- one (1) year after the victim discovered, or should have discovered, the injury, or
- three (3) years of the date of the malpractice.
The time limit is tolled for victims under the age of 18. There are also some other special circumstances that delay the limitations period.
What is the statute of limitations for California medical malpractice claims?
Generally, medical malpractice claims in California have to be filed within either of the following time periods:
- 1 year of discovering the injury, or
- 3 years of the malpractice.1
If either time period has run, the statute of limitations has expired.
For example: Jenny has surgery to replace her hip. 4 years later, an MRI finds that the replacement was negligently performed. 3 months after this discovery, she files a lawsuit. Her claim is time-barred because 3 years have passed since the alleged malpractice.
Victims have 1 year to file their claim after discovering their injury. This is known as the discovery rule. It lets victims recover compensation for injuries that remained latent soon after a medical procedure. It also helps victims of malpractice that negligently failed to diagnose a medical problem.
This 1-year window to file begins when the victim either:
- actually discovers the problem, or
- should have discovered the problem, if he or she had used reasonable diligence.2
For example: After her hip replacement, Jenny is in constant pain and her hip clicks when she moves it. Nevertheless, she does not go to the doctor until 2 years have passed since her surgery. Even if she files her lawsuit immediately, the statute of limitations will likely have expired because reasonable diligence would have found the malpractice.
However, there are 3 ways for the medical malpractice statute of limitations to get tolled in California:
- the victim was a minor,
- the malpractice left a foreign body inside the victim, and
- the healthcare provider committed some form of misconduct.
In any of these cases, the statute of limitations would not begin to run. This gives the victim more time to get the legal advice of a medical malpractice attorney from a reputable law firm. With a lawyer’s help, the injured person can file their claim for compensation.
1. Underage victims
In California, the statute of limitations for medical malpractice claims is different for minor children. A minor’s statute of limitations runs until the later of:
- 3 years after the date of the injury, or
- if the minor was under the age of 6 at the time of the malpractice, the child’s eighth birthday.3
A minor is someone who is under the age of 18 in California.4 California’s statute of limitations is tolled for minors in many personal injury cases.
While this extended timeframe for minors to file a claim is good for victims, it is less generous than in other states. In many other states, the statute of limitations for underage victims of medical malpractice can be tolled until the victim becomes an adult.5
2. Foreign bodies
California law also tolls the statute of limitations when a medical professional negligently leaves a foreign body inside the victim. The foreign object must have no diagnostic or therapeutic purpose or effect.6
These medical malpractice cases frequently amount to negligence per se because of how clearly they were malpractice. Depending on the object left inside the patient’s body, they also may not cause any problems for the victim until a significant amount of time passed.
3. Healthcare provider misconduct
The statute of limitations is also tolled if the healthcare provider engaged in misconduct. This includes when the provider:
- intentionally concealed its wrongdoing,
- colluded with the parents of a minor victim to prevent the parent from bringing a malpractice claim on their child’s behalf, or
- committed fraud.7
By tolling the statute of limitations in these circumstances, the law prevents the hospital or healthcare provider from benefiting from its actions.
Do I have to notify the healthcare provider of my intent to sue?
Yes, in California, there is a procedural requirement that victims have to satisfy before suing. Under California Code of Civil Procedure section 364 CCP, a medical malpractice action cannot be filed unless the victim gives the healthcare provider at least 90 days prior notice.
This notice has to include:
- the legal basis for your claim,
- the type of loss sustained, and
- specifics about the nature of your injuries.8
The notice can be served within 90 days of the expiration of the statute of limitations. Doing so would extend the statute of limitations by 90 days from the service of the notice.9
What happens if I file a claim after the time period has expired?
Victims who file a medical malpractice lawsuit after the applicable statute of limitations has expired will see their claim dismissed as time-barred. Even if the medical malpractice plaintiff has a very strong case, the court will refuse to hear the merits of the case. All that the defendants have to do is point to the expired statute of limitations. The court will then dismiss the case.
Letting the statute of limitations for medical malpractice lawsuits expire is a worst-case scenario for victims. Even if the medical care clearly involved a negligent act, and even if the victim’s medical bills and other non-economic damages are significant, there is still no way for a personal injury attorney to get the case to trial.
When should I see a lawyer?
Victims who suspect that they have been hurt by a doctor’s medical negligence should see a lawyer well before California’s medical malpractice statute of limitations is approaching. Putting together a strong case takes time. Seeing a medical malpractice lawyer for the first time when there are only days or weeks left to file the claim can drastically undermine the case.
- California Code of Civil Procedure 340.5 CCP.
- California Family Code 6500 FAM.
- See New York Civil Practice Law & Rules 208 (30-month statute of limitations is tolled until the victim turns 18, or until 10 years have passed since the alleged malpractice).
- California Code of Civil Procedure 340.5 CCP.
- California Code of Civil Procedure 364(b) CCP.
- California Code of Civil Procedure 364(d) CCP.