The medical malpractice statute of limitations in California is very confusing. A medical claim generally begins to run within one year of the date of the discovery of the injury and its negligent cause. However no claim may be brought after three years of the date of the injury (with the exception of claims that involve children under the age of eight).
If you believe you have a claim and have a question as to the applicable statute of limitations, please contact Michael Dorshkind immediately.
Claims brought against “Kaiser” generally include claims against the Kaiser Foundation Hospitals, the Kaiser Foundation Health Plan and the Permanente Medical Group. All considerations and concerns that attend medical malpractice claims in general also apply to claims against Kaiser and its subdivisions.
The single factor that generally distinguishes a claim against Kaiser from one against other health care providers is that all claims against Kaiser are arbitrated. Trial by judge or jury is precluded by the membership agreement.
An elaborate set of procedures is in place that controls the administration of a Kaiser claim including the selection of an arbitrator or arbitrators, the timing “milestones” that affect the claim and the conduct of the arbitration hearing.
California Code of Civil Procedure Section 340.5, which sets forth the limitations periods for bringing negligence claims against healthcare providers, also applies to claims against Kaiser.
A medical malpractice claim against Kaiser is generally commenced by written notice to the Medical-Legal Department and the payment of $150.00 to the Kaiser Arbitration Account.
In California, medical negligence claims are regulated by law. Non-economic damages (money awarded for pain and suffering) are “capped” at $250,000.00 regardless of the nature or type of injury a medical malpractice victim may have suffered. Attorney’s fees are also regulated. These regulations were enacted by the legislature in 1975 and remain in effect. No “cost of living” provision was included in the statutes to adjust the damages “cap” for inflation. There is no cap on economic damages to the extent they are proved.
Medical negligence claims are extremely complex cases and differ from non-medical claims in other fundamental ways as well.
The Statute of Limitations applicable to a medical negligence claim is found in California Code of Civil Procedure Section 340.5. That section states that the time for the commencement of an action shall be three years after the date of the injury or one year after the plaintiff discovers, or through the use of reasonable diligence, should have discovered the injury, whichever first occurs.
The statute provides a different limitations period for minors. Actions by a minor 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.
If the allegedly negligent health care provider is a public entity or public employee then all provisions of the California Government Code dealing with the presentation of claims must be adhered to and coordinated with the limitations periods otherwise applicable.
Medical claims are extremely expensive to investigate and prosecute. A medical negligence claim generally requires a medical expert witness who will review all facets of the claim and testify that the medical standard of care was breached. There must be a relationship between that breach (the negligent conduct) and the injury and damages claimed.
The consent of the insured physician or health care practitioner must be obtained before a medical liability insurance company can settle a claim.
Please contact me if you would like to discuss your potential medical malpractice claim.