Ninety Days of Tolling

Selvidge v. Tang, No. C083427 (D3 Mar. 5, 2018)

Under Code of Civil Procedure § 340.5, the statute of limitations for med-mal is one year or three years after discovery of the injury. The patient in this case died, so it’s a one year clock. Plaintiff—patient’s next of kin—sued almost three months after the year and run, so she’s too late under § 340.5.

But she relies on a provision in the Medical Injury Compensation Reform Act, § 364, which requires a med-mal plaintiff to give a doctor ninety days’ notice before filing suit, and extends the statute of limitations by up to ninety days if the statute is about the run when the notice is made. The point of § 364 is to encourage settlement.

Plaintiff here sent a § 364 notice, by regular mail with no return service requests, to the address the Doctor kept on file with the medical board. Doctor says he didn’t get it. But MICRA contains a cross-reference to the service of non-summons provisions of the Code of Civil Procedure. Section 1013 permits service by mail to the recipient’s residence, which gives rise to a rebuttable presumption that the addressee has received actual notice.

But Plaintiff didn’t send the notice to Doctor’s home address. She sent it to the address on file with the medical board. So the question is whether that’s good enough, even if § 1013 hasn’t been satisfied. The Court holds that it is. Reviewing the case law, the Court holds that the test is whether plaintiff took adequate steps to achieve actual notice. Given that doctors are required by law to list a contact address with the medical board, Plaintiff’s reliance on that address is sufficient, even if Doctor did not actually get the letter.

Reversed.