As a patient in California, if you have been harmed by the negligence of a doctor or other health care provider, you might have a viable medical malpractice claim. At this point, it makes sense to get familiar with the different state laws that could affect any lawsuit you're thinking about filing, including time limits for getting the case started, procedural steps that must be followed, and legislative caps on certain kinds of damages. Read on for the details.
All states have very specific deadlines for filing medical malpractice lawsuits, set by laws called statutes of limitations. These laws can be complex because they may contain a number of different deadlines.
In California, a medical malpractice lawsuit must be filed no later than 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). So, once you learn that you’ve been injured by a health care provider’s mistake (or once the circumstances align so that you should have learned that you've been injured, in the eyes of the law), a one-year clock starts ticking on your right to file a lawsuit in court. But if more than three years have passed since the alleged malpractice, you've lost your right to file the lawsuit against the health care provider.
In California, medical malpractice lawsuits by (or on behalf of) a minor child must be commenced within three years from the date of the alleged malpractice, except that lawsuits by (or on behalf of) a child under the age of six must be filed within three years of the occurrence of the malpractice, or prior to the child's eighth birthday, whichever timeline provides a larger filing window.
California provides an exception for minor children in cases of fraud. The law states that the statute of limitations shall be tolled (i.e., the "clock" stops running temporarily) for any period during which the minor’s parent or guardian, the defendant's insurer, or the health care provider have committed fraud or collusion in connection with the failure to bring a medical malpractice action on the minor's behalf.
There are a few situations that will pause ("toll") the statute of limitations "clock" in California medical malpractice cases, including:
The California statute of limitations for medical malpractice cases can be found at California Code of Civil Procedure sections 340.4 and 340.5.
California requires that a potential medical malpractice defendant (that's any doctor or other health care provider you're planning to file a lawsuit against) be formally notified of the plaintiff’s intention to file the case, at least 90 days before the lawsuit is filed.
No particular form or format must be used when providing this notice, but the defendant must be informed of:
The law also provides that, if the notice is served within 90 days of the expiration of the statute of limitations, the time for the commencement of the lawsuit shall be extended 90 days from the service of the notice. This rule can be found at California Code of Civil Procedure section 364.
In California, there is a (controversial) $250,000 cap on non-economic damages in medical malpractice lawsuits. "Non-economic damages" include losses such as pain, suffering, physical impairment, loss of enjoyment of life, and/or loss of consortium. These kinds of damages can really add up in a medical malpractice lawsuit, but this cap means that even when an injured patient is successful at trial and the health care provider is found to have committed malpractice, the patient can't receive more than $250,000 in non-economic damages.
Note that this cap has no bearing on "economic" losses like past and future medical care made necessary by the malpractice, lost earnings, lost ability to make a living, and other quantifiable financial losses (past and future) resulting from the health care provider's mistake.
Medical malpractice plaintiff's lawyers almost always work on a contingency fee basis. In California, there is a sliding scale limit on the percentage an attorney can charge in a medical malpractice case. The structure is as follows:
In some medical malpractice cases, the defendant may argue that you are at least in part liable for causing your own injuries by, for example, failing to follow the doctor’s instructions. If you go to trial and are found to be partially liable, that finding will reduce or even eliminate your damage award, depending on state law.
California follows a “pure comparative negligence” rule. This means that, if you are found to bear some negligence with respect to your injury, illness, or medical condition, your award of damages is diminished in proportion to your fault. If, for example, you were awarded $100,000 in damages, but were found 20% at fault, your damages would be reduced to $80,000.