Medical Malpractice in California – How to Bring a Lawsuit

In California, a medical malpractice claim is made against a healthcare provider alleging that you suffered an injury because the provider acted with professional negligence, or below the appropriate standard of care.

Typical examples are when the provider

• misdiagnoses or fails to diagnose a condition,
• makes a mistake during surgery,
• prescribes the wrong medication or wrong dosage, or
• fails to warn about the risks and complications of a procedure.

You generally have a statute of limitations of just one year from discovering the injury in which to bring a claim.

To help you better understand medical malpractice in California, our California personal injury lawyers discuss:

• 1. Malpractice defined
• 2. Who can be sued
• 3. Potential damages
• 4. Damage caps
• 5. Punitive damages
• 6. Statute of limitations
• 7. Professional negligence

1. Malpractice defined

California law defines “professional negligence” (medical malpractice) as:

• A negligent act or (omission to act) by a health care provider,
• In the rendering of professional services,
• Which act or omission is the proximate cause of a personal injury or wrongful death,
• Provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.¹

See our related article on the distinction between negligence and malpractice.

2. Who can be sued

California medical malpractice laws apply to all healthcare providers and facilities licensed by the state including (without limitation):

• Doctors,
• Chiropractors,
• Podiatrists,
• Nurses,
• Anesthesiologists,
• Psychologists,
• Physical therapists,
• Pharmacists.
• Hospitals,
• Clinics, and
• Laboratories.

3. Potential damages

If you are injured by medical malpractice in California, you can recover compensatory damages that include, but are not limited to:

• Medical bills for medical treatment, medication, etc.,
• Home health medical care,
• Physical and occupational therapy,
• Lost wages,
• Lost earning capacity, and
• Non-economic damages such as pain and suffering and loss of enjoyment of life.

4. Damage caps

California Civil Code 3333.2 puts a cap on non-economic damage awards in medical malpractice lawsuits.

• As of January 1, 2024, the non-economic damages cap in non-fatality cases is $390,000. Each new year this cap increases by $40,000 until it reaches $750,000.
• As of January 1, 2024, the non-economic damages cap in wrongful death cases is $550,000. Each new year this cap increases by $50,000 until it reaches $1 million.²

The medical malpractice damages cap applies to losses that are difficult to place a value on. Such “non-economic” damages include (but are not limited to):

• Pain,
• Suffering,
• Inconvenience,
• Scarring,
• Disfigurement,
• Physical impairment,
• Loss of the use of an organ or limb, and
• Loss of life enjoyment.

Other than as set forth above, there is no cap under state law as to the amount of compensatory damages you may sue for in a medical negligence case.³

5. Punitive damages

You may recover for punitive damages in a California medical malpractice case if you can show by clear and convincing evidence that the defendant committed

• oppression,
• malice or
• fraud.

In the context of a professional negligence claim, this usually means showing that the defendant’s conduct was:

• Despicable, and
• Done either intentionally or with a willful and conscious disregard of the rights or safety of others (meaning recklessly or, possibly, with gross negligence).⁴

6. Statute of limitations

The amount of time you have to sue is known as the California “statute of limitations” or “limitations period.”

The time limit to sue in a California professional negligence case depends on whether you are

• an adult or
• a minor.

For adults

Adults must commence a lawsuit for medical malpractice in California by the earlier of:

• Three years after the date of the injury, or
• One year after you discover, or through the use of reasonable diligence should have discovered, the injury.⁵

For minors

When the person injured by medical malpractice in California is a minor under 18, the statute of limitations runs until the latter of:

• Three years from the date of the alleged wrongful act, or
• If the minor was less than six years old at the time of the injury, the minor’s eighth birthday.⁶

Exceptions to the statute of limitations

The limitations period for a professional negligence action against a healthcare provider may be “tolled” (paused) during periods in which:

• A healthcare provider commits fraud,
• A healthcare provider intentionally conceals wrongdoing,
• There is a foreign body that has no therapeutic or diagnostic purpose or effect inside you, or
• A minor’s parent has colluded with the defendant’s insurer or a health care provider not to bring a malpractice action on behalf of the injured minor.⁷

7. Proving negligence

A medical professional is negligent if they fail to use the level of skill, knowledge, and care that other reasonably careful practitioners would use in the same or similar circumstances.

This level of skill, knowledge, and care is sometimes referred to as

• “the standard of care” or
•  “duty of care” in California.⁸

Establishing the standard of care generally requires the testimony of one or more expert witnesses.

In addition, you must prove that the defendant’s breach of the standard of care actually caused your injuries.

In other words, it is not enough that the outcome of a particular treatment or diagnosis was wrong. There must have been something that the doctor should or should not have done and which resulted in injury to you.

Often you can rely on the legal doctrine of res ipsa loquitur. This doctrine presumes negligence when

• the instruments were exclusively within the defendant’s control and
• the injury is one that normally does not occur without there being negligence.⁹

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