Edwards

In what appears to be a case of first impression in California, we are called upon to address the question whether the plaintiff, in serving the 90-day notice of intent to commence an action against a medical practitioner (Code Civ. Proc., § 364), must allege the specific factual basis of each cause of action in the lawsuit to be filed. We hold: (1) the 90-day notice requirement of section 364 is not jurisdictional; (2) the total failure to comply with the statute does not invalidate an action against the medical practitioner; and (3) a failure to allege the specific factual basis of each cause of action does not prevent the plaintiff from alleging the cause in the lawsuit or from obtaining leave to amend the complaint to add any cause of action omitted from the section 364 notice.

Factual and Procedural Background

1. The surgeries and the section 364 notice.

After defendant T. Gregory Kirianoff performed outpatient reconstructive surgery on the breasts and nose of plaintiff Shari Edwards, she developed an infection in her breast which was diagnosed as E. coli infection. Plaintiff also was required to undergo additional surgery on her nose to correct problems allegedly…