Metropolitan News-Enterprise


Thursday, January 5, 2023


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Letter Seeking Preservation of Evidence Didn’t Constitute Notice of Intent to Sue—C.A.


By a MetNews Staff Writer


An attorney’s letter to a hospital on behalf of a woman who claimed professional negligence did not constitute a “notice of intent” to sue where the letter did not allude to possible litigation, Div. One of the First District Court of Appeal held in an opinion that was certified for publication yesterday.

 The plaintiff, Shannon McGovern, was assaulted by another patient at BHC Fremont Hospital. an acute psychiatric facility, on Nov. 7, 2015. On March 9, 2016, her lawyer sent a letter to the hospital asking that evidence be preserved and saying that the law office would be “gathering more necessary information.”

The lawyer sent another letter on Oct, 27, 2016, this one labeled a “Notice of Intent to Commence Action For Medical Negligence Pursuant to Code of Civil Procedure §364.”   

McGovern filed suit on Jan. 20, 2017, Alameda Superior Court Judge Victoria Kolakowski found the action for professional negligence to be time-barred because it was not filed within one year of the alleged negligence.

Issue in Case

The issue was whether the March 9 letter or the Oct. 27 letter was a “notice of intent” to sue for purposes of §364(a) which provides that “No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.”

If the March 9 letter constituted such a notice, the action was untimely; if it did not, then the Oct, 27 letter extended the time within which to bring the action in light of §364(d) which says:

“If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.”

San Francisco Superior Court Judge Mary E. Wiss, sitting on assignment, authored the opinion reversing a judgment in favor of the hospital. It was filed Dec. 21 and, at that time, not certified for publication.

Purpose Is Clear

Wiss wrote:

“A plain reading of the March 9 letter reveals that the bulk of it was directed towards McGovern’s request to preserve evidence. Five of the six paragraphs of the letter refer to preservation of evidence and potential consequences to the hospital for failure to do so. The clear import of the remainder of the final paragraph is that McGovern was still in the process of gathering facts and intended to present a pre-litigation demand in hopes of  avoiding litigation. Nothing in that statement constitutes a notice of intention to commence an action.”

The jurist added:

“Moreover, the March 9 letter also fails to comport with section 364’s requirement that the notice set forth ‘the type of loss sustained, including with specificity the nature of the injuries suffered.’…The letter contains only a vague statement that McGovern ‘sustained injuries to her head, and back, including a broken clavicle,’ and that her injuries were ‘serious.’ ”

Kolakowski denied McGovern’s motion quash a subpoena for mental health records of the patient who attacked her. Wiss said that, contrary to the trial judge’s notion, “the records may be shown to be both discoverable and admissible at trial,” and ordered further proceedings to determine if the records should be produced.

The case is McGovern v. BHC Fremont Hospital, A161051.


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