Statute of Limitations |
Medical Claim Generally:“Commencement of action shall be 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.” [CCP§340.5] When applying the discovery rule, “the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” [Jollyv. Eli Lilly & Co., 751 P.2d 923, 1110 (Cal. 1988)] Minors:Claims made my minors “shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.” [CCP §340.5.] It is important to note that, birth injury cases are subject to this rule for minors. Meaning, a birth injury is subject to the eight year statute of limitations period [Young v. Haines, 41 Cal. 3d 883 (1986)] Wrongful death:Applies the same rules as medical claims generally. |
Damage Caps |
In 2022, California enacted AB 35. Noneconomic damages in cases not involving a patient death are capped at $350k starting January 1, 2023, with an incremental increase over the next 10 years to $750k and a 2.0% annual inflationary adjustment after that. Cases involving a patient death will have a limit of $500k on the effective date of January 1, 2023, with an incremental increase over the next 10 years to $1 million and a 2.0% annual inflationary adjustment thereafter. |
Attorney Fee Caps |
Yes. (1) 25% contingency fee limit for claims resolved PRIOR to civil complaint being filed or arbitration demand being made; (2) 33% contingency fee limit for claims resolved AFTER civil complaint is filed or arbitration demand is made. California Business and Commerce Code § 6146. |
Pre-suit Requirements |
It is required to file a 90-day notice of intent to sue in writing [CCP §364] |
Expert Qualifications |
California only requires that an expert have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert [Cal. Evid. Code § 720] |
Negligent Credentialing Claims |
California recognizes negligent credentialing, and the standard is malice. [Elam v. College Park Hospital (1982)] |
