When a patient or family believes medical malpractice caused serious harm, one of the first questions is usually: How long do we have to file a lawsuit?

In California, medical malpractice cases have special timing rules. One of the most important is the 90-day notice requirement. Before filing a lawsuit against a health care provider for professional negligence, California law generally requires the claimant to give the provider at least 90 days’ advance notice of the intent to sue.

This rule can affect when a lawsuit may be filed, how the statute of limitations is calculated, and whether a claim is properly preserved. Because timing mistakes can jeopardize an otherwise valid case, anyone considering a medical malpractice claim should speak with an attorney as soon as possible.

What Is the 90-Day Notice Requirement?

California Code of Civil Procedure section 364 requires a person bringing a medical malpractice lawsuit to provide at least 90 days’ notice before filing suit against a health care provider.

In simple terms, this means a plaintiff generally cannot file a medical malpractice lawsuit immediately without first notifying the health care provider that a claim is being pursued.

The notice is often called a:

• 90-day notice;
• notice of intent to sue;
• MICRA notice;
• medical malpractice pre-suit notice; or
• Code of Civil Procedure section 364 notice.

The purpose is to alert the health care provider that a malpractice claim may be filed and to identify the basic nature of the claim.

What Must the Notice Include?

California law does not require a specific form for the notice. However, the notice should identify the legal basis for the claim and the type of loss or injury suffered.

A proper notice should generally include:

• the name of the patient;
• the health care provider being notified;
• a statement that the claimant intends to bring a medical malpractice action;
• the general legal basis for the claim;
• the type of injury or loss suffered;
• the nature of the alleged negligence; and
• enough information to put the provider on notice of the claim.

The notice should be drafted carefully. It should be specific enough to satisfy the law, but it should not be written casually or without understanding the medical and legal issues involved.

Who Must Receive the Notice?

The notice should be sent to each health care provider who may be named as a defendant in the lawsuit.

This can include, depending on the case:

• doctors;
• nurses;
• hospitals;
• emergency departments;
• surgical centers;
• urgent care facilities;
• radiologists;
• specialists;
• medical groups;
• nursing facilities; and
• other licensed health care providers.

Identifying the correct defendants is often one of the most important early steps in a medical malpractice case. A patient may know that something went wrong at a hospital but may not know whether the responsible provider was an employee, independent contractor, medical group physician, resident, nurse, radiologist, or outside specialist.

That is one reason early investigation matters.

Does the 90-Day Notice Extend the Statute of Limitations?

Sometimes, yes.

California’s medical malpractice statute of limitations is generally the earlier of:

one year from when the patient discovered, or reasonably should have discovered, the injury; or

three years from the date of injury.

The 90-day notice rule can affect timing if the notice is served close to the end of the limitations period. In some circumstances, serving the notice during the final 90 days of the statute of limitations can extend the time to file the lawsuit by 90 days.

This can be extremely important. However, it is also a dangerous area to navigate without legal advice. The notice rule does not give unlimited time, does not revive an already expired claim, and does not replace careful statute-of-limitations analysis.

If there is any concern that the deadline may be approaching, the safest course is to speak with a medical malpractice attorney immediately.

What Happens If the Notice Is Not Sent?

Failure to send the required notice can create procedural problems in a medical malpractice case. Courts may treat the failure differently depending on the circumstances, but no plaintiff should assume the requirement can be ignored.

More importantly, waiting too long to investigate the case can create bigger problems, including:

• missed filing deadlines;
• lost evidence;
• incomplete medical records;
• difficulty identifying responsible providers;
• unavailable witnesses;
• delayed expert review; and
• unnecessary statute-of-limitations disputes.

Medical malpractice cases are already difficult. Avoidable timing problems only make them harder.

Why Medical Malpractice Deadlines Are Complicated

Medical malpractice deadlines are not always simple because the date of “injury” and the date of “discovery” may be disputed.

For example, a patient may not immediately know that a bad outcome was caused by negligence. A family may suspect something went wrong only after later testing, a second opinion, an autopsy, or a review of medical records. In other cases, a foreign object, missed diagnosis, surgical injury, infection, medication error, or delayed treatment may not be understood until much later.

Common timing questions include:

• When did the injury occur?
• When did the patient discover the injury?
• When should the patient reasonably have discovered the injury?
• Was the provider’s negligence concealed?
• Was the patient a minor?
• Was the claim against a public entity?
• Were multiple providers involved?
• Did the claim involve wrongful death?
• Was a 90-day notice served, and when?

These questions are fact-specific. They should be evaluated carefully before assuming that a case is timely or untimely.

Examples of Cases Where the 90-Day Notice May Matter

The 90-day notice requirement may come up in many types of medical malpractice cases, including:

Failure to Diagnose

A doctor, emergency department, or specialist may fail to diagnose a serious condition such as cancer, stroke, infection, meningitis, heart attack, sepsis, or internal bleeding.

Surgical Negligence

A patient may suffer harm from a surgical error, failure to monitor after surgery, retained foreign object, anesthesia issue, or negligent post-operative care.

Emergency Department Malpractice

Emergency departments may miss red flags, discharge a patient too early, fail to order necessary testing, or fail to recognize a life-threatening condition.

Birth Injury and Newborn Injury

Medical negligence during pregnancy, labor, delivery, or neonatal care may cause serious harm to a baby or mother.

Medication Errors

The wrong medication, wrong dose, dangerous drug interaction, or failure to monitor a patient can cause severe injury or death.

Wrongful Death After Medical Care

Families may have a wrongful death medical malpractice claim when negligent care causes a preventable death.

In each of these situations, the 90-day notice may be required before filing a lawsuit.

Does Sending a 90-Day Notice Mean You Have a Case?

No. Sending a notice does not prove malpractice. It also does not mean a lawsuit will definitely be filed.

A viable medical malpractice case usually requires expert review. In California, it is generally not enough to show that a bad medical outcome occurred. The claimant must usually prove that the health care provider fell below the applicable standard of care and that the negligence caused harm.

That means a lawyer typically needs to evaluate:

• the medical records;
• the timeline of care;
• the providers involved;
• the standard of care;
• causation;
• damages;
• expert opinions; and
• available defendants and insurance.

A 90-day notice is a procedural step. It is not a substitute for proving the case.

What Should Patients and Families Do If They Suspect Malpractice?

If you suspect medical malpractice, take these steps as soon as possible:

• Request the medical records.
• Obtain records from the hospital, doctors, imaging facilities, pharmacies, and any follow-up providers.
• Write down the timeline.
• Create a simple chronology of symptoms, appointments, tests, diagnoses, treatment, discharge instructions, and later complications.
• Preserve communications.
• Save portal messages, emails, texts, discharge papers, medication instructions, and call logs.
• Get appropriate medical care.
• Your health comes first. Continue getting treatment and follow-up care.
• Speak with a medical malpractice attorney early.
• These cases require expert review and strict attention to deadlines.

The Bottom Line

California’s 90-day notice requirement is an important rule in medical malpractice cases. Before filing a lawsuit against a health care provider for professional negligence, the claimant generally must provide advance notice of the intent to sue.

But the notice rule is only one part of the timing analysis. Medical malpractice cases also involve strict statutes of limitation, complex discovery issues, expert review, causation questions, and damages analysis.

If you believe that medical negligence caused serious injury or death, do not wait until the deadline is close. Early investigation can make a major difference.

Contact The Mason Firm

The Mason Firm represents people and families in serious medical malpractice, wrongful death, civil rights, and catastrophic injury cases throughout California.

If you believe medical negligence caused serious harm or the death of a loved one, contact The Mason Firm for a free case review.

Call 858-444-5256 or contact us online to speak with a San Diego medical malpractice trial lawyer.