2023Medical MalpracticePaige C. SireyUpdated

Five Rules You Need to Know Before Filing a Medical Malpractice Lawsuit in California

Five Rules You Need to Know Before Filing a Medical Malpractice Lawsuit in California

California has a number of unique requirements and rules that should be considered prior to filing a medical malpractice lawsuit.  The requirements demanding special attention include the statute of limitations, providing notice to the health care provider that a person intends to sue, the cap on non-economic damages, limits on attorneys’ fees, and shared liability.  Each will be addressed in turn below.

Statute of Limitations

California adheres to strict statute of limitations requirements.  The statute of limitations requires a person who suffered a medical malpractice injury to act diligently.  A cause of action for medical malpractice must be brought three years after the date of injury or death, or one year after the plaintiff discovers or should have discovered the injury with reasonable diligence, whichever occurs first. (Cal. Code Civ. Proc. § 340.5.)  There are three exceptions that toll the statute of limitations: (1) proof of fraud; (2) intentional concealment; and (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. (Id.)  A cause of action for medical malpractice may not be brought after the statute of limitations has expired.

Notice of Intent to Sue the Health Care Provider

Another unique requirement, and one of the most important requirements, that must be satisfied prior to filing a medical malpractice lawsuit is that the potential plaintiff must notify a potential medical malpractice defendant, including a doctor or other health care provider, of the plaintiff’s intention to file the lawsuit at least 90 days before the lawsuit is filed. (Cal. Code Civ. Proc. § 364.)  The notice must include the legal basis of the claim, the type of loss sustained, and the nature of the injuries suffered. (Id.)  The notice requirement, when originally enacted, caused confusion related to the statute of limitations which resulted in judicial interpretation of the requirement.  Specifically, the issue presented was whether notice provided within the last 90 days of the statute of limitations period extended or tolled the limitations period. (Woods v. Young (1991) 53 Cal.3d 315.)  The Woods court determined that, by imposing the notice requirement, the Legislature intended to encourage settlement prior to the commencement of a lawsuit. (Id. at 326.)  The issue with extending the statute of limitations was that a potential plaintiff who sent notice on the last day of the statute of limitations would be required to violate the notice requirement by filing the lawsuit on the 90th day following the notice, thus after the statute of limitations expired. (Id. at 325.)  However, tolling the statute of limitations seemingly resolved this issue, as the potential plaintiff who served notice on the last day of the statute of limitations would be permitted to file the lawsuit on the 91st day after notice was given, as the statute would begin to run again on the 91st day and expire the very next day. (Id. at 328.)  As such, the Woods court held that tolling the statute of limitations during the notice period was more appropriate than extending the statute of limitations. (Id.)

Recovery Cap on Non-Economic Damages

Governor Newsom’s recent legislative action revises the previous non-economic damages cap, recognizing the necessity for a fairer compensation system for victims of medical malpractice.  Pursuant to Cal. Civ. Code § 3333.2(b)(1), any action for injury that does not involve wrongful death provides for a noneconomic losses cap of $350,000.00.  Pursuant to subdivision (c)(1), the noneconomic losses cap increases to $500,000.00 for an action involving wrongful death.  Pursuant to subdivision (g), the new cap went into effect on January 1, 2023.  The new cap is not retroactive, meaning it does not apply to any actions filed prior to January 1, 2023.  Thereafter, the dollar amounts set forth in subdivision (b), which pertain to medical malpractice actions not involving wrongful death, the cap shall increase by $40,000.00 each January 1st for 10 years up to a total of $750,000.00.  The dollar amounts set forth in subdivision (c), which pertain to actions involving wrongful death, the cap increases each January 1st by $50,000.00 for 10 years up to $1,000,000.00.  Further, subdivision (h) provides that the cap amounts will be adjusted for inflation on January 1 of each year by 2% beginning on January 1, 2034, after the present amounts have increased to their maximums as set forth in subdivision (g). For comparison, Michigan has a $445,500.00 cap for “pain and suffering” and other non-economic damages in most kinds of medical practice cases, however, the cap jumps to $795,000.00 for plaintiffs with permanent impairments. (MCL § 6001483.)  However, California’s cap has no bearing on the economic damages that can be recovered in a medical malpractice action, including past and future medical bills, lost earnings, or lost ability to make a living.

Limitations on Attorneys’ Fees

A common fee arrangement for attorneys handling medical malpractice cases is a contingency fee arrangement.  Under Cal. Bus. & Prof. Code § 6146, an attorney may not collect a contingency fee in a medical malpractice action in excess of the following limits: (1) 40 percent of the first $50,000.00 recovered; (2) 33 ½ percent of the next $50,000.00 recovered; (3) 25 percent of the next $500,000.00; and (4) 15 percent of any amount on which the recovery exceeds $600,000.00.  Generally, the recovery from which the percentages are to be calculated is the net sum recovered, after deduction of disbursements or costs incurred in the prosecution of the action. (Cal. Bus. & Prof. Code § 6146(c)(1).)  The client’s medical care costs and the attorney’s office overhead are not deductible for this purpose. (Id.)

Shared Liability

In certain instances, a medical malpractice defendant can assert comparative negligence by the plaintiff as a defense, such as when a plaintiff fails to follow a doctor’s instructions.  California follows a “pure comparative negligence” rule.  This means that a plaintiff’s recovery would be diminished by the percentage apportioned to his or her own fault. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829.)  Any negligence asserted by a defendant on the part of a plaintiff no longer operates as a complete bar to a plaintiff’s recovery. (Id.)  In order to assess whether contributory negligence is applicable, the court must determine whether a plaintiff’s conduct falls below the standard to which the plaintiff should conform for his or her own protection and that is a legally contributing cause, cooperating with the negligence of the defendant in bringing about the plaintiff’s harm. (Barton v. Owen (1977) 71 Cal.App.3d 484, 505.)  Thus, it is important for a potential plaintiff to assess his or her own conduct prior to filing a medical malpractice lawsuit to determine any potential reduction in recovery based on comparative fault.


California’s requirements and rules surrounding medical malpractice lawsuits are in place to provide safeguards for doctors and other health care providers.  If such limitations were not in place, doctors and health care providers may limit their services in fear of facing an inevitable lawsuit.  Thus, it is imperative that a potential medical malpractice plaintiff consider all of the above rules and requirements prior to filing a medical malpractice lawsuit in California.

Paige C. Sirey


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