DiCampli-Mintz v. Co. of Santa Clara 5/26/11 CA6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H034160

Case Date: 08/10/2011

Preview:Filed 5/26/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

HOPE DiCAMPLI-MINTZ, Plaintiff and Appellant, v. COUNTY OF SANTA CLARA et al., Defendants and Respondents.

H034160 (Santa Clara County Super. Ct. No. CV089159)

Plaintiff Hope DiCampli-Mintz brought this action alleging that she suffered injuries as a result of negligent medical treatment by two physicians working for the County of Santa Clara (County) at its Valley Medical Center (Valley Medical). County moved for summary judgment on the ground that plaintiff`s delivery of a notice of claim to the Risk Management Department at Valley Medical did not comply with the requirements of Government Code section 9151 and associated statutes. The trial court granted the motion. We will reverse, joining the courts of several other states in holding that delivery of a pre-suit government claim to a department of the target entity charged with defending or managing claims against that entity may constitute substantial compliance with the claims requirement, so long as the purposes of the act are satisfied and no prejudice is suffered by the defendant. In reaching this conclusion we decline to

Except as otherwise specified, all further statutory citations are to the Government Code.

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follow recent authority effectively repudiating the long-standing doctrine of substantial compliance as applied in this context. BACKGROUND On April 4, 2006, defendants Bao-Thuong Bui and Abraham Sklar performed a hysterectomy on plaintiff at Valley Medical, a hospital owned and operated by County. According to a later operative report, she complained in the recovery room of cramps in her left leg, which appeared bluish and cold to the touch. Emergency tomography disclosed that her left iliac artery was completely interrupted. She was urgently returned to surgery, where it immediately became apparent that the left external iliac artery was tied and divided, as was the left iliac vein. Some months later, in mid-2006, plaintiff went to Valley Medical`s emergency department because she was in a great deal of pain. On this occasion an emergency room physician told her that blood vessels had been damaged in the first surgery, requiring a second surgery. On October 25, 2006, another doctor expressed sympathy for her condition and asked if she had consulted an attorney. By April 2007, plaintiff had engaged an attorney. He prepared a letter for transmission to Valley Medical, Bui, and Sklar, giving notice, in accordance with Section 364 of the Code of Civil Procedure, that Hope DiCampli-Mintz will file suit against you for damages resulting from the personal injury of Hope DiCampli-Mintz. The letter stated that defendants negligently performed a laparoscopic assisted vaginal hysterectomy so as to lacerate the inferior epigastric artery which was clamped and tied off resulting in the stoppage of major blood flow to the left leg. Thereafter, rather than repairing the blood flow to the left leg, Dr. Sklar and Dr. Bui simply closed the incision which was part of the vaginal hysterectomy and returned Hope DiCampli-Mintz to the recovery room. The letter contained a request that the recipient forward . . . [it] to your insurance carrier and have them contact the undersigned at their earliest convenience. County conceded for purposes of summary judgment that so far as content is concerned, 2

the letter satisfied the requirements of the government claims act and constitute[d] a tort claim. (See Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 701-702.) Plaintiff`s attorney delivered three copies of this letter on April 3, 2007, addressed to Bui, Sklar, and the Risk Management Department, to Cynthia Lopez of the Medical Staffing Office in the Administration Building, 751 South Bascom Avenue, San Jose, California, on April 3, 2007, at 2:50 P.M., for delivery to each of the individually named parties. He sent three additional copies, similarly addressed, by certified mail; these were received by Valley Medical`s mail services department on April 6, 2007. On that day, plaintiff`s attorney received a recorded telephone message from David Schoendaler, who County concedes was a liability claims adjustor working for the County Risk Management Department. On April 23, 2007, Schoendaler and plaintiff`s attorney spoke by telephone. According to the latter, Mr. S[c]hoendaler noted receipt of the Notice of Intention; verbally opined that service on Santa Clara Valley Medical required a tort claim which was late; verbally questioned whether a tort claim was required as to Dr. Sklar and Dr. Bui and indicated that he would look into that; stated that Ms. DiCampli-Mintz had an interesting case; made note of Plaintiff`s obesity and said a theory of defense was that Plaintiff placed herself at risk with her obesity; and finally advised that Dave Rollo would be the attorney handling the defense for Santa Clara County. Mr. Schoendaler never mentioned that the Notice of Intention was presented to the wrong party. Plaintiff never received written notice that her claim was untimely or otherwise deficient. Plaintiff initiated this action on July 7, 2007, by filing a complaint in which Bui, Sklar, and Valley Medical were named as defendants. The complaint acknowledged that Plaintiff was required to comply with . . . [Government Claims Statutes], but asserted that she was excused from doing so because defendants failed to provide notice to Plaintiff as required by Government Code

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