📋 What is Medical Malpractice?
Medical malpractice occurs when a healthcare provider's negligent treatment causes injury to a patient. Under California law, to succeed in a medical malpractice claim, you must prove that the healthcare provider deviated from the accepted standard of care and that this deviation directly caused your injuries.
When to Use This Guide
Use this guide if you have experienced:
💉 Misdiagnosis or Delayed Diagnosis
Failure to correctly diagnose a condition, leading to delayed treatment or worsened prognosis
🩸 Surgical Errors
Wrong-site surgery, retained foreign objects, anesthesia errors, or unnecessary procedures
💊 Medication Errors
Wrong medication, incorrect dosage, dangerous drug interactions, or failure to warn of side effects
🏫 Birth Injuries
Injuries to mother or child during labor and delivery due to medical negligence
Elements of a California Medical Malpractice Claim
- Duty of Care - A doctor-patient relationship existed, creating a duty of care
- Breach of Standard of Care - The provider failed to act as a reasonably competent provider would under similar circumstances
- Causation - The breach directly caused your injury (both actual and proximate cause)
- Damages - You suffered actual harm (physical, emotional, financial)
⚠ California is Unique: MICRA Applies
California's Medical Injury Compensation Reform Act (MICRA) significantly limits medical malpractice claims. You MUST understand these rules before proceeding. Key restrictions include:
- Caps on non-economic damages (pain and suffering)
- Mandatory 90-day pre-suit notice for certain claims
- Modified contingency fee structures
- Periodic payment requirements for large awards
👍 What You Can Recover
- Economic damages - Medical bills, lost wages, future care costs (NO CAP)
- Non-economic damages - Pain, suffering, disfigurement (CAPPED under MICRA)
- Loss of consortium - For spouse's loss of companionship
- Wrongful death damages - If malpractice caused death
⚖ MICRA Overview
The Medical Injury Compensation Reform Act (MICRA), enacted in 1975, is California's comprehensive medical malpractice reform law. It significantly affects how claims are pursued and what damages can be recovered.
Key MICRA Statutes
Code of Civil Procedure Section 340.5
Establishes the statute of limitations for medical malpractice: 1 year from discovery or 3 years from the date of injury, whichever comes first. Contains special provisions for minors and cases of fraud or concealment.
Code of Civil Procedure Section 667.7
Authorizes periodic payments for future damages exceeding $50,000 in medical malpractice cases. The court can order the defendant to make periodic payments rather than a lump sum.
Civil Code Section 3333.2
The damages cap provision. Originally set non-economic damages cap at $250,000. Now being phased up under AB 35 (effective January 1, 2023).
Code of Civil Procedure Section 364
Requires 90-day notice before filing suit against a healthcare provider. This notice tolls (pauses) the statute of limitations for 90 days.
Who is Covered by MICRA?
MICRA applies to claims against "healthcare providers," which includes:
- Physicians and surgeons (MDs and DOs)
- Dentists, nurses, and nurse practitioners
- Hospitals, clinics, and medical groups
- Psychologists and licensed clinical social workers
- Chiropractors and physical therapists
- Pharmacists and pharmacy technicians
- Other licensed healthcare professionals
💡 MICRA Does NOT Apply To:
- Assault and battery claims (even in medical settings)
- Intentional misconduct
- Claims against non-licensed individuals
- Product liability claims against medical device manufacturers
- Elder abuse claims under the Elder Abuse Act
📧 90-Day Notice Requirement
Under California Code of Civil Procedure Section 364, you must serve a notice of intent to sue at least 90 days before filing a medical malpractice lawsuit against a healthcare provider.
CCP 364 Requirements
📋 Notice Contents
The notice must state the legal basis of the claim and the type of loss sustained (injuries/damages). Specific damages amounts are not required.
📧 Service Method
Serve by certified mail, return receipt requested, to the healthcare provider's last known address. Keep proof of mailing and delivery.
🕑 Tolling Effect
Filing the 90-day notice tolls (pauses) the statute of limitations for 90 days. This gives you additional time if your deadline is approaching.
⚠ Failure to Comply
If you file suit without giving proper notice, the defendant can request a 90-day stay. This is procedural, not jurisdictional - your case won't be dismissed.
90-Day Notice Timeline
Day 1: Send Notice
Mail certified notice to all healthcare providers you intend to sue. Include hospitals, individual doctors, and medical groups.
Days 1-90: Waiting Period
Provider has opportunity to respond, investigate, and potentially offer settlement. Use this time to prepare your case.
Day 91+: File Lawsuit
You may file your complaint in Superior Court. The 90-day period tolled your statute of limitations.
⚠ Strategic Considerations
The 90-day notice serves multiple purposes:
- Settlement opportunity - Many cases settle during this period when liability is clear
- SOL extension - Use this to extend your filing deadline if needed
- Provider notice - Gives the provider time to investigate and preserve evidence
- Good faith - Courts view this as demonstrating your good faith effort to resolve without litigation
🚨 Important: Notice to Each Provider
You must send separate 90-day notices to EACH healthcare provider you intend to sue. If multiple doctors and a hospital were involved, send notices to all of them. Failure to notice one provider means you cannot sue them until 90 days after you do send notice.
💰 Non-Economic Damages Caps
MICRA originally capped non-economic damages (pain, suffering, disfigurement, physical impairment, inconvenience, grief, and other non-pecuniary losses) at $250,000. Assembly Bill 35 (AB 35), effective January 1, 2023, significantly modified these caps.
🌱 AB 35: Major Changes to MICRA Caps
AB 35 increased the caps and created separate limits for wrongful death cases. The caps will continue to increase annually by 2% until 2034.
| Year | Non-Death Cases | Wrongful Death Cases |
|---|---|---|
| 2023 | $350,000 | $500,000 |
| 2024 | $357,000 | $510,000 |
| 2025 | $364,140 | $520,200 |
| 2033 | $750,000 | $1,000,000 |
| 2034+ | 2% annual increase | 2% annual increase |
Understanding Economic vs. Non-Economic Damages
| Damage Type | Examples | MICRA Cap? |
|---|---|---|
| Economic Damages | Medical bills, lost wages, future earning capacity, cost of future care, household services | NO CAP - Fully recoverable |
| Non-Economic Damages | Pain and suffering, emotional distress, loss of enjoyment of life, disfigurement, physical impairment | CAPPED per AB 35 schedule |
| Punitive Damages | Punishment for intentional/reckless conduct | Not typically available in malpractice |
📊 Sample Damages Calculation
Example: Surgical Error Case (2024)
💡 Multiple Defendants
Under AB 35, if there are multiple defendants (e.g., a surgeon, anesthesiologist, and hospital), each defendant is subject to the full cap. This means total non-economic damages could exceed the individual cap if multiple parties are liable. However, the plaintiff can only recover the cap amount once from all defendants combined for a single injury.
Periodic Payments (CCP 667.7)
For future damages exceeding $50,000, the court may order the defendant to make periodic payments rather than a lump sum. This means:
- Future medical expenses and lost wages can be paid over time
- Payments typically secured by annuity or other guarantee
- If plaintiff dies before expected, remaining payments may not be owed
- This can significantly reduce the present value of an award
🕑 Statute of Limitations
California Code of Civil Procedure Section 340.5 sets strict time limits for filing medical malpractice claims. Missing these deadlines will bar your claim forever.
The Basic Rule: 1 Year / 3 Years
📅 1 Year from Discovery
You must file within 1 year after you discover (or should have discovered) the injury and its negligent cause. This is subjective based on when you knew or reasonably should have known.
📅 3 Years from Injury
Absolute outer limit. Regardless of discovery, you cannot file more than 3 years after the date of injury. This is an absolute bar with very few exceptions.
The statute runs on whichever deadline comes FIRST. So if you discover an injury 2 years after it occurred, you have only 1 year from discovery (not the full 3 years).
Important Exceptions and Extensions
👶 Minor Children
▼For children under 6 years old at the time of injury, the statute is tolled until their 6th birthday. They then have until age 8 (3 years from the tolling end) to file. For children 6 and older, the standard 1-year/3-year rule applies, but a parent or guardian must file on their behalf.
🚫 Fraud or Concealment
▼If the healthcare provider intentionally concealed the negligence or fraudulently prevented discovery, the 3-year absolute limit may be extended. You must prove intentional concealment, not just failure to disclose. See Sanchez v. South Hoover Hospital (1976).
🔬 Foreign Objects
▼When a foreign object (surgical sponge, instrument, etc.) is left in the body, the 1-year period runs from discovery of the object. The 3-year absolute limit does NOT apply to foreign object cases under CCP 340.5(2).
📧 90-Day Notice Tolling
▼Filing a CCP 364 notice tolls the statute of limitations for 90 days. This effectively extends your deadline. If your SOL expires in 30 days and you file notice, you get an additional 90 days (total 120 days to file suit).
👤 Mental Incapacity
▼If the plaintiff lacked legal capacity at the time of injury (was mentally incapacitated and without a guardian), the statute may be tolled. However, this is narrowly applied and requires proof of actual incapacity.
🚨 When Discovery Starts
The 1-year clock starts when you:
- Actually know about the injury AND its negligent cause, OR
- Have information that would cause a reasonable person to suspect injury and negligence
You are charged with knowledge of what reasonable investigation would have revealed. Ignorance alone does not extend the deadline if a reasonable person would have discovered the problem.
⚠ Wrongful Death Claims
For wrongful death due to medical malpractice, the statute is generally 2 years from the date of death (CCP 335.1), NOT the date of the negligent act. However, the 3-year limit from the underlying malpractice may still apply if the death occurs more than 3 years after the negligent treatment.
🔬 Expert Witness Requirements
California requires expert testimony to prove both the standard of care and breach in medical malpractice cases. Under Evidence Code Section 720, only qualified experts may testify about medical matters.
Evidence Code 720 - Expert Qualifications
Evidence Code Section 720
A person may testify as an expert if they have "special knowledge, skill, experience, training, or education" sufficient to qualify them on the subject. For medical malpractice, this typically requires a licensed physician in the same or similar specialty.
What Experts Must Establish
📋 Standard of Care
- ✓ What a reasonably competent provider would do in similar circumstances
- ✓ Relevant professional guidelines and protocols
- ✓ Accepted practices in the medical community
❌ Breach of Standard
- ✓ How the defendant's conduct fell below the standard
- ✓ What the defendant should have done differently
- ✓ Why the breach was unreasonable under the circumstances
🔗 Causation
- ✓ The breach was a substantial factor in causing injury
- ✓ The injury would not have occurred but for the breach
- ✓ Ruling out other potential causes
💰 Damages
- ✓ Nature and extent of injuries
- ✓ Prognosis and future medical needs
- ✓ Life care plan for ongoing treatment
CCP 411.30 - Certificate of Merit
Before filing suit, your attorney must consult with at least one qualified expert who believes there is reasonable and meritorious cause for filing. The attorney must file a certificate stating this consultation occurred.
💡 Expert Selection Tips
- Same specialty - Ideally, find an expert in the same specialty as the defendant
- Active practice - Experts who still practice are more credible than retired physicians
- Board certification - Board-certified experts carry more weight
- California licensed - While not required, California-licensed experts understand local standards
- Teaching/publications - Academic credentials enhance credibility
Exception: Res Ipsa Loquitur
In rare cases, expert testimony may not be required under the doctrine of res ipsa loquitur ("the thing speaks for itself"). This applies when:
- The injury is of a type that ordinarily does not occur without negligence
- The instrumentality was in the exclusive control of the defendant
- The injury was not due to any action by the plaintiff
Examples: Sponge left in body, wrong limb amputated, surgery on wrong patient. Even then, expert testimony is usually helpful.
📝 Sample Demand Letter Language
Use these paragraphs to draft your medical malpractice demand letter or 90-day notice. Customize the highlighted portions for your specific situation.
Dear [HEALTHCARE PROVIDER NAME]:
Please take notice that pursuant to California Code of Civil Procedure Section 364, [PATIENT NAME] intends to commence legal action against you for professional negligence (medical malpractice). This notice is being provided at least 90 days before the filing of said action as required by law.
Physical Injuries: [DESCRIBE INJURIES]
Economic Damages: Past medical expenses of $[AMOUNT]; future medical costs estimated at $[AMOUNT]; lost wages of $[AMOUNT]; and loss of future earning capacity estimated at $[AMOUNT].
Non-Economic Damages: [PATIENT NAME] has experienced significant pain and suffering, emotional distress, loss of enjoyment of life, and [OTHER NON-ECONOMIC DAMAGES], the full value of which will be presented at trial, subject to applicable MICRA limitations.
To that end, we demand compensation in the amount of $[TOTAL DEMAND] to fully resolve this matter. This amount reflects [PATIENT NAME]'s economic losses of $[AMOUNT], plus appropriate compensation for non-economic damages within MICRA limitations.
Please have your insurance carrier or legal counsel contact the undersigned within 30 days to discuss resolution. If we do not hear from you, we will proceed with filing a complaint in the appropriate California Superior Court upon expiration of the 90-day notice period.
Please be advised that you have an obligation to preserve all documents, records, and evidence related to [PATIENT NAME]'s treatment, including but not limited to: complete medical records, imaging studies, laboratory results, correspondence, billing records, incident reports, peer review materials, and any communications regarding this patient. Spoliation of evidence may result in adverse inference instructions at trial.
This letter is intended as a pre-litigation settlement communication protected by California Evidence Code Section 1152 and should not be construed as an admission of any fact.
🚀 Next Steps
Medical malpractice cases are among the most complex personal injury claims. Here is what to do after sending your demand letter.
After Sending the 90-Day Notice
Days 1-30
Provider receives notice and contacts their malpractice insurance carrier
Days 30-60
Insurance company investigates claim, reviews medical records, consults with experts
Days 60-90
Settlement discussions if liability is acknowledged; defense preparation if disputed
Day 91+
File lawsuit in Superior Court if no resolution reached
If They Don't Respond or Deny Liability
-
Consult a Medical Malpractice Attorney
Most medical malpractice attorneys offer free consultations and work on contingency (they only get paid if you win). Given MICRA's complexity, experienced counsel is essential.
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Obtain Complete Medical Records
Request your complete medical records from all treating providers. Under HIPAA, they must provide copies within 30 days. You'll need these for expert review.
-
Secure Expert Review
Before filing suit, have a qualified medical expert review your records. They must confirm breach of standard of care and causation. This is required for the Certificate of Merit (CCP 411.30).
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File Complaint in Superior Court
Medical malpractice cases are filed in California Superior Court. There is no small claims option for malpractice. Filing fees are approximately $435-$450.
⚠ Why You Need an Attorney
Medical malpractice cases are not DIY-friendly. Here's why:
- Expert costs - Medical experts charge $500-$1,000+ per hour for review and testimony
- MICRA complexity - Damages caps, notice requirements, and periodic payment rules require expertise
- Defense resources - Hospitals and insurers have teams of experienced defense lawyers
- Contingency fees - Attorneys front all costs and only collect if you win
- Case screening - Good attorneys reject weak cases, so acceptance indicates merit
Get a Free Case Evaluation
Medical malpractice cases have strict deadlines and complex requirements. Get a free consultation with an experienced California medical malpractice attorney to evaluate your case.
Free ConsultationCalifornia Resources
- Medical Board of California: mbc.ca.gov - File complaints, verify licenses
- California Courts Self-Help: selfhelp.courts.ca.gov - Court forms and procedures
- State Bar Lawyer Referral: calbar.ca.gov - Find certified specialists in medical malpractice
- California Civil Code: leginfo.legislature.ca.gov - Full text of MICRA statutes