Plaintiff’s medical malpractice suit was untimely, having been filed more than a year after discovery of the malpractice; formal CCP 364 pre-suit notice from her attorney did not extend the limitations period since plaintiff had already sent her own letter which operated as a pre-suit notice despite not being intended as such. Plaintiff’s medical malpractice suit was properly barred as untimely, having been filed more than a year after plaintiff discovered the malpractice. The suit was not saved by plaintiff’s lawyer’s sending defendant notice of the claim within the last 90 days of the limitations period because plaintiff had, soon after discovery, sent her own letter to defendant. Plaintiff’s letter satisfied CCP 364’s requirements, stating the date of the surgery and events giving rise to her claim, the nature of her injuries and the damages she sustained. It also threatened suit. Plaintiff’s letter sufficed as presuit notice of the claim despite its informality and despite the fact plaintiff did not intend it to serve as presuit notice. As a result, the formal notice plaintiff’s lawyer sent later was surplusage and did not operate to extend the statute of limitations.
California Court of Appeal, First District, Division 5 (Jones, P.J.); July 6, 2017; 2017 WL 2875859