Medical Malpractice

Medical Malpractice Lawsuit Requirements in California

By David Goguen, J.D., University of San Francisco School of Law
California requires a medical malpractice plaintiff to jump through a number of procedural hoops when bringing a case to court, including giving prior notice to any health care provider you're planning to sue.

In California, as in most states, a medical malpractice lawsuit is typically more complex than other injury-related claims (such as a claim arising from a car accident, for example). And it's not just because legal issues and medical evidence can get very complicated very quickly. It's also because the plaintiff in a medical malpractice lawsuit (the person filing the case, usually via his or her attorney) needs to comply with a number of procedural rules at the outset, and soon after.

A California medical malpractice attorney will be well-versed in these requirements, and will have the skills to navigate them, but it helps to have an understanding of what's in store. So let's look at the procedural hoops you'll likely need to jump through as a medical malpractice plaintiff in California.

90 Days' Prior Notice to Healthcare Defendants

California Code of Civil Procedure section 364 requires that you give any healthcare provider you plan to sue "at least 90 days' prior notice of the intention to commence the action." That means you need to give written notice informing the health care provider that you're going to file the medical malpractice lawsuit, and then you have to wait at least 90 days before you actually do file it.

Section 364 does not require that you use any particular form or format in notifying the defendant of your intent to sue. All that is required is that you "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." So you will need to provide some details about what happened, and how you were harmed.

No "Certificate of Merit" Requirement

Unlike many states, California does not require the filing of a “certificate of merit” or “affidavit of merit” from a qualified expert medical witness along with the initial complaint (the document that starts the lawsuit).

But that doesn't mean you don't need an expert medical witness in order to get a favorable outcome in your medical malpractice case -- you just don't need their sworn testimony at the outset. Speaking of expert witness testimony...

Expert Medical Witness Testimony

In almost all medical malpractice lawsuits, California courts have a long history of requiring the plaintiff to retain a qualified expert medical witness who will testify under oath as to exactly how the defendant health care provider's action (or inaction) fell short of appropriate standards, as part of proving that medical malpractice was committed.

The usual exception is where the jury can look at the facts and infer that the health care provider was negligent. For example, where it's undisputed that a surgical sponge was left inside a patient after a procedure, a jury can look at that fact and decide that someone (whether the surgeon or a health care professional who was assisting with the procedure) acted negligently in allowing that to happen.

Getting Your Medical Malpractice Lawsuit Filed On Time

Finally, alongside the question of what you need to do in order to get your medical malpractice lawsuit properly filed in California, there is the question of when you need to get it filed. California has passed a statute of limitations that applies specifically to medical malpractice cases, and this law sets a strict deadline for filing a lawsuit against a doctor or other healthcare provider. Get the details on the California statute of limitations for medical malpractice cases.

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