Cal. Code Civ. Proc. §§ 340.5, 364, 425.13; Cal. Civ. Code § 3333.2
Medical malpractice in California: three deadlines, two notices, and a cap that moves every year
A claim in California superior courts · Last verified August 26, 2026
A medical malpractice claim in California is ordinary professional negligence wrapped in a statutory scheme built to make it harder to bring. That scheme is MICRA, and it has four moving parts: a short limitations period with an absolute outer bar, a pre-suit notice, a gate on pleading punitive damages, and a cap on non-economic damages.
The cap is the part most sources get wrong. For fifty years it was $250,000. It is not $250,000 now, and it will be a different number next January, because a 2022 statute put it on a ten-year escalator.
What the claim is
A health care provider fell below the professional standard of care, and that failure injured you.
"Professional negligence" is defined, and the definition does work: a negligent act or omission by a health care provider in the rendering of professional services, within the scope of the provider's licence. Conduct outside the rendering of professional services — a wet floor in the lobby — is ordinary negligence, outside MICRA, and carries the ordinary two-year deadline and no cap.
Whether MICRA applies is therefore a live question in many cases, and it is worth a fight, because everything about the claim changes with the answer.
Where the right comes from
Common law negligence, overlaid with the Medical Injury Compensation Reform Act of 1975 — a package of statutes rather than a single code section, scattered across the Code of Civil Procedure and the Civil Code.
What a plaintiff has to prove — the CACI 500 series
- The defendant was a health care provider who treated the plaintiff.
- The defendant was negligent — failed to use the level of skill, knowledge, and care that other reasonably careful practitioners in the same discipline would use in similar circumstances.
- The plaintiff was harmed.
- The negligence was a substantial factor in causing the harm.
CACI No. 501 states the professional standard of care.
Expert testimony is effectively required on both standard of care and causation, because the standard is what a reasonable practitioner would do and a lay jury has no basis to know it. The exception is the rare case where the negligence is within common knowledge — an instrument left inside the patient.
Informed consent is a separate theory with its own instructions, measured by what a reasonable patient would want to know rather than by what physicians customarily disclose.
How long you have to file — one year, three years, whichever is first
CCP § 340.5, and it runs two clocks with the earlier one controlling:
One year from the date the plaintiff discovers, or through reasonable diligence should have discovered, the injury.
Three years from the date of injury — and this is an outer bar. It runs whether or not you knew anything.
A patient who discovers the injury in year four is barred, however diligent they were. That is the point of the provision, and it is the harshest feature of the scheme.
The three-year bar tolls in only three circumstances, all written into the statute: fraud, intentional concealment, or the presence of a non-therapeutic foreign body left in the patient. The list is exclusive.
Minors have their own rule, and it is not the ordinary tolling for minority. A minor has three years from the injury — but a child under the age of six has until their eighth birthday or three years, whichever is longer.
Against a public hospital, the Government Claims Act applies on top — six months to present a claim, which will expire long before either § 340.5 period.
What has to happen before you file — two gates, and they are different animals
The 90-day notice — CCP § 364
You must serve the defendant with notice of intent to sue at least 90 days before filing. The notice must state the legal basis of the claim and the type of loss.
Character: mandatory claim-processing. Filing without it does not destroy the claim — courts have generally treated the defect as one the defendant may raise, not as a jurisdictional bar — but it is not optional, and ignoring it invites a motion.
The interaction with the one-year period is where it gets interesting. Serving the notice in the final 90 days of the limitations period would otherwise force the plaintiff to choose between the notice and the deadline. Woods v. Young (1991) 53 Cal.3d 315 resolved it: a § 364 notice served during the last 90 days of the one-year period tolls that period for 90 days from service. So the notice can be served late in the window without costing the claim.
The punitive damages gate — CCP § 425.13
This one is unusual, and it is a gate on pleading rather than on filing.
CCP § 425.13 forbids a claim for punitive damages against a health care provider from being included in the complaint at all. The plaintiff must move the court for leave, on noticed motion supported by affidavits establishing a substantial probability of prevailing on the claim, and the motion must be brought within the statutory window — not later than two years before trial, and within nine months of trial being set.
Character: none of the seven describes it cleanly, and it is worth saying so. It is not jurisdictional, not claim-processing in the ordinary sense, not an affirmative defense, and not a substantive element. It is a judicial screening requirement on a remedy — closest in spirit to a claim-processing rule, but operating on what may be pleaded rather than on whether the action may proceed.
Its reach is broader than "malpractice." In Central Pathology Service Medical Group, Inc. v. Superior Court (1992) 3 Cal.4th 181, the Supreme Court held § 425.13 applies to intentional tort claims against a health care provider as well, where the conduct is directly related to the rendering of professional services. Relabelling the claim to escape the gate does not work.
A complaint that pleads punitive damages without the order is subject to a motion to strike them. The underlying claim survives.
Who can be sued — and who cannot
Health care providers — physicians, nurses, dentists, hospitals, clinics, and licensed practitioners generally.
Public hospitals and their employees are reachable, with the Government Claims Act presentation requirement in front and no punitive damages available against the entity.
Hospitals for their own negligence — credentialing, staffing, equipment, systems — as distinct from the negligence of an independent physician with privileges.
The MICRA definition is the limit. A defendant who was not rendering professional services within the scope of a licence is outside the scheme, and so is the plaintiff's claim.
Common defenses
No breach of the standard of care — the case, in most cases, and it is a battle of experts.
No causation, which is where more malpractice claims fail than on the standard of care.
A known complication. A poor outcome is not negligence, and informed consent documentation is built to establish exactly that.
Comparative fault, where the patient did not follow instructions or delayed care.
The statutory periods, and the three-year outer bar in particular.
MICRA does not apply — argued by plaintiffs, to escape the cap and the short deadlines.
Proposition 51 several liability for non-economic damages, at Civil Code § 1431.2.
Arbitration, under a signed agreement at intake, which is common and generally enforceable subject to the statute's own disclosure requirements.
What the claim pays
Economic damages without limit — medical expenses, future care, lost earnings and lost earning capacity. The cap does not touch them.
Non-economic damages, capped — and the number changes annually.
Civil Code § 3333.2, as rewritten by AB 35 in 2022. The cap had been $250,000 since 1975, unindexed. From January 1, 2023 it became $350,000 for a non-death claim and $500,000 for wrongful death, rising $40,000 and $50,000 respectively every January 1 for ten years — to $750,000 and $1,000,000 in 2033 — after which both adjust upward 2% annually for inflation.
For 2026, the figures are $470,000 for a non-death claim and $650,000 for wrongful death.
Two different dates govern, and they are easy to conflate.
Which regime applies turns on the filing date. The statute says it applies to all cases filed or arbitrations demanded on or after January 1, 2023. A case filed in 2022 is still under the old $250,000 cap, however long it takes to try.
Which year's figure applies turns on the end of the case, not the beginning. Subdivision (h) provides that the dollar amount in effect at the time of judgment, arbitration award, or settlement governs. So a case filed in 2026 that settles in 2029 is capped at the 2029 figure, not the 2026 one — and the cap on a long-running case rises underneath it while the case is pending.
Any source still quoting $250,000 as the current cap is describing law that ended in 2022, which is the single most common error in circulation about California medical malpractice.
AB 35 also changed how many caps there can be. Rather than one cap per case, separate caps are available against different categories of defendant — health care providers, health care institutions, and unaffiliated providers or institutions — which can multiply the recoverable non-economic damages in a case with defendants in more than one category.
Punitive damages, only through the § 425.13 gate, and never against a public entity.
Periodic payment of future damages above a statutory threshold may be ordered rather than paid as a lump sum, and MICRA also limits attorney contingency fees on a sliding scale — a restriction that applies to the plaintiff's own lawyer rather than to the defendant.
Jury trial: yes, unless an arbitration agreement was signed.
A wrongful death or survival case has an added wrinkle since January 1, 2026. The temporary authorisation allowing a survival action to recover the decedent's own pain and suffering expired on that date. Survival actions filed on or after it are limited to economic losses. See CCP § 377.34. The heirs' separate wrongful death claim under CCP § 377.60 is unaffected.
What people get wrong
"Pain and suffering is capped at $250,000." Not since 2022. For 2026 it is $470,000, or $650,000 in a death case, and it rises every January.
"The cap limits everything I can recover." It limits non-economic damages only. Medical costs, future care, and lost earnings are uncapped.
"I have three years." You have one year from discovery or three from injury, whichever comes first. The three years is a ceiling, not a deadline you can rely on.
"I didn't know, so the clock didn't run." The three-year bar runs regardless of knowledge, subject only to fraud, intentional concealment, or a foreign body.
"I'll ask for punitive damages in the complaint." You cannot. You need a court order first.
"I'll rename it battery to avoid the punitive damages gate." Central Pathology forecloses that where the conduct is directly related to professional services.
"A bad outcome means malpractice." It does not. Medicine has known complications.
"MICRA covers everything that happens in a hospital." Only professional negligence in rendering services within the scope of a licence. Ordinary premises negligence is outside it.
Where it came from
MICRA was enacted in 1975 during a malpractice insurance crisis, as a package designed to make claims cheaper and more predictable to defend. Its most consequential provision was the $250,000 cap — and the fact that it was not indexed to inflation meant that by 2022 it had lost roughly four-fifths of its real value.
Every attempt to change it failed for forty-seven years. A 2014 ballot measure to raise it was defeated. What finally worked was the same mechanism that later reformed PAGA: a qualified initiative, a negotiated deal, and a withdrawal. AB 35 was signed in May 2022, and the initiative came off the ballot.
The escalator is the notable design choice. The Legislature did not just pick a new number; it built in ten years of annual increases followed by permanent inflation indexing, which is a direct response to what went wrong with the original. It also means the correct figure depends on the year, and anything written about California malpractice damages now carries an expiry date.
Common questions
What is the cap on pain and suffering in a California malpractice case?
For 2026, $470,000 in a non-death case and $650,000 in a wrongful death case. The cap rises $40,000 and $50,000 every January 1 through 2033, then adjusts 2% a year. It has not been $250,000 since the end of 2022.
How long do I have to sue for medical malpractice?
One year from when you discovered or should have discovered the injury, or three years from the injury itself — whichever comes first. The three-year limit applies even if you had no way of knowing.
Do I have to notify the doctor before filing?
Yes. CCP § 364 requires 90 days' notice of intent to sue. If you serve it in the last 90 days of the one-year period, Woods v. Young tolls the deadline for 90 days so the notice does not cost you the claim.
Can I ask for punitive damages?
Not in the complaint. CCP § 425.13 requires you to obtain a court order first, on a noticed motion showing a substantial probability of prevailing. That applies to intentional tort claims against providers too, not just negligence.
Are my medical bills and lost wages capped?
No. The cap reaches non-economic damages only. Economic losses are recoverable in full.
Someone died. Can we recover what they went through before dying?
Only if the survival action was filed before January 1, 2026, when that authorisation expired. The heirs' wrongful death claim is separate and unaffected.