What is the medical malpractice statute of limitations in California?

Posted on April 15, 2023

With some exceptions, California’s statute of limitations (deadline) to bring a medical malpractice lawsuit is the earlier of:

1. one (1) year after you discovered the injury (or should have discovered the injury with reasonable diligence), or
2. three (3) years of the date of the malpractice.¹

For example: Jenny is in constant pain after her hip replacement but waits two years to file. Here, “the discovery rule” bars her lawsuit because it has been more than one year year she discovered her injury.

For example: Four years after Jenny has hip surgery, an MRI finds that the replacement was negligently performed. Any claim is time-barred because three years have passed since the alleged malpractice.²

However, there are 3 ways for the medical malpractice statute of limitations to get tolled (paused) in California:

1. you were a minor,
2. the malpractice left a foreign body inside you, or
3. the healthcare provider committed some form of misconduct.

1. Underage victims

In California, the statute of limitations for medical malpractice claims is different for minor children (under 18 years old).⁴ A minor’s statute of limitations runs until the later of:

• three (3) years after the date of the injury, or
• the child’s eighth birthday if they were under six years old at the time of the malpractice.³

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 pauses the statute of limitations when a medical professional negligently leaves a foreign body inside you that has no diagnostic or therapeutic purpose or effect.⁶ Depending on the object left inside your body, it may not cause any problems for you until a significant amount of time passed.

In these cases, you can usually sue for negligence per se because of how clearly the doctors committed malpractice.

3. Healthcare provider misconduct

The statute of limitations is also paused if your healthcare provider either:

• committed fraud,
• intentionally concealed their wrongdoing, or
• colluded with your parents (when you were a minor) to prevent them from bringing a malpractice claim on your behalf.⁷

By pausing the statute of limitations in the above three 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. Under California Code of Civil Procedure section 364 CCP, you cannot file a medical malpractice action unless you give 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?

If you file a medical malpractice lawsuit after the statute of limitations has expired, you will have your case dismissed.

Even if your medical malpractice case is strong, the court will refuse to hear the merits if your case is time-barred.

Therefore, you should contact a personal injury attorney as soon as possible so that you can file a lawsuit before the statute of limitations runs.

When should I see a lawyer?

If you suspect that you have been hurt by a doctor’s medical negligence, you 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.

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