California Medical Malpractice Laws & Statute of Limitations

As a patient in California, if you've been harmed by the negligence of a doctor or other health care provider, you might have a viable medical malpractice claim. So 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 a medical malpractice case started in California courts
• special procedural steps that plaintiffs must take, and
• California's cap on certain kinds of medical malpractice damages.

Medical Malpractice Statute of Limitations in California

All states have very specific deadlines for filing medical malpractice lawsuits, set by laws called statutes of limitations.

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).

In plain English, that means once you learn that you've been injured by a health care provider's mistake in California (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 occurred, you've lost your right to file the lawsuit against the health care provider. Learn more about when it's medical malpractice, and when it isn't.

This rule (and the special deadlines and exceptions discussed below) can be found at California Code of Civil Procedure section 340.5.

Medical Malpractice Statute of Limitations for Minor Children In California

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 will be tolled (meaning 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 committed fraud or collusion in connection with the failure to bring a medical malpractice action on the minor's behalf.

Exceptions That Could Extend the Medical Malpractice Filing Deadline In California

There are a few situations that will pause ("toll") the statute of limitations "clock" in California medical malpractice cases, including:

• where the health care provider's fraudulent or concealing actions essentially hid the medical mistake, and
• where the case arose from the unintentional leaving of a foreign object in a patient (an instrument left behind after a surgical procedure, for example).

Pre-Lawsuit Notice to Health Care Provider Required in California

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 your 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 legal basis of the claim
• the type of loss sustained, and
• the nature of the injuries suffered.

The law also provides that, if the notice is served within 90 days of the expiration of the statute of limitations, the time limit for starting the lawsuit will be extended 90 days from the service of the notice. This rule can be found at California Code of Civil Procedure section 364.

California's Cap on Non-Economic Damages In Medical Malpractice Cases

Since 1975, California's Medical Injury Compensation Reform Act (MICRA) has placed a (oftentimes controversial) $250,000 cap on non-economic damages in medical malpractice lawsuits.

"Non-economic damages" include losses such as pain and suffering, physical impairment, loss of enjoyment of life, and "loss of consortium." These kinds of damages can really add up in a medical malpractice lawsuit, but this cap meant that even when an injured patient is successful at trial and the health care provider was found to have committed medical negligence, the patient was legally prevented from receiving more than $250,000 in non-economic damages.

2022 Changes to California's MICRA

Much of the controversy related to MICRA stemmed from the fact that the legislation never allowed for an inflation-related adjustment. However, legislation signed by Governor Gavin Newsom in May 2022 increases the non-economic damages cap for the first time since 1975, effective January 1, 2023.

The new caps apply to all cases initiated on or after that date. For 2023, the caps are set at:

• $350,000 for malpractice-related injuries that do not involve wrongful death, and
• $500,000 for medical malpractice that resulted in wrongful death.

Beginning in 2024, the dollar amounts will be bumped up each year by $40,000 for personal injury and $50,000 for wrongful death, until 2034, when the caps reach $750,000 and $1 million, respectively. At that point the amount will be adjusted annually by two percent to account for inflation. It's important to keep in mind that the $250,000 cap will still apply to all cases filed before January 1, 2023. (You can read the full text of the legislation (AB35) on the California Legislature's website.)

Note that this cap (which can be found at California Civil Code section 3333.2) 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.

Limits on Attorney's Fees in California Medical Malpractice Cases

Medical malpractice plaintiff's lawyers almost always work on a contingency fee basis. Under California Business & Professions Code section 6146, an attorney's contingency fee for representing a client in most medical malpractice cases can't exceed:

• 25 percent of the amount recovered if a settlement agreement is reached before a civil lawsuit is filed, or before the patient has filed a "demand for arbitration," and
• 33 percent of the amount recovered after a civil lawsuit has been filed, or after a "demand for arbitration" has been filed.

For purposes of these caps, "recovered" means the net amount the client is set to receive after deducting "costs" related to the pursuit of the case (not including the client's medical expenses or the attorney's standard overhead costs). Learn more about the costs associated with a medical malpractice claim.

What If the Patient Shares Some Fault In California?

In some medical malpractice cases, the defendant may argue that you are at least in part responsible for your own injuries by, for example, failing to follow a health care professional'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.

Next Steps After a Health Care Injury In California

From the legal standards used to evaluate a health care provider's actions, to the procedural demands placed on patients wishing to go to court, a medical malpractice case is a complex undertaking. If you're convinced you have a valid case, your best first step might be discussing your situation with an experienced legal professional. Learn more about meeting and working with a medical malpractice lawyer.