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The Law of Medical Malpractice in California:

A Survey of Basic Considerations

California medical malpractice law is among the most complex legal practice areas. The statutes, caselaw, and regulations governing medical malpractice law in California are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in California exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in California by both members of the general public as well as practicing lawyers. This widespread lack of understand is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of California medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both non lawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in California. After reading this Section, the reader will have a firm understanding of the basic issues for consideration in a medical malpractice case. Sections II through XI examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in California.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
– Medical Malpractice in California Defined
-Required Elements of a Medical Malpractice Claim in California
-Standard of Proof

II. Filing Deadlines for Medical Malpractice Claims
-Statute of Limitations
-Introduction
-Statute of Limitations for Medical Malpractice Claims in California
-The Discovery Rule
-Fraud, Intentional Concealment, or Foreign Object
-Special Provisions for Minors
-Birth Injury Claims
-Claims Against the Government
-Tolling Provisions Under California Law
-Prospective Defendant is Out of State
-Death of Prospective Defendant or Plaintiff
-Mental Incapacity
-Imprisonment
-Voluntary Agreement

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-California Medical Malpractice Claims and the Statute of Repose
-Tolling for Fraud, Intentional Concealment, or Foreign Object

IV. Presuit Requirements for Medical Malpractice Cases
-Notice of Intent to Sue
-Notice of Intent to Sue and Statute of Limitations
-Defective Notice of Intent to Sue

V. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in California
-Limitations on Damages
-Good Samaritan Act
-Introduction
-California’s Good Samaritan Act
-Outside of Hospital Emergency Room Setting
-Hospital Emergency Room Setting
-Additional Immunities and Limitations on Liability

VI. Elements of a Medical Malpractice Complaint

VII. Expert Medical Witnesses
-Introduction
-Who Qualifies as An Expert Medical Witness
-Emergency Medical Service in Hospital Emergency Room
-Trial Judges as Gatekeepers of Expert Opinion Testimony
-Common Knowledge Exception

VIII. Comparative Negligence

IX. Statutory Limitations on Non-economic Damages

X. Limitations on Attorney Fees
-Contingency Fee Arrangement
-Statutory Limitations

XI. Apologies and Sympathetic Gestures

I. Overview of Basic Principles and Concepts

Medical Malpractice in California Defined

Medical malpractice is a specific type of professional negligence by a healthcare provider. Under California law, the term ‘professional negligence’ is defined as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed….” California Code of Civil Procedure (“CCP”) §340.5.

Proximate cause is a legal concept that refers to the cause recognized by the law as the primary cause of the injury . It does not have to be the one closest in time to the occurrence of the injury; rather, it is the action that resulted in foreseeable consequences without intervention by anyone else.That is, the injury sustained was the natural and direct result of the proximate cause, and in the absence of the proximate cause, the injury would not have occurred.

In the medical malpractice context, negligence means that the healthcare provider breached the applicable prevailing professional standard of care.The California Supreme Court has defined professional standard of care as follows: “a physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.” Landeros v. Flood, 17 Cal. 3d 399, 408 (1976).

Required Elements of a Medical Malpractice Claim in California

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under California law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

California medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact as well as the proximate cause of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

There are four basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff.
1. Duty—the healthcare provider owed the injured patient a legal duty of care;

2. Breach—the healthcare provider’s actions deviated from or fell below the required standard of care thereby breaching the legal duty of care owed;

3. Causation—the healthcare provider’s breach of the required standard of care caused or contributed to causing injury to the patient; and

4. Damages—the injured patient suffered damages because of the injuries.

Note that the terms ‘medical malpractice’ and ‘medical negligence’ are often used interchangeably as synonyms. Technically, that is not accurate. Medical negligence is only one of the four necessary elements of a medical malpractice claim, so it cannot be the equivalent of medical malpractice by itself. When the additional elements of legal duty, causation, and damages are combined with medical negligence, then that resultant combination of elements gives rise to medical malpractice.

Standard of Proof

The applicable standard of proof in medical malpractice cases is as follows: causation between the breach of the required standard of care and the plaintiff’s injury must be proven within a reasonable medical probability. Jones v. Ortho Pharmaceutical Corp., 163 Cal. App. 3d 396 (1985). Reasonable medical probability must be based upon competent expert testimony. Id. at 402. The Court defined reasonable medical probability thusly. Id. at 403.
Mere possibility alone is insufficient…. That there is a distinction between a reasonable medical “probability” and a medical “possibility” needs little distinction. There can be many possible “causes,” indeed, an infinite number of circumstance which can produce an injury or disease. A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.[emphasis supplied]

II. Filing Deadlines for Medical Malpractice Claims

Statute of Limitations

Introduction

Filing deadlines are among the most important and complex preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.
These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard by a court. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in California

California’s statute of limitations for medical malpractice claims is one of the most confusing and complex in the nation. Plaintiffs and their lawyers must be extraordinarily careful when analyzing and calculating the limitations period to file a medical malpractice lawsuit.

The statute of limitations for filing a personal injury or wrongful death lawsuit based on a claim of medical malpractice in California is set forth in CCP§340.5. It states that “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.” California law uses the term ‘professional negligence’ in referring to medical malpractice actions against healthcare providers. Id.

When discussing the statute of limitations for medical malpractice lawsuits contained in CCP §340.5, California courts talk about there being two separate statutes of limitations, viz., one-year and three-year limitations periods. For example, the 2nd District Court of Appeal in Ashworth v. Memorial Hospital of Long Beach, 206 Cal. App. 3d 1046, 1054 (Cal. Ct. App.1988), explained it this way:
Section 340.5 creates two separate statutes of limitations, both of which must be satisfied if a plaintiff is to timely file a medical malpractice action. First, the plaintiff must file within one year after she first “discovers” the injury and the negligent cause of that injury. Secondly, she must file within three years after she first experiences harm from the injury. This means that if a plaintiff does not “discover” the negligent cause of her injury until more than three years after she first experiences harm from the injury, she will not be able to bring a malpractice action against the medical practitioner or hospital whose malpractice caused her injury. [emphasis in original]

Notice that the term ‘injury’ has a different meaning for each of the two limitations periods. Hills v. Aronsohn, 152 Cal. App. 3d 753 (Cal. Ct. App.1984) . For purposes of the one-year limitations period, the term ‘injury’ “means both a person’s physical condition and its negligent cause.”Knowles v. Superior Court, 118 Cal. App. 4th 290, 295 (Cal. Ct. App.2004). That is, injury is a legal term of art that requires the plaintiff to be aware of both the harm and it having been caused by a prospective defendant’s negligence. Tresemer v. Barke, 86 Cal. App. 3d 656, 664 (Cal. Ct. App.1978).

On the other hand, the term ‘injury’ with respect to the three-year limitations period means the discovery of the harm caused by the alleged negligence. Larcher v. Wanless, 18 Cal. 3d 646 (1976).This definition of injury does not require that the plaintiff have any knowledge of what caused the harm, only that harm exists. Additionally, the term ‘injury’ is not synonymous with the alleged wrongful act, i.e., the date of the injury is not necessarily the same date the negligence occurred. Hills, 152 Cal. App. 3d at 762.

The Discovery Rule

Every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.

The rationale underlying the Discovery Rule is to prevent the statute of limitations from barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered. California’s 4th District Court of Appeal explained that the purpose of the Discovery Rule “is to protect aggrieved parties who, with justification, are ignorant of their right to sue.” See lenfreund v. Terminix of Northern California, Inc., 84 Cal. App. 3d 133, 136 (Cal. Ct. App.1978). The Discovery Rule applies in situations “where it is manifestly unjust to deprive plaintiffs of a cause of action before they are aware that they have been injured.” Leaf v. City of San Mateo, 104 Cal. App. 3d 398, 406 (Cal. Ct. App.1980).

The one-year limitations period discussed above applies to the Discovery Rule in California.Under 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). The terms ‘wrong,’ ‘wrongdoing,’ and ‘wrongful’ are to be construed according to their “lay understanding.”Id.at 1126, footnote 7.

At issue in Jolly was what constitutes sufficient knowledge to start the one-year limitations period running. The California Supreme Court reiterated that the statute of limitations starts the moment the plaintiff has notice of wrongdoing or information of circumstances that would lead a reasonable person to investigate. Id. at 1110-1111. That is, a suspicion of wrongdoing is sufficient to trigger the one-year limitations period.There is no additional requirement that the plaintiff also have knowledge of the specific facts necessary to establish a claim; just the fact that a wrong was committed is enough to start the running of the statute of limitations under the Discovery Rule. Id. at 1111. Once the plaintiff has a suspicion or should have a suspicion that he or she was the victim of wrongdoing, the plaintiff has a duty to reasonably investigate the suspected wrongdoing, and running of the applicable limitations period is simultaneously triggered. Id.

For purposes of the Discovery Rule, it is possible for the plaintiff to discover, or have reason to discover, the cause of action even though the plaintiff does not know or suspect the identity of the wrongdoer. In this situation, the statute of limitations begins to run despite the fact the identity of the wrongdoer is not known. Bernson v. Browning-Ferris Industries, 873 P.2d 613, (Cal. 1994).This is based upon the fact that the identity of the defendant is not an element of any cause of action. The limitations period is triggered upon the “occurrence of last element essential to the cause of action…. [P]laintiff’s ignorance … of the identity of the wrongdoer, does not toll the statute.” Neel v. Magana, Olney, Levy, Cathcart&Gelfand, 6 Ca. 3d 176, 187(1971).

California law permits a plaintiff to file a lawsuit even without knowing the identity of the defendant. CCP §474. In the event the applicable statute of limitations is about to run yet the identity of the defendant is not known, the plaintiff should file a lawsuit and name the unidentified wrongdoer as a DOE defendant. Once the true identity of the DOE defendant is known, CCP §474 provides that the complaint “must be amended accordingly.”

Fraud, Intentional Concealment, or Foreign Object

The standard three-year limitations period is tolled “(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect,” left inside the injured person. CCP §340.5. If tolled due to a foreign object left inside a person, the statute of limitations begins to run when it is discovered or should have been discovered, even if discovery takes place over a decade after the procedure during which the object was left inside the body. Maher v. County of Alameda, A135792 (Cal. Ct. App. 2014).

It is important to keep in mind that the foregoing factors for tolling the three-year limitations period do not toll the one-year limitations period. CCP §340.5. The California Supreme Court has stated that once an injury is discovered or should have been discovered and it is the result of suspected wrongdoing the injured party must file a claim within one year of that date, regardless of extenuating circumstances. Sanchez v. South Hoover Hospital, 18 Cal. 3d 93, 100-101 (1976).

Special Provisions for Minors

CCP §340.5 provides that claims by 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.”

At first, it may appear that this provision is similar to the standardthree-year limitationsperiod with the added benefit of an even longer limitations period for childrenyounger than five years of age. However, upon a closer examination, it is actually much more unforgiven than the standard three-year limitations period. The provision for minors does not include the requirement that the injury is known or should have been known as the triggering event for the limitations period to start running. As a result, the cause of action for a minor accrues (and thus the limitations period starts) on the date of the medical negligence, so it is possible that the limitations period can run before the injury is discovered thereby barring the claim from proceeding. This is in contrast to claims by adults where the limitations period does not begin to run until the injury itself becomes known.

Courts have taken notice of this inequity in the law and have begun to imposean injury discovery requirement into the provision for minors. In Photias v. Doerfler, 45 Cal. App. 4th 1014 (Cal. Ct. App. 1996), the 2ndDistrict Court of Appealheld that the plaintiff’s medical malpractice claim accrued when his injury was discovered, not at the time of the medical treatment. By imposingan injury discovery requirement into the provision for minors, the court allowed the plaintiff to proceed with his claim over 15 years after the date of the alleged medical negligence. However, as a word of caution, it must be noted that the California Supreme Court has not yet ruled on this issue.

The limitations period for minors is tolled during the period a “parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor.”CCP §340.5.

Birth Injury Claims

Medical malpractice claims based upon birth trauma are subject to the statute of limitations applicable to minors contained in CCP §340.5. This means that the injured newborn has eight years from his or her date of birth to bring a medical malpractice action. Remember, the limitations period for minors younger than six is either three years from the date of the negligent act or prior to the child’s eighth birthday, whichever period is longer. As such, an injury based on medical negligence during birth has an eight-year limitations period, i.e., commencing at birth running until immediately prior to eighth birthday.

There is confusion among some practitioners about which statute of limitations governs birth injury medical malpractice claims. The source of this confusion is CCP §340.4, which establishes the limitations period at six years after the date of birth for an action by a minor “for personal injuries sustained before or in the course of” birth. But it is settled law that this statute applies to prenatal trauma resulting from general negligence, product liability, etc., not medical malpractice claims.

In Young v. Haines, 41 Cal. 3d 883 (1986), the California Supreme Court addressed the issue of whether CCP §340.5 or the predecessor to CCP §340.4 (Civil Code section 29) applies to birth injury medical malpractice claims. The Court held that CCP §340.5 is the applicable statute of limitations in this situation. Id. at 901.

Six years following the Young decision, the California Legislature reorganized Civil Code section 29. It was repealed and divided into different sections with the second sentence re-enacted as CCP §340.4. The only change made to Civil Code section 29 was reorganizing it. Nothing in the legislative history indicated that the Legislature intended to make any substantive changes or to address the Young decision.

Despite the reorganization of Civil Code section 29 after Young, the Supreme Court’s ruling on the issue remains unaffected. Under California law, when statutes are reenacted without change to “provisions that have been judicially construed, the Legislature is presumed to have been aware of and acquiesced to the previous judicial construction. Accordingly, reenacted portions of the statutes are given the same construction they received before the amendment.”People v. Daan, 161 Cal. App. 3d 22, 30 (Cal. Ct. App. 1984).

Claims Against the Government

Claims against a state, county, or local government entity are governed by the California Tort Claims Act contained in California Government Code (“GC”)§§810-996.6. The Act requires all claims for money or damages against a public entity must first be presented in writing to the public entity before filing suit in court. GC §905.The claim must contain the information listed in GC §901 in order to constitute a legally sufficient claim against a public entity.

Administrative medical malpractice claims must be presented to the public entity within six months of the accrual of the cause of action. GC §911.2. Accrual means when all essential elements are present, and a claim becomes legally actionable. For purposes of calculating the limitations period when making an administrative claim against a public entity, the date of accrual of a cause of action is the same date as though a private defendant were involved. GC §901.

The public entity must accept or reject the claim within 45 days after it has been presented. GC §912.4(a). The parties can extend this 45-day period by written agreement either before it ends or even after it ends as long as the claim is not yet barred by the statute of limitations. GC §912.4(b).

If the claim is rejected by the public entity, the claimant has six months from the date the notification is mailed or personally delivered to file a lawsuit in court. GC §§913 and 945.6(a)(1). Note that if the public entity does not respond within the 45-day period the claim is treated as being rejected on the 45th day. GC §912.4(c). This rejection by operation of law is significant. If rejection occurs by this method, then the claimant has two years from the accrual of the cause of action in which to file a lawsuit in court. GC §945.6(a)(2).

The Tort Claims Act contains a procedure for filing a late administrative claim. If a claimant fails to file a timely claim, the claimant is permitted to submit an application for late filing. GC §911.4. The application and claim must be presented “within a reasonable time not to exceed one year after the accrual of the cause of action.” Id. The application must state the reason for the delay in presenting the claim. Id.

The application will be granted or denied within 45 days after it is presented. GC §911.6(a). It shall be granted if one or more of the below factors is applicable. GC §911.6(b).
1. The delay to present the claim was due to mistake, inadvertence, surprise or excusable neglect, and the public entity is not prejudiced in its defense because of the late claim;
2. The claimant was a minor during the entire six-month filing period;
3. The claimant was physically or mentally incapacitated during the entire six-month filing period and because of the disability failed to present the claim on a timely basis; or
4. The claimant died during the six-month filing period.

Despite the mandatory language used in the statute, the claimant has the burden of proof in establishing a valid basis for presenting a late claim by a preponderance of the evidence. Toscano v. County of Los Angeles, 92 Cal. App. 3d 775 (Cal. Ct. App. 1979).

Tolling Provisions Under California Law

California law contains severalstatutory provisions that can extend or tollthe statute of limitations for medical malpractice claims. However, it is important to understand that no tolling provision outside of the Medical Injury Compensation Reform Act can extend the three-year limitations period of CCP §340.5; only the one-year limitations period can be tolled by statutes outside of the Act.Belton v. Bowers Ambulance Service, 20 Cal. 4th 928 (1999).CCP §340.5 reads, in pertinent part, “[i]n no event shall the time for commencement of legal action exceed three years unless tolled for any of the following” (1) fraud, (2) intentional concealment, or (3) presence of foreign body. The plain language of the statute bars any tolling of the three-year limitations period except for those three tolling events explicitly listed in the statute itself.Brown v. Bleiberg, 32 Cal. 3d 426 (1982).
The following is a non-exhaustive list of common tolling provisions of general applicability that are not contained in the Act.

Prospective Defendant is Out of State

The prospective defendant’s absence from California between the start and end of the statute of limitations extends the limitations period equal to the length of defendant’s absence from the state. CCP §351. This tolling provision applies to medical malpractice claims. Kaplan v. Mamelak, 162 Cal. App. 4th 637 (Cal. Ct. App.2008). Notably, there are numerous exceptions to this statutory exception. An examination of the many (judicially created) exceptions is beyond the scope of this article.

This exception has been the subject of constitutional challenges for decades. In 1990, the U.S. Ninth Circuit Court of Appeals ruled that CCP §351 violates the Commerce Clause of the U.S. Constitution. Abramson v. Brownstein, 897 F.2d 389 (9th Cir. 1990). The plaintiff filed suit against the defendant, who was a nonresident of California and had never been physically present in the state, in federal court. The Court ruled that the statute forces nonresident defendants to choose between physical presence in the state for years or forfeit the statute of limitations defense, which places an unconstitutional burden on interstate commerce. Id. at 392.

In the years after Abramson, a line of cases has been decided by California state courts that hinged upon the analysis of the specific facts of each case and their connection to and effect on interstate commerce. Pratali v. Gates, 4 Cal. App. 4th 632 (Cal. Ct. App.1993); Filet Menu, Inc. v. Cheng, 71 Cal. App. 4th 1276 (Cal. Ct. App.1999); and Heritage Mktg. &Ins. Services, Inc. v. Chrustawka, 160 Cal. App. 4th 754 (Cal. Ct. App.2008). Again, an examination of this line of cases is beyond the scope of this article.

Death of Prospective Defendant or Plaintiff

In event the prospective defendant dies prior to the expiration of the statute of limitations, the prospective plaintiff must file a lawsuit within one year after the date of death.CCP §366.2(a). The one-year limitations period runs regardless of whether the cause of action has accrued or not and supplants the statute of limitations that would have applied had the prospective defendant not died. Id.

If the prospective plaintiff dies before the expiration of the statute of limitations, the lawsuit can still be filed within the limitations period applicable had plaintiff not died. If there is less than six months left on that limitations period at the time of plaintiff’s death, then the lawsuit may be filed within six months of the date of death. CCP §366.1(a).

Mental Incapacity

The statute of limitations for an injury claim based on negligence is tolled if the prospective plaintiff lacks the legal mental capacity to make decisions at the time the cause of action accrued. CCP §352(a). This provision applies to medical malpractice claims. Alcott Rehabilitation Hospital v. Superior Court, 93 Cal. App. 4th 94 (Cal. Ct. App.2001). The limitations period is tolled for the length of the plaintiff’s mental incapacity. Id. The mental incapacity must be present at the time of accrual; the limitations period will not be tolled if the mental incapacity occurs after the date of accrual. Congregational Church Etc. v. Osborn, 153 Cal. 197 (1908). This tolling provision does not apply to a defendant who is a public entity or public employee. CCP §352(b).

Imprisonment

The statute of limitations is tolled if the prospective plaintiff is imprisoned on a criminal charge at the time the cause of action accrued. CCP §352.1(a). The tolling of the limitations period under this provision cannot exceed two years. Id. This tolling provision does not apply to a defendant who is a public entity or public employee. CCP §352.1(b).

Voluntary Agreement

The parties to a potential lawsuit can agree in writing to extend the limitations period for filing a lawsuit. CCP §360.5. The voluntary extension cannot exceed four years from the date of the applicable statute of limitation’s expiration, but the extension can be renewed for a period of up to four years from the end of the immediately preceding extension period. Id.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Medical malpractice claims in California are effectively subject to a statute of repose. Accordingly, it is critical that plaintiffs and their lawyers in the state are aware of both the statute of limitations and statute of repose deadlines.

California Medical Malpractice Claims and the Statute of Repose

California medical malpractice claims are effectively subject to a statute of repose. It appears that neither the California Legislature nor the courts ever use the term ‘statute of repose’ in connection with medical malpractice claims. Nevertheless, the second sentence of CCP §340.5 operates as a statute of repose. It states: “In no event shall the time for commencement of legal action exceed three years….”

In explaining that sentence of the statute, the 2nd District Court of Appeal substantively described it as a statute of repose without ever using the term.Hills v. Aronsohn, 152 Cal. App. 3d 753, 761 (Cal. Ct. App.1984).
But section 340.5 now places an outer limit which terminates all malpractice liability once three years have passed from the date of injury. The only instances in which belated discovery is relevant to the three-year limitations period are those which are specified in the statute [fraud, intentional concealment, and foreign object]. If none of these exceptions apply,the three-year outside limitations period is commenced regardless of a patient’s belated discovery of her injury. [emphasis supplied]

Although not actually referred to as a statute of repose by the courts, the application of the second sentence of CCP §340.5is that of a statute of repose. It can extinguish potential medical malpractice claims after the expiration of a set period of time regardless of whether acause of action has yet accrued. That means it can completely extinguish a claim even before the injured party is legally entitled to commence a legal action, i.e., the statutory provision can operate to completely bar a potential plaintiff’s right to sue even before he or she has a legal right to do so.Substantively, that is a statute of repose.

Notably, however, because the triggering event for the limitations period to start running is the date of the injury rather than the date of the negligent act or omission (they may or may not be the same date) , California’s statute of repose does not completely extinguish a medical malpractice claim before the injury is even known to the prospective plaintiff. This is in contrast to states that have a statute of repose,but the triggering event is the negligent act or omission, which can bar a claim before the injury is even known as well as the right to file a lawsuit arises. As such, California’s statute of repose can be characterized as less harsh than its counterparts in other states.

Tolling for Fraud, Intentional Concealment, or Foreign Object

As previously discussed in the Statute of Limitations Section above, the three-year limitations period is tolled only “(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect,” left inside the injured person. CCP §340.5. If tolled due to a foreign object left inside a person, the limitations period begins to run when it is discovered or should have been discovered, even if discovery takes place over a decade after the procedure during which the object was left inside the body. Maher v. County of Alameda, A135792 (Cal. Ct. App. 2014).

IV. Presuit Requirements for Medical Malpractice Cases

In contrast to many other states , California has only one presuit requirement before being permitted to file a medical malpractice lawsuit in court. A plaintiff in California must give the defendant at least 90 days’ notice of his or her intent to file a medical malpractice lawsuit in court prior to actually doing so.
The California Supreme Court has stated that the purpose of the Notice of Intent to Sue is to provide a 90-day waiting period “to decrease the number of medical malpractice actions filed by establishing a procedure that encourages the parties to negotiate” outside the formal litigation process. Woods v. Young, 53 Cal. 3d. 315, 320 (1991). The Legislature’s intent behind the presuit notice rule is that the parties will negotiate and reach a settlement during the 90-day waiting period and thus avoid going to court.

Notice of Intent to Sue

In order to sue for medical malpractice in California, the plaintiff must first provide the defendant with at least 90 days’ prior notice of his or her intent to file a medical malpractice lawsuit. CCP §364(a). The statute makes it clear that “[n]o action based upon the health care provider’s professional negligence may be commenced” without first providing the Notice of Intent to Sue.
The required notice does not have to be in any particular form, but, at a minimum, it must notify the defendant “of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.” CCP §364(b). The notice must be in writing. CCP §§364(c) and 1010.

Notice of Intent to Sue and Statute of Limitations

As discussed above, the plaintiff must provide at least 90 days’ notice to the defendant prior to filing a lawsuit in court. The notice statute provides a tolling provision for notices that are given within 90 days of the expiration of the statute of limitations. CCP §364(d). It reads: “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.”

The tolling provision resulted in confusion and disagreement among the courts about whether notices given before the final 90 days of the limitations period also tolled the statute of limitations. In 1991, the California Supreme Court answered the question, holding that only notices given within the last 90 days of the limitations period toll the statute of limitations under CCP §364(d). Woods v. Young, 53 Cal. 3d. 315, 319 (1991).

The Court acknowledged that diligent plaintiffs who provide notice early do not receive the benefit of an extension while dilatory plaintiffs do. But the Court pointed out that the distinction was explicitly made by the Legislature by the plain language of the statute. The Court went on to surmise that the reason the Legislature did so was because plaintiffs who give notice early will still have the abilityto timely file a lawsuit following the 90-day notice period, so those plaintiffs do not need an extension. Id. at 326.

Defective Notice of Intent to Sue

Although the particular form of the notice is immaterial under the notice statute, the same is not true regarding its content. A notice that is intended to serve as the statutory Notice of Intent to Sue but fails to comply with the minimum content requirements of CCP §364(b) is defective and will not toll the statute of limitations.

In 2013, the California 4th District Court of Appeal decided a case in which the purported Notice of Intent to Sue lacked the legal basis for the claim as well as the injuries sustained by the prospective plaintiff as required by the notice statute. Salah v. St. Joseph Hosp. of Orange CA4/3, G047308 (Cal. Ct. App. 2013) .

In Salah, the plaintiff’s lawyer sent a series of admittedly defective notices to the defendant hospital. Finally, about five days before the expiration of the statute of limitations, the lawyer sent the following letter to the defendant for the intended purpose of serving as the required statutory Notice of Intent to Sue:

Please be advised that this office represents SamiaHishmeh. We sent you a representation letter on June 1, 2010 which incorrectly referred to the date of injury as being 6/21/10 (20 days later than the date of our letter). We apologize for the error. The correct date that Ms. Hishmeh sustained the injuries at your hospital and was then taken to your emergency room was May 21, 2010 (a month prior to the date of our letter). Additionally, she returned to your ER the next day. Ms. Hishmeh’s treatment is still ongoing. [¶] If you have questions or concerns, please contact me. Do not contact the client directly.

Believing that the above letter constituted a valid Notice of Intent to Sue sufficient to toll the statute of limitations for the statutory 90-day waiting period, the lawyer did not file a lawsuit in court prior to the date the limitations period was set to expire. Subsequently, the defendant moved for summary judgment on the ground that the plaintiff’s complaint was time-barred. The trial court granted defendant’s motion for summary judgment, and the plaintiff appealed.

The issue in Saleh was whether the letter in question satisfied the requirements of the notice statute. The Court held that the letter did not constitute a valid Notice of Intent to Sue. Id. at 2. It took little time for the Court to reach this obvious conclusion. First, the Court pointed to the plain language of CCP §364(b), which states the plaintiff must “notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.” Then, the Court simply pointed out that neither of those requirements were included in the lawyer’s letter. Id. at 5.

The Saleh case underscores the importance of including the content required by the statute in the Notice of Intent to Sue. In Saleh, due to the lawyer’s defective Notice of Intent to Sue, the plaintiff was time-barred from ever having her day in court on her medical malpractice claim.

V. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in California

The California Legislature has limited sovereign immunity by statute.  The general rule under California law is that public entities such as the state, its counties, cities, and other political subdivisions are immune from liability.  GC §815. However, on a limited basis, California has waived sovereign immunity but only to the extent expressly provided for in the California Tort Claims Act, which is codified in GC §§810-996.6.  The provisions of the Act apply to all public entities and their employees.  Accordingly, if a person wants to bring a tort claim (this includes those based upon negligence) against a public entity or an employee of a public entity, he or she must comply with the requirements set forth in the Tort Claims Act.

In certain limited situations, public entities may be held liable for the tortious acts or omissions of their employees.  GC §815.2(a).  The employee must be acting within the scope of employment, and the act or omission would have given rise to a cause of action had he or she not been an employee of a public entity.  This is the general legal doctrine of respondeat superior, which imposes vicarious liability onto an employer for the negligence of its employees during the course and scope of their employment.But a public entity is not liable for its employee’s act or omission where the employee is immune from liability.  GC §815.2(b).  Additionally, a public entity is liable for the tortious acts or omissions of its independent contractors “to the same extent that the public entity would be subject to such liability if it were a private person.”  GC §815.4.

Limitations on Damages

California has not enacted any special monetary limitations on damages for medical malpractice claims against a public entity.  But a public entity is immune from punitive damages or “other damages imposed primarily for the sake of example and by way of punishing the defendant.”  GC §818.

Good Samaritan Act

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

California’s Good Samaritan Act

Outside of Hospital Emergency Room Setting

California’s primary Good Samaritan law is contained in the California Health and Safety Code (“HSC”)§1799.102.It explicitly states that it is the “intent of the Legislature to encourage other individuals [laypeople] to volunteer, without compensation, to assist others in need during an emergency, while ensuring that those volunteers who provide care or assistance act responsibly.”  HSC §1799.102(b)(1).  The statute addresses emergency medical personnel and members of the general public separately.

  1. HSC §1799.102(a) states: “No person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission.” This provision applies only to medical, law enforcement, and emergency personnel, and it does not apply to emergency departments and other locations where medical care is generally provided.
  1. HSC §1799.102(b)(2) states: “no person who in good faith, and not for compensation, renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct.” [emphasis supplied]This provision applies to nonmedical personnel, and like its counterpart, it does not apply to emergency departments and other locations where medical care is generally provided.

Notice that the immunity granted to laypeople is not as robust as that granted to medical and emergency personnel.  Laypeople are not afforded immunity for behavior that constitutes “gross negligence or willful or wanton misconduct.”  In contrast, no such limitation exists in the grant of immunity for medical and emergency personnel.  Presumably, any behavior short of intentional misconduct by them is immune from civil liability.

Also of note is the absence of the word ‘assistance’ in the emergency medical personnel provision.  That specific portion of both provisions is identical with the exception of that word missing in one yet included in the other.  It is unclear how, if at all, that affects the grant of immunity for emergency medical personnel vis-à-vis laypeople.

To learn more about California’s Good Samaritan laws, burden of proof, related definitions, and legal duties, read California Civil Jury Instructions 450A. Good Samaritan—Non-emergency and 450B. Good Samaritan—Scene of Emergency.

Hospital Emergency Room Setting

In general, doctors have immunity from liability for any civil damages when, acting in good faith, they render emergency care at the scene of any emergency, which includes (but is not limited to) emergency rooms of hospitals.  California Business and Professional Code (“BPC”) §2395.  Additionally, doctors are similarly immune from liability when rendering emergency medical care at the request of another doctor to treat a medical complication arising from the care previously provided by the requesting doctor.  BPC §2396.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability to various healthcare practitioners, emergency personnel, and healthcare related entities scattered throughout the 29 separate Codes that comprise the California Statutes.  Below is a non-exhaustive list of some common ones that medical malpractice plaintiffs may encounter while pursuing their claim.

  • Dentists at scene of emergency—BPC §1627.5
  • Nurses at scene of emergency—BPC §2727.5
  • Vocational nurses at scene of emergency—BPC § 2861.5
  • Public entities immune when employees are immune—GC §815.2
  • Public employees’ discretionary act or omission—GC §820.2
  • Public entities’ public health decision about spread of disease—GC §855.4
  • Public entities failing to make physical or mental examination—GC §855.6
  • Public entities diagnosing mental illness or addition—GC §855.8
  • Public entities failing to admit person to public medical facility—GC §856.4
  • Volunteer responders rendering first-aid—GC §50086
  • Poison control center dispensing poison or toxic substance advice—HSC §1799.105
  • First responders at scene of emergency—HSC §1799.106
  • Public entities and emergency rescue personnel emergency services—HSC §1799.107
  • Persons certified to provide emergency field care—HSC §17.99.108
  • Hospital detaining person after providing emergency medical services—HSC §1799.111

VI. Elements of a Medical Malpractice Complaint

In general, the content and format of complaints are governed by §CCP §§420-475 and Rules 1.201-1.201.4 of the California Rules of Court. Additionally, Rules 1.1 through 1.150 describe in exacting detail all technical and administrative requirements for court filings.

Under California law, a civil action is commenced by filing a complaint in court.  CCP §411.10.  A complaint is one of the four types of pleadings permitted in state courts.  CCP §422.10.  It is a formal allegation by the plaintiff containing his or her claims for judgment by the court.  CCP §420.  According to CCP §422.30, every complaint must contain a caption setting forth (1) the name of the court and county in which the action is brought and (2) the title of the action.  The title of the action must include the names of all the parties.  CCP §422.40.

Complaints must contain a statement of the facts, in ordinary and concise language,that form the basis for the cause of action and a demand for judgment for which the plaintiff claims to be entitled.  CCP §425.10(a).  For medical malpractice cases that seek damages for personal injury or wrongful death, the demand amount should not be specified in the complaint.  CCP §425.10(b).

VII. Expert Medical Witnesses

Introduction

In medical malpractice cases, expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for non-medical professionals to understand without the aid of expert medical witnesses.  Expert witnesses are needed to help educate the judge and jury (or in furtherance of settlement negotiations)about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case and whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

“As a general rule, the testimony of an expert witness is required in every professional negligence case to establish the applicable standard of care, whether that standard was met or breached by the defendant, and whether any negligence by the defendant caused the plaintiff damages.”Scott v. Rayhrer, 185 Cal. App. 4th 1535, 1542 (Cal. Ct. App. 2010).  As the Court points out, expert medical witnesses are required to prove at least three of the four basic elements of a medical malpractice claim.

Who Qualifies as An Expert Medical Witness

In light of the essential role medical experts assume in medical malpractice cases, a critical question is who qualifies as an expert medical witness in California.  Unlike many other states, California law does not impose any special or separate requirements for expert witnesses in medical malpractice cases. The general statutory requirements applicable to all expert witnesses contained in California Evidence Code (“EV”) §720 govern who may serve as an expert medical witness.  It provides:

A person is qualified to testify as an expert if he has 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.

California law is relatively liberal on who qualifies as an expert medical witness.  For instance, there is no requirement that the medical practitioner have an active clinical practice in the practice area in which he or she seeks to provide testimony as an expert witness. Chadock v. Cohn, 96 Cal. App. 3d 205 (Cal. Ct. App. 1979).  In Chadock, the Court ruled that a podiatrist could provide expert medical testimony on the applicable standard of care required of the defendant orthopedic surgeon.  Id. at 208.  The Court noted that a person does not need to have the same professional degrees or certifications as the defendant in order to testify as a medical expert.  Id. at 209.

Similarly, it is not “critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the subject.”  Evans v. Ohanesian, 39 Cal. App. 3d 121, 128 (Cal. Ct. App. 1974).The California Supreme Court in Sinz v. Owens, 33 Cal. 2d 749 (1949), announced that the relevant criteria for determining whether a person qualifies as a medical expert are:

  1. Occupational experience, the kind which is obtained casually and incidentally, yet steadily and adequately in the course of some occupation or livelihood;
  1. Basic education and professional training; and
  1. Practical knowledge of what is customarily done by doctors under circumstance similar to those which confronted the defendant.

Finally, when a medical practitioner demonstrates sufficient knowledge of the subject to entitle his or her opinion to go to the jury, the matter of the practitioner’s degree of knowledge goes to the weight of the evidence, not its admissibility.  Seneris v. Haas, 45 Cal. 2d 811, 833 (1955).

Emergency Medical Service in Hospital Emergency Room

There is one important exception to the general requirements of EV §720 regarding who may serve as an expert medical witness.  In medical malpractice cases against a doctor or surgeon based upon emergency medical treatment in a hospital emergency room, only other emergency room doctors or surgeons qualify to serve as expert medical witnesses.  HSC §1799.110(c).  The statute states:

In any action for damages involving a claim of negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department. For purposes of this section, “substantial professional experience” shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in general acute care hospital emergency departments in the same or similar localities where the alleged negligence occured [sic].

Notice that expert medical witnesses for cases involving hospital emergency room treatment must have recent experience in the same practice area as the defendant.  This exception to the general rule on who may serve as an expert medical witness is actually part of the Good Samaritan statutory scheme that provides immunity and limitations on liability in specific scenarios.  James v. St. Elizabeth Community Hospital, 30 Cal. App. 4th 73, 81 (Cal. Ct. App.1994).  The intent behind this exception is “to promote the provision of emergency medical care by giving dedicated emergency room physicians a measure of protection from malpractice claims” by requiring that only other dedicated emergency room physicians may serve as expert medical witness regarding the applicable standard of care.  Miranda v. National Emergency Services, Inc., 35 Cal. App. 4th 894, 904 (Cal. Ct. App.1995).

Trial Judges as Gatekeepers of Expert Opinion Testimony

In 2012, the California Supreme Court issued a landmark decision clarifying the role trial judges in California courts play in evaluating the admissibility of opinion testimony of expert witnesses at trial.  Sargon Enterprises, Inc. v. University of Southern California, 55 Cal. 4th 747 (2012).   Opinion testimony of expert witnesses is governed by EV §§801 and 802, but until its decision in Sargon, the Supreme Court had never interpreted the statutes and articulated the proper standard for admitting this type of evidence.Note that Sargon does not address the proper legal standard for qualifying as an expert witness; it only speaks to the admissibility of their opinion testimony.

In Sargon, the Court announced that under the two governing statutes California trial courts are required to act as gatekeepers to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.  Id. at 771-772. The Court provided further guidance to trial courts in their designated role as gatekeepers as follows.  Id.

Trial courts must:

  1. Exclude expert opinions that are clearly invalid and unreliable;
  1. Focus solely on the expert witness’ principles and methodology; and
  1. Decide whether the material relied upon can serve as a reasonable basis for the opinion or whether the expert’s opinion is based on a leap of logic or conjecture.

Trial courts must not:

  1. Substitute their own opinion for the expert witness’ opinion;
  1. Choose between competing expert opinions;
  1. Focus on the expert witness’ conclusions;
  1. Weigh the probative value of an expert witness’ opinion; and
  1. Resolve scientific controversies.

Common Knowledge Exception

In cases where the conduct or behavior at issue is within the common knowledge of non-medical professionals to evaluate, there is no need for an expert medical witness.  The classic example of this situation is where a foreign object with no remaining therapeutic purpose is left inside a patient following surgery.  This common knowledge exception applies to situations where a non-medical professional can determine, as a matter of common knowledge and experience, that the actions and consequences of the professional medical treatment did not meet the applicable standard of care. Ales v. Ryan, 8 Cal. 2d 82 (1936).

VIII. Comparative Negligence

Up until 1975, California followed the doctrine of pure contributory negligence.  Under this doctrine, a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury.  Pure contributory negligence is extremely unforgiven.  If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages.

That changed in 1975 with the seminal California Supreme Court decision in Li v. Yellow Cab Company of California, 13 Cal. 3d 804 (1975).  The Li Court judicially declared that contributory negligence was no longer applicable in California courts and held that it was being replaced with the doctrine of pure comparative negligence.  Id. at 828.  In doing so, the Court concluded that the “doctrine of comparative negligence is preferable to the ‘all-or-nothing’ doctrine of contributory negligence from the point of view of logic, practical experience, and fundamental justice.”  Id. at 807. To this day, California remains a pure comparative negligence state through judicial declaration rather than statute.California Civil Jury Instructions 405. Comparative Fault of Plaintiff (sources and authority).

Under the doctrine of pure comparative negligence, fault is determined and apportioned among the plaintiff and defendants by the trier of fact, and how much compensation the plaintiff can recover is limited by his or her relative share of fault.  Accordingly, the plaintiff’s recovery is reduced by his or her assigned percentage of fault.  This is in stark contrast to contributory negligence where even the slightly degree of fault attributed to the plaintiff bars all recovery.  In fact, pure comparative fault swings the pendulum in the complete opposite direction.  Under pure comparative fault, the plaintiff can be 99% at fault and still be eligible to obtain a damage award.

For example, if the trier of fact determines that the plaintiff is 60% at fault in contributing to his or her injuries, the plaintiff’s total damage award will be reduced by 60%.  As a result, the maximum amount the plaintiff can receive is 40% of the total monetary recovery.  Thus, if the total monetary recovery is $100,000, the plaintiff is entitled to only 40% of that amount or $40,000.  Notice that the plaintiff in this example is actually deemed to be at greater fault than the defendant.  Nevertheless, in a pure comparative negligence system, that is not a bar to recovery.

Comparative negligence is an affirmative defense that the defendant may assert in an effort to shift partial liability to the plaintiff thereby reducing the defendant’s own proportion of liability and any resultant damage award.  If the defendant asserts the partial defense of comparative negligence, he or she has the burden of proof.  Drust v. Drust, 113 Cal. App. 3d. 1, 6 (Cal. Ct. App.1980).  The defendant must prove that (1) the plaintiff was, in fact, negligent and (2) the plaintiff’s negligence was a substantial factor in causing his or her own harm.  Id.

IX. Statutory Limitation on Non-economic Damages

California Civil Code (“CC”) §3333.2(a) permits recovery of non-economic losses in medical malpractice lawsuits for “pain, suffering, inconvenience, physical impairment, disfigurement and other non-pecuniary damage.”  However, the amount that can be recovered for non-economic losses is limited to $250,000.  CC §3333.2(b).  Even if a jury awards a greater amount for non-economic losses (the statute uses that term instead of damages), the judge is legally obligated to reduce the award to no greater than $250,000 regardless of the severity of the victim’s injuries.  The statutory limit is often criticized for having been established back in 1975, but it has not been adjusted since for inflation.

As in other states that place a limit on non-economic damages in medical malpractice cases, the constitutionality of California’s limitation has been challenged in court over the years.  They have not been successful.  As recently as 2014, the California Supreme Court had the opportunity to revisit the issue but declined to do.  Hughes v. Pham, S221650 (2014).   Rather than rule on the constitutionality of the limitation on non economic damages, the Court issued a “grant and hold” order sending it back down to the 4th District Court of Appeal, pending its decision in Rashidiv. Moser, S212230 (Cal. 2014).  Accordingly, nothing changed.  The Supreme Court declined to rule that the limitation is unconstitutional.

Although the statutory limitation had been in place for nearly 35 years, the question of whether it applies to both jury awards as well as pretrial settlements had never been definitively answered.  That changed in 2014.  In Rashidi, the California Supreme Court ruled that the limitation on non-economic damages in CC §3333.2 is limited to damage awards at trial and does not apply to pretrial settlements.  The Court noted that the Legislature never intended for the limitation on non-economic damages to apply to settlements, and any portion of a settlement that is allotted to non-economic damages is not counted towards the $250,000 limitation on non-economic damages

X. Limitations on Attorney Fees

Contingency Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingency fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.  California law expressly prohibits an attorney’s “office-overhead costs or charges” from being characterized as costs or expenses and deducted against the amount recovered. BPC §6146(c)(1).

Statutory Limitations

California imposes statutory limitations on attorney fees in medical malpractice cases based on a sliding scale tied to the amount recovered. BPC §6146(a)establishes the following limitations:

  1. 40% of the first $50,000 recovered,
  1. 331/3% of the next $50,000 recovered,
  1. 25% of the next $500,000 recovered, and
  1. 15% of any amount over $600,000.

These limitations apply to all recoveries regardless of whether they are by settlement, arbitration, or judgment, and they apply “whether the person for whom the recovery is made is a responsible adult, an infant, or a person of unsound mind.”  Id.If the plaintiff is awarded periodic payments, the court must “place a total value on these payments based upon the projected life expectancy of the plaintiff and include this amount in computing the total award from which attorney’s fees are calculated” for purposes of applying the limitation amounts.  BPC §6146(b)

Unlike in some other states that impose limitations on attorney fees in medical malpractice cases, clients in California cannot waive the statutory limitations and voluntarily agree to attorney fees in excess of the statutory limits.  Fineberg v. Harney, 207 Cal. App. 3d 1049 (Cal. Ct. App. 1989) and Schultz v. Harney, 27 Cal. App. 4th 1611 (Cal. Ct. App. 1994).

XI. Apologies and Sympathetic Gestures

California is among the 42 states that have some form of apologies or sympathetic gestures statute that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a personal injury lawsuit.  California law allows a person to communicate an apology or other sympathetic gestures to a person injured in an accident without it being admissible in court.  In California, such expressions alone do not constitute an admission of liability.

California’s statute is located in the state’s Evidence CodeEV §1160 provides:

The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.

Despite the statutory protection provided by EV §1160, a healthcare practitioner must still be exceptionally careful if he or she chooses to communicate expressions of sympathy.  Notice that a “statement of fault” is expressly excluded from the protections afforded by the statute, so anything that could reasonably constitute such a statement could potentially be used as an admission of liability.