McGovern v. BHC Fremont Hospital, Inc. (Dec. 21, 2022, A161051) __ Cal.App.5th __ [2022 WL 17828959], ordered published Jan. 4, 2023
On November 7, 2015, Shannon McGovern was attacked and injured by a fellow patient at BHC Fremont Hospital, Inc. Her counsel sent Fremont a letter on March 9, 2016 stating McGovern had “serious” injuries “to her head, and back, including a broken clavicle,” requesting the hospital preserve evidence, and stating that counsel was gathering information to present a prelitigation demand to the hospital’s insurance carrier. On October 27, 2016, McGovern’s counsel sent Fremont a “Notice of Intent to Commence Action for Medical Negligence Pursuant to Code of Civil Procedure [section] 364” detailing her specific injuries. McGovern sued Fremont on January 20, 2017, and demanded discovery of Fremont’s mental health records for the patient who attacked her. Fremont moved to quash and for summary adjudication of McGovern’s professional negligence claims under MICRA’s 1-year statute of limitation (Code. Civ. Proc., § 340.5), arguing that the March 9 letter constituted a notice of intent to sue, so the October 27 letter failed to toll the limitations period. The trial court granted both motions, and later granted Fremont’s motion for summary judgment. McGovern appealed.
The Court of Appeal reversed. First, the court held that McGovern’s March 9 letter was not a notice of intent to sue under section 364, so her later October 27 notice tolled the limitations period. The court explained that the March 9 letter did “not state, nor even imply, that [plaintiff] was giving ‘notice of her intention to commence [an] action.’ ” Instead, the bulk of plaintiff’s letter regarded preserving evidence, and it only mentioned a future prelitigation demand in hopes of avoiding litigation. A threat of potential litigation is insufficient to give notice under section 364. The March 9 letter also failed to meet section 364’s requirement to state “with specificity the nature of the injuries suffered;” it contained only generalized statements regarding McGovern’s injuries, not “treatment, sequelae, or residual injury,” or any amount of economic or noneconomic losses.
The trial court also erred by quashing discovery of the attacker’s mental health records based on a mistaken belief such records are always inadmissible. Although the discovery implicated patient privacy concerns, a statute permits the use of confidential patient records in litigation “ ‘as necessary to the administration of justice.’ ” (Welf. & Inst. Code, § 5328, subd. (a)(6).) The psychotherapist-patient privilege (Evid. Code, § 1014) likewise does not always bar disclosure since it can be waived or subject an exception, such as when a patient presents a serious danger to others (Evid. Code, § 1024). Thus, the trial court was required to reconsider the motion on remand.
Prepared by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy, LLP
California Society for Healthcare Attorneys
140 B Street Ste 5 #155 | Davis, CA 95616
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