California Medical Malpractice Summary

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Statutes of Limitations

A medical malpractice action for injury or death must be brought within one year from the date the claimant discovered the negligent act, but no more than three years from the date of injury. Cal. Civ. Proc. Code § 340.5 (West 1992). For retained foreign body cases, the statute is tolled until the claimant discovers or should have discovered the injury. Ashworth v. Memorial Hosp. of Long Beach, 206 Cal. App. 3d 1046, 254 Cal. Rptr. 104 (1988), rehearing denied, March 23, 1989.

Actions by or on behalf of minors must be brought within three years from the date of the negligent act, unless the child is under the age of six, in which case the action must be commenced within three years or prior to the child’s eighth birthday, whichever provides the longer time period. Id. It is notable that the statutory period begins to run for adults at the time of discovery but for minors at the time of the negligent act. Although the California Supreme Court has yet to address this anomaly, other courts have begun to read a discovery rule into the provision for minors, on the theory that not to do so would deny minors the equal protection of the law. Photias v. Doerfler, 45 Cal. App. 4th 1014, 53 Cal. Rptr. 2d 202 (1996); Katz v. Children’s Hospital of Orange County, 28 F.3d 1520 (9th Cir. 1994).

If a claimant is insane, a guardian can be appointed to permit the claim to be brought within the required time limit. Cal. Civ. Proc. Code § 372 (West Supp. 1998).

Contributory or Comparative Negligence

California follows a pure comparative negligence rule: a claimant’s negligence reduces his recovery but will never bar recovery. Li v. Yellow Cab Company, 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975). The plaintiff’s negligence is compared to the combined negligence of plaintiff and of all tortfeasors, whether or not joined as parties, to determine the amount of the reduction. American Motorcycle Ass’n v. Superior Court of Los Angeles County, 20 Cal. 3d 578, 578 P.2d 899, 146 Cal. Rptr. 182 (1978).

Joint and Several Liability

A joint tortfeasor’s liability may be joint, several, or joint and several. Cal. Civ. Code § 1430 (West 1982). An obligation imposed on several tortfeasors is presumed to be joint, with the following exception. Cal. Civ. Code § 1431 (West Supp. 1998). In any action based on principles of comparative fault, liability is several only with respect to non-economic damages, including pain, suffering, inconvenience, mental illness, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, and humiliation. In such cases, a defendant’s liability for non-economic damages is several only, and his liability to the claimant is determined by reference to his percentage of fault. Cal. Civ. Code § 1431.2 (West Supp. 1998).


After adopting comparative negligence, the California Supreme Court in American Motorcycle Ass’n v. Superior Court of Los Angeles County, 20 Cal. 3d 578, 578 P.2d 899, 146 Cal. Rptr. 182 (1978), adopted a comprehensive system of dealing with allocation of fault. This differed somewhat from that of California’s contribution statutes, based on changes necessary to accommodate comparative fault, and goes by the name partial equitable indemnity. The principal holdings of the case were: (a) that joint and several liability should be retained (now partially altered by Cal. Civ. Code § 1431.2 (West Supp. 1998); (b) that the common law doctrine of equitable indemnity would be modified to permit, in appropriate cases, a right of partial indemnity on a comparative basis; (c) that this was not precluded by the contribution statutes; (d) that a comparative negligence defendant may file a cross-complaint against any person, whether already a party to the action or not, from whom he seeks to obtain total or partial indemnity; and (e) a good faith settlement relieves a tortfeasor from liability for indemnity, just as for contribution. The central holding in American Motorcycle Ass’n is incorporated into Cal. Civ. Code § 1432 (West Supp. 1998), which provides that a party who satisfies more than his share of a claim may require a proportionate contribution from all the parties joined with him.

A settling tortfeasor is free from all liability in contribution. Cal. Civ. Proc. Code § 877(b) (West Supp. 1998). His share is not counted when dividing the remaining fault among the other defendants to determine how much of the judgment each is responsible for. Bracket v. State, 180 Cal. App. 3d 1171, 226 Cal. Rptr. 1 (1986) (NO. A027875); Lyly and Sons Trucking Co. v. State, 147 Cal. App. 3d 353, 195 Cal. Rptr. 116 (1983). The right of contribution can be enforced , if necessary, in a separate lawsuit. See Coca-Cola Bottling Co. v. Lucky Stores, Inc., 11 Cal. App. 4th 1372, 14 Cal. Rptr. 2d 673 (1992).

Vicarious Liability

California law holds a hospital liable for the acts of a physician if he is an actual or ostensible agent. An ostensible agency is established when a principal intentionally, or by want of ordinary care, causes a third person to believe another is an agent. Jacoves v. United Merchandising Corp., 9 Cal. App. 4th 88, 11 Cal. Rptr. 2d 468 (1992). When a hospital holds out a physician as an employee, a patient may reasonably assume that the physician is an employee of the hospital without making an inquiry on the subject. Seneris v. Haas, 45 Cal. 2d 811, 291 P.2d 915 (1955).

Expert Testimony

To establish a prima facie case of medical malpractice, the claimant must present expert medical testimony verifying the claims of negligence, unless the fact finder can infer negligence from the facts. Mann v. Cracchiolo, 38 Cal. 3d 18, 694 P.2d 1134, 210 Cal. Rptr. 762 (1985).

Damage Caps

California places a cap on non-economic damages for medical malpractice cases. Cal. Civ. Code § 3333.2 (West 1997). Non-economic damages, defined as compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary injury, are limited to $250,000. Id. The cap applies whether the case is for injury or death, and it allows only one $250,000 recovery in a wrongful death case. Yates v. Pollock, 194 Cal. App. 3d 195, 239 Cal. Rptr. 383 (1987). There is authority, however, for allowing separate caps for the patient and a spouse claiming loss of consortium. Atkins v. Strayhorn, 223 Cal. App. 3d 1380, 273 Cal. Rptr. 231 (1990). The cap on non-economic damages has been held to be constitutional. Fein v. Permanente Medical Group, 38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr. 368 (1985) (also upholding the modification of the collateral source rule).

Statutory Cap on Attorneys’ Fees

California limits the amount attorneys in a medical malpractice case can collect pursuant to a contingent fee arrangement to 40 percent of the first $50,000, 33 1/3 percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount that exceeds $600,000. Cal. Bus. & Prof. Code § 6146 (West 1990). This limit applies regardless of whether the recovery is by settlement, arbitration, or judgment. Id. If the contingent fee arrangement is based, in part, on an award of periodic payments, the court is to place a total value on the payments based upon the projected life expectancy of the claimant, and then calculate the contingent fee percentages. Id.

Periodic Payments

For medical malpractice cases that result in judgments of future damages in excess of $50,000, either party may request the court to order periodic payments. Cal. Civ. Proc. Code § 667.7 (West 1987). Upon the death of the claimant, the court will modify any future damage award. Id. However, damage awards for the loss of future earnings will not be reduced by reason of the claimant’s death. Id.

Collateral Source Rule

California allows defendants in medical malpractice actions to offer evidence of the claimant’s receipt of payments in connection with the injury in the form of social security benefits, workers’ compensation benefits, health insurance, accident insurance, or any other contract providing for health care. Cal. Civ. Code § 3333.1 (West 1997). The claimant may then offer evidence of any amounts paid or contributed to secure the right to the collateral benefits. Id. No provider of benefits can recover them from the plaintiff or by subrogation from a defendant. Id.

Pre-Judgment Interest

California allows a jury, at its discretion, to award pre-judgment interest. Cal. Civ. Code § 3288 (West 1997).

Patient Compensation Funds and Physician Insurance

California does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.


As a general matter, public entities, which include the state, its counties, cities, and other political subdivisions, are immune from liability. Cal. Gov’t Code § 815 (West Supp. 1998). However, public entities may be held liable for their employees’ tortious acts. Cal. Gov’t Code § 815.2 (West 1995). The government entity has a duty to defend and indemnify its employees. Cal. Gov’t Code § 825 (West 1995). Likewise, a public entity is liable for any injury proximately caused by a tortious act of an independent contractor of the public entity to the same extent that the public entity would be subject to liability if it were a private person. Cal. Gov’t Code § 815.4 (West 1995).

Except as provided by specific statute, a public entity is immune from liability for punitive or exemplary damages. Cal. Gov’t Code § 818 (West 1995). However, under certain conditions, the public entity, other than the state, is authorized to pay punitive or exemplary damages on behalf of the employee. Cal. Gov’t Code § 825 (West Supp. 1998). Public entities may insure themselves against all tort liability. Cal. Gov’t Code § 990 (West 1995). The purchase of insurance will not alter the rules applicable to punitive damage awards. Id.

California’s General Immunities Act contains a special section for hospital and public health activities. California waives its immunity from liability for injury inflicted on a patient of a mental institution by another patient. Cal. Gov’t Code § 854.8 (West 1995). Nothing in the code exonerates public employees from liability for injuries caused by their negligence, wrongful acts, or omissions. Id. The public entity has the discretion to pay any judgment against employees; however, the public entity must pay judgments against public employees lawfully engaged in the healing arts and acting within the scope of employment. Id.

Public entities which maintain medical facilities regulated by the State Department of Health Services, Social Services, Developmental Services, or Mental Health are liable for injuries caused by a failure to provide adequate equipment, personnel, or facilities. Cal. Gov’t Code § 855 (West 1995).

Public entities and their employees are not liable for injury resulting from any discretionary decision to perform an act to promote the public health and prevent the spread of disease. Cal. Gov’t Code § 855.4 (West 1995). Except during the course of treatment, public entities or their employees are not liable for injury caused by the failure to make a physical examination or to find a disease which would constitute a hazard to others. Cal. Gov’t Code § 855.6 (West 1995). Public employees are also exempt from liability for failing to diagnose that a person is afflicted with a mental illness or addiction. Cal. Gov’t Code § 855.8 (West 1995). Public entities are not liable for injuries caused by an individual who escaped from a mental ward, unless a governmental employee acted on the basis of fraud or malice. Cal. Gov’t Code § 856.2 (West 1995). Presumably, in all other areas where the statute is silent as to the waiver of immunity, a governmental entity operating a health facility is immune.


California allows health care providers and their patients to contract for the arbitration of disputes. Cal. Civ. Proc. Code § 1295 (West 1982). However, absent the parties’ agreement, California does not require that claims of medical malpractice be arbitrated prior to litigation.

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Revision Date: February 6, 1998