The "90 day notice" or "90-day letter" is a device allowed only in California medical malpractice cases that allows people to extend the statute of limitations by 90 days. This can be useful if your cases under review. This special legal device is authorized by California Code of Civil Procedure Section 364, which can be found here.
The 90 day notice can be done by anyone, including nonlawyers and the clients themselves. It does not require a specific format.
The 90 day notice is generally a snail-mailed letter, sent certified return receipt requested (CRRR), to a health care provider. This applies to many types of health care providers, from doctors, to nurses, to other personnel as well as hospitals. It also can be used in making claims against Kaiser.
Many younger people are unfamiliar with the availability of "certified, return receipt requested" snail-mail. This is a traditional way to obtain verification that a letter was received. It may require a visit to your local post office. Here are some instructions.
The purpose of the letter is to extend the 1-year medical malpractice statute of limitations (legal deadline) by 90 days from its present date.
Please note the following:
1. 90 day notices should be sent to any health care provider who you believe "might" be potentially liable. The document itself cannot be the subject of a malicious prosecution or other lawsuits although it can, obviously, impact your relationship, if any, with individual health care providers. Nonetheless, if you do not send the letter, the Statute of Limitations will not be extended.
2. While it can be quite complicated, as a general rule doctors who are "at" a hospital are not employees of the hospital. It is very important that you identify each and every potentially liable person and mail the notice to that person's office, if available, and not to the hospital.
3. If you don't have an office address for a particular health care provider, you should google the name of the doctor and see if any address or addresses show up. Many doctors have more than one address. You can also check the online database of the Medical Board of California which allows you to look up doctors and other health care providers online. Here is the link.
4. Unless the doctor or other health care provider's address is obvious, it may be best to keep a copy, by physical printing or by printing the Internet page to a PDF file, to show that you did your due diligence to get the right address.
5. There is a tendency for people to include too much information in a 90 day notice. The terms of the law (which can be found here) specify "No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered."
The typical 90 day notice should only include an assertion you intend to sue the health care provider for "medical malpractice and related claims" or words to that effect. You should NOT give a detailed description of the incident. In terms of the "damages" the requirement of "specificity" regarding the injuries is really rather meaningless. You can simply assert that you or the victim suffered severe injuries or death as appropriate.
The 90 day notice is not a place to persuade people that you have a legitimate claim. The claim, at best, will be assigned to some adjuster at the doctor's insurance company and they will start demanding information. You should not be cooperating with these insurance adjusters, but get counsel; it is dangerous and pointless to cooperate with these insurance adjusters. They are not your friends and they cannot tell you what to do.
# In your 90 day notice, make sure to name the right parties who might sue ("plaintiffs").
In case of married victims, you should almost always include the name of the spouse at the very least as a precaution. In case of injured children, you should be listing the names of their parents.
In identifying the victim, it is conventional to provide the person's name and date of birth. In some cases, such as Kaiser, they may have other numbers associated with the patient.
In cases of malpractice that take place over a period of time, it is customary to list that entire period of time such as January 1, 20XX through December 14, 20XX. In order to avoid problems, be as expansive expansive as you can.
In cases of wrongful death, you should be listing the names of all the legal heirs. These are not the people who are listed in a will or trust, but rather people who have blood or marital relations with the decedent. These are the people who would inherit, or would have inherited, from a decedent if that individual died without a will ("intestate"). It does not matter if the person had any money to provide to those heirs; this list is predetermined by law as a list of the individuals.
In cases where loved ones "witnessed" the malpractice (and that is a very complicated question), any family witnesses should also be identified as potential plaintiffs. It may be that these people do not qualify under law, but it is best to protect their theoretical interest.
Do not – repeat, do not – omit the names of people who you believe might have qualified for inheritance by marriage or other relationship. It does not matter if this person is a bad person, estranged from the family, or somebody that you do not like. Omitting a lawful air can have adverse consequences; this is the result of a case (see here) handled by Mr. Kapp in 1997, explaining how this can be a problem.. The actual plaintiffs can be determined later after consultation with your attorney.
6. Please be advised that our office can do 90 day notices for you; however, because of the inordinate amount of work involved for an attorney, this will be very expensive and requires a visit to our office in the mid-Wilshire area.
7. The 90 day notice should never be served more than 90 days before the statute of limitations date, generally established is one year after the incident. Serving that letter early makes it useless.
8. The date for the Statute of Limitations, generally one year, can sometimes be extended for "delayed discovery" or for other reasons. Many non-medical malpractice attorneys will inform you that it is "easy" to extend the statute of limitations through such allegations. This is false. Any attorney and any client trying to determine the statute of limitations should be very, very cautious and well-informed about this. If possible, you should assume the earliest possible statute of limitations date.
You should also be aware that wise and/or competent attorneys are quite frightened about making decisions extending the statute of limitations. This can be associated with high risk because of some lack of information or mistake from the client and/or the attorney's not fully understanding this deadline calculation. In many cases, the Law Offices of Howard A. Kapp can provide some guidance regarding the Statute of Limitations, but this can only be done as "general advice", since a mistake here could lead to a legal malpractice claim.
As a general rule, assume the very earliest reasonable statute of limitations and you should be fine. You should avoid, at all costs, attempting to be "creative" or assuming that the other side will accept your version of the "facts" on which you base the calculation. This is not a matter of your good faith calculation, but putting your entire case at risk.
7. Keep a copy (electronically or otherwise) of the letter as mailed to the doctor's office. You should also keep the designated parts of the certified, return receipt requested package available for free from the post office. This will allow you to track the service if a problem develops later.
8. As part of the CRRR package, it you will be asked to fill out a postcard to be returned to you after the letter is received. The other side signs the "back" of the postcard and the address you provide on that postcard is yours. However, it is very typical for the other side's office to have an illegible signature, so it is wise to put the name of the addressee for the 90 day notice on the front of the card for your own information.
Once the 90 day notice is served, the other side will be informed of your intention to sue. Therefore, it is wise, if possible, for you to get copies of all of the relevant medical records, from any hospitals or the offices of the people that you intend to sue BEFORE you serve the 90 day notice.
Please keep in mind that this is only GENERAL advice and that every case is different. The Law Offices of Howard A. Kapp are providing this information as a courtesy to you and are not responsible for omitting certain details that might be important to your case. We have attempted to distill the most important facts involving 90 day notices, but this actually involves a considerable number of legal precedents, some of which conflict. It would require a book-sized discussion, or decades of experience, to fully cover everything here.
While you have the right to do this yourself and without an attorney, it generally is a good idea to have an attorney review the material.
Statutes of limitations (legal deadlines) are very common in many areas of law, including almost every potential criminal or civil action that could be started. Each State is free to establish these deadlines and, sometimes, they can appear to be quite arbitrary or mean. That does not mean that they are unenforceable or that they can be ignored as inconvenient. Judges enforce these deadlines all the time: there is a common understanding among lawyers and judges that at some point the case needs to be brought or dropped. The state legislatures make these laws for their own reasons and judges have a job to do.
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