Bennett

In this medical malpractice action, plaintiff Orley Bennett appeals from a summary judgment in favor of defendant Imad Shahhal, M.D. As an apparent matter of first impression, we hold that a second 90-day notice of the intent to bring suit does not toll the 1-year limitations period. (Code Civ. Proc., § 364, subds. (a) & (d).) Accordingly, we affirm the judgment as Bennett’s action was time-barred.

Background

Bennett saw Dr. Shahhal, complaining of difficulty waiting, slurred speech, memory loss, confusion and incontinence. A CT scan revealed cerebral atrophy and hydrocephalus. On April 4, 1996, Dr. Shahhal inserted a shunt into Bennett’s brain that drained fluid into his abdomen. Bennett returned to Dr. Shahhal on April 22 and May 6, 1996, complaining of swelling near the abdominal incision. On the latter date, Dr. Shahhal told Bennett he needed to return to the hospital for another surgery. Bennett, however, no longer trusted Dr. Shahhal and believed he had done something wrong.

Bennett visited Dr. Mark Stern, who suspected the abdominal end of the shunt had dislodged. Dr. Stem performed surgery on Bennett on May 20, 1996, to reattach the shunt and excise an…