The statute of limitations requires that a professional negligence claim against a healthcare provider (aka medical malpractice) be brought within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury. (Code Civ. Proc. § 340.5.) However, Code of Civil Procedure § 364, subd. (a) also provides that “[n]o 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.” Thus, it is critical to serve this Notice of Intent to Sue prior to filing suit.
A common situation occurs when the plaintiff serves the CCP § 364 notice of intent to sue within 90 days of the expiration of the one-year statute of limitations on a medical malpractice claim. What happens then? Well, CCP § 364, subd. (d) provides:
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.
The California Supreme Court has held that the legislative purpose of section 364, subd. (d), is “best effectuated by construing section 364(d) as tolling the one-year statute of limitations when section 364 (a)’s ninety-day notice of intent to sue is served during, but not before, the last ninety days of the one-year limitations period. Because the statute of limitations is tolled for 90 days and not merely extended by 90 days from the date of service of the notice, this construction results in period of 1 year and 90 days in which to file the lawsuit.” (Woods v. Young (1991) 53 Cal.3d 315, 325.)
Thus, if a plaintiff serves her CCP § 364 Notice of Intent to Sue during the last 90 days before the expiration of the one-year statute of limitations, the plaintiff will have 1 year and 90 days from the date the statute of limitations begins to accrue to file her medical malpractice suit.
To illustrate, assume that the medical malpractice claim accrued on August 1, 2014. The one-year statute of limitations would ordinarily expire on August 1, 2015. On July 1, 2014, which is within the 90-day period prior to the one-year expiration of the SOL, plaintiff serves her CCP § 364 Notice of Intent to Sue on the healthcare provider defendant(s). Because plaintiff has served the Notice, she now has a total of 1 year and 90 days from the date the claim accrued on August 1, 2014, to file her lawsuit. Since one year and 90 days from August 1, 2014 is October 30, 2015, plaintiff must file her lawsuit on or before October 30, 2015.
Disclaimer: Note that laws are subject to change. Furthermore, the individual details of your case may affect your statute of limitations. The date that a claim “accrued” is often disputed, as well. It is best to have an experienced lawyer analyze your case. This blog post does not constitute legal advice.
