California Medical Malpractice Laws

Under California law, most patients have one year from discovering an injury, and no more than three years from the date of injury, to sue a health care provider (Cal. Civ. Proc. Code § 340.5). Children, fraud, concealment and foreign objects follow different rules. California's MICRA statute caps noneconomic damages but does not cap economic losses such as future medical care.

This guide comes from Gilman & Bedigian. The firm's founding partner, Briggs Bedigian, won the $182 million birth injury verdict in Hagans v. Hospital of the University of Pennsylvania, the largest medical malpractice verdict in Pennsylvania history. The guide explains how California handles claims against doctors, nurses and hospitals. If you are trying to work out whether you still have time to act, what you would need to prove, and what a recovery could include, the answers below come from California statutes and case law. Families of injured babies will find a dedicated section on children's deadlines.

If your baby was injured during pregnancy, labor or delivery in California, Gilman & Bedigian handles birth injury cases nationwide and works with local counsel when required by the rules of a particular jurisdiction. You can read more about our birth injury practice. We take all personal injury cases on a contingency fee basis, so there is no fee unless we win. Call (800) 529-6162 to talk through your family's situation. For other types of medical malpractice in California, consult a medical malpractice attorney licensed in California about your specific case.

Key Takeaways

• Three-year outer limit: Section 340.5 itself extends California's three-year limit only for fraud, intentional concealment, or a foreign object with no medical purpose left in the body.
• Children's deadlines: A child injured before age six generally has three years from the negligent act or until the eighth birthday, whichever is longer. Children do not automatically have until age 18.
• 2026 noneconomic damages cap: Under Civil Code § 3333.2, the scheduled cap is $470,000 in injury cases and $650,000 in death cases. The statute allows up to three separate caps in a single case.
• Public providers: Claims against public hospitals and clinics require a written government claim, generally within six months, under Gov. Code § 911.2.
• Shared fault: California uses pure comparative fault. A patient's own share of fault reduces damages but does not bar recovery.

How Does the California Medical Malpractice Statute of Limitations Work?

California Code of Civil Procedure § 340.5 sets two clocks for adult patients. A lawsuit for injury or death against a health care provider must be filed within one year after the patient discovers the injury, or within three years after the injury, whichever comes first. Both limits apply at once, and missing either one can end the claim. The rules for children and the exceptions to the three-year limit are explained below.

A statute of limitations is the legal deadline for filing a lawsuit. If you file after it expires, the court will generally dismiss the case, no matter how strong the evidence is.

You can read the full text of § 340.5 and related statutes on the official California Codes site.

The one-year discovery rule

The one-year clock does not start on the day of treatment. California courts start it when the patient knew, or reasonably should have suspected, that the injury was caused by someone's wrongdoing. You don't need to know the legal theory or have proof. You only need enough facts to make a reasonable person suspect that something went wrong.

This is the deadline most people underestimate. A patient who learns of a surgical complication in March and spends a year waiting for answers may already be out of time, even though the three-year limit is still open.

The three-year outer limit and its three exceptions

The three-year limit runs from the date of injury and generally applies even if the patient never discovered the harm. Section 340.5 extends it in only three situations:

1. Fraud by the provider.
2. Intentional concealment of the injury or its cause.
3. A foreign body left in the patient that has no therapeutic or diagnostic purpose, such as a surgical sponge.

These exceptions extend only the three-year limit. The one-year discovery clock still applies once the patient discovers the injury.

The 90-day notice can extend the deadline

California requires a patient to give the provider at least 90 days' written notice before filing suit (Cal. Civ. Proc. Code § 364). If you serve that notice within the final 90 days before the limitations period expires, § 364(d) extends the deadline by 90 days. The interaction can be technical. Lawyers usually calculate both dates before sending anything.

California malpractice deadlines at a glance

For more on how timing disputes play out, see our article on how statute of limitations complications can doom a medical malpractice case.

How Do California's Deadlines Apply to Birth Injury Claims?

Many families assume an injured child has until age 18 to sue. In California, that is not true for medical malpractice. Under § 340.5, a claim for a child injured before age six must generally be filed within three years of the negligent act or before the child's eighth birthday, whichever gives more time. California's general rule that pauses deadlines for minors does not override this specific malpractice provision.

A child's own claim

For a baby injured at birth, the eighth birthday usually provides the longer window. That may sound like plenty of time, but it often isn't. Conditions like hypoxic-ischemic encephalopathy or cerebral palsy may not be fully diagnosed for months or years. Records, fetal monitoring strips and witness memories also become harder to reconstruct as time passes.

Parents' and the mother's claims may run on a different clock

The child's claim is only one part of a birth injury case. The parents may have their own claims, such as recovery for medical expenses they paid for the child. The mother may also have a claim for her own physical injuries from the delivery. These claims are generally treated as adult claims and may be subject to the shorter one-year and three-year periods, not the eighth-birthday rule. Don't assume the child's deadline protects the whole family.

Court approval of a child's settlement

A child cannot bring a lawsuit alone. The court appoints a guardian ad litem, usually a parent, to act for the child in the case (Cal. Civ. Proc. Code § 372). A guardian ad litem is an adult the court authorizes to make litigation decisions on a minor's behalf.

Any settlement of a child's claim must be approved by the court (Cal. Prob. Code § 3500). The judge reviews whether the amount is fair. The judge also decides how the money will be held, which may include a blocked account, an annuity or a trust that protects the child's eligibility for public benefits.

Why the damages cap matters less than families expect

The noneconomic damages cap covered below applies to birth injury claims. However, California does not cap economic damages, which include the lifetime cost of medical care, therapy, equipment, home modifications and lost earning capacity. In serious birth injury cases, these future costs are often the largest part of the claim. Our birth injury practice page explains the medical side of these cases in more detail.

What Has to Happen Before a California Malpractice Lawsuit Is Filed?

California does not require a certificate or affidavit of merit before filing a medical malpractice lawsuit, unlike many states. California does require 90 days' written notice of intent to sue under Code of Civil Procedure § 364, and certain claims, such as punitive damages and public-entity claims, have extra procedural steps. The typical sequence looks like this:

1. Request the complete medical records. Federal law gives patients a right to copies of their records (45 C.F.R. § 164.524). Ask for the full chart, including nursing notes, monitoring data and imaging, not just a summary.
2. Get an independent medical review. A qualified physician compares the care against the standard of care and assesses whether the error caused the harm.
3. Check for an arbitration agreement. Look through intake paperwork and health plan documents.
4. Identify any public or federal providers. These require a government claim on a much shorter schedule.
5. Serve the § 364 notice. The notice must state the legal basis of the claim, the type of loss and the nature and extent of the injuries.
6. File in California Superior Court or start arbitration. Do this after the 90-day notice period and before the applicable limitations period expires.

Arbitration agreements

California permits binding arbitration agreements between patients and health care providers (Cal. Civ. Proc. Code § 1295). The contract must contain specific statutory language, and the patient has 30 days after signing to rescind it. Some health plans, including Kaiser Permanente, resolve member malpractice claims through arbitration rather than a jury trial. If a valid agreement exists, the claim generally goes to an arbitrator instead of a court, and the procedures, timeline and evidence rules differ.

Punitive damages need court permission

A patient cannot simply include punitive damages in a malpractice complaint. Under Code of Civil Procedure § 425.13, the court must first allow the claim. The patient must show a substantial probability of proving malice, oppression or fraud under Civil Code § 3294. Our guide on whether you can sue for punitive damages in a medical malpractice case covers the general concept.

Why Do California Malpractice Cases Require Expert Witnesses?

A bad outcome is not, by itself, malpractice. California courts generally require expert medical testimony to prove the standard of care, the breach of that standard and causation, unless the negligence is obvious to a layperson (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992).

The standard of care is the level of skill and care that a reasonably careful provider in the same field would use in similar circumstances. Jurors are not expected to know what a careful obstetrician or radiologist would have done, so experts explain it.

Causation is often the hardest element

The patient must show, to a reasonable medical probability, that the error caused the harm, rather than the underlying illness. In a delayed cancer diagnosis case, for example, the question is whether earlier detection would probably have changed the outcome. Our article on failure to diagnose claims explains why this element is so heavily contested.

Special rules for emergency room physicians

When the claim involves emergency care in a hospital emergency department, California Health and Safety Code § 1799.110 limits who can testify about the standard of care. The expert must have had substantial professional experience within the preceding five years providing emergency coverage in a general acute care hospital emergency department.

Informed consent claims

California also recognizes claims for failure to disclose material risks before treatment (Cobbs v. Grant (1972) 8 Cal.3d 229). The question is whether a reasonable patient would have declined the procedure if the risk had been properly explained. Expert testimony is still often needed to establish what the risks were and how likely they were.

What Is the California Medical Malpractice Damages Cap?

California's damages cap comes from MICRA, the Medical Injury Compensation Reform Act of 1975. MICRA is a package of laws that limits certain recoveries in claims against health care providers. Assembly Bill 35 replaced MICRA's longstanding flat $250,000 cap with a rising schedule under Civil Code § 3333.2, generally for cases filed or arbitrations demanded on or after January 1, 2023.

Noneconomic damages compensate for losses that have no receipt, such as pain, suffering, disfigurement, emotional distress and lost enjoyment of life. California caps only this category in malpractice cases.

The scheduled cap amounts

Under § 3333.2, the cap rises by $40,000 each January 1 in injury cases and by $50,000 each January 1 in death cases until it reaches its full amount. After that, it adjusts by 2% each year.

Which year's figure applies to a particular case depends on timing provisions in the statute. Confirm the current amount with counsel.

Up to three caps in one case

The amended law allows up to three separate caps in a single case. One cap covers all health care providers together. A second covers all health care institutions, such as hospitals, together. A third covers unaffiliated providers or institutions whose separate negligence contributed to the harm. In a birth injury case involving both an obstetrician and a hospital, two caps may apply.

What MICRA does not cap, and its other rules

Medical bills, future care, lost wages and lost earning capacity are not capped. Two other MICRA provisions affect how damages work:

• Collateral source evidence (Civil Code § 3333.1): The defense may tell the jury about certain benefits the patient received, such as health insurance payments. Those sources generally cannot seek reimbursement from the recovery.
• Periodic payments (Code of Civil Procedure § 667.7): If future damages total $250,000 or more, either party can ask the court to order payment over time instead of in a lump sum.

For a broader view, see our overview of caps on medical malpractice damages by state and our explanation of the types of damages in a medical malpractice lawsuit.

How Does Comparative Fault Work in a California Malpractice Case?

California follows pure comparative negligence, adopted in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. Comparative fault means a jury divides responsibility among everyone whose carelessness contributed to the harm, including the patient. A patient's damages are reduced by the patient's percentage of fault, but the patient can still recover even if mostly at fault.

In malpractice cases, defendants sometimes argue that the patient missed follow-up appointments, ignored instructions or withheld information. The defense must prove those claims. A newborn cannot be at fault for a birth injury.

Who pays which share

California's Proposition 51, codified at Civil Code § 1431.2, changes how damages are collected when multiple defendants are responsible. Each defendant pays only its own percentage share of noneconomic damages. Economic damages, however, remain joint and several. This means the patient can collect the full amount of economic damages from any responsible defendant, and that defendant can then seek contribution from the others.

What Changes When the Provider Is a Public Hospital or Federal Clinic?

Here is where many valid claims are lost. Under California's Government Claims Act, a claim for injury against a public entity, such as a county hospital, must generally be presented in writing within six months after the claim accrues (Cal. Gov. Code § 911.2). If the entity rejects the claim in writing, the lawsuit generally must be filed within six months of that notice (§ 945.6).

A late-claim application may be filed within one year under § 911.4, and courts can grant relief in limited circumstances under § 946.6. However, approval is not automatic. Don't rely on it. These rules apply to children's claims too, so the eighth-birthday window under § 340.5 does not protect a family that misses a government claim deadline.

Federal facilities and community health centers

Claims against VA hospitals, military facilities and many federally funded community health centers go through the Federal Tort Claims Act. Staff at those centers may be deemed federal employees under 42 U.S.C. § 233. The FTCA requires a written administrative claim to the agency within two years (28 U.S.C. § 2401(b)) before any lawsuit is filed. Many families don't realize their prenatal clinic was federally deemed, so it's worth checking early.

How Does Wrongful Death Work After Medical Negligence in California?

When medical negligence causes a death, California allows two related claims. A wrongful death action under Code of Civil Procedure § 377.60 compensates the family for its losses, and a survival action carries the deceased person's own claim. When the death results from a provider's professional negligence, the § 340.5 deadlines generally apply rather than the two-year rule in CCP § 335.1.

Who can file

Under § 377.60, a wrongful death claim may be brought by the surviving spouse or domestic partner, children, grandchildren if the children have died, and, if there are no surviving descendants, anyone entitled to the person's property by intestate succession. When an infant or a child dies, the parents are generally the heirs under intestate succession and can bring the claim.

What the family can recover

Wrongful death damages can include loss of love, companionship, comfort and financial support, as well as funeral and burial costs. California does not award damages for grief or sorrow itself. Noneconomic wrongful death damages are subject to the higher death-case cap shown in the table above.

The survival action

A survival action lets the estate recover losses the person suffered before death, such as medical bills and lost earnings (Cal. Civ. Proc. Code §§ 377.30, 377.34). California historically barred pre-death pain and suffering in these claims. A temporary change under Senate Bill 447 allowed those damages in actions filed from January 1, 2022, through the end of 2025. Whether any such recovery is available in a new filing depends on current law, so ask counsel.

Key Decisions and Common Mistakes in California Malpractice Claims

Most of the choices in these cases have no single right answer. The decisions that matter most are which providers to name, whether arbitration applies, and how a child's recovery will be protected. Each one should be considered before the 90-day notice goes out.

Decisions to consider

• Individual providers, institutions or both: Hospitals can be responsible for employees and for their own staffing and policy failures. Naming the right defendants affects how many MICRA caps may apply.
• Arbitration or court: If an agreement exists, its validity under § 1295 may be worth examining.
• How a child's settlement is held: A special needs trust, an annuity and a blocked account each affect public benefits and long-term care differently.

Common mistakes

1. Assuming the two-year personal injury rule applies. For providers, the § 340.5 one-year discovery clock usually controls.
2. Assuming a child has until 18. Malpractice claims have their own children's rule.
3. Waiting on a Medical Board of California complaint. A licensing complaint is separate from a civil claim and does not pause any deadline.
4. Missing a six-month government claim. Families often don't know a clinic or hospital is public.
5. Discussing the case with hospital risk management or posting about it online before getting advice.
6. Accepting a records summary instead of the complete chart.

But there's a larger point. Every one of these mistakes involves timing, which is why the first conversation with a lawyer should focus on dates.

When Do You Need a Lawyer, and What Does It Cost in California?

Because California malpractice claims almost always require expert testimony, strict notice and deadline compliance, and damages calculations under MICRA, very few patients can realistically pursue one without a lawyer. Expert reviews, record analysis and depositions are expensive and technical. Defendants are typically represented by experienced defense counsel.

Choosing a California attorney

If your claim does not involve a birth injury, consult a medical malpractice attorney licensed in California about your specific case. You can confirm any lawyer's license status through the State Bar of California. Court rules, forms and self-help information are available from California Courts.

California's contingency fee limits

California limits attorney fees in malpractice cases. Under Business and Professions Code § 6146, the fee may not exceed 25% of the recovery if the case settles before a lawsuit or arbitration demand is filed. It may not exceed 33% if the case resolves after filing. If the case goes to trial or arbitration, the patient's attorney may ask the court or arbitrator to approve a higher fee for good cause. Case expenses, such as expert fees, are separate from the attorney's fee. Ask how expenses are handled before you sign a fee agreement.

What affects how long a case takes

Timing varies too much to predict a typical duration. The main factors include:

• How quickly complete records arrive
• The number of defendants and experts involved
• Whether the case is in arbitration or Superior Court
• How long medical conditions take to stabilize, which is especially important for children
• Whether court approval is needed for a minor's settlement

Settling before a child's long-term needs are clear can undervalue future care. Our article on when you can expect to receive damages discusses the payment side of timing. For comparisons with other states, see our medical malpractice and birth injury laws by state.

This page provides general information about California law and does not constitute legal advice. Every case is different, and past results do not guarantee future outcomes. Please consult an attorney about your specific situation.

If your child was hurt during pregnancy, labor or delivery in California, Gilman & Bedigian handles birth injury cases nationwide and works with local counsel when required by the rules of a particular jurisdiction. The firm, co-founded by Charles Gilman and H. Briggs Bedigian in October of 2012, has secured the $108,577,132 birth injury verdict against Jefferson Health and Einstein Pediatrics, Philadelphia County, and the firm has recovered over $800 million for clients overall. With the eighth-birthday deadline and possible six-month government claims in mind, you're welcome to call (800) 529-6162 to talk about what happened. There's no fee unless we win.

Frequently Asked Questions

How much does a medical malpractice attorney cost in California?

In California, malpractice attorneys typically work on contingency, and Business and Professions Code § 6146 caps the fee. The cap is 25% of the recovery if the case settles before a lawsuit or arbitration demand is filed, and 33% if it resolves afterward. A court may approve a higher fee for good cause when the case goes to trial or arbitration. Case expenses are separate, so ask how they are handled.

How long do I have to file a medical malpractice lawsuit in California?

Under Cal. Civ. Proc. Code § 340.5, adults must file within one year of discovering the injury or three years from the injury, whichever comes first. Section 340.5 itself extends the three-year limit only for fraud, intentional concealment or a nontherapeutic foreign object. Serving the required 90-day notice near the deadline can extend it by 90 days under § 364(d). Claims against public entities require a written claim within six months.

How long does a child have to file a birth injury claim in California?

Under § 340.5, a child injured before age six generally has three years from the negligent act or until the eighth birthday, whichever is longer. Children injured at age six or older have three years from the act. Parents' own claims and the mother's injury claims may follow the shorter adult deadlines. Government claims still require filing within six months.

What is the California medical malpractice damages cap in 2026?

Under Civil Code § 3333.2, as amended by AB 35, the scheduled noneconomic damages cap for 2026 is $470,000 in injury cases and $650,000 in death cases. Up to three separate caps can apply in a single case, depending on the types of defendants. Economic damages, such as medical costs and lost earnings, are not capped. Which year's amount applies depends on the statute's timing rules.

What is my medical malpractice case worth?

In California, value depends on economic losses, which are uncapped, and noneconomic losses, which are capped under § 3333.2. The strength of the evidence on the standard of care and causation also matters. Future care costs often drive value in serious injury and birth injury cases. No honest estimate is possible until records and an expert review are complete.

Should I accept the first settlement offer from a hospital or insurer?

California law does not require you to accept any offer. Before deciding, it helps to understand your full future medical and earnings losses, which may not be clear early on. A settlement for a child also requires court approval under Probate Code § 3500. An offer made before an expert review is difficult to evaluate.

What if I was partly at fault for my own injury?

California applies pure comparative fault under Li v. Yellow Cab Co. (1975). Your damages are reduced by your percentage of fault, but you can still recover even if your share is large. The defense must prove your fault. Under Civil Code § 1431.2, each defendant pays only its own share of noneconomic damages.

How long does a medical malpractice case take in California?

There is no reliable typical timeline. Timing depends on how quickly records arrive, the number of experts and defendants, whether the case is in arbitration or Superior Court, and how long injuries take to stabilize. Cases involving children may also need court approval of the settlement, which adds a step.

Do I need a lawyer for a medical malpractice claim in California?

California generally requires expert testimony to prove the standard of care and causation, as held in Flowers v. Torrance Memorial (1994). The process also involves strict notice and filing rules. For these reasons, few patients can realistically handle a claim on their own. You can verify a California attorney's license through the State Bar of California.

What if the doctor doesn't have malpractice insurance?

Insurance coverage varies by provider. A lawyer can investigate whether the individual provider is insured and whether a hospital, medical group or employer may also be responsible. If the provider worked for a public entity or a federally deemed health center, the government may be the responsible party under the Government Claims Act or the Federal Tort Claims Act.

Will my California malpractice case go to trial?

Not necessarily. Many claims resolve through settlement, and some are decided by an arbitrator because of an agreement under Code of Civil Procedure § 1295. Preparing a case as if it will be tried still matters, because the strength of the trial evidence shapes any negotiation.

How do I pay for medical treatment while my case is pending?

Health insurance, Medi-Cal, Medicare or other benefits generally keep paying for treatment while a claim is pending. Under Civil Code § 3333.1, the defense may tell the jury about certain collateral benefits, and those sources generally cannot seek reimbursement. Government programs may have their own repayment rules, so tell your lawyer about every benefit source.