require any particular form of notice. The letter listed the date of the injury and described the events giving rise to plaintiff’s claim, plaintiff’s injury, the medical treatment plaintiff received, and the damages plaintiff allegedly sustained. Thus, it met the statutory requirements for a notice of intent to sue. (Slip opn., p. 7.) The court also held that “[s]ection 364 does not include a requirement that the notice affirmatively express an intention to comply with the statute.” (Id. at p. 8.) Thus, it did not matter whether plaintiff intended the letter to constitute a notice of intent to sue under section 364. (Ibid.) Plaintiff’s letter was a notice of intent to sue, sent more than 90 days before expiration of the limitations period. Therefore, it did not toll the statute under section 364, subdivision (d). (Id. at p. 10.) Finally, the court held that the second section 364 notice “was surplusage” and did not extend the limitations period. (Ibid.)