Medical Malpractice in California

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Statute of Limitations: 3 Years, 3 Years for Minors (beginning at age 6)

Discovery: 1 Year from Discovery, including Foreign Objects inside the Body

Liability Rules: Pure Comparative Negligence

Limits: $250,000 on non-economic damages

What You Should Know

A medical malpractice or medical liability case is a civil claim filed by a patient in pain or who has been injured by cause of a physician or health care provider due to negligence or omission. In short, if a patient is harmed before, during or after treatment, or due to lack of treatment, they may qualify in filing for a medical malpractice case. Each state has their own set of time limits and exceptions or rules on when and how a medical malpractice case may be filed.

Below we cover a general outline of what you need to know in the case of filing a medical malpractice in the state of California.

Statute of Limitations

A Statute of Limitations is a deadline or time period in which you have to file a medical malpractice case. In California, a patient has three years to file a medical malpractice case. For minors, the three year clock does not start running until his or her sixth birthday, or prior to their eighth birthday.

Before we get into any of the exceptions of filing a civil claim, let us first cover what must first be established or able to be proven in order to file a claim:

  • The physician or health care provider owed the given patient any ‘duty’. For example, further treatment, alternate care, guidance, etc.
  • The standard of care for the given illness or ailment failed to be met. Each surgery or treatment has a set of conditions, or standards, that must be met in order to be considered acceptable, or at the most basic level, complete.
  • There is a compensable injury. Unfortunately not all injuries are compensable. A worst case scenario for medical malpractice is fatality. However, if there are reconcilable damage to the patient that can be rectified to some degree, that will help in filing a claim.
  • Lastly, not only does it have to be proven that the standard of care was breached, but also that it was the cause of harm or damage to the patient. For example, if indeed a doctor did neglect the standard of care for a given treatment, but that was not the cause of harm or injury to the patient, it may not be enough to open a case.

Discovery Rule

The discovery rule in California is one year. So, a patient has three years to file a claim from the date of their treatment, or within one year of discovering the negligence or omission. The one year discovery rule applies in what is considered reasonable circumstances, defined as “within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury,” found in the California Code of Civil Procedure section 340.5.

California has a unique discovery rule regarding foreign objects. A foreign object is considered any tool or object that was unintentionally left inside of a person’s body. This could be anything from medical scissors to a surgical sponge. At this point, the patient could file at any time they want. There is no time limit on when they can file a claim in the case of a foreign object, so long as it is filed within a year of discovery.

Expert Opinion

In almost all states there needs to be an expert on the particular treatment that did not meet standard of care in order to prove so. In other words, there needs to be someone that specializes in the treatment that was neglected in some manner in order to prove that it was the fault of the treating physician or health care provider. The expert cannot simply be someone that is knowledgeable on the matter, though. They must be an active or practicing professional.

Pure Comparative Negligence

This third-party expert opinion and input is required so that it can be determined if the pain or harm is either solely at the fault of the treating physician or health care provider, or if it may be in some part due to negligence of the patient. The patient may be partially or fully at fault if they refused recommended pre- or post-treatment care, or if they were properly diagnosed and did nothing about it. In California, if the patient is found to be partially at fault they fall under “pure comparative negligence.” This means that whatever percentage the patient is found to be at fault, that same percentage is the amount in which their compensation is deducted by. For example, if a patient is owed $10,000 for medical malpractice, and they are found to be 50% at fault, they will only receive $5,000.

Damage Cap

There is no cap on how much damage can be reconciled or compensated in California for economic damage, such as medical treatment, lost earnings or inability to work. However, there is a cap on non-economic damage. For non-economic damage in California, the cap is $250,000.


As you can see, there is a lot of information necessary to understand before even filing a medical malpractice case in California. It is, no doubt, a daunting endeavor; however, receiving just compensation or rectifying damage for the sake of you or your family’s health should be a top priority. It is best to seek an experienced team of attorneys to assist in filing a civil claim such as medical malpractice.

How Can We Help You?

If you or a loved one have been injured in the state of California, contact us at 432.570.1919 or email us using the form below for your free, no-obligation consultation. The Buckingham Barrera Law Firm has helped thousands of people in multiple states get the compensation they deserve for their injuries.