California Medical Malpractice — MICRA Damages Calculator, AB 35 Cap Phase-In & Filing Guide

What is Medical Malpractice in California?

Medical malpractice occurs when a healthcare provider deviates from the accepted standard of care in their specialty, causing injury to a patient. The standard is what a reasonably careful healthcare provider with similar training would do under similar circumstances.

Elements of a Medical Malpractice Claim

• Duty: A doctor-patient relationship existed
• Breach: The provider deviated from the standard of care
• Causation: The breach directly caused injury
• Damages: You suffered actual harm (economic or non-economic)

Common Types of Medical Malpractice

• Misdiagnosis or delayed diagnosis — Failure to diagnose cancer, heart attack, stroke, infection
• Surgical errors — Wrong-site surgery, retained foreign objects, nerve damage
• Medication errors — Wrong drug, wrong dose, drug interactions
• Birth injuries — Brain damage, Erb's palsy, cerebral palsy from delivery negligence
• Anesthesia errors — Dosage errors, failure to monitor, aspiration
• Hospital-acquired infections — MRSA, C. diff, sepsis from unsanitary conditions
• Emergency room negligence — Failure to triage, premature discharge
• Failure to refer — Not referring to specialist when condition requires it
• Informed consent violations — Failure to disclose material risks (Cobbs v. Grant)

Who Can Be Sued for Medical Malpractice?

Any licensed healthcare provider can be liable, including:

• Physicians (MD, DO)
• Nurses (RN, NP, LVN)
• Hospitals and clinics
• Dentists and orthodontists
• Pharmacists
• Chiropractors
• Psychologists and psychiatrists
• Physical therapists
• Nursing homes and skilled nursing facilities

MICRA: Medical Injury Compensation Reform Act

MICRA is California's landmark medical malpractice reform law, originally passed in 1975. It imposed strict limits on medical malpractice damages to reduce healthcare costs and prevent doctors from leaving California.

AB 35 / SB 233: The 2023 MICRA Reforms

On January 1, 2023, AB 35 (codified as Civil Code 3333.2) went into effect, raising and phasing in higher MICRA caps over 10 years.

Phase-In Schedule:

What Counts as "Non-Economic Damages"?

MICRA caps only apply to non-economic damages, which include:

• Pain and suffering
• Emotional distress
• Loss of enjoyment of life
• Disfigurement and scarring
• Loss of companionship/consortium
• Inconvenience

Economic damages are NOT capped and can include:

• Past and future medical expenses
• Lost wages and lost earning capacity
• Cost of future care or rehabilitation
• Property damage (rare in med mal)

Wrongful Death vs. Personal Injury/Survival Actions

Wrongful death claims (CCP 377.60) are brought by surviving family members (spouse, children, estate) for their own losses when the patient dies. They have a higher MICRA cap.

Survival actions (CCP 377.30) are brought by the estate for damages the deceased would have recovered had they survived (conscious pain and suffering before death). These use the lower personal injury cap.

Personal injury claims are brought by the injured patient themselves while alive. These use the lower cap.

Key California Medical Malpractice Statutes

CCP 340.5 — Statute of Limitations

You must file a medical malpractice lawsuit within:

• 3 years from the date of injury, OR
• 1 year from the date you discovered (or should have discovered) the injury
• Whichever occurs first

Exceptions:

• Minors under 6: Must file before the child's 8th birthday (but not less than 3 years from injury)
• Minors 6-18: 3 years from injury OR until age 21, whichever is longer
• Foreign body rule: 1 year from discovery of foreign object left in body (no outer time limit)
• Fraudulent concealment: SOL tolls if provider actively concealed malpractice

CCP 364 — 90-Day Notice Requirement

Before filing a lawsuit, you must send written notice to the healthcare provider at least 90 days before filing. The notice must state:

• Your intent to commence legal action
• The legal basis of the claim
• The type of loss sustained
• Name and address of your attorney (if represented)

The statute of limitations is tolled (paused) for 90 days after you send the notice. If the SOL would expire during the 90-day period, you get an automatic extension.

CCP 364(d) — Expert Certificate of Merit

Within 60 days of filing your complaint, you must file a declaration from a qualified expert stating:

• The expert has reviewed the facts
• The expert practices (or has practiced) in the same field as the defendant
• The expert has concluded the standard of care was breached
• The breach was a cause of the injury

If you fail to file the certificate within 60 days, the court may dismiss your case.

B&P Code 6146 — Attorney Fee Limitations

California law caps contingency fees in medical malpractice cases on a sliding scale:

• 40% of the first $50,000
• 33.33% of the next $50,000
• 25% of the next $500,000
• 15% of anything over $600,000

This applies to the total recovery (settlement or verdict), not just non-economic damages. Costs and expenses (filing fees, expert fees, depositions) are separate and can be deducted from the client's share.

CC 3333.1 — Collateral Source Rule

In medical malpractice cases, the defendant can introduce evidence of payments from "collateral sources" (health insurance, Medicare, disability) to reduce the jury's award of past medical expenses. However, collateral source evidence does NOT reduce future medical expenses or non-economic damages.

CC 3333.2 — MICRA Cap (Non-Economic Damages)

This is the statute that codifies the MICRA cap as amended by AB 35. It sets the cap amounts and phase-in schedule described above.

Evidence Code 1157 — Peer Review Privilege

Proceedings and records of hospital peer review committees are privileged and not discoverable in litigation. This protects internal quality assurance and encourages honest review. However, you can still obtain medical records and depose treating physicians.

Evidence Code 1156 — Inadmissibility of Subsequent Remedial Measures

If a hospital or provider changes a policy or procedure after your injury, that change is generally not admissible to prove negligence. This encourages providers to fix problems without fearing it will be used against them.

Expert Witness Requirements

California requires expert testimony in almost every medical malpractice case to establish the standard of care and breach. The expert must:

• Be licensed in the same field as the defendant
• Have knowledge of the standard of care through practice, teaching, or research
• Testify under the Daubert/Sargon standard (expert opinion must be based on reliable methodology)

Exceptions where expert testimony is NOT required:

• Res ipsa loquitur — "The thing speaks for itself" (e.g., amputation of wrong limb)
• Common knowledge — Negligence so obvious any layperson would understand it

Standard of Care

The standard of care is defined as:

"What a reasonably careful [doctor/nurse/specialist] with similar training would do under the same or similar circumstances."

The standard is determined by:

• Specialty: A neurosurgeon is held to the standard of other neurosurgeons, not general practitioners
• Locality: California follows a statewide standard, not a "locality rule"
• Time: The standard at the time of treatment, not current knowledge

Informed Consent: Cobbs v. Grant

Under Cobbs v. Grant (1972) 8 Cal.3d 229, physicians must disclose material risks of treatment before obtaining consent. A risk is "material" if:

• A reasonable person in the patient's position would consider it significant in deciding whether to undergo treatment
• The risk is known or should be known to the physician

If the physician fails to disclose a material risk that occurs, they can be liable even if they did not commit malpractice during the procedure itself.