What Are the Time Limit Restrictions for Medical Malpractice?
The strict limits California courts place on injury lawsuitsBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on May 9, 2023 Featuring practical insights from contributing attorney Bradley I. Kramer, M.D.
Use these links to jump to different sections:
- Medical Malpractice Statute of Limitations
- California’s Advance Notice Requirement in Med-Mal Cases
- How Much Will a Lawyer Cost?
Whenever you file any type of civil lawsuit, you need to be aware of the relevant statute of limitations. This refers to the time limit imposed by state law for bringing a particular type of claim. California courts are required to apply the state statute strictly—so if you try to file a case after the time period, you are out of luck.
These statutes apply to medical malpractice cases as well as other areas of civil law.
Medical Malpractice Statute of Limitations
“I’m paraphrasing, but it says: ‘In an action for injury or death against a health care provider, the time commencement of the action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence, should have discovered, the injury, whichever occurs first.’ You have to satisfy both; it has to be not only be within one year when you discover the injury or reasonably should have discovered the injury. And by ‘injury’ they usually mean the mistake. And also, not to exceed three years from the date of the injury, no matter what.”
The gray area in the law, of course, is the phrase “should have known about.”
“When I talk to people, I ask, ‘When is the first time that you thought to yourself that someone had screwed up?’” says Kramer. “So more than a year from the time I reasonably in my own head say to myself, ‘I think you should have known or probably should have done some investigation at that time,’ is usually past the deadline.”
So, let’s say you had an operation in March 2020. If you don’t discover something went wrong with your procedure until May 2020, you would have until May 2021 to file your claim as a medical malpractice lawsuit.
In most cases, the patient must still bring a medical malpractice claim within three years of the original act, even where there has been late discovery. There are three situations where the statute of limitations can be “tolled,” however, stopping the clock on the required amount of time:
- There is proof the health care provider committed fraud;
- The health care provider intentionally concealed the malpractice; or
- There was a “foreign body” left inside the patient that has “no therapeutic or diagnostic purpose,” e.g., a surgical sponge.
Additionally, there are special rules that apply when the victim of medical malpractice is a child under the age of six. In these cases, the child’s parents can bring a lawsuit within three years of the negligent act or prior to the child’s eighth birthday, whichever occurs later. The same tolling rules described above may also apply.
California’s Advance Notice Requirement in Med-Mal Cases
Separately, anyone who files a medical malpractice lawsuit in California must also provide advance notice to the health care provider. This notice must be delivered to the medical professional at least 90 days before the lawsuit is filed. If the notice is served within 90 days of the statute of limitations expiring, the plaintiff may have an additional 90 days to file the actual lawsuit.
The notice itself need not be in any particular form. But it must inform all of the known defendants with respect to the “legal basis” of the plaintiff’s claims and the “type of loss sustained,” including a specific description of the plaintiff’s injuries.
How Much Will a Lawyer Cost?
In personal injury cases, attorneys charge by contingency—meaning they are only paid if the case settles or wins. In a car accident case, for example, an attorney typically takes between 33 and 40 percent of the reward. “But for med mal, in California under the MICRA law, the fees are reduced,” Kramer says. “So we go from 25 to 15 percent.”
These cases also tend to be complicated and risky for attorneys, Kramer adds. Medical records require specialists to interpret, not to mention expert testimony if it goes to trial. All the while, the attorney needs to win in order to get paid. “I have to be very judicious in which cases I pay for initial experts, because that can bankrupt a firm in no time,” he says.
This is also why it’s of the utmost importance to find an experienced medical malpractice lawyer, and not just general injuries. “In order to understand these claims, you have to, by definition, have someone that can understand medical terminology and how medical care is administered, otherwise you’re literally just going through information that is not going to mean anything to you,” Kramer says.
For more information on medical malpractice laws, see our medical malpractice overview.
“Every client calls me and they say, ‘I have an amazing case that is a dead bang winner, black and white. You can’t lose.’ And I say, ‘There is no such thing as black-and-white medical malpractice,’” Kramer adds.
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