Yes, there is a procedural prerequisite, set forth in CCP Section 364: the "so called" "90 day Notice Letter, or Letter of Intent. If a 90 day letter is sent in the last 90 days before the ONE YEAR period of limitations expires, it extends the period of limitations an additional 90 days. If sent more than 90 days before the period of limitations expires, it has no effect whatsoever. The letter is statutorily required, but is not jurisdictional, meaning that, if you fail to send the letter, it does not result in dismissal of the claim which is otherwise properly filed. Failure to send the letter may, however, result in the imposition of sanctions by the State Bar. In addition, it may show the defense that the attorney or party has an understanding of the way in which these cases are supposed to be managed.
Contrary to a response above, there is NO legal requirement of an opinion from a qualified medical expert before filing. In 1975, the MICRA package of legislation affecting medical malpractice litigation included a requirement of a "certificate of merit" before filing a malpractice action, but that very sensible rule "sunsetted" three years later, and has not been required by law since. As a very practical matter, you should secure the opinion of an expert willing to testify at some point very early on in litigation, if not before.
Nor is it particularly important to determine in advance whether there is a binding Arbitration agreement. It might be good to know, but it really has little impact on the merits of the claim, and is certainly not something which is required as a pre-requisite to filing. If you are bound by an arbitration agreement, the defense will let you know. With certain insurance carriers who require arbitration -- i.e.: CAP/MPT, they may demand, and be able to enforce the requirement of arbitration, but they will let you know whether they intend to arbitrate the claim or not. I actually think that you may be better off in arbitration, since juries do not understand the technical medical claims, and are likely to be swayed by the urban mythology that there are too many malpractice claims filed, and that they drive up the cost of medical care. Arbitrators are likely to be smarter about those issues, but may also be looking for repeat business by finding against Plaintiffs. In the hands of a competent malpractice attorney, you may be better off in arbitration.
But, clearly, medical malpractice claims are difficult, expensive, and have a poor chance of success in front of juries. When I lecture to attorneys on the handling of malpractice litigation, I advise that it is a lot like smoking: bad for your health. If you don't do it, don't start. Leave it to a qualified specialist. My office does a great deal of this work, and would be happy to talk to you.
