Woods v. Young

• Decision Date: 04 April 1991
• Docket Number: No. S005969,S005969
• Citation: 279 Cal.Rptr. 613,53 Cal.3d 315,807 P.2d 455
• Court: California Supreme Court
• Parties: , 807 P.2d 455 Varetta WOODS, Plaintiff and Appellant, v. William YOUNG, et al., Defendants and Respondents.

Page 613

279 Cal.Rptr. 613

53 Cal.3d 315, 807 P.2d 455

Varetta WOODS, Plaintiff and Appellant, v. William YOUNG, et al., Defendants and Respondents.

No. S005969.

Supreme Court of California,

In Bank.

April 4, 1991.

Robert Wasserwald and William J. Cleary, Jr., Los Angeles, for plaintiff and appellant.

Ian Herzog, Santa Monica, Leonard Sacks, Encino, Robert Steinberg, Bruce Broillett, Los Angeles, Evan Marshall, Corona, Richard D. Aldrich, Westlake Village, Harvey R. Levine, San Diego, Douglas DeVries, Sacramento, Robert E. Cartwright, San Francisco, Guy Saperstein, Gary Gwilliam, Oakland, Sanford Gage, Beverly Hills and Roland Wrinkle, North Hollywood, as amici curiae for plaintiff and appellant.

Kirtland & Packard, Harold J. Hunter, Jr., Donna P. McCray, Herzfeld & Rubin, Michael A. Zuk, Roy D. Goldstein, Seymour W. Croft, Shield & Smith, Richard B. Castle and Douglas Fee, Los Angeles, for defendants and respondents.

Hassard, Bonnington, Rogers & Huber, David E. Willett, San Francisco, Musick, Peeler & Garrett, James E. Ludlam, Charles E. Forbes, Los Angeles, Horvitz, Levy & Amerian, S. Thomas Todd and Frederic D. Cohen, Encino, as amici curiae for defendants and respondents.

KENNARD, Justice.

In 1975, the Legislature enacted the Medical Injury Compensation Reform Act (MICRA) in response to a health care crisis caused by a rapid increase in premiums for medical malpractice insurance. Among MICRA's many provisions is one that requires a plaintiff, before filing an action based on a health care provider's professional negligence, to give the defendant at least 90 days' notice of intent to sue.

The issue in this case is whether the 90-day notice provision tolls or extends the 1-year statute of limitations for medical malpractice actions, ¹ and, if so, under what circumstances.

Two different views have developed in the Courts of Appeal that have addressed this issue. All of the decisions have concluded that the statute of limitations is tolled for 90 days regardless of when during the limitations period the plaintiff gives the requisite notice of intent to sue. Some, however, have held that when the notice is given in the last 90 days of the limitations period, the overall time for bringing the action is extended for a period ranging from 90 to 180 days.

We conclude that neither line of authority effectuates the legislative intent underlying MICRA's statutory scheme. We hold that the 1-year statute of limitations is tolled for 90 days when the plaintiff gives the notice of intent to sue in the last 90 days of the limitations period, but that the running of the statutory period is not otherwise affected by service of the notice. We further hold that considerations of fairness and public policy require prospective application of our decision.

I

In enacting MICRA in 1975, the Legislature "attempted to reduce the cost and increase the efficiency of medical malpractice litigation by revising a number of legal rules applicable to such litigation." (American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 363-364, 204 Cal.Rptr. 671, 683 P.2d 670.) The MICRA revision added to the Code of Civil Procedure three provisions that are relevant to a resolution of the issue presented here: Code of Civil Procedure section 364, subdivisions (a) and (d), and section 365. ² (All further statutory references are to the Code of Civil Procedure.)

Section 364, subdivision (a) (hereafter section 364(a)) requires that, before filing a medical malpractice action, a plaintiff give the defendant at least 90 days' notice of intent to sue. The purpose of this 90-day waiting period is to decrease the number of medical malpractice actions filed by establishing a procedure that encourages the parties to negotiate "outside the structure and atmosphere of the formal litigation process." (Jenkins & Schweinfurth, California's Medical Injury Compensation Reform Act: An Equal Protection Challenge (1979) 52 So.Cal.L.Rev. 829, 963, fn. omitted; see Grimm v. Thayer (1987) 188 Cal.App.3d 866, 871, 233 Cal.Rptr. 687; Gilbertson v. Osman (1986) 185 Cal.App.3d 308, 317, 229 Cal.Rptr. 627.)

Section 365 states that a plaintiff's failure to give the 90-day notice required by section 364(a) "shall not invalidate any proceedings of any court of this state, nor shall it affect the jurisdiction of the court to render a judgment therein." It also provides, however, that an attorney who fails to comply with the notice requirement may be subject to disciplinary proceedings by the State Bar of California.

Unless the giving of the 90-day notice tolls or extends the statute of limitations, sections 364(a) and 365 pose a dilemma for the plaintiff's attorney who serves the notice within the last 90 days of the 1-year limitations period. In that situation, the attorney must either comply with section 364(a)'s proscription against commencing the action during that statute's 90-day waiting period, thereby forfeiting the client's cause of action, or the attorney must file the lawsuit during the statutory 90-day waiting period, thereby "triggering" section 365's provision of possible disciplinary action by the State Bar. In the absence of tolling or extension, a plaintiff's attorney wishing to protect the client's rights without risking disciplinary proceedings would have to serve the 90-day notice within 9 months of the plaintiff's discovery of the injury. This would, in effect, shorten the statutory limitations period from one year to nine months.

The Legislature attempted to resolve this problem through section 364, subdivision (d) (hereafter section 364(d)). That provision states that if section 364(a)'s 90-day notice of intent to sue is served during the last 90 days of the statute of limitations, the limitations period is "extended 90 days from service of the notice." This additional time could give the plaintiff more, but never less, than the statutory one-year period in which to bring the lawsuit. Thus, section 364(d) reflects the Legislature's intent to allow a medical malpractice plaintiff at least a year in which to file the action.

A literal application of section 364(d), however, leads to incongruous results, as this example shows: A plaintiff serves the 90-day notice of intent to sue required by section 364(a) 50 days before expiration of the 1-year statute of limitations. Because section 364(d) would in that case extend the 1-year limitations period by 90 days, calculated from the date of service of the 90-day notice, the plaintiff has 1 year and 40 days in which to file the action.

If our hypothetical plaintiff were to file suit on the last day of the extension, the plaintiff would violate the 90-day waiting requirement of section 364(a), which requires the plaintiff to give the defendant health care provider at least 90 days' prior notice of intent to sue. If, however, the plaintiff were to file the action one day after the extended period, that is, one year and forty-one days after discovery of the injury, the action would be barred by the one-year statute of limitations because it was filed one day beyond the limitations period as extended.

Thus, when applied literally, section 364(d) accomplishes nothing. This is the problem that has confronted the Courts of Appeal in their efforts to resolve the dilemma that sections 364(a) and 365 present to a plaintiff's attorney who serves the 90-day notice of intent to sue in the last 90 days of the 1-year limitations period.

II

All of the Courts of Appeal that have attempted to resolve the difficulties presented by the MICRA provisions discussed above have resorted to the non-MICRA tolling provision of section 356. That provision states that when "the commencement of an action is stayed by ... statutory prohibition," the time of the statutory prohibition "is not part of the time limited for the commencement of the action." The Courts of Appeal have concluded that section 364(a)'s 90-day waiting period is a "statutory prohibition" within the meaning of section 356, thus resulting in a 90-day tolling of the 1-year limitations period regardless of when the notice of intent to sue is given. They have disagreed, however, whether the 90-day extension provided by section 364(d) is in addition to, or is included within, the 90-day tolling attributable to section 356, as the following cases illustrate.

In Gomez v. Valley View Sanitorium (1978) 87 Cal.App.3d 507, 151 Cal.Rptr. 97, the court, relying on section 356, concluded that the giving of the 90-day notice of intent to sue required by section 364(a) tolls the 1-year statute of limitations for a period of 90 days, and that, in addition, when the notice is served within 90 days of the expiration of the statute, section 364(d) operates to lengthen the statute by a period of between 1 day and 90 days.

The Gomez court noted that section 364(d), which applies only when the requisite notice of intent to sue is given in the last 90 days of the limitations period, extends the limitations period for 90 days from the date of service of the notice. The court observed that section 364(a) "incongruously" prohibited the commencement of the action during the limitations period as extended by section 364(d). In the court's view, the statutory scheme would "self-destruct" were it not for the tolling provided by section 356. For these reasons, the court concluded that section 356 interrupted the running of the limitations period upon the serving of section 364(a)'s 90-day notice of intent to sue, and that the period as extended by section 364(d) resumed upon expiration of section 364(a)'s 90-day waiting period. (Gomez v. Valley View Sanitorium, supra, 87 Cal.App.3d at p. 510, 151 Cal.Rptr. 97.)

Therefore, under Gomez v. Valley View Sanitorium, supra, 87 Cal.App.3d 507, 151 Cal.Rptr. 97, the 90-day tolling resulting from the application of section 356 and the 90-day extension flowing from section 364(d) are consecutive, so that the time for...