In California, medical malpractice is a legal claim against a health care provider alleging that the patient suffered injury because the provider acted with professional negligence, or below the appropriate standard of care. Common examples are when the provider
- Misdiagnoses or fails to diagnose a condition,
- Makes a mistake during surgery,
- Prescribes the wrong medication or wrong dosage,
- Fails to warn about the risks and complications of a procedure.
Patients generally have a statute of limitations of just one year from the discovery of the injury in which to bring a claim.
To help you better understand medical malpractice in California, our California personal injury lawyers discuss, below:
- 1. What is medical malpractice?
- 2. Who can be sued for medical malpractice in California?
- 3. What damages can a patient sue for?
- 4. Are there limits to how much money I can recover?
- 5. Is it possible to get punitive damages?
- 6. What is the statute of limitations for medical malpractice in California?
- 7. How does a patient prove professional negligence?
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.
California medical malpractice laws apply to all healthcare providers and facilities licensed by the state including (without limitation):
- Physical therapists,
- Clinics, and
People injured by medical malpractice in California 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.
California Civil Code 3333.2 puts a cap of $250,000 on non-economic damage awards in medical malpractice lawsuits.
California Civil Code 3333.2 is the result of the Medical Injury Compensation Reform Act (MICRA), which California voters passed in 1975.
But assuming that Assembly Bill 35 passes, in 2023 the non-economic damages cap would increase to $350,000 in non-fatality cases and to half a million dollars in wrongful death cases. And the caps would increase incrementally through 2033 to $750,000 in non-fatality cases to $1 million in wrongful death cases. Note that this bill is not retroactive and applies only to cases filed on January 1, 2023 or after.
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):
- 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 on the amount of compensatory damages a medical malpractice plaintiff may sue for in a medical negligence case.
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).
The amount of time a plaintiff has 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 the injured party is an adult or a minor.
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 the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury.
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 is was less than six years old at the time of the injury, the minor’s eighth birthday.
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 the injured person, 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.2
A medical professional is negligent if he or she fails 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.3
Establishing the standard of care generally requires the testimony of one or more expert witnesses.
In addition, the plaintiff must prove that the defendant’s breach of the standard of care actually caused the plaintiff’s 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 a patient.
Often a plaintiff in California 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.
Injured by medical malpractice in California? Contact us for help…
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- California Civil Code 3333.1(2); California Code of Civil Procedure 340.5(2); see also Flores v. Liu (Court of Appeal of California, Second Appellate District, Division Two, 2021) 60 Cal. App. 5th 278.
- California Code of Civil Procedure 340.5.
- See California Civil Jury Instructions (CACI) 501.