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The Notice Requirement for Suing Physicians in California

GavelWhen bringing suit against a physician under California law, there are certain steps that must be followed in order for the suit to be considered both appropriate and timely filed. One of those that many people trying to sue on their own miss is the notice requirement, which is mandatory when suing a doctor under California law. It is important to understand what is required and what is not, so you can be sure your suit goes forward exactly as you intend.

Statutory Requirements

The notice of intent to sue must be served upon the defendant at least 90 days before a lawsuit is commenced. The statute that governs the issue of notice is California Code of Civil Procedure Sec. 364. It was passed in response to what was perceived to be insurers and attorneys “surprising” doctors with suits, which was alleged to lead to inequities in time to prepare a defense. given that an individual patient’s records may be difficult or time-consuming to locate. The statute, however, sets out surprisingly few specific requirements in terms of the notice itself. Rather, it states what the notice does not have to be.

For example, Sec. 364(b) states that the notice does not have to be in any specific form as long as it states the relevant facts of the case (namely, the alleged misconduct and the injuries suffered as a result of that alleged misconduct). The notice requirement is also clearly not intended to be a method of putting off a suit; Sec. 364(d) explicitly provides that if the notice is served on the defendant within 90 days of the passing of the statute of limitations (for medical malpractice actions in California, the statute is one year from when the injury should have been discovered or three years from the date of the injury), the statute will not be tolled for another 90 days. The plaintiff preserves their right to sue as long as the notice is actually filed before the statute tolls, regardless of how close they may be cutting it.

Occasional Factors

Even as straightforward as the notice requirement can seem, there are still occasional complications and questions that can arise. One common issue may occur when you are uncertain of the proper name of the defendant and thus are unsure to whom you should send notice; the statute expressly waives the notice requirement for defendants you refer to by a fictitious name. For example, in the case of a woman who was the victim of assault while under anesthesia, she is unaware of the name of her assailant, but knows that the hospital has a duty to guard against such events. She must provide notice to the doctor and hospital, but not, as one might imagine, to the assailant.

Another question many plaintiffs may have about suing a doctor is whether or not the notice requirement applies if the cause of action against the doctor is not professional negligence. The answer is no, because if the cause of action is not related to one’s profession, there is no need to treat a doctor any differently than another defendant. Minor issues like this can make a difference - your suit will not be dismissed, but it may be delayed.

Seek Experienced Assistance

While it seems inconsequential, the notice requirement is the first step in the lawsuit process, when it comes to malpractice. If you have questions, consulting an attorney is your best option. The dedicated San Jose medical malpractice lawyers at Corsiglia, McMahon & Allard, L.L.P. have years of experience in this field, and will do our best to guide you through the lawsuit process. Call us today at (408) 289-1417 to discuss your options. We serve San Jose, the Bay Area, and the counties of Alameda, Monterey, San Benito, Santa Clara, and San Mateo.

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My experience with Attorney Brad Corsiglia during my recent medical malpractice case was nothing short of amazing given the very stressful circumstances. I was fortunate to find Brad highly recommended from a mutual contact and from the very beginning of the process, Brad was truly engaged and knowledgeable in understanding my case and providing input on what avenues were available to me. Michelle M.