MICRA Update: Under AB 35 (2022), California's non-economic damage cap for medical malpractice increases annually. As of 2026, the cap is $430,000 for non-death cases (up from the original $250,000), increasing $40,000/year until reaching $580,000 in 2031. Wrongful death cases have a separate cap of $500,000 (increasing to $1,000,000 by 2033).
What Is Medical Malpractice in California?
Medical malpractice occurs when a healthcare provider deviates from the accepted standard of care — the level of care a reasonably competent provider with similar training would provide under similar circumstances — and that deviation causes patient harm. California's Medical Injury Compensation Reform Act (MICRA, Civil Code §3333.2) governs these claims.
Standard of Care in California
California Code of Civil Procedure §340.5 and case law establish that to prove malpractice, you must show:
- Duty — A doctor-patient relationship existed
- Breach — The provider deviated from the applicable standard of care
- Causation — The breach was a substantial factor in causing harm
- Damages — You suffered actual harm (economic and/or non-economic)
Expert medical testimony is required to establish the standard of care and deviation in almost all California malpractice cases.
Statute of Limitations — CCP §340.5
California's malpractice statute of limitations is the shorter of:
- 3 years from the date of injury, OR
- 1 year from when the patient discovered (or should have discovered) the injury
Special rules apply for foreign objects (3 years or 1 year from discovery), minors (3 years from injury or until age 8, whichever is later), and cases involving fraud or intentional concealment.
Common Medical Malpractice Claims in San Diego
| Type | Examples |
|---|
| Misdiagnosis / delayed diagnosis | Missed cancer, misread imaging, failure to refer |
| Surgical errors | Wrong site, retained instruments, nerve damage |
| Medication errors | Wrong drug, wrong dose, contraindicated medications |
| Anesthesia errors | Overdose, improper monitoring, failure to review history |
| Birth injuries | Cerebral palsy, shoulder dystocia, brachial plexus injury |
| Emergency room errors | Failure to diagnose stroke, MI, sepsis, ectopic pregnancy |
MICRA — What the Caps Mean for Your Case
MICRA's non-economic damage cap applies to pain and suffering, emotional distress, and loss of enjoyment of life. Economic damages (medical bills, lost wages, future care costs) are NOT capped and can be substantial in serious cases. California birth injury cases involving lifetime care needs often have economic damages exceeding $5–$15 million — making them worthwhile despite the non-economic cap.
The 90-Day Pre-Litigation Notice Requirement
Before filing a medical malpractice lawsuit in California, you must serve a 90-day advance notice on each defendant (CCP §364). This notice tolls the statute of limitations by 90 days. Failure to provide this notice can result in dismissal of your case.
Frequently Asked Questions
How do I know if I have a valid medical malpractice case in San Diego?
Medical malpractice cases require expert testimony that (1) a specific standard of care existed, (2) the provider deviated from it, and (3) the deviation caused your harm. Adverse outcomes alone do not constitute malpractice — medicine involves inherent risk. Strong malpractice indicators include: missed diagnosis of a serious condition that was reasonably detectable, surgical errors evidenced in operative notes, medication errors documented in records, and birth injuries with documented fetal distress. A San Diego medical malpractice attorney typically reviews records before agreeing to take a case.
How much does it cost to hire a medical malpractice attorney in San Diego?
California medical malpractice attorneys work on contingency — you pay nothing unless they win. However, MICRA caps contingency fees: 40% of the first $50,000, 33.3% of the next $50,000, 25% of the next $500,000, and 15% above $600,000 (Business and Professions Code §6146). You may also be responsible for litigation costs (expert witnesses, depositions, court filing fees) — often $20,000–$100,000+ in complex cases — win or lose. Clarify cost arrangements upfront.
Can I sue a hospital for a doctor's malpractice in San Diego?
Hospitals can be liable for: (1) direct negligence in hiring, training, or retaining a negligent provider; (2) apparent agency — if the hospital held the doctor out as its employee (e.g., in an ER where you didn't choose your own doctor). Independent contractors who practice at hospitals are typically not covered by hospital liability, though this depends on facts. San Diego hospital malpractice cases often involve deeper pockets than individual physician cases — insurance limits for hospital-employed physicians are generally higher.
What is a certificate of merit in California medical malpractice?
California CCP §411.35 requires that an attorney filing a medical malpractice lawsuit must file a certificate stating that they have reviewed the facts with a licensed California physician who practices in the relevant field and that the physician has concluded the case has merit. This requirement is designed to screen out frivolous claims. Failure to file the certificate can result in sanctions and dismissal. This is one reason why having a San Diego medical malpractice attorney — rather than filing pro se — is effectively required in these cases.
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