Medical Board v. Superior Court (Feb. 21, 2018, A152607) __ Cal.App.5th __ [2018 WL 1102588], mod. and certified for publication Mar. 1, 2018, and Selvidge v. Tang (Mar. 5, 2018, C083427) __ Cal.App.5th __ [2018 WL 1150039]
The Court of Appeal published two decisions addressing similar issues concerning proper service of process on a physician. In both cases, the courts rejected physicians’ challenges to service at their addresses of record with the Medical Board.
In Medical Board v. Superior Court, the Board filed an accusation against Dr. Alfred Adams, alleging he prescribed himself controlled substances, failed to participate in a Board interview, and failed to provide the Board with an accurate address. The Board served the accusation and a subsequent notice of default by certified mail on Dr. Adams’s address of record, but both were returned, unopened, and stamped “Return to Sender, Unable to Forward.” The Board then issued a default decision revoking Dr. Adams’s medical license. Dr. Adams filed a petition for writ of administrative mandate contesting service. Dr. Adams contended that, under Government Code section 8311, proper service requires proof of actual receipt, which the Board lacked here. The trial court agreed and ordered the Board to set aside its revocation of Dr. Adams’s medical license. But the Court of Appeal granted the Board’s subsequent writ petition, holding that section 8311 required proof of actual receipt only for means of physical delivery other than certified mail.
Similarly, in Selvidge v. Tang, plaintiffs mailed a notice of intent to file a malpractice action against Dr. Sullyvan Tang to his address of record with the Board (an address belonging to a business that received mail on his behalf) before the one-year statute of limitations expired, and then filed suit 85 days after the limitations period expired. The trial court granted Dr. Tang’s motion for summary judgment, ruling that the MICRA tolling statute (Code Civ. Proc., § 364) did not apply because, absent proof of actual notice, plaintiffs were required to serve the notice at Dr. Tang’s residence pursuant to Code of Civil Procedure section 1013, subdivision (a). The Court of Appeal reversed, holding that service at the address Dr. Tang provided to the Board was sufficient. The court explained that the test for proper notice of malpractice actions was whether plaintiffs took adequate steps to achieve actual notice. Since it was reasonable to assume a physician would receive actual notice of documents mailed to an address the physician identified as one where he or she could reliably be contacted for professional purposes, plaintiffs’ service triggered the 90-day tolling period and their suit was therefore timely.
Thomas Watson
htwatson@horvitzlevy.com
Horvitz & Levy LLP
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