Opinion
In this matter we address apparently conflicting provisions in the Code of Civil Procedure, as amended by the 1975 Medical Injury Compensation Reform Act (hereafter MICRA), concerning the statute of limitations for bringing professional negligence actions against health care providers. Code of Civil Procedure section 340.5 requires that such an action must be commenced within “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first,” and provides that the time for commencing an action shall “[i]n no event” exceed three years unless “tolled” on proof of fraud, intentional concealment, or the presence of a “foreign body” in the injured person without therapeutic or diagnostic purpose. Code of Civil Procedure section 364, however, requires that before such an action can be commenced, the defendant be given at least 90 days’ prior notice of the intention to commence the action (Code Civ. Proc., § 364, subd. (a)), and provides that if such notice is served within 90 days of the expiration of “the applicable statute of limitations,” the time for commencing an action “shall be extended 90 days” (id., subd. (d)).
We have previously held that the 1-year statute of limitations is “tolled”— rather than “extended”—for 90 days when the plaintiff gives notice of intent to sue in the last 90 days of the statutory period.
(Woods
v.
Young
(1991)
I.
On April 1, 1991, plaintiff Annette Elizabeth Russell received surgical treatment from defendants Stanford University Hospital and Amy Ladd, M.D., for a work-related injury to her wrist and thumb. On August 5, 1993, she allegedly discovered that defendants acted negligently, causing disfigurement, inability to use her hand, and related injuries. On February 9, 1994, 51 days before the expiration of the 3-year statute of limitations for commencing medical malpractice actions (Code Civ. Proc., § 364, subd. (a)), she *786 served them with notice of intention to commence an action. On May 10, 1994, 90 days after service of the notice of intention, and more than 3 years after the date of injury, she filed the complaint in this matter.
Defendants moved for summary judgment on the ground that the action was untimely under Code of Civil Procedure section 340.5, because it was commenced more than three years after the date of injury. Plaintiff opposed the motion, arguing that the action was timely because the applicable statute of limitations under MICRA was “tolled” by her notice of intent to sue.
The superior court granted the motion, bound by the appellate decision in
Rewald
v.
San Pedro Peninsula Hospital
(1994)
II.
As we have previously explained, in enacting MICRA, the Legislature “ ‘attempted to reduce the cost and increase the efficiency of medical malpractice litigation by revising a number of legal rules applicable to such litigation.’ ”
(Woods, supra,
In
Woods,
we analyzed the purpose and effect of Code of Civil Procedure section 364. We concluded that it was enacted “to decrease the number of
*787
medical malpractice actions filed by establishing a procedure that encourages the parties to negotiate ‘outside the structure and atmosphere of the formal litigation process.’ ”
(Woods, supra,
As discussed in
Woods,
the plaintiff’s attorney who serves notice within the last 90 days of the statute of limitations faces a dilemma: “[T]he attorney must either comply with section 364(a)’s proscription against commencing the action during that statute’s 90-day waiting period, thereby forfeiting the client’s cause of action, or the attorney must file the lawsuit during the statutory 90-day waiting period, thereby ‘triggering’ section 365’s provision of possible disciplinary action by the State Bar.”
(Woods, supra,
In
Woods,
addressing the one-year statute of limitations only, we concluded that literal application of Code of Civil Procedure section 364, subdivision (d), which provides for an “extension” of the applicable statute of limitations, “leads to incongruous results” and “accomplishes nothing.”
(Woods, supra,
“. . . A plaintiff serves the 90-day notice of intent to sue required by section 364(a) 50 days before expiration of the 1-year statute of limitations. Because section 364(d) would in that case extend the 1-year statute of limitations period by 90 days, calculated from the date of service of the 90-day notice, the plaintiff has 1 year and 40 days in which to file the action.
“If our hypothetical plaintiff were to file suit on the last day of the extension, the plaintiff would violate the 90-day waiting requirement of
*788
section 364(a), which requires the plaintiff to give the defendant health care provider
at least
90 days’ prior notice of intent to sue. If, however, the plaintiff were to file the action one day after the extended period, that is, one year and forty-one days after discovery of the injury, the action would be barred by the one-year statute of limitations because it was filed one day beyond the limitations period as extended.”
(Woods, supra,
We concluded that the legislative purpose of the 90-day waiting period —to encourage negotiated resolution of medical malpractice disputes outside the formal litigation process—was best effectuated by construing Code of Civil Procedure section 364, subdivision (a), as “tolling”—rather than merely “extending”—the one-year statute of limitations.
(Woods, supra,
“In providing for a waiting period of at least 90 days before suit can be brought, this construction achieves the legislative objective of encouraging negotiated resolutions of disputes.”
(Woods, supra,
In this matter, we must determine whether our construction of Code of Civil Procedure section 364, subdivision (a), as “tolling” the statute of limitations also applies to the three-year statute of limitations under section 340.5. We conclude that it does, both as a matter of statutory construction, and for the reasons stated in Woods.
On its face, Code of Civil Procedure section 364 applies equally to the one-year and three-year limitations. In mandating a ninety-day notice period for commencing medical malpractice actions, the provision does not distinguish between the one-year and three-year limitations periods under Code of Civil Procedure section 340.5. Rather, it provides that “[n]o action based *789 upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice. . . .” (Code Civ. Proc., § 364, subd. (a), italics added.) Nor, in extending the time for commencing such action, does section 364 distinguish between the one-year and three-year limitations period under Code of Civil Procedure section 340.5. Rather, it “extend[s]” the time for commencing an action if notice is served “within 90 days of the expiration of the applicable statute of limitations.” (Code Civ. Proc., § 364, subd. (d), italics added.)
Thus, the two provisions of MICRA are in apparent conflict. Code of Civil Procedure section 364 extends—i.e., as construed in
Woods,
“tolls”—the time for commencing a medical malpractice action for 90 days.
(Woods, supra,
As we emphasized in
Woods,
MICRA was enacted as “ ‘an interrelated legislative scheme ... to deal specifically with all medical malpractice claims.’ ”
(Woods, supra,
The same considerations of legislative intent that compelled us, in Woods, to construe Code of Civil Procedure section 364, subdivision (d), as “tolling” the one-year limitations period also apply to the three-year limitation. Unless the limitations period is so construed, the legislative purpose of reducing the cost and increasing the efficiency of medical malpractice litigation by, among other things, encouraging negotiated resolution of disputes will be frustrated. Moreover, a plaintiff’s attorney who gives notice within the last 90 days of the 3-year limitations period will confront the dilemma we addressed in Woods, i.e., a choice between preserving the plaintiff’s cause of action by violating the 90-day notice period under Code of Civil Procedure section 364, subdivision (d)—thereby invoking potential disciplinary proceedings by the State Bar—and forfeiting the client’s cause of action. In the *790 absence of tolling, the practical effect of the statute would be to shorten the statutory limitations period from three years to two years and nine months. As in the case of the one-year limitation, we discern no legislative intent to do so. (See Woods, supra, 53 Cal.3d at pp. 320-321.)
Defendants assert that tolling for any period when a plaintiff gives notice of intention to sue within 90 days of the expiration of the 3-year statute of limitations would defeat the legislative intent to curtail open-ended statutes of limitation. It is true that conceivably the time for commencing a claim might be extended by 90 days beyond the 3-year statute of limitation under Code of Civil Procedure section 340.5. We are persuaded, however, that, on balance, the legislative interest in promoting negotiated resolution of medical malpractice disputes—including permitting plaintiff’s attorneys to commence timely actions without subjecting themselves to potential disciplinary action—must be deemed overriding.
As the Court of Appeal below concluded, determining that Code of Civil Procedure section 364, subdivision (d), as construed in Woods, also applies to the three-year statute of limitations will effectuate the legislative purposes of the provision—and avoid the possibility that plaintiffs’ attorneys will confront the professional dilemma we addressed in Woods—without significant impact on the legislative goal of establishing a strict outside time limit for commencing negligence actions against health care providers. It is also consistent with the usual rule that, in the case of a conflict, later provisions in a statutory scheme are controlling. Moreover, as the Court of Appeal emphasized, any conceivably prejudicial effect on defendants of the relatively brief tolling period will be offset by the fact that, as a practical matter, the notice of intent to sue will itself make defendants aware of the intended claim. Thus, a prospective defendant is still guaranteed notice of the malpractice claim within the three-year period by means of the notice of intent to sue, even though the complaint itself may be filed up to ninety days beyond the period.
We are unpersuaded by defendants’ attempt to draw support from our holding in
Young
v.
Haines, supra,
III.
In the present case, plaintiff gave notice of intent to sue within the last 90 days of the 3-year statute of limitations under Code of Civil Procedure section 340.5. The limitations period was thereby “tolled,” pursuant to Code of Civil Procedure section 364, subdivision (d). Plaintiff’s action, filed 90 days after sending the notice of intent to sue, was therefore timely.
For these reasons, we affirm the decision of the Court of Appeal.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.
Notes
Before 1970, medical malpractice claims were subject to a one-year statute of limitations under Code of Civil Procedure section 340. Under the common law “delayed discovery” rule “a cause of action does not accrue, nor the statute of limitations start to run, until plaintiff discovers or in the exercise of reasonable diligence should discover the negligent cause of his or her injury.”
(Young
v.
Haines
(1986)
We disapprove
Rewald
v.
San Pedro Peninsula Hospital, supra,