Friday, December 7, 2012
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S.C. Throws Out Suit, Says Plaintiff Not Compliant With Claims Law
Justices Unanimous in Rejecting Service on Official Not Listed in Statute
By KENNETH OFGANG, Staff Writer
A person with a potential cause of action against a public entity does not substantially comply with the claims-presentation requirement by delivering a claim to a person who has actual authority to act on it but lacks express statutory authority to receive it, the state Supreme Court ruled yesterday.
Unanimously reversing the Sixth District Court of Appeal, the high court ordered dismissal of an action by a woman who claims that doctors at a Santa Clara County hospital botched an operation. The court said counsel for Hope DiCampli-Mintz failed to serve the “clerk, secretary, or auditor” of the county, or its “governing body”—as required by Government Code Sec. 915—by delivering notice to a hospital employee, addressed to the hospital’s risk management department.
The plaintiff had a hysterectomy at Valley Medical Center in April 2006. Later that year, she went to the hospital’s emergency room in great pain, and was told that she needed a second operation because blood vessels had been damaged in the first surgery, she alleged.
Statutory Notice
Nearly a year after the original operation, she retained an attorney who prepared a letter advising the doctors who performed the first surgery, and the hospital—pursuant to Code of Civil Procedure Sec. 364—that she intended to sue them for medical malpractice. The statute requires that such notice be served at least 90 days prior to suit against a health care provider, and tolls the statute of limitations for 90 days following such service.
The letter detailed the alleged malpractice and contained a request that the recipient “forward [the letter] to your insurance carrier and have them contact the undersigned at their earliest convenience.” The letter was delivered to an employee of the medical staff in the County Administration Building for delivery to each of the named parties, with additional copies sent by certified mail, and a claims adjustor employed by the county telephoned counsel to say that the notices had been received.
The adjustor subsequently advised counsel by telephone that he believed that the hospital had, and the doctors might have, a defense in that counsel did not serve a timely tort claim.
The plaintiff, who had not been advised orally or in writing that service of the claim was defective, ultimately sued the doctors and the hospital. The complaint alleged that any insufficiency in the claim had been waived for failure to notify the claimant of the defect within 20 days of service, as required by law.
Affirmative Defense
The county conceded that the Sec. 364 notice was substantively a sufficient tort claim. But it asserted as an affirmative defense that the notice was not presented in the prescribed manner because Sec. 915 requires that it be delivered to, or “actually received” by, the clerk, secretary, auditor, or governing body. Santa Clara Superior Court Judge William J. Elfving agreed with the county and granted summary judgment.
The Court of Appeal, however, found that because the claim was received by the risk management department and county counsel was notified, there was substantial compliance with the presentation requirement.
But Justice Carol Corrigan, writing yesterday for the high court, said the lower panel failed to adhere to the plain language of Sec. 915 and “rewrote the statute to read as the court believed it should provide.”
The jurist cited the history of the statute, which was passed nearly 50 years ago in order to bring uniformity to a system in which claims presentation requirements had differed from one entity to another.
The justice rejected Jamison v. State of California (1973) 31 Cal.App.3d 513, which the Court of Appeal relied on, as “too slender a reed” to be controlling. The Jamison court held that the plaintiff substantially complied with the statute, which at the time required service on the State Board of Control, by presenting the claim to the Department of Water Resources, which owned the vehicle with which the plaintiff’s vehicle collided.
That court, citing cases in other states, held that service on the DWR fulfilled the statutory purpose because that agency had a duty to notify the Board of Control. But Corrigan said there was no indication that the laws in those states were similarly worded, and noted that other Court of Appeal panels had declined to follow the opinion.
Earlier Case
Life v. County of Los Angeles (1991) 227 Cal.App.3d 894 was better reasoned, Corrigan concluded. The court there found that a claim for medical malpractice at a county hospital was improperly delivered to the hospital legal department, rather than to the Board of Supervisors or one of the officials designated in Sec. 915.
Jamison, the Life court said, “inappropriately shifts responsibility for filing a claim with the proper official or body from the claimant to the public entity.”
Corrigan added that, in ruling for DiCampli-Mintz, the Court of Appeal improperly relied on cases decided before Sec. 915 and its predecessor, Sec. 714, were enacted.
The case is DiCampli-Mintz v. County of Santa Clara, 12 S.O.S. 6231.
Copyright 2012, Metropolitan News Company