SAN FRANCISCO (Legal Newsline) - A woman who was admitted to a mental institution as “a danger to others” can sue the hospital for injuries she suffered after being slammed to the floor by another patient during a basketball game, a California appeals court ruled.
A trial court improperly dismissed her case as barred by a one-year statute of limitations, the appeals court said. A letter the patient’s lawyers sent to the hospital immediately after the incident didn’t qualify as formal notice of her intent to sue, the court found.
Shannon McGovern was admitted to BHC Fremont Hospital on Nov. 4, 2015 and injured on Nov. 7 after J.W., another patient, knocked her down on the basketball court. McGovern said J.W. had “paced and stared at her” before the assault and she blamed hospital officials for failing to protect her.
Her lawyers sent a letter to Fremont Hospital on March 9, 2016 warning it to retain records and visual evidence as they investigated the incident. On Oct. 27, her lawyers notified the hospital of their intent to sue, claiming she had suffered a clavicle fracture, two broken ribs, skull laceration requiring stitches and traumatic brain injury. She sued on January 20, 2017.
To prepare for trial, McGovern sought any medical records indicating J.W. had a propensity for violence. The judge initially agreed to order Fremont to turn them over for in camera review but then decided there was no need as they were protected by confidentiality and couldn’t be used at trial. The judge ultimately dismissed the case, ruling McGovern had failed to sue within the state’s one-year statute of limitation for medical lawsuits.
California’s First Appellate Division reversed both decisions in an opinion published on Jan. 4.
Section 364 requires plaintiffs to give health care providers 90 days’ notice before suing and extends the statute of limitations by the same amount of time in order to encourage parties to settle cases instead of litigating. The trial court found that the March 9 letter was a Section 364 notice of intent to sue, meaning her lawsuit was filed outside the one-year deadline. McGovern argued she didn’t give notice until Oct. 27, extending the deadline until February 2017.
The March 9 letter didn’t state the nature and severity of her injuries as required under Section 364, the appeals court ruled, nor did it say how much money she was seeking. Her lawyers warned the hospital of the legal consequences of failing to retain evidence but also said they would be contacting its insurance carrier and attempt “to resolve this matter short of litigation.”
“The clear import of the remainder of the final paragraph is that McGovern was still in the process of gathering facts and intended to present a pre-litigation demand in hopes of avoiding litigation,” the court concluded.
The court also reversed the trial judge’s order quashing McGovern’s request for records on J.W.’s history of “violent or aggressive behavior.” The court must reconsider whether the records can be disclosed under an exception to the general rules protecting patient records in cases of violent attacks and elder abuse, the court ruled. The trial judge incorrectly assumed that there was no reason for the hospital to release the records, even for in camera review by the judge, because the information couldn’t be disclosed to McGovern or used at trial, the court said.