California Medical Malpractice: Statute of Limitations and Award Limits

A statute of limitations is the deadline for filing a lawsuit. Most lawsuits MUST be filed within a certain amount of time. In general, once the statute of limitations on a case “runs out,” the legal claim is not valid any longer.

The period of time during which you can file a lawsuit varies depending on the type of legal claim. Here are the statutes of limitations for some common types of legal disputes:

  • Personal injury: Two years from the injury. If the injury was not discovered right away, then it is 1 year from the date the injury was discovered.
  • Breach of a written contract:  Four years from the date the contract was broken.
  • Breach of an oral contract: Two years from the date the contract was broken.
  • Property damage: Three years from the date the damage occurred.
  • Claims against government agencies: You must file a claim with the agency within 6 months (for some cases, 1 year) of the incident. If the claim is denied, you can then file your lawsuit in court but there are strict limits to when, so read the section on government claims and the chart on statute of limitations below.

Some crimes, such as murder, are considered so terrible that they often have no statute of limitations period. See a table for “statutes of limitations” in many types of cases.

Figuring out when the statute of limitations runs out on a claim is not easy. If you have any doubts about how to calculate the time you have, talk to a lawyer.  Click for help finding a lawyer. Your court’s self-help resources may also be able to help you find out more about the statute of limitations in your case. Click to find help from your court.

Government claims

When you sue a government agency, you first have to file a special claim (called an “administrative claim”) with the government office or agency before you file in court. You have to use the government’s form to file the claim.

  • For personal injury or personal property damage, you must file your administrative claim within 6 months of the date of the injury. (There are a few exceptions. Review California Government Code section 905 and section 911.2 or talk to a lawyer.)
  • For breach of contract and real property damage cases: You must file your administrative claim within 1 year of the date the contract was broken or the real property damage occurred.

After you file your claim, the government has 45 days to respond.  If the government agency denies your claim during the 45 days, you have 6 months to file a lawsuit in court from date the denial was mailed or personally delivered to you.  If you do not get a rejection letter, you have 2 years to file from the day the incident occurred.  But do not count on having 2 years to file your claim.

The statute of limitations for government claims can be complicated to figure out. Talk to a lawyer if you have any doubts about how much time you have. Click for help finding a lawyer. Your court’s self-help resources may also be able to help you find out more about the statute of limitations in your case. Click to find help from your court.

Tolling of the statute of limitations

Sometimes the statute of limitations is suspended (“tolled”) for a period of time, and then begins to run again. For example, tolling may happen when the defendant is a minor, is out of the state or in prison, or is insane. When the reason for the tolling ends (like if the minor turns 18, or the defendant returns to California or gets out of prison, or the defendant is no longer insane), the statute of limitations begins to run again.

Cases dealing with tolling may be very complicated and you need to talk to a lawyer.

MOST COMMON STATUTES OF LIMITATIONS

This table lists the most common time periods for starting lawsuits also known as filing a claim. The law on time periods for starting lawsuits is found in California Code of Civil Procedure sections 312-366.  Check these code sections to confirm how much time you have to file your lawsuit.

Check the Code of Civil Procedure sections if the problem is different from those listed here because the time period to sue may be anywhere from months to many years.

IMPORTANT: Make sure you read the law that applies to your specific case because there may be exceptions or other laws that apply to the facts in your case. Talk to a lawyer to make sure you understand the statute of limitations that applies to your specific case.

 

Type of Problem (or Case) Time Period During Which You May Sue (or Be Sued)
Injury to a person. The defendant hurts you with or without intending to hurt you. For example, personal injury accidents, wrongful death, assault, battery, intentional or negligent infliction of emotional distress, wrongful act, or negligent act, etc. California Code of Civil Procedure section 335.1. 2 years
from the date of injury
Damage to property. The defendant damages or destroys your property either with or without intending to damage it. For example, taking your personal property (conversion), crashing your vehicle, going onto your property without permission (trespass), fraud, nuisance, etc. California Code of Civil Procedure section 338. Also for breach of sale of goods, seeCaliforna Commercial Code section 2725. 3 years
from the date the property
was damaged
Libel or slander.  The defendant defames you in print, writing, or pictures (libel) or verbally (slander). California Code of Civil Procedure section 340(c). 1 year
from the date of injury
Oral contracts. Contracts that you and the defendant did not write down.California Code of Civil Procedure section 339.  (Most oral contracts will have some sort of writing, e.g., a receipt, a canceled check, etc. This writing may be proof that you had an oral contract.) 2 years
from the date the contract
was broken
Contracts in writing. California Code of Civil Procedure section 337. 4 years
from the date the contract
was broken
Known (apparent) problems (called “patent defects”) in real property improvement design, survey, construction, etc., and resulting injury to property or person. California Code of Civil Procedure section 337.1. These usually are lawsuits against architects, contractors, or builders. 4 years
from the date the construction was mostly finished
Unknown (not apparent) problems (called “latent” defects) in real property improvement design, survey, construction which cause damage to real estate or personal property. California Code of Civil Procedure, Section 337.15.These usually are lawsuits against architects, contractors or builders. 10 years
from the date construction
was mostly finished
Personal property left at a hotel, hospital, rest home, sanitarium, boarding house, lodging house, or apartment, etc. California Code of Civil Procedure zection 341a. 90 days after departing from premises
Against a health-care provider (medical malpractice). 1 year from the date plaintiff knows or should have known about the injury, or 3 years from the date of the injury whichever is the earlier date. California Code of Civil Procedure section 340.5.

Note: If you are going to sue a health-care provider you MUST give them 90 days’ notice before filing. California Code of Civil Procedure section 364.

1 year (In some cases, 3 years. Read the law).
Against a bank. If a bank paid on a check that was signed without authorization or where the signature was forged. California Code of Civil Procedure, Section 340. 1 year from the date the bank paid out the funds.
Against government agencies or offices. These cases require that you file a special claim (called an “administrative claim”) with the government office or agency before you file in court. You have to use the government’s form to file the claim.

  • Personal property and personal injury/death cases: You must file your administrative claim within 6 months of the date of the injury.Government Code section 911.2
  • Breach of contract and real property damage cases: You must file your administrative claim within 1 year of the date the contract was broken or the real property damaged. See the reference to claims relating to “any other cause of action” under Government Code section 911.2.
  • After you file your claim, the government has 45 days to respond.Government Code section 912.4.
    • If the government agency
      • Denies your claim during the 45 days, you have 6 months to file in court from date the denial was mailed or personally delivered to you.Government Code sections 912.4, 912.6.
      • Does not respond to your claim during the 45 days, you have 2 years from the date the  incident occurred to file in court. Government Code section 945.6 (a)(2).
      • Consult with an attorney to make sure you file your claim and file your lawsuit before the deadline.

Free Case Evaluation By a Medical Malpractice Lawyer

Enter Your Zip Code to Connect with a Lawyer Serving Your Area

searchbox small

If you think you might have a viable medical malpractice case in California, you might be wondering about the state laws that might affect your case. Read on to learn more about a few key California medical malpractice laws.

Time Limits for Medical Malpractice Lawsuits in California

All states have very specific deadlines for filing medical malpractice lawsuits — these time limits are called statutes of limitations, and the rules can be complex because they may contain as many as three or four separate deadlines.

California’s Combined Deadline

The first part of a medical malpractice statute of limitations is usually the standard deadline, which gives victims of medical malpractice a certain number of years within which to file a lawsuit. The second part of the statute of limitations is called thediscovery rule — an exception to the standard deadline in situations where the victim could not reasonably have learned that he/she even had a medical malpractice case.

California combines these two deadlines into one deadline, which states that a medical malpractice lawsuit must be filed no later than 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).

Statute of Limitations for Minor Children

The third part of the statute of limitations is the deadline for minors (children under age eighteen) or their parents or legal guardians to file a medical malpractice lawsuit. In California, medical malpractice lawsuits by a minor child must be commenced within three years from the date of the alleged malpractice except that lawsuits by a minor child under the full age of six years shall be commenced within three years or prior to his eighth birthday, whichever provides a longer period.

California provides an exception for minor children in cases of fraud. The law states that the statute of limitations shall be tolled (i.e., it stops running temporarily) for minors for any period during which the minor’s parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring a lawsuit on behalf of the injured minor for medical malpractice.

There is also a separate statute of limitations for birth injuries. In California, a lawsuit for a minor child for personal injuries sustained before or in the course of his or her birth must be commenced within six years after the date of birth.

The Statute of Repose

The fourth part of the statute of limitations is sometimes called a statute of repose, which imposes an absolute deadline on medical malpractice claims, regardless of when the victim discovered them.

In California, the statute of repose provides that the time for beginning a malpractice lawsuit shall not exceed three years unless tolled for any of the following: (1) fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

Other Exceptions

California has other exceptions to the statute of limitations that may apply in a medical malpractice case, depending on the circumstances. For example, the statute of limitations may be extended if the defendant left the state after committing the malpractice, or if the victim of malpractice was mentally ill or mentally disabled.

The California statute of limitations for medical malpractice cases can be found at California Code of Civil Procedure sections 340.4 and 340.5.

Limits on Medical Malpractice Damages in California

Some states have caps or limits in the amount of the damages that can be awarded to a victim of medical malpractice. In California, there is a $250,000 cap on non-economic damages such as pain, suffering, physical impairment, loss of enjoyment of life, and/or loss of consortium.

Shared Fault Rules in Medical Malpractice Lawsuits in California

In some medical malpractice cases, the defendant may argue that you are at least in part liable for causing your own injuries by, for example, failing to follow the doctor’s instructions. If you go to trial and are found to be partially liable, that finding will reduce or even eliminate your damage award, depending on state law.

California follows a “pure comparative negligence” rule. This means that, if you are found to be in part negligent with respect to your injury, illness, or medical condition, your award of damages is diminished in proportion to your fault. If, for example, you were awarded $100,000 in damages, but were found 20% at fault, your damages would be reduced to $80,000. Even if you were found 60% at fault, you would still receive $40,000.

Other Key California Medical Malpractice Laws

California has a law that requires that the defendant be formally notified of the plaintiff’s intention to file a medical malpractice lawsuit 90 days before the lawsuit is filed. The law also provides that, if the notice is served within 90 days of the expiration of the statute of limitations, the time for the commencement of the lawsuit shall be extended 90 days from the service of the notice.

This law can be found at California Code of Civil Procedure section 364.

Talk to a Lawyer

Suffer improper medical treatment? Start here to find an experienced medical malpractice attorney.

Practice Area:
— Please select —
Medical Malpractice
Personal Injury
Wrongful Death
Zip Code:

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s