You
What is the CCP § 364 90-day notice?
S
California Code of Civil Procedure § 364 requires a plaintiff in a medical malpractice action to give 90 days' written notice to the defendant healthcare provider before filing the complaint. The notice must describe the legal basis of the claim, the type of loss sustained, and the nature of the injuries. The notice tolls the statute of limitations under CCP § 340.5 for 90 days when served within 90 days of the limitations expiration. Failure to comply with the notice can extend the limitations period and is not itself a jurisdictional bar (Woods v. Young, 53 Cal.3d 315 (1991)), but it is best practice to serve the notice and use the negotiation window.
You
What is the MICRA non-economic damages cap?
S
Cal. Civ. Code § 3333.2 caps non-economic damages (pain and suffering, loss of consortium, disfigurement) in medical-malpractice actions. AB 35, signed in May 2022 and effective January 1, 2023, replaced the 1975-era $250,000 cap with a scheduled, indexed structure. For non-death cases, the cap began at $350,000 (2023) and rises in $40,000 annual increments through 2033 toward $750,000; the 2026 cap is $470,000 (up from $430,000 in 2025). For wrongful-death cases, the cap began at $500,000 and rises in $50,000 annual increments through 2034 toward $1,000,000; the 2026 cap is $650,000 (up from $600,000 in 2025). Economic damages (medical bills, lost wages, future care) are not capped. The cap applies per defendant category under the AB 35 schedule.
You
What is the statute of limitations on California medical malpractice?
S
CCP § 340.5 sets the limitations period at one year from discovery of the injury OR three years from the date of injury, whichever is sooner. There are limited exceptions for foreign-body cases (where the foreign object is left in the body) and fraud or concealment. Minors have additional time depending on age at injury. CCP § 364's 90-day notice tolls the limitations period for 90 days when served within the last 90 days of the limitations window. Missing the limitations clock kills the case, so the pre-suit memo runs the date math carefully before anything else.
You
Why doesn't Sergei handle the litigation himself?
S
Medical malpractice litigation in California is structured around contingency fees governed by Bus. & Prof. Code § 6146 (the MICRA fee schedule). Litigating these cases requires expert witnesses (medical, life-care planner, vocational, economist), depositions, day-in-the-life production, and trial preparation that runs 18-36 months. The economics are contingency-based and the litigators who do this work have the medical-expert relationships and trial infrastructure that make it viable. I handle the front end (intake, MICRA analysis, statute-of-limitations preservation, CCP § 364 notice) and refer out to plaintiff-side medical-malpractice firms when the case warrants litigation. The pre-suit memo includes the referral recommendation.
You
What's in the $349 pre-suit memo?
S
A written legal memo covering: (1) the statute-of-limitations analysis under CCP § 340.5 with the calendared filing window, (2) the MICRA non-economic damages cap analysis under Civ. Code § 3333.2 with the applicable cap amount for the year of filing, (3) a drafted CCP § 364 90-day notice ready to serve on the defendant healthcare provider, (4) an outline of the standard-of-care theory based on the medical records and your description of the events, (5) a damages framework (economic vs. non-economic with the cap applied), and (6) a referral recommendation to a MICRA-experienced contingency litigator with whom I have a working relationship.
You
Does the 90-day notice have to be served before filing?
S
Yes, in the sense that the statute requires it. The California Supreme Court in Woods v. Young, 53 Cal.3d 315 (1991), held that the notice is not strictly jurisdictional and a filing without notice can sometimes survive, but it is best practice to comply and the notice tolls the limitations period when served in the last 90 days of the window. Most experienced MICRA practitioners serve the notice at intake and use the 90 days to negotiate before filing.
You
What does the 90-day window typically produce?
S
It varies. Hospitals and large medical groups have risk-management teams that evaluate the notice, often request medical records, and sometimes make settlement offers within the 90-day window. Solo or small-group physicians usually route the notice to their malpractice insurer (typically MICRA-aware carriers like NORCAL, The Doctors Company, or Cooperative of American Physicians), which evaluates the claim and may engage. In other cases, the window simply runs out and the matter proceeds to filing. The litigator who takes the case post-referral handles the filing decision based on what the 90 days produced.
You
Do you handle nursing-home and elder-abuse cases?
S
Elder abuse claims under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code § 15600 et seq.) are a separate framework from MICRA and have different damages rules (heightened remedies under § 15657 including attorney fees, treble damages in some cases, no MICRA cap on a pure elder-abuse claim that does not arise from professional medical negligence). The line between elder abuse and medical malpractice is fact-specific and the pre-suit memo flags which framework applies. For cases that are pure elder abuse, I refer to elder-law specialists. For cases that overlap, the memo addresses both tracks.
You
What if the harm happened in a hospital ER?
S
Emergency room cases are MICRA cases. The standard of care is the level of care provided by reasonably competent emergency physicians in similar circumstances. Hospital corporate liability (negligent credentialing, failure to supervise) is a parallel theory. ER cases often have complications around informed consent, abandonment, and EMTALA (the federal Emergency Medical Treatment and Active Labor Act), which add layers but stay within the MICRA framework on the state-law claims. The memo addresses each theory and the applicable statute of limitations for each.
You
How long does the pre-suit memo take?
S
Seven to ten business days from receipt of medical records and a written description of events. The memo is delivered as a PDF report covering the limitations analysis, the cap analysis, the standard-of-care theory, the damages framework, and the referral recommendation. The drafted CCP § 364 notice is delivered as an editable Word document ready to sign and serve. Cases with extensive medical records or multiple-provider fact patterns take longer; the quote covers the standard scope and additional work is scoped separately.