Medical Malpractice FAQ

Medical malpractice in California occurs when a healthcare provider fails to meet the accepted standard of care in treating a patient, resulting in injury or death. Under California Civil Code Section 3333.2 and related statutes, medical malpractice is classified as professional negligence against licensed healthcare providers including physicians, surgeons, nurses, dentists, hospitals, and other medical facilities.

To establish a medical malpractice claim in California, you must prove four elements: the healthcare provider owed you a duty of care through a treatment relationship, the provider breached that duty by failing to meet the applicable standard of care, the breach directly caused your injury, and you suffered actual damages as a result. The standard of care is defined as the level of skill, knowledge, and care in diagnosis and treatment that other reasonably competent healthcare providers in the same specialty would use under similar circumstances. California's Medical Injury Compensation Reform Act (MICRA) imposes special procedural requirements and damage limitations on medical malpractice claims that do not apply to other personal injury cases.

MICRA (Medical Injury Compensation Reform Act) is California's comprehensive medical malpractice reform legislation enacted in 1975 that significantly impacts how medical negligence cases are handled and compensated. The most notable provision of MICRA, codified in California Civil Code Section 3333.2, historically capped non-economic damages (pain and suffering) at $250,000. However, in 2022, California voters passed Assembly Bill 35, which substantially increased these caps.

As of January 2023, the cap for non-death cases started at $350,000 and increases annually until reaching $750,000 in 2033. For wrongful death cases, the cap started at $500,000 and increases to $1 million by 2033. MICRA also imposes other important restrictions including: allowing defendants to introduce evidence of collateral source payments (like health insurance) to reduce damages, requiring periodic payment of future damages over $50,000 instead of lump sums, establishing special attorney fee limitations on a sliding scale based on recovery amount, and mandating that plaintiffs provide 90 days' notice before filing suit. These provisions make California medical malpractice cases more complex and potentially limit recoveries compared to other states.

A certificate of merit is a legal requirement under California Code of Civil Procedure Section 411.30 that mandates attorneys to obtain and file a declaration from a qualified medical expert before pursuing a medical malpractice lawsuit. The certificate must state that the attorney has consulted with at least one licensed healthcare provider who is qualified to evaluate the case based on training and expertise in the relevant area of medicine, and that this expert has concluded that there is reasonable and meritorious cause for filing the action.

The expert must determine that the defendant healthcare provider breached the standard of care and that this breach caused the plaintiff's injury. This requirement serves as a gatekeeper to prevent frivolous lawsuits by ensuring claims have medical merit before proceeding. The certificate must be filed within 60 days of filing the complaint. Failure to file a proper certificate of merit can result in dismissal of your case. There are limited exceptions, such as when the attorney declares under penalty of perjury that they consulted with three experts who refused to provide the required statement, but these exceptions are narrowly construed by courts.

California Code of Civil Procedure Section 340.5 establishes the statute of limitations for medical malpractice claims. Generally, you must file your lawsuit within one year after you discover, or through reasonable diligence should have discovered, the injury, OR within three years of the date of the injury, whichever occurs first. This creates two limitation periods that work together, and your claim is barred by whichever deadline passes first.

The discovery rule recognizes that medical malpractice injuries are not always immediately apparent—a surgical sponge left inside a patient or a misdiagnosis might not be discovered for months or years. However, the three-year outside limit provides finality even if the injury remained undiscovered. Several exceptions can extend these deadlines: for minors under age 6, the statute is extended until their 8th birthday; if a foreign object was left in your body, the one-year period runs from discovery with no three-year cap; and if the healthcare provider fraudulently concealed the malpractice, the limitations period may be tolled. Additionally, the 90-day notice requirement under Code of Civil Procedure Section 364 effectively extends your deadline by 90 days if you provide timely notice to the provider.

Compensation in California medical malpractice cases includes both economic and non-economic damages, though the latter is subject to MICRA caps. Economic damages are fully recoverable without any statutory cap and include all quantifiable financial losses such as past and future medical expenses for corrective treatment, lost wages and loss of future earning capacity, costs of rehabilitation and ongoing care, home modifications needed for disabilities, and other out-of-pocket expenses directly caused by the malpractice. These economic damages can reach into the millions of dollars for catastrophic injuries requiring lifetime care.

Non-economic damages cover pain and suffering, emotional distress, loss of enjoyment of life, disfigurement, and loss of consortium. Under the revised MICRA caps effective January 2023, non-economic damages are limited to $350,000-$500,000 initially (depending on whether death occurred), increasing annually to $750,000-$1,000,000 by 2033. Punitive damages may be available in rare cases where the healthcare provider acted with malice, oppression, or fraud, but these are extremely difficult to prove in medical contexts. The total value of your case depends heavily on the severity and permanence of your injuries, your age, and the strength of your liability evidence.

Yes, you can sue a hospital for medical malpractice in California under several legal theories. Hospitals can be held directly liable for their own negligence, such as failing to maintain safe premises, inadequate staffing, defective equipment, failure to properly credential physicians, or negligent hiring and supervision of employees. Under the doctrine of respondeat superior (vicarious liability), hospitals are also responsible for the negligent acts of their employees, including nurses, technicians, anesthesiologists, and other staff members acting within the scope of their employment.

However, the key distinction involves independent contractor physicians—many doctors who work in hospitals are not employees but independent contractors, and traditionally hospitals were not liable for their negligence. California courts have expanded hospital liability through the doctrine of ostensible agency, holding hospitals liable when patients reasonably believe the physician is acting on behalf of the hospital, such as emergency room doctors or hospitalists. Under California Business and Professions Code Section 2400, corporate practice of medicine rules also affect how healthcare is delivered and liability is assessed. When suing a hospital, you must identify the specific acts of negligence, determine whether the negligent actor was an employee or independent contractor, and understand the hospital's potential defenses.

Many types of medical errors can form the basis of a malpractice claim in California if they result from a breach of the standard of care and cause patient harm. Diagnostic errors are among the most common and include failure to diagnose a condition such as cancer or heart disease, delayed diagnosis that allows a condition to worsen, and misdiagnosis leading to incorrect treatment. Surgical errors include wrong-site surgery, leaving foreign objects inside patients, nerve damage from improper technique, and anesthesia mistakes.

Medication errors encompass prescribing wrong drugs or dosages, failing to check for drug interactions, and pharmacy dispensing errors. Birth injuries during labor and delivery can result from failure to monitor fetal distress, improper use of forceps or vacuum extractors, and delayed cesarean sections. Treatment errors include failure to obtain informed consent, premature discharge, inadequate follow-up care, and failure to refer to specialists. Hospital-acquired infections from poor hygiene protocols and communication failures between healthcare providers also give rise to claims. Not every medical error constitutes malpractice—the error must fall below the accepted standard of care and directly cause compensable harm to the patient.

Proving medical malpractice in California requires establishing all four elements of negligence through admissible evidence, with expert medical testimony being essential in nearly every case. First, you must prove the existence of a physician-patient relationship, typically straightforward through medical records showing treatment. Second, you must establish the applicable standard of care—what a reasonably competent healthcare provider with similar training and in the same specialty would have done under similar circumstances. This almost always requires testimony from a qualified medical expert who practices in the same or similar field as the defendant.

Third, you must prove the defendant breached the standard of care by acting or failing to act in a way that deviated from accepted medical practice. Your expert must explain specifically how the defendant's conduct fell below the standard. Fourth, you must prove causation—that the breach directly caused your injury. This is often the most contested element, as defense experts typically argue the injury would have occurred regardless of the alleged negligence. Finally, you must prove damages through medical records, billing statements, employment records, and testimony about pain and suffering. Building a successful case requires obtaining complete medical records, retaining qualified experts, and often reconstructing complex medical events.

Informed consent is the legal and ethical requirement that healthcare providers must disclose material information about proposed treatments, procedures, or surgeries to patients before obtaining their agreement to proceed. Under California law, informed consent claims are governed by different standards than traditional malpractice claims. A physician must disclose the nature and purpose of the proposed treatment, the risks and potential complications, alternative treatments available, and the risks of refusing treatment.

California applies the "professional standard" for what must be disclosed—physicians must reveal information that a reasonable medical practitioner would disclose under similar circumstances. You can sue for lack of informed consent if the physician failed to disclose a material risk, a reasonable person in your position would not have consented had they known the risk, and the undisclosed risk actually materialized causing your injury. Importantly, this is separate from whether the procedure itself was performed negligently. Even if the surgery was technically perfect, if you weren't properly informed of risks and a disclosed risk occurred, you may have a claim. Emergency situations, therapeutic privilege (where disclosure would harm the patient), and patient waiver are recognized exceptions to informed consent requirements.

Medical malpractice lawsuits in California typically take two to four years from filing to resolution, though complex cases can extend longer. The timeline begins before filing with the mandatory 90-day notice period required under Code of Civil Procedure Section 364, during which settlement negotiations often occur. After filing, the discovery phase typically lasts 12 to 18 months and involves exchanging medical records, written interrogatories, depositions of parties and witnesses, and expert witness disclosures.

Medical malpractice discovery is particularly extensive because experts must review thousands of pages of medical records and form opinions on standard of care, breach, and causation. Following discovery, parties often engage in mediation or other settlement negotiations, as the majority of medical malpractice cases settle before trial. If the case proceeds to trial, you may wait months for a trial date depending on court congestion. Trials themselves typically last one to three weeks due to the complexity of medical evidence. Factors that can extend the timeline include multiple defendants, complex medical issues requiring numerous experts, appeals of pre-trial rulings, and court scheduling delays. Cases involving catastrophic injuries or wrongful death tend to be most vigorously defended and take longest to resolve.