ADVANCE NOTICE OF A CLAIM

MICRA Primer: Why Give Advance Notice?

One of the least publicized provisions of the Medical Injury Compensation Reform Act is contained in California Code of Civil Section 364, the so-called “90-Day Notice” provision.

Section 364 provides, in part:
(a) 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.
(b) 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.

Typically, the 90-day notice from a patient’s attorney to the physician simply states that the patient “intends to bring a civil action against you for the medical services that you negligently rendered to her” during a specific period in time. The letters usually suggest that the physician immediately forward the letter to his or her medical professional liability provider.

The public policy behind the 90-day notice law is to avoid unnecessary litigation for medical malpractice claims. That is, if a patient’s attorney alerts the physician to an upcoming lawsuit over his or her medical care and the physician’s carrier evaluates the claim as one of clear liability, the 90-day notice provides an opportunity to settle the claim early – before involving the actual court system.

At the other end of the spectrum, if the claim has no merit, the 90-day window gives the doctor’s representatives the opportunity demonstrate to the patient or patient’s attorney why such a lawsuit is not valid.

At CAP, we take this opportunity seriously. That is why we have strict standards for visiting the physician within 30 days of the notice of a claim and for consulting experts immediately thereafter.

Many times, in fact, CAP can evaluate a claim and convince a patient or patient’s attorney that the claim has no merit.

Of course, the medical merits of a claim cannot always be assessed so quickly, especially when many defendants are involved and the medical care is complicated and spans long periods of time. And even plaintiffs with medical meritorious claims may have unrealistic expectations with regard to the payment of damages. In those cases, a vigorous investigation and defense must ensue.

All in all, however, the 90-day notice component of MICRA can provide a real benefit to doctors and society in general by reducing litigation in California.