Medical Malpractice in California

California Medical Malpractice: Overview

California has one of the most heavily regulated medical malpractice environments in the United States, shaped primarily by the Medical Injury Compensation Reform Act (MICRA) — a package of tort reforms enacted in 1975 in response to a malpractice insurance crisis. MICRA introduced the original flat $250,000 non-economic damage cap that stood largely unchanged for 47 years until Proposition 35 modified it in 2022.

California malpractice plaintiffs face:

• A non-economic damage cap (the MICRA cap — now a sliding scale under Prop 35)
• A sliding scale limit on attorney contingency fees
• A bifurcated statute of limitations (3 years from injury OR 1 year from discovery)
• A requirement to provide 90 days' notice before filing against certain healthcare providers

California Statute of Limitations

California Code of Civil Procedure § 340.5 governs the limitations period for medical malpractice:

Standard rule

The plaintiff must file within whichever of the following occurs first:

• 3 years after the date of injury, or
• 1 year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury

This is a dual-trigger rule — unlike most states where the discovery rule extends the deadline, in California the 1-year discovery period can shorten it if you discover the injury earlier than 3 years.

Minors

For injuries to minors, the limitations period is tolled until the minor's 18th birthday, except that for injuries occurring before the child's 6th birthday, the suit must be filed within 6 years of the injury date — meaning the outside deadline is the child's 6th birthday plus 6 years, or their 18th birthday, whichever is later.

Fraudulent concealment

Where the defendant fraudulently concealed the negligence, the period is tolled during the period of concealment.

Foreign objects

For claims based on a foreign object negligently left in the body, the period is 1 year from the date of discovery with no outside time limit.

California's MICRA Damage Cap

California's MICRA cap is the most studied and debated damage cap in US malpractice law. For 47 years, the flat $250,000 cap on non-economic damages was unchanged despite inflation.

Post-Proposition 35 (2022)

Proposition 35, approved by California voters in November 2022, replaced the flat cap with a sliding scale.

For non-death cases:

• $350,000 in 2023 (year 1 of amendment)
• Increasing by $40,000 per year until reaching $750,000
• Indexed to inflation thereafter

For wrongful death cases:

• $500,000 in 2023
• Increasing by $50,000 per year until reaching $1,000,000
• Indexed to inflation thereafter

What the cap covers

The MICRA cap applies only to non-economic damages — pain, suffering, emotional distress, loss of enjoyment of life, and loss of consortium. Economic damages (medical costs, lost earnings, future care costs) remain uncapped.

Impact

In catastrophic injury cases with large economic damages, the cap has a proportionally modest effect. In cases involving serious but non-catastrophic harm where non-economic damages would be the primary recovery, the cap is most impactful.

Pre-Suit Requirements in California

California does not require a certificate of merit or pre-suit expert affidavit for medical malpractice claims.

However, before filing a complaint alleging professional negligence against a health care provider, the plaintiff must serve notice on each defendant at least 90 days before filing the complaint (or 45 days if the limitations period would expire within that 90-day period). This notice requirement applies to actions filed under California Code of Civil Procedure § 364.

The 90-day notice tolls (suspends) the limitations period — meaning if you serve notice with 100 days left on your limitations clock, the clock stops during the notice period.

Expert Witness Requirements in California

California does not have a statutory expert affidavit filing requirement at the complaint stage. However, expert testimony is required at trial to establish the standard of care and causation, and expert disclosure under California Code of Civil Procedure § 2034 is mandatory before trial.

California applies the Kelly/Frye standard (not Daubert) for expert admissibility — the scientific basis for the opinion must be generally accepted in the relevant scientific community. For standard medical standard-of-care testimony, this standard is routinely met.

California Court System for Malpractice Cases

Medical malpractice cases in California are filed in the California Superior Court — the trial court of general jurisdiction — in the county where the malpractice occurred or where the defendant resides or has its principal place of business. Appeals go to the California Courts of Appeal and, ultimately, the California Supreme Court.

There is no specialized malpractice court in California. Most substantial malpractice cases are heard in the general civil unlimited jurisdiction departments of the Superior Court.

Common Defendants in California Malpractice Cases

Kaiser Permanente

As the largest integrated health system in California, Kaiser Permanente is a frequent defendant in California malpractice litigation. Claims against Kaiser members are generally subject to mandatory binding arbitration under the Kaiser membership agreement — a distinctive feature of Kaiser malpractice claims that significantly affects the litigation path. California arbitration of Kaiser malpractice claims is governed by JAMS or Kaiser's own arbitration procedures.

Dignity Health, CommonSpirit Health, Sutter Health, Providence, and other major health systems

California's large hospital systems are common defendants in both direct liability (hospital negligence) and vicarious liability (employed physician negligence) claims.

County hospitals and public health facilities

Claims against county-owned hospitals (LA County+USC, Zuckerberg San Francisco General) require compliance with the Government Claims Act — a pre-suit claim must be filed with the county within 6 months of the incident before a lawsuit can be filed.

Notable California Malpractice Law

Periodic payments

California has a strong periodic payments statute under CCP § 667.7, allowing courts to order periodic (structured) payments for future damages exceeding $50,000. This is particularly relevant in catastrophic birth injury cases.

Sliding scale contingency fee cap

California Business & Professions Code § 6146 (as amended by Proposition 35) caps attorney contingency fees in malpractice cases on a sliding scale.

Hospital peer review privilege

California Evidence Code § 1157 provides a broad peer review privilege protecting hospital quality improvement and peer review materials from discovery in malpractice litigation. This is a significant pro-defendant feature of California discovery law.

Finding a Medical Malpractice Attorney in California

California malpractice attorneys are regulated by the State Bar of California. Certification as a Certified Specialist in Personal Injury and Wrongful Death Trial Law by the California Board of Legal Specialization is a useful indicator of specialist experience. CAOC (Consumer Attorneys of California) and CAALA (Consumer Attorneys Association of Los Angeles) member directories are additional resources.