Medical Malpractice in California: where early mistakes cost the most, injury causation, and discharge-summary wording

California's medical malpractice law is shaped almost entirely by a single 1975 statute: the Medical Injury Compensation Reform Act (MICRA). For nearly five decades, MICRA's $250,000 cap on non-economic damages was the defining feature — and the most contested element — of California medical malpractice law. Assembly Bill 35, signed in 2022, broke that five-decade freeze. The cap now rises on a scheduled basis, reaching $750,000 by 2033 for non-death cases and $1 million for wrongful death. But MICRA's structure remains, and its constraints still shape every California medical malpractice case.

MICRA and the Non-Economic Damages Cap

Non-economic damages — pain and suffering, emotional distress, loss of enjoyment of life, loss of consortium — are capped in California medical malpractice cases by MICRA. The cap was $250,000 from 1975 until AB 35's changes took effect in 2023. Current caps under AB 35:

• Non-death medical malpractice cases: $350,000 in 2023, increasing by $40,000 per year until reaching $750,000 in 2033.
• Wrongful death cases: $500,000 in 2023, increasing by $50,000 per year until reaching $1,000,000 in 2033.

The cap applies only to non-economic damages. Economic damages — past medical bills, future medical expenses, lost wages and earning capacity, rehabilitation costs, in-home care — are fully recoverable without limit. In catastrophic injury cases where future care needs are substantial, economic damages often dwarf the non-economic cap. A plaintiff who will require $3 million in lifetime care costs can recover those costs in full; the cap limits only the pain-and-suffering component on top of that.

The Statute of Limitations: Two Clocks, One Winner

Code of Civil Procedure § 340.5 governs the medical malpractice statute of limitations in California. The rule is the earlier of two deadlines: three years from the date of injury, or one year from the date the plaintiff discovered (or through the use of reasonable diligence should have discovered) the injury and its negligent cause. In a straightforward case where you know immediately that something went wrong — a surgical instrument left inside you, a medication error with immediate consequences — the one-year discovery clock typically runs from the moment you knew or should have known. In cases where the malpractice is not apparent for months or years, the three-year outer limit operates as a hard cutoff.

Two tolling provisions affect this timeline. First, if the defendant fraudulently concealed the negligence — actively hiding the error from the patient — the limitations period is tolled during the period of concealment. Second, the limitations period for claims arising from the insertion of a foreign object is tolled for as long as the object remains in the body and the plaintiff is unaware of its presence.

Proving the Standard of Care

Medical malpractice cases require expert testimony on what the applicable standard of care required and how the defendant deviated from it. In California, the expert must be a licensed physician in a relevant specialty who can speak to the standard of care applicable in the community or region where treatment was provided. California does not require a formal certificate of merit before filing — unlike states such as Texas (120-day expert report deadline) or Georgia (expert affidavit with the complaint) — but the practical reality is that no California medical malpractice attorney pursues a case without retaining a qualified medical expert first, because the case cannot be won without one.

MICRA's Attorney Fee Limits

MICRA imposes a sliding-scale limit on attorney fees in medical malpractice cases (Bus. & Prof. Code § 6146). The fee schedule was updated by AB 35 to: 25% of the first $500,000 recovered, plus 15% of the next $500,000, plus 10% of any amount above $1,000,000. These limits apply to contingency fee arrangements and are calculated on the gross recovery before expenses. This structure affects which cases medical malpractice attorneys will accept on contingency — cases with relatively low economic damages but high pain-and-suffering claims may generate too little attorney compensation to justify the expense of litigation.

Government Hospitals and the Six-Month Claim Requirement

Medical care at a government hospital — county hospitals like LAC+USC, public university hospitals like UCSF Medical Center or UC Davis Medical Center — triggers the government tort claim requirement under Government Code § 911.2 in addition to MICRA. You must present a government tort claim within six months of the negligent act, not within the three-year MICRA outer limit. The government tort claim is a prerequisite — without it, the lawsuit is barred. The combination of MICRA's SOL and the government claim requirement creates a compressed timeline that has caught many injured patients off guard.