The Medical Malpractice Statute of Limitations in California

California’s statute of limitations (deadline) to bring a medical malpractice lawsuit is the earlier of:

1. one (1) year after you discovered the injury (or should have discovered the injury with reasonable diligence), or
2. three (3) years after the date of the malpractice.¹

These deadlines hold firm even if the malpractice resulted in a serious injury or death.

For example: Jenny is in constant pain after her hip replacement but waits two years to file. Here, “the discovery rule” bars her lawsuit because it has been more than one year she discovered her injury.

For example: Four years after Jenny had hip surgery, an MRI finds that the replacement was negligently performed. Any claim is time-barred because three years have passed since the alleged malpractice.²

However, there are 3 ways for the medical malpractice statute of limitations to get tolled (paused) in California:

1. you were a minor,
2. the malpractice left a foreign body inside of you, or
3. the healthcare provider committed some form of misconduct.

By pausing the statute of limitations in these three circumstances, the law prevents the hospital or healthcare provider from benefiting from its actions.

1. Underage victims

In California, the statute of limitations for medical malpractice claims is different for minor children (under 18 years old).⁴ A minor’s statute of limitations runs until the later of:

• three (3) years after the date of the injury, or
• the child’s eighth birthday if they were under six years old at the time of the malpractice.³

For injuries the occurred before or during birth, the statute of limitations is the child’s sixth birthday.

(Certainly, the child’s parents or guardian would need to bring the suit while the child is a minor.)

While this extended timeframe for minors to file a claim is good for victims, it is less generous than in other states. In many other states, the statute of limitations for underage victims of medical malpractice can be tolled until the victim becomes an adult.⁵

2. Foreign bodies

California law also pauses the statute of limitations when a medical professional negligently leaves a foreign body inside you that has no diagnostic or therapeutic purpose or effect.⁶

Depending on the object left inside your body, it may not cause any problems for you until a significant amount of time passed. Once you discover the foreign body, you typically have one year to sue (though it could be longer in some circumstances).

In these cases, you can usually sue for negligence per se because of how clearly the doctors committed malpractice.

3. Healthcare provider misconduct

The statute of limitations is also paused if your healthcare provider either:

• committed fraud,
• intentionally concealed their wrongdoing, or
• colluded with your parents (when you were a minor) to prevent them from bringing a malpractice claim on your behalf.⁷

Once you discover the misconduct, you typically have one year to sue (though it could be longer in some circumstances).

Do I have to notify the healthcare provider of my intent to sue?

Yes. Under California Code of Civil Procedure section 364 CCP, you cannot file a medical malpractice action unless you give the healthcare provider at least 90 days prior notice.

This notice has to include:

• the legal basis for your claim,
• the type of loss sustained, and
• specifics about the nature of your injuries.⁸

The notice can be served within 90 days of the expiration of the statute of limitations. Doing so would extend the statute of limitations by 90 days from the service of the notice.⁹

What happens if I file a claim after the time period has expired?

If you file a medical malpractice lawsuit after the statute of limitations expires, your case will be dismissed.

Even if your medical malpractice case is strong, the court will refuse to hear the merits if your case is time-barred.

Therefore, you should contact a personal injury attorney as soon as possible so that you can file a lawsuit before the statute of limitations runs.

What is medical malpractice?

Medical malpractice occurs when a health care provider fails to deliver competent care than an equally trained provider in a similar circumstance would deliver, and it results in injuries to the patient. Patients can sue for such compensatory damages as:

• Medical bills
• Home health medical care,
• Physical and occupational therapy,
• Lost wages,
• Lost earning capacity, and
• Non-economic damages such as pain and suffering and loss of enjoyment of life.

When should I see a lawyer?

If you suspect that a doctor’s medical negligence has hurt you, you should see a lawyer well before California’s medical malpractice statute of limitations is approaching.

Putting together a strong case takes time. Seeing a medical malpractice lawyer for the first time when there are only days or weeks left to file the claim can drastically undermine the case.

Additional reading

For more in-depth information, refer to these scholarly articles:

• The Continuous Treatment Rule: Ameliorating the Harsh Result of the Statute of Limitations in Medical Malpractice Cases – South Carolina Law Review.
• The Statute of Limitations in Medical Malpractice Actions – New Mexico Law Review.
• The Statute of Limitations Governing Medical Malpractice Claims: Rules, Problems, and Solutions – Texas Law Review.
• The Statute of Limitations in California Medical Malpractice Cases – Insurance Counsel Journal.
• Torts – The Discovery Rule and the Statute of Limitations in Medical Malpractice Actions – Memphis State University Law Review.

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