California Medical Malpractice Laws

Medical malpractice claims are nuanced in that there are a variety of facts that must be analyzed to make certain that your claim has merit and is permitted to be filed with a court. If you or a loved one has been a victim of medical malpractice, it is important to know that you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is likely that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering.

This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in California; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in the state of California. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore the merits of your case.

Suing for Medical Malpractice in California

Under state law, a patient may pursue a civil claim called medical liability or medical malpractice against physicians or other health care providers if the health care provider causes injury or death to the patient through a negligent act or omission. For your case to be successful, you must establish:

• A doctor-patient relationship existed
• The doctor violated the owed duty of care
• Your injury was caused by the doctor’s actions or omissions
• You suffered damages as a result of the medical malpractice

In California, you may bring a medical malpractice case against a medical care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in California places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in California allows the defense of pure comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. California places a limit on non-economic damages that may be awarded in a medical malpractice case.

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

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. This is known as the “statute of limitations” which refers to the time period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no recourse. The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially help bolster your case would become less compelling.

The law in California mandates that an action for personal injury must be filed within the earlier of one year after you discover, or through the use of reasonable diligence should have discovered, your injury, or within three years of the date of the injury. [1] Therefore, if you do not discover your injury until after more than three years have passed since the medical malpractice occurred, you will be unable to file a medical malpractice claim in California.

However an exception exists if a foreign object was negligently left in your body, the one year discovery statute of limitation is still applicable but the three-year overall limit does not exist.

Additionally, if the person who suffered an injury is a minor child, In California, the lawsuit must be filed within three years from the date of the medical malpractice unless the injured party is a minor child under the full age of six years in which case the lawsuit must be filed within three years or prior to their eighth birthday, whichever provides a longer period. [2]

Finally, the law in California requires that you make all potential defendants in a medical malpractice action aware of your intent to file a medical malpractice claim at least 90 days before filing. [3]

In California Medical Malpractice Cases, Who is Responsible?

In California, a medical malpractice lawsuit is based on a claim of “professional negligence” which is defined 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. [4]

Those that can be held responsible due to being included in the definition of a “medical care provider” include:

• physician
• certified registered nurse anesthetist
• physician’s assistant
• nurse
• optometrist
• chiropractor
• physical therapist
• dentist
• podiatrist
• pharmacist

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you. Therefore, in order for you to recover damages for a claim of medical malpractice, you must prove that there is sufficient evidence that shows that there is a reasonable medical probability that the defendant health care provider breached their duty and that the breach caused your injury.

What if I am partially to blame? Can I Still Recover Money for California Medical Malpractice?

California, along with 12 other states (Alaska, Arizona, Florida, Kentucky, Louisiana, Mississippi, Missouri, New York, Rhode Island, South Dakota and Washington) recognizes the doctrine of pure comparative fault. California adopted this standard in 1975 when the State Supreme Court changed the standard on its own. [5]

Under the doctrine of pure comparative fault any award of damages from a court are reduced in proportion to your contribution to your own injury. This doctrine is extremely friendly to you in that you are able to recover for damages even if you are found to have been 99% at fault for your injury.

For example, imagine if a patient went to see a doctor about pain in their shoulder. During the evaluation the doctor asks the patient if they drink alcohol and the patient lies and says that they do not. Based on that information, the doctor prescribed painkillers that are not safe to take in combination with alcohol. The patient later takes the medication while drinking alcohol and suffers severe health consequences. If the patient were to bring a medical malpractice lawsuit against the doctor for improperly prescribing medication that led to their injury, it is likely that a court would find the patient partially responsible and any award of damages would be reduced in proportion to the level of fault calculated by the court as per the doctrine of pure comparative fault.

An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. As a result, the majority of states have adopted a modified system which allow for only a partial apportionment of fault. Usually the percentage of fault is either capped at 51% or 50%. If the plaintiff contributed to their injury in a way that surpassed the allowed threshold, they will be barred from recovering for their injury.

Are there medical malpractice recovery caps in California?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the defendant’s negligence. In California, there are three main types of damage awards you may receive:

Economic Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. In other words, the damage award is ultimately compensation for verifiable monetary losses like:

• Medical bills

• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-Economic Damages aim to compensate you for non-monetary losses like:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Loss of consortium
• Loss of companionship

Punitive Damages differ from economic and non-economic damages in that they are intended to punish the defendant rather than compensate the plaintiff. In California, punitive damages may be awarded by the court only when you, after asking the court permission to seek punitive damages, prove by clear and convincing evidence that the defendant intended to cause your injury or carried out their actions with a conscious disregard for your health and safety. [6]

The Medical Injury Compensation Reform Act (“MICRA”), enacted in 1975, limits financial awards in medical malpractice cases. MICRA limits a non-economic damage award to a maximum of $250,000. [7] MICRA has recently come under heavy scrutiny since it was enacted in 1975 and did not account for inflation.

Expert witness reporting and testimony

In California, you must present the testimony of a medical expert in order to prove that your health care provider breached the requisite standard of care, unless the court would be able to make that inference merely from the facts of the case.

Having an expert provide testimony that supports the claims you are making against a healthcare provider in your medical malpractice case is the best way to substantiate the merits of your claim. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, you suffered injuries that would not otherwise have been incurred.

The law in California considers a person to be qualified to testify as an expert if they have special knowledge, skill, experience, training, or education sufficient to qualify them as an expert on the subject to which their testimony relates. [8]

Are some parties immune from medical negligence cases?

California is one of seven states that do not follow a charitable immunity doctrine.

However, the California legislature has enacted several laws that provide immunity to people that provide emergency assistance except in situations where gross negligence is involved. [9] For example, a nurse is deemed to be immune from liability when they in good faith render emergency care at the scene of an emergency unless the nurse is found to have been grossly negligent [10]

Settling medical malpractice cases in California

Seeing a case through to the end of a trial can take an extraordinary amount of time, money and resources. For those reasons, it is not uncommon for a case to settle prior to trial. The law in California does not mandate, but does allow, health care providers and patients to contract for the arbitration of disputes. If a health care provider and a patient decide to contract for arbitration that type of proceeding would remove an option for trial. [11]

Arbitration is less formal than trial litigation and is often more streamlined in terms of procedures and rules of evidence. The process usually involves three arbitrators; one selected by each side and a neutral arbitrator that is agreed to by both parties. Just like the damages awarded at trial, medical malpractice damages for pain and suffering and disfigurement are limited by state law to $250,000 in an arbitration proceeding.

Litigating medical negligence cases in California

A claim for medical malpractice in California is initiated by preparing a Civil Cover Sheet, a Complaint and Summons that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to trial. In California, a civil lawsuit begins with the filing of a complaint with the clerk of the court.

A complaint should include:

• A statement of the facts constituting the cause of action
• A demand for judgment for the relief to which you claim to be entitled.
• Where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded should not be stated [12]

A civil summons lets the named defendants know that a lawsuit has been filed against them. The complaint and summons must then be delivered to all named defendants in the lawsuit. Proof of service upon all named defendants must be furnished within 60 days of filing the complaint with the clerk of the court. [13] Upon receipt, the defendants have 30 days to file an Answer which admits and/or denies statements made in the complaint. [14]

The Answer is the defendant’s opportunity to admit or deny the specific allegations brought against them in the complaint. Any statements in the complaint that are not denied will be taken as true for the purposes of the case. The Answer should include:

• The general or specific denial of the material allegations of the complaint controverted by the defendant
• A statement of any new matter constituting a defense [15]

The law in California also requires you to, without awaiting a discovery request, provide to the other side:

• The names and addresses of the people you intend to call as witnesses at trial

• Statements of all defendants
• All relevant real evidence seized or obtained as a part of the investigation of the offenses charged
• The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial
• Any exculpatory evidence
• Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom you intend to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which you intend to offer in evidence at the trial [16]

Preparing for Litigation

After the disclosures have been made and the complaint, summons and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

The law in California allows each side to obtain discovery by:

• oral examination or written questions;
• written interrogatories;
• requests for admission;
• request for production of documents or other information;
• physical and mental examinations [17]

A deposition is a fact finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. [18] The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

At the trial any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

If the involved parties are not able to come to a settlement agreement, the case will go to trial.

Trial

During a trial all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of California: a judge or a jury. A trial jury in California usually consists of a panel of 12 people, however, in a civil action, the panel may consist of 12 people or any number fewer than 12 if both parties agree. [19]

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the case being brought before the court.

Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. A potential juror is not allowed to be excluded from jury service because of race, color, religion, sex, national origin or economic status. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In California, a person is considered to be qualified to be a juror if they are:

• A U.S. citizen
• At least 18 years old
• Living in the State of California
• A resident of the county that sent them the jury summons
• Able to understand the English language
• Not currently on a grand jury or on another trial jury
• Not under a conservatorship

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial. Opening statements are essentially a roadmap explanation of how each side will present and attempt to make their case during the course of the trial.

From there, your attorney will begin to argue their case. Your attorney will call witnesses at this time and each witness will be questioned and then likely cross-examined by the opposing side’s attorney. After all your witnesses have been called and evidence has been presented, your attorney will rest your side of the case.

Next, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating your injury and how you likely contributed to your own injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The Court of Appeals differs from the lower court in that it does not hear testimony from witnesses and does not determine facts. Instead, during an appeal, the court decides whether the trial Court made an error of law or made a factual determination unsupported by any evidence which led to the rendering of the verdict.

To appeal the decision of a lower court, you must serve and file a Notice of Appeal on or before the earliest of sixty (60) days after either the trial court clerk or the other side serves you with notice that judgment has been entered in your case or a copy of the judgment stamped “Filed,” or 180 days after the entry of the judgment. [20]

How to find the best California Medical Malpractice Lawyer for your case

Litigation is an arduous process that can be uncomfortable and overwhelming. It is likely that you would rather focus on healing your injury and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

It is important to never lose sight of the fact that it is your attorney’s job to obtain a financial award that puts you back in the financial position you were in prior to suffering your injury. One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. After all, why should you be forced to go out-of-pocket for an injury that was caused by someone else? In order to increase your chances of success in your medical malpractice case, it is very important to find competent and highly skilled legal representation.

When you ultimately hire an attorney, they work for you. They can give you advice based upon their experience but you are the one that will make the final decisions. If you feel and attorney or firm is too aggressive with you, it may be best to seek counsel elsewhere. Do not let an attorney or firm pressure you into hiring them on the spot. Take your time and interview more than one law firm to make sure that the counsel you end up with is the right fit for you and your family.

Make certain to seek out an attorney or law firm that has extensive experience and knowledge with cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation. It is not uncommon for attorneys to take on medical malpractice cases on a contingency basis. A contingency fee agreement is an arrangement whereby the attorney agrees to accept a fixed percentage of the ultimate damage award in lieu of an hourly fee agreement. This can be advantageous to you in that you will receive competent legal representation without having to pay expensive hourly rates. However, if the ultimate damage award ends up being lower than expected, you may be unhappy having to give a large percentage of the award to your attorney. The law in California has placed a sliding scale on contingency fee agreements that pertain to medical malpractice cases in that the fee may not exceed 40% of first $50,000 award, 1/3 of the next $50,000, 25% of the next $500,000, and 15% of damages exceeding $600,000. [21] Make certain that your attorney is aware of this law prior to being hired.

If the attorney or firm you are interviewing has a large case load, you will want to make sure that your case gets sufficient attention. Ask the firm or attorney if they have the time to focus on your case.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some notable medical malpractice law decisions from California

These cases represent awards to plaintiffs in medical malpractice cases in California. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Myrick v. Hansa

The plaintiff, Kody Myrick, was rushed to the emergency room at Bakersfield Memorial Hospital after experiencing difficulty with his speech. Upon being examined, an emergency room nurse noted a possible stroke and a physician ordered a non-contrast brain CT. The scan showed a lacunar infarct in the left thalamus which was considered to be an abnormal finding, but the physician decided not to obtain a neurology consult or activate the hospital’s stroke protocol.

The emergency room physician then called the defendant, Dr. Sahuphan Hansa, to admit the plaintiff to the hospital. However, the defendant did not obtain a neurology consultation, nor did he consult with the plaintiff. Instead, he called in admission orders with a diagnosis of a possible stroke. The plaintiff was not seen by any physician after being admitted to the hospital.

After waking up the next day, the plaintiff experienced deterioration in his neurologic condition. Later that afternoon, an MR angiogram was ordered which revealed an occlusion of the basilar artery. However, the finding was too late and the plaintiff suffered permanent damage to his brain stem.

The plaintiff decided to bring a medical malpractice lawsuit against multiple medical providers including the emergency room physician and the hospital. All of the defendants but for Dr. Hansa settled with the plaintiff out of court. The defendant claimed that he did not know the plaintiff was undergoing a stroke, and that since the plaintiff was considered to be in stable condition there was not a need for an emergency neurology consultation.

The jury returned a unanimous verdict on liability and causation and voted 11-1 on damages, ultimately awarding a $38.6 million verdict.

Rashidi v. Moser County Special Healthcare District and District Medical Group

The plaintiff, Hamid Rashidi, went to Cedars-Sinai Medical Center’s emergency room complaining of a severe nosebleed. The plaintiff returned a month later with similar symptoms and the defendant, Dr. Franklin Moser, recommended surgery. During the surgery, the defendant ran a catheter through an artery in the plaintiff’s leg up to his nose. Tiny particles, which were manufactured by Biosphere Medical, Inc., were then injected through the catheter to help block blood vessels in the nose. However, a complication occurred when the particles traveled through small blood vessels to one of the plaintiff’s eyes. The plaintiff was permanently blinded as a result.

The plaintiff filed a lawsuit against Moser, Cedars-Sinai, and Biosphere Medical based on claims of medical malpractice and medical battery against Moser and Cedars-Sinai and product liability, failure to warn, negligence per se, breach of express and implied warranty, and misrepresentation against Biosphere Medical.

Biosphere Medical and Cedars-Sinai both settled out of court for $2 million and $350,000, respectively. The case proceeded to trial against Moser.

At trial, the jury then found the defendant liable for the plaintiff’s injuries, and awarded $125,000 for future medical care, $331,250 for past noneconomic damages, and $993,750 for future noneconomic damages.

However, the Medical Injury Compensation Reform Act of 1975 places a $250,000 cap on noneconomic damages. As a result, the trial court reduced the jury’s noneconomic damages awards to $250,000.

Footnotes

[1] California Code of Civil Procedure § 340.5

[2] California Code of Civil Procedure § 340.5

[3] California Code of Civil Procedure section 364

[4] Code of Civil Procedure 1295(2)

[5] Li v. Yellow Cab,119 Cal. Rptr. 858 (Cal. 1975)

[6] California Civil Code Section 3294

[7] Civil Code Section 3333.2

[8] Evid. Code, § 720.

[9] Bus. & Prof. Code, § 2727.5

[10] Bus. & Prof. Code, § 2395.5

[11] Cal. Code of Civil Procedure § 1295

[12] Cal. Code of Civil Procedure § 425.10-425.55

[13] CRC 3.110

[14] Cal. Code of Civil Procedure § 412.20

[15] Cal. Code of Civil Procedure § 431.30

[16] PC 1054.1

[17] PC 1054.1

[18] Cal. Code of Civil Procedure § 2025.010

[19] Cal. Code of Civil Procedure § 220

[20] CRC 8.104

[21] Cal. Bus. & Prof. Code § 6146