Do you have to give a doctor notice before suing for medical malpractice in California?

By Michael Shemtoub, trial attorney, Beverly Law. Updated November 2026.

What the 90-day notice rule requires

The rule is in Code of Civil Procedure section 364. Under subdivision (a), no lawsuit based on a health care provider’s professional negligence may be started unless the defendant has been given at least 90 days’ prior notice of the intention to sue. The 90 days run from service of the notice to the day the complaint is filed.

The rule reaches more than doctors. Section 364(f) defines a health care provider to include anyone licensed or certified under Division 2 of the Business and Professions Code, such as physicians, nurses and midwives, plus licensed clinics and health facilities such as hospitals. Each provider you plan to name, from the obstetrician to the hospital, should receive its own notice.

There is one exception. Section 364(e) says the notice rule does not apply to a defendant whose name the plaintiff did not know when the complaint was filed and who was sued under a fictitious name, the “Doe” defendants allowed by section 474.

What goes in the notice and how it is served

Section 364(b) says no particular form is required. The notice must tell the provider:

• the legal basis of the claim, for example negligent care during labor and delivery;
• the type of loss sustained; and
• with specificity, the nature of the injuries suffered.

Section 364(c) allows the notice to be served the same way papers are served under the Code of Civil Procedure, starting at section 1010. Those methods include personal delivery and mail. The notice is a letter. It is not filed with the court and does not start a lawsuit. Keep proof of the date and method of service for each provider. The service date starts the 90-day wait and can decide whether the deadline is tolled.

How the notice changes the filing deadline

The general deadline in section 340.5 is three years after the injury or one year after the patient discovers it, or should have, whichever comes first. Our page on the California medical malpractice statute of limitations covers that rule, the special rules for children and the exceptions.

Section 364(d) says that if the notice is served within 90 days of the end of the limitations period, the time to file is extended. In Woods v. Young (1991) 53 Cal.3d 315, the California Supreme Court held that a notice served in the last 90 days of the one-year period tolls the statute for 90 days, which gives the patient one year and 90 days to file. In Russell v. Stanford University Hospital (1997) 15 Cal.4th 783, the court applied the same rule to the three-year period. A notice served before the last 90 days earns no extra time, because the waiting period ends before the deadline does.

Example: a patient learns of the injury on March 1, 2026, so the one-year period ends March 1, 2027.

Treat these dates as an illustration. Under section 12a, a deadline that falls on a weekend or court holiday moves to the next court day, and other counting rules can apply.

What happens if the notice is skipped

Section 365 answers this. Failing to comply with the notice chapter does not invalidate any court proceedings and does not affect the court’s jurisdiction to render a judgment. In Woods, the Supreme Court read section 365 the same way and described the notice rule as not jurisdictional.

The same section adds a consequence for lawyers. An attorney’s failure to comply is grounds for professional discipline, and the State Bar of California must investigate cases brought to its attention and take appropriate action. A lawsuit filed without notice, or too early, is not invalid for that reason alone, but the lawyer can face discipline. The patient also loses something: without a notice served in the last 90 days, there is no tolling to fall back on.

Public hospitals: the government claim comes first

If the hospital is run by a county, a health care district or another local public entity, a second set of rules applies. Under Government Code section 945.4, no suit for money may be brought against a public entity until a written claim has been presented and acted on or deemed rejected. Section 911.2 requires a claim for injury or death to be presented no later than six months after the cause of action accrues. Under section 905.6, this claim process does not apply to claims against the Regents of the University of California. Our guide on suing a county or district hospital explains the claim itself.

The notice and the government claim are separate requirements, but courts have tied them together:

• In Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, a patient’s lawyers sent a hospital district only a section 364 notice. The Supreme Court treated it as a defective claim. Because the hospital never pointed out the defects, it waived defenses based on them. Section 910.8 gives a public entity 20 days after a claim is presented to send that notice.
• In Wurts v. County of Fresno (1996) 44 Cal.App.4th 380, the court held that a government claim does not also count as a section 364 notice unless the circumstances show the claimant meant it to.
• In Anson v. County of Merced (1988) 202 Cal.App.3d 1195, the court held that the 90-day extension in section 364(d) applies to the six-month period to sue under section 945.6. Wurts agreed that a claimant who complied with both statutes gets the 90 days, but counted them the way Woods does, as 90 days of tolling of the six-month period.

Phillips is a fallback. The safer course is a timely government claim plus a separate section 364 notice.

Did the 2023 MICRA changes affect the notice rule?

No. Assembly Bill 35 took effect January 1, 2023. It raised the limits on noneconomic damages in Civil Code section 3333.2 and changed other parts of MICRA. Sections 364 and 340.5 were not amended, so the 90-day notice and the one-year and three-year deadlines work as they did before. Our page on MICRA in 2026 explains what the caps limit and what they leave alone.

What this means for your case

1. Write down the date you first learned, or suspected, that the care went wrong. That date can start the one-year clock.
2. Find out who runs the hospital: a private company, a county or health care district, or the University of California. A county or district hospital needs a government claim within six months.
3. Request the medical records, including fetal monitoring strips in a birth case, so the notice can describe the injuries with specificity.
4. List every provider who may share responsibility, so each one gets notice at least 90 days before the lawsuit is filed.
5. Keep proof of when and how each notice was served.

Read more on our Los Angeles medical malpractice lawyer page, or call Beverly Law at (310) 552-6959 for a free review in English or Spanish. You owe no fees or costs unless we win.

Common questions

Related pages

Medical malpractice statute of limitations in California · Suing a county or district hospital in California: the six-month claim · California MICRA in 2026: what it limits and what it does not · How long do you have to file a birth injury case in California? · Los Angeles medical malpractice lawyer · Wrongful death from medical malpractice in California

Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Last reviewed: November 11, 2026.