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The Importance of Not Threatening to Sue in California Unless You Mean It

July 13, 2017


A recent California Court of Appeals decision illustrates the importance of not threatening to sue someone, especially in writing, unless you understand the potentially far-reaching consequences of your actions.

In a decision filed just last week, the plaintiff gave birth via Cesarean section at the defendant hospital in October 2013. On the day after the procedure, the plaintiff fell while walking along a hospital hallway, resulting in a fractured right shoulder.

In February 2014, the plaintiff sent a detailed letter to the defendant, describing her injury and allegedly outlining the basis for her “medical negligence” claim. The plaintiff apparently additionally requested damages in the amount of $240,000 and purportedly stated that she would “move to the court” if she did not receive a check within 20 days. The defendant subsequently denied the plaintiff’s claim after its insurer reviewed the plaintiff’s records. In October 2014, the plaintiff’s retained counsel sent a letter to the defendants, stating they were providing notice pursuant to California Code of Civil Procedure § 364. The formal lawsuit followed in January 2015.

California law requires that plaintiffs give medical malpractice defendants 90 days’ notice prior to instituting a lawsuit. As applied in this case, pursuant to California Code of Civil Procedure § 340.5, the court found the relevant statute of limitations was one year from the date of the October 2013 injury. Thus, in order to proceed with a medical malpractice claim, the plaintiff would have had to file a lawsuit by October 2014. In this case, however, the plaintiff’s lawyer served the defendant with a letter pursuant to section 364, discussed above, believing that the letter would serve as notice and toll the statute of limitations to allow for the January 2015 case filing.

Unfortunately for the plaintiff, the letter that she wrote to the defendant in February 2014 met all of the requirements for the section 364 notice. Thus, the lower court granted the defendant’s motion for summary judgment on the basis that the plaintiff’s February 2014 letter served as notice of intent to sue, and thus the plaintiff’s lawyer’s later letter was superfluous and did not toll the statute of limitations. Therefore, the subsequent January 2015 lawsuit was barred by the statute of limitations.

The court of appeals affirmed the decision, finding that regardless of the plaintiff’s ignorance of section 364, and despite her alleged lack of intent to sue within the meaning of that statute, her words “move to court” and detailed explanation of her injuries and the basis for her potential claim served as a notice of intent to sue.

What is unfortunate about this case is that if the plaintiff did not write that initial letter, her attorney’s later letter would arguably have served as the section 364 notice and could have tolled the statute of limitations, allowing her lawsuit to move forward.

The physical, financial, and emotional hardships that occur after a serious injury can be overwhelming for you and your family. You need a personal injury lawyer who truly cares about helping you through this difficult time. Contact the Rubinstein Law Group today to schedule your free consultation with a personal injury attorney.

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