Noble v. Superior Court

Opinion

HASTINGS, J.

Code of Civil Procedure section 364, subdivision (d), provides that a “Notice of Intention to Commence Action,” filed within 90 days of the end of the applicable limitations period, tolls for 90 days the period within which an injured party must file an action based upon “professional negligence.” We hold that the tolling provisions of that section apply only to negligence causes of action and not to those based upon intentional torts or other theories as to which the limitations period has run.

Facts

Petitioner, Nancy Noble, alleges that on or about April 22, 1985, she entered Cedars-Sinai Medical Center as an outpatient to undergo a lymph node biopsy in order to determine whether she suffered from a certain form of cancer. Prior to the surgery, Noble signed a standard consent form limiting

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the surgical procedure to “excision of lymph node.” She alleges that during the course of the surgery, the surgeon, defendant Alfred Katz, M.D., severed and blocked a major sensory nerve in Noble’s neck, in order to alleviate the effects of a childhood soft tissue injury. This additional (and unauthorized) procedure not only failed to have the desired effect, but, according to Noble, caused her to suffer “massive and chronic pain which has not been alleviated by subsequent surgical/medical procedures.”

On February 13,1986, Noble served upon Dr. Katz a “Notice of Intention to Commence Action,” as required by Code of Civil Procedure section 364, advising him of her intention to commence an action against him for “professional negligence.”

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On May 9, 1986, Noble filed an action against Dr. Katz, alleging general negligence, lack of informed consent, and battery. This was followed by a first amended complaint, filed August 29, 1986, seeking damages based upon medical malpractice, lack of informed consent, battery, negligence, and negligent infliction of emotional distress. With the exception of battery, an intentional tort, all of these causes of action sound in negligence.

Dr. Katz demurred to the third cause of action (battery) only, on the ground that it was barred by the applicable statute of limitations. The respondent court sustained the demurrer without leave to amend and Noble sought relief in this court.