Kelly A. Knight is an attorney and mediator based in Los Angeles, CAlifornia. He handles matters throughout California.

Mailing a notice of intent to sue to a physician's address of record with the Medical Board satisfies pre-filing requirement under C.C.P. section 364 in medical-malpractice cases

The Third District Court of Appeal's opinion in Selvidge v. Tang, Cal. Ct. App. 3d Dist. no. C083427 (Mar. 5, 2018) (slip op. linked here), provides an interesting clarification on a plaintiff's duty under section 364 of the Code of Civil Procedure in medical-malpractice cases.

Section 364 does two things. First, it requires plaintiffs to provide at least 90 days' notice to the health care provider of the plaintiff's intent to sue prior to commencing a civil action. Second, if served within 90 days of the applicable statute of limitations expiring, the limitations period is extended by 90 days from the date of the notice:

(a) No 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.

(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.

(c) The notice may be served in the manner prescribed in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2.

(d) 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.

Civ. Proc. Code § 364 (a)-(d).

In Selvidge, the former wife and children of their decedent husband and father filed a civil action against a physician who treated the decedent. Slip op. at 2. The action was filed 85 days after the initial one-year limitations period had expired. Id. 

The defendant moved for summary judgment on grounds that the action was untimely; the plaintiffs contended in opposition that the limitations period was extended by 90 days under section 364, making the action timely. Id.

The plaintiffs submitted a declaration from the legal assistant of the plaintiff's attorney, stating under penalty of perjury that she "caused to be placed in the United States mail" a notice of intent to sue, addressed to an address listed for the defendant on the Medical Board's website. Id. She also called the facility where the defendant had treated the decedent and was told that the defendant no longer was employed there. Id. The assistant did not send the letter by certified mail or prepare a proof service; the letter was not returned as undeliverable. Id. at 2-3.

The defendant claimed that he never received the notice. Id. at 3. The address that he provided to the Medical Board (where the letter was allegedly sent) was an address that he used for billing purposes and that was "owned by a business service company that received mail on behalf of defendant and his medical corporation, to which he was the sole employee," and that he checked that mailbox once or twice a month. Id. 

The trial court granted the motion for summary judgment on grounds that defendant did not have actual notice of the plaintiffs' intent to sue, the plaintiffs therefore had to comply with section 1013(a) of the Code of Civil Procedure (requiring notice sent either to the last office address on file in the action or to the party's residence), and the plaintiffs did not send the notice to the defendant's residence. Id. at 3-4. But the Court of Appeal reversed.

The Court of Appeal recognized that the purpose of section 364---further prelitigation settlements---can only be achieved through actual notice, and that courts presume actual notice under section 364 when a plaintiff mails the notice in "strict compliance" with section 1013. Id. at 4. But here, the plaintiffs did not strictly comply with section 1013 because they failed to send the notice to the defendant's residence. Id.

Nevertheless, the Court of Appeal held that a plaintiff provides adequate notice under section 364 "when a plaintiff mails a notice of intent to file an action to the address a medical professional provided to the medical board for the purpose of receiving mail." Id. at 4-5.

The Selvidge court cited Title 16 California Code of Regulations section 1303, which requires a licensed doctor to file a current and proper mailing address with the Medical Board and to immediately notify of any updates, for the proposition that the address to which the plaintiffs mailed their notice was the address that the defendant himself identified to the Medical Board "as the address at which he could reliably be contacted." See id. at 6. The Selvidge court also cited Derderian v. Dietrick, 56 Cal. App. 4th 892, 900 (1997), for the proposition that "any doubt as to where to mail a notice of intent 'may be resolved by resorting to the public record of the Medical Board of California, Division of Medical Quality where physicians’ current addresses are maintained in accordance with the law regulating medical doctors. If [a plaintiff] had given notice to [a defendant] at the address he is required to file with the Medical Board of California, he could hardly claim he did not receive actual notice.” See slip op. at 7 (citations and internal quotation marks omitted).

The Selvidge court held that a section 364 notice does not have to be mailed to a physician's home to satisfy section 364; the notice may be sent to the address that the physician provided to the Medical Board. Id. at 8. Since the plaintiffs did this, the limitations period was extended by 90 days, and the action was timely. Id. Judgment reversed.

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