Legal News

RECENT DECISION ABOUT CCP SECTION 364 NOTICES OF INTENT TO SUE

SELVIDGE V. TANG (2018) CASE NO. C083427

This week the Third Appellate District of the California Court of Appeal held actual notice is not required for a CCP section 364 notice of intent to commence a medical negligence action when the notice is sent to the address the physician has on file with the Medical Board of California—even if that address is only used for billing purposes. In Selvidge v. Tang (2018), Case No. C083427, the trial court granted defendant’s motion for summary judgement based on plaintiffs’ failure to properly serve a section 364 notice of intent to sue (part of the Medical Insurance Compensation Reform Act, or MICRA) or timely file the complaint within the statute of limitations. The appellate court reversed and said plaintiffs’ use of the address the doctor had on file with the MBC was appropriate, and satisfied the notice requirements of section 364 since that is the “address defendant identified to the medical board as the address at which he could reliably be contacted” pursuant to state regulations. The appellate court held plaintiffs’ notice of intent was timely filed, which tolled the statute of limitations and made plaintiff’s complaint timely, as well.

Plaintiffs’ decedent was a patient of Dr. Tang. Plaintiffs sued for wrongful death and mailed a notice of intent to commence action per CCP section 364 to the address Dr. Tang had on file with the medical board; Dr. Tang maintained he never received that notice. Dr. Tang moved for summary judgment on the grounds the complaint was late, since he had not gotten the notice of intent that would operate to toll the limitations period for 90 days. Plaintiffs’ counsel’s legal assistant declared under penalty of perjury she had timely mailed the notice to Dr. Tang’s address on record with the MBC per CCP requirements for service by mail. The trial court granted the motion for summary judgment because Dr. Tang did not have “actual notice of plaintiffs’ intention to file an action against him” and plaintiffs had failed to comply with CCP section 1013 mailing provisions by mailing the notice to the doctor’s residence.

While section 364 does not require any “particular form of notice” the court observed “that the purpose of the Act—effectuating prelitigation settlements—can only be achieved through actual notice.” The question before the appellate court, then, was “whether conduct short of complying with section 1013 could ever be sufficient to satisfy the Act’s notice requirement when the medical professional never received actual notice.” The court ruled that it could, and said “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, he or she has provided adequate notice.”

The court delineated two methods a plaintiff can use to achieve “actual notice:” 1) serve a notice of intent pursuant to CCP section 1013, or 2) “determine the defendant will actually receive the notice of intent if transmitted in a particular fashion.” The court noted, for example, that it had previously ruled actual notice had been achieved when a plaintiff faxed the notice to a number used previously to communicate with the physician, and the physician had actually received the fax. (However, note that courts have held service to be inadequate when plaintiff “has relied on a third party to forward a notice of intent to a physician—such as serving the hospital where the physician has privileges but not a medical office.”)

Here, because plaintiffs mailed the notice directly to the address on file with the MBC, that was sufficient. “[W]e conclude the Act does not limit the mailing of a notice of intent to a physician’s residence and allows a party to mail it to the address a physician has provided to the medical board.”

This decision makes sense, since the address that is listed publicly with the board is one at which the physician must keep up to date in order for the licensing agency to be able to contact him or her. The court also found it noteworthy (footnote 4) to point out the doctor acknowledged having received the complaint at the address listed with the MBC, but claimed he did not receive the 364 notice of intent.

For more information on this and other recent decisions, please reach out to Reneé A. Richards.