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Suing a Doctor? Don’t Forget to Give Notice

doc_154186654There’s something you have to do before suing for medical malpractice in California: Give notice. Fail to provide the proper notice of intent to sue and you may face discipline.

Ninety days or more before filing suit for professional negligence against a medical doctor, hospital, or other health care provider, plaintiff’s counsel should give every known defendant a notice of intention to bring the action. CCP §364.

Here are the basics about a notice of intent to sue:

  • There’s no particular form for the notice.
  • The notice is served like other papers in a suit.
  • The notice need not include the specific factual basis for each cause of action.
  • The notice is deemed to have been given on the date it is properly deposited in the mail.
  • No notice is necessary if the doctor’s alleged liability is for a tort other than professional negligence.
  • Failure to give the notice doesn’t invalidate a properly filed suit, but it may be grounds for disciplining the attorney (CCP §365).

Keep in mind that the notice may affect the applicable statute of limitations. For example, both the 1-year and the 3-year limitations periods in CCP §340.5 are tolled for 90 days if the notice of intention to sue is given on one of the last 90 days of the limitations period.

Want more specifics on the notice and its possible effect on the applicable statute of limitations? It’s all covered in CEB’s California Tort Guide, chap 9.

Check out other CEB blog posts on tort issues.

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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