Medical Negligence Claims in Long Beach, CA Notice, Arbitration and Records

This page addresses the procedural layer rather than clinical standards of care. Those procedures decide when a claim can be filed, where it will be heard, and what a jury will be allowed to hear.

Notice before filing

Code of Civil Procedure section 364 provides that no action based on a 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. No particular form is required, but the notice must state the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. Subdivision (d) provides that if the notice is served within 90 days of the expiration of the applicable limitations period, the time for commencing the action is extended 90 days from service of the notice (CCP 364, FindLaw). That extension is a narrow accommodation, not a general grace period, and it interacts with the limitations rules in ways that reward early attention.

Arbitration clauses signed at the front desk

Code of Civil Procedure section 1295 requires that a contract for medical services containing an arbitration provision for professional negligence disputes place that provision as the first article of the contract, in language the statute prescribes, and requires that immediately before the signature line the contract display a specified notice in at least 10-point bold red type stating that the person signing is agreeing to have any issue of medical malpractice decided by neutral arbitration and is giving up the right to a jury or court trial. Once signed, the contract governs subsequent open-book account transactions for medical services unless rescinded by written notice within 30 days of signature, and that rescission notice may be given by a guardian or conservator where the patient is incapacitated or a minor (CCP 1295, FindLaw). Patients rarely remember signing these forms. Whether the form complied with the statute's formatting requirements is a real question, and it determines the forum.

Punitive damages require court permission first

Code of Civil Procedure section 425.13 provides that in an action for damages arising out of a health care provider's professional negligence, no claim for punitive damages may be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes the claim. The court may allow it on motion and on the supporting and opposing affidavits, where the plaintiff establishes a substantial probability of prevailing on the claim under Civil Code section 3294, and the court may not grant the motion if it is not filed within two years after the complaint or initial pleading was filed, or not less than nine months before the date the matter is first set for trial, whichever is earlier (CCP 425.13, FindLaw). This is why allegations that would appear in an ordinary complaint are absent from a professional negligence complaint.

Insurance benefits become admissible

Civil Code section 3333.1 provides that in an action for personal injury against a health care provider based on professional negligence, the defendant may elect to introduce evidence of amounts payable as a benefit to the plaintiff under the Social Security Act, any state or federal income disability or workers' compensation act, health, sickness or income-disability insurance, accident insurance providing health benefits or income-disability coverage, and any group or organizational contract to provide, pay for or reimburse health care services. Where the defendant does so, the plaintiff may introduce evidence of amounts paid or contributed to secure those benefits (Civ. Code 3333.1, FindLaw). Subdivision (b) addresses the inability of a source of those collateral benefits to recover against the plaintiff, which changes reimbursement dynamics compared with an ordinary injury claim.

Getting the records

Health and Safety Code section 123110 entitles an adult patient, a minor patient authorized by law to consent to the treatment at issue, and a patient's personal representative to inspect patient records upon presenting a request and paying reasonable costs, and requires the health care provider to permit inspection during business hours within five working days after receipt of the request. It also entitles the patient or representative to a paper or electronic copy of the records they may inspect, upon a request specifying the records and payment of the permitted fee (HSC 123110, FindLaw). Requesting the complete chart, including imaging, nursing notes, medication administration records and any electronic audit trail, is what allows an independent reviewer to form an opinion.

Timing is shorter and stranger than in other claims

Code of Civil Procedure section 340.5 provides that in an action for injury or death against a health care provider based on alleged professional negligence, suit must start within three years of the injury date or a year from when the plaintiff found the injury, or should have found it using reasonable diligence, whichever of those arrives first, with the three-year outer limit tolled only on proof of fraud, intentional concealment, or the presence of a foreign body having no therapeutic or diagnostic purpose. The section sets separate rules for minors, including three years from the alleged wrongful act, and for a minor under the full age of six years, three years or before the eighth birthday, whichever provides a longer period (CCP 340.5, FindLaw).

Public hospitals and clinics change the route

Care delivered by a public entity adds a claim presentation requirement before any lawsuit, on a much shorter schedule than the limitations statute. Identifying whether a provider is public or private is therefore one of the first factual questions in this area, and the answer is not always obvious from the name on the building.

This page is general information about California procedural rules and is not medical or legal advice, and reading it creates no attorney-client relationship. Anyone with a specific concern about care they received should discuss it with the attorney who advertises on this site.