What Are the Time Limit Restrictions for Medical Malpractice?

Whenever you file any type of civil lawsuit, you need to be aware of the statute of limitations. This refers to the time limit imposed by state law for bringing a medical negligence claim. California courts apply the state statute strictly. 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. There are some exceptions to the statute of limitations for medical malpractice. To make sure you file your misdiagnosis claim within the time frame, contact a medical malpractice lawyer as soon as possible.

Medical Malpractice Statute of Limitations

“The statute that guides all med mal cases [in California] is Code of Civil Procedure 340.5,” says Bradley I. Kramer, a medical malpractice attorney in Beverly Hills.

“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.”

Exceptions to the Statute of Limitations

So, let’s say you had an operation in March 2024. If you don’t discover something went wrong with your procedure until May 2024, you would have until May 2025 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 with the discovery rule. There are three situations where the statute of limitations can extended. These situations stop the clock on the required amount of time:

1. There is proof the healthcare provider committed fraud
2. The healthcare professional intentionally concealed the malpractice
3. There was a foreign object left inside the patient that has “no therapeutic or diagnostic purpose,” like a surgical sponge

Additionally, there are special rules that apply when the victim of medical malpractice is a minor under the age of six. In these cases, the child’s parents can bring a medical malpractice suit 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. You must deliver this notice to the medical professional at least 90 days before filing the lawsuit. If you serve notice within 90 days of the statute of limitations expiring, the plaintiff may have an additional 90 days to file the actual lawsuit.

The notice to the medical provider 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.

Fatal Medical Malpractice Time Limits

In some serious medical error cases, the injured patient dies from their healthcare provider’s negligent care. In these instances, a wrongful death lawsuit allows the family and loved ones to recover compensation for the dead family member.

There is a different time limit for wrongful death claims. For most medical malpractice cases, you must file a wrongful death claim within two years of the date of death. The two-year statute of limitations for wrongful death lawsuits is strict.

How Much Will a Lawyer Cost?

In personal injury cases, attorneys charge by contingency. This means they get a fee only 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.”

Kramer adds that these cases also tend to be complex and risky for attorneys. 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.

Many medical malpractice attorneys offer a free case evaluation to review your case. During the initial case review, ask the attorney about their experience and fee structure.

Find Experienced Legal Help

“In order to understand these claims, you have to, by definition, have someone who can understand medical terminology and how medical care is administered,” Kramer says. “Otherwise, you’re literally just going through the information that is not going to mean anything to you. Every client calls me and says, ‘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,'” he adds.

Find an experienced medical malpractice attorney for legal advice.