Statute of Limitations for Medical Malpractice in California​
- You have one year from the date you knew (or should have known) about the injury to file a medical malpractice lawsuit.
- There’s a maximum of three years for cases with circumstances that delayed the discovery of the injury.
- Exceptions to this statute include cases of intentional concealment, fraud, and the presence of a foreign body left in the patient.
- For those under six, the lawsuit must be filed within three years of the injury or before the child turns eight.
- Patients must notify their health care provider at least 90 days before filing a lawsuit.
Medical malpractice is a type of professional negligence that’s caused by a health care provider, such as a doctor or nurse practitioner, while they’re providing professional health care to a patient. When a patient discovers they received injuries from a medical provider who didn’t follow accepted procedures or failed to provide care in accordance with their training, they have the option to bring suit against the medical provider. However, the state of California has a set of laws known as the statute of limitations, also known as a time limit, that someone has to bring suit against a medical professional who failed their duty of care.
Quicklinks
- How long do I have to file a medical malpractice lawsuit in California?
- Are there any exceptions to California’s medical malpractice statute of limitations?
- How does the statute of limitations work for minors?
- Do I have to notify my health care provider about my medical injuries?
- Do I need a lawyer to file a medical malpractice lawsuit?
How long do I have to file a medical malpractice lawsuit in California?
According to the California Code of Civil Procedure section 340.5, you have one year from the date that you knew or should have reasonably known about the injury and up to three years when there are extenuating circumstances that prevented you from discovering the injury sooner. The one-year limit on filing a lawsuit for medical malpractice in California holds firm regardless of injury or death. In the event you go past the one-year or three-year time period, you can no longer bring suit against a medical provider for malpractice. Time is of the essence when it comes to filing a medical malpractice lawsuit, and you can’t wait to make up your mind if you want to take action for injuries you sustained by a negligent healthcare provider.
Are there any exceptions to California's medical malpractice statute of limitations?
Yes, there are exceptions to the statute of limitations for medical malpractice. They include intentional concealment, fraud, and the presence of a foreign body that’s not put into place on purpose and has no medical purpose. The three-year limit begins on the date you discovered that you were injured and the injury falls under one of the exceptions listed below. These exceptions to the statute of limitations for medical malpractice are in response to the fact that it’s not always possible to know that you’ve suffered an injury from a negligent health care provider. If you can meet one or more of these exceptions, you can pause the statute of limitations for up to three years. They include:
Proof of fraud
Proof of fraud involves an intentional act by the healthcare provider that resulted in a medical mistake and caused harm to the patient. The health care provider then made an attempt to hide their mistake and prevent the truth from being known.
Intentional concealment
Intentional concealment involves the false representation of facts. In other words, a medical provider or a medical device manufacturer makes a statement they know to be incorrect, but insists that they’re telling the truth to the patient. The patient relied on the healthcare professional to tell the truth, but had their trust betrayed instead in the form of an injury.
Presence of a foreign body
A foreign body is something that was left behind after surgery that has no therapeutic or diagnostic purpose or effect. This includes surgical sponges, gauze, needles, and any object or tool that was used during the surgery.
How does the statute of limitations work for minors?
Minors who are six years old and above are covered by the medical malpractice statute of limitations. Those under the age of six have three years from the date of injury to file a lawsuit or before the minor turns eight years old. The clock on the statute of limitations is stopped when it’s found that a parent or guardian and the insurance company and/or health care provider failed to bring a lawsuit on behalf of the minor either through collusion or fraud.
Do I have to notify my health care provider about my medical injuries?
Yes. You are required by law to notify your health care provider with at least 90 days prior notice of your intent to file a lawsuit. No lawsuit can commence unless the health care provider has received a notice. There is no specific form required for notification, but it has to include the reason for the lawsuit and specify the nature of the injuries that the patient received.
Do I need a lawyer to file a medical malpractice lawsuit?
Strictly speaking, you don’t need a lawyer to file a medical malpractice lawsuit, but you have a much better chance of getting compensation for your injuries when you have a lawyer working on your case. A lawyer can guide you through the claim and compensation process, and take care of the negotiations that typically take place before a lawsuit is filed. Call Cutter law today to set up a free consultation and learn how a personal injury lawyer can help you with your case.
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