California Medical Malpractice FAQ

Medical malpractice is generally when a healthcare professional intentionally fails to provide a certain level of care to the patient, and this failure caused injury. The two main types of medical malpractice are when a health care provider is negligent and when a doctor does not get informed consent from a patient.

California law states that medical malpractice lawsuits must be filed within one year of the patient discovering the injury or within three years of the date that injury occurred, whichever comes first. However, there are a few exceptions that could extend the SOL in California medical malpractice cases, including:

• where the health care provider's fraudulent or concealing actions essentially hid the medical mistake, and
• where the case arose from the unintentional leaving of a foreign object in a patient (such as an instrument or swab after a surgical procedure)

California places a cap on damages in medical malpractice claims. For 2023, the caps are set at $350,000 for malpractice-related injuries that do not involve wrongful death and $500,000 for medical malpractice that resulted in wrongful death. Beginning in 2024, the amounts will increase each year by $40,000 for personal injury and $50,000 for wrongful death, until 2034 when the caps reach $750,000 and $1 million, respectively.

Negligence is unintentional, whereas malpractice is more deliberate and a stronger charge. Just because the healthcare professional was negligent, does not mean the case is a medical malpractice case. Medical negligence occurs when the professional makes a mistake with a good faith belief that they were within the standard of care when in reality they were not. This includes unintentional acts of carelessness.

The key question is this: did the doctor or health care provider make a reasonable decision that other reasonable doctors would have made in the same situation? Your doctor or health care provider must meet a standard of care, but that standard of care varies with the level of specialty of the doctor; it varies with time and by the level of hospital that treats you.

When a person is injured in a hospital or by an emergency paramedic who works for a hospital, they may be able to pursue compensation from the hospital for the harm caused.

If a doctor delegates work to someone else, the doctor may still be legally responsible. If an intern performs the doctor's duties, the intern has to give the same medical care the doctor would give. However, if a doctor leaves proper instructions with a nurse or health provider who doesn't follow them, that health provider and not the doctor, may be responsible. Or both may be responsible.

Doctors must fully inform their patients about the risks involved in any proposed medical procedure or treatment. If a doctor does not get informed consent from a patient who suffers an injury after medical treatment, the patient may have grounds for medical malpractice.

An expert witness can be crucial to "make or break" a case. Medical experts may testify about the accepted standard of care, and how the healthcare professional deviated from this standard, how it caused damages and what these damages are.

You should consult with an experienced medical malpractice attorney before moving forward with a claim to determine whether you have a viable cause of action. Your attorney will also find the experts you will need to prove your case.

Medical malpractice plaintiff's lawyers typically work on a contingency fee basis. Under California Business & Professions Code, there is a sliding scale limit on the percentage an attorney can charge in a medical malpractice case.

The average medical malpractice settlement amount in the United States is $200,000.