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LawTalk , Attorney
Category: Personal Injury Law
Satisfied Customers: 34394
Experience:  I have 30 years of legal and litigation experience.
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Malpractice, California, USADOI: March 13, 2012Two

Customer Question

Malpractice, California, USA DOI: March 13, 2012 Two months ago I certified mailed a "Intent to Sue" to both the practicing physician and his employer, the Regents of California, that gets me to a June 12, 2013 deadline. Is there anything I can do myself or with the help of a paralegal (read: inexpensive) to delay/extend the statue of limitations? I need more time to find a second opinion on a very specialized spine procedure.


NOTE: Both the physician and his employer have sent me return letters acknowledging my Intent to Sue.

Submitted: 3 years ago.
Category: Personal Injury Law
Expert:  LawTalk replied 3 years ago.
Good morning,

I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

1. Was March 13, 2012 the date that you learned of the negligence, or was that merely the date of the surgical procedure that turned out to have been negligently performed?

Customer: replied 3 years ago.

That was the date of surgery. A practicing attorney recommended that I send out the Intent to Sue, and I wasnt quite sure why because I already knew the time starts from discovery, which wasnt until about 8 months ago. Did sending out Intent to Sue hurt me in that it gave the assumption that I knew of negligence earlier then when I actually did?

Expert:  LawTalk replied 3 years ago.
Good morning,

I apologize for the delay. I was called into a meeting.

Thank you for the additional information.

I will begin by saying that it is always a good idea, if possible, to file any medical malpractice suit within one year of the negligent act, as opposed to within one year of discovery of the harm----because there will typically be an argument that discovery of the harm was, or should have been, discovered earlier.

However, you have correctly stated the law.

The code requires that you give a 90 day notice before filing suit in a malpractice case---but the suit need not be file within that 90 day period if the statute of limitations is beyond the 90 days.

The code holds that the filing of the 90 day notice, if it is served within the last 90 days of the statutory period of limitations, acts to extend the statute by 90 days. As you want to claim that the statute of limitations runs from 8 months ago, and not from last March, then you filed the notice with more than 90 days remaining, and therefore the statute was not extended for you. It remains 12 months after you discovered the harm. But again, this is presuming that you can win the argument that the harm was not discovered by you before that time, and that it could not have reasonably be discovered.

I have to say that there are no grantees when it comes to legal battles over statutes of limitation that incorporate a "discovery" clause. Again, the safest way to proceed if you possibly can, is to ignore the discover issue, and treat the statute as having begun on the date of the procedure. because you did file the notice within the last 90 days if you use the procedure date as the beginning of the running of the statute, then you have until 90 days after the statute would normally have ended. Bear in mind, 90 days is NOT necessarily 3 months. 90 days gives you June 11th---not June 12.

So, to be safe, file no later than June 11. If you want to rely on your claim of discovery---which in my opinion always poses a risk, then you would count 12 months from the date of discovery as the statute date.

In direct to your question, no, there is no way to legally extend the statute of limitations any further than you have already done. Whether you choose to rely on the procedure date, or the discovery date, is up to you. But as the notice of intent to sue has already been sent out, it can not help you in terms of extending the running of the statute beyond the 12 months following "discovery"---which at this point is your longest statute.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

LawTalk, Attorney
Satisfied Customers: 34394
Experience: I have 30 years of legal and litigation experience.
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