A wrongful death claim arising from medical care is the most procedurally specialised category in California wrongful death practice. Four things change compared with an ordinary wrongful death claim: a different and shorter limitations rule applies, a written notice must be served on the provider at least 90 days before suit, non-economic damages are capped by statute, and the attorney’s fee is limited by statute rather than set by agreement. Many provider contracts also require binding arbitration, which removes the case from the civil courts entirely.
Economic losses are not capped. That is why these cases turn heavily on documented financial loss, and why the procedural rules below matter more than in almost any other kind of claim.
Key Points
- The deadline is three years from the injury or one year from discovery, whichever comes first — not the two years that applies to ordinary wrongful death.
- A 90-day notice of intent must be served before filing. Getting the timing of that notice wrong can cost the claim.
- Non-economic damages are capped under MICRA, on a schedule that rises each January 1. The wrongful death cap is higher than the cap in a non-death case.
- Economic damages — lost support, pre-death medical expenses, lost earnings — are not capped.
- Attorney’s fees in these cases are limited by statute, so the fee is not a matter of agreement in the usual way.
- Writing to the hospital yourself before getting advice can have unintended legal consequences.
How This Track Differs
| Ordinary wrongful death | Medical malpractice wrongful death | |
| Deadline | Two years from the death | Three years from the injury or one year from discovery, whichever is first |
| Pre-suit steps | None required | 90 days’ notice of intent to the provider |
| Non-economic damages | Not capped | Capped by statute, on a rising schedule |
| Attorney’s fee | Set by the fee agreement | Limited by statute |
| Forum | Superior court | Often binding arbitration under a provider agreement |
The Deadline
Under Code of Civil Procedure section 340.5, an action for injury or death against a health care provider based on professional negligence must be commenced within 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. Narrow tolling exists for fraud, intentional concealment, and a foreign body left in the patient, and different rules apply where the patient was a minor.
“Whichever occurs first” is the trap. A family that learns in year two that a death was caused by a medical error has one year from that point — not the balance of a longer period. And because the clock can turn on when someone “should have discovered” the negligence, families who suspect something went wrong and wait to be told are at particular risk.
The 90-Day Notice, and a Warning About Writing to the Hospital Yourself
Under Code of Civil Procedure section 364, no action based on a health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action. No particular form is required, but it must state the legal basis of the claim and the type of loss, including the nature of the injuries with specificity.
Subdivision (d) contains the provision that matters most: if the notice is served within 90 days of the expiration of the limitations period, the time for commencing the action is extended 90 days from service of the notice. That extension is a genuine safety valve when a deadline is close.
Which leads to a warning we have not seen on another page addressing this topic. A letter you write to the hospital yourself can count as the section 364 notice. Where a family member sends a complaint letter setting out the claim and the losses, and a lawyer later sends a formal notice relying on the 90-day extension, the earlier letter can be treated as the operative notice — defeating the extension the lawyer was counting on. Courts have granted summary judgment on that basis.
If you are considering writing to a hospital, a risk management department, or a provider about a death you believe was caused by their care, it is worth getting advice on the timing first. The instinct to put it in writing is entirely reasonable and can be costly.
The MICRA Cap on Non-Economic Damages
Civil Code section 3333.2 caps non-economic damages — pain, suffering, loss of companionship and the like — in professional negligence actions against health care providers and institutions. It does not cap economic damages.
The cap was restructured by Assembly Bill 35 in 2022, replacing a single figure that had stood since the 1970s. Two separate escalating caps now apply:
- Wrongful death actions: the cap began at $500,000 on January 1, 2023 and increases by $50,000 each January 1 for ten years, reaching $1,000,000, after which it is adjusted for inflation by 2 percent each January 1 beginning in 2034.
- Non-death actions: the cap began at $350,000 on January 1, 2023 and increases by $40,000 each January 1 for ten years, reaching $750,000, then adjusted the same way.
Applying that schedule, a wrongful death claim resolved in 2026 falls under a cap three increments above the starting figure — $650,000. Because the applicable figure is tied to the year in which the claim is resolved rather than when it was reported or filed, the number that governs a case is not fixed at the outset, and the current year’s figure is worth confirming rather than assuming.
The statute also contemplates the cap applying more than once in some circumstances — separately as against health care providers, health care institutions, and certain unaffiliated providers and institutions — which is a technical area and one reason these claims are evaluated differently from ordinary wrongful death claims.
Attorney’s Fees Are Limited by Statute
This is unusual and worth understanding before you speak to any firm.
In California medical negligence cases, the attorney’s contingency fee is limited by statute rather than left to the fee agreement. Assembly Bill 35 restructured those limits: broadly, a lower percentage applies where a matter resolves before a civil complaint or a demand for arbitration is filed, and a higher percentage applies to a recovery after that point.
Two practical consequences. A firm cannot charge its ordinary contingency rate in one of these cases. And because the permitted fee is lower before filing, the fee structure and the client’s interest in early resolution are not automatically aligned — a question worth asking directly.
Arbitration Clauses
Many provider and health plan agreements contain binding arbitration clauses. Where one applies and is enforceable, the claim is decided by an arbitrator rather than a jury, with limited review.
Whether such a clause binds a wrongful death claimant who never signed it is a genuine question rather than a settled one, and it turns on the specific agreement and the claimant’s relationship to the decedent. It is one of the first things worth examining in these cases, because it determines the forum before anything else is decided.
What Has to Be Proven
The four negligence elements apply — duty, breach, causation, damages — but two of them work differently here.
Breach means departure from the applicable professional standard of care, which is established by expert testimony from a qualified practitioner rather than by lay judgement about what seems reasonable. A bad outcome is not itself a breach; medicine involves risk that competent care does not eliminate.
Causation is where these cases are usually contested. The defence position is typically that the death resulted from the underlying illness or injury rather than from anything the provider did or failed to do. Separating the two requires expert evidence on both sides and is the single largest driver of cost in these claims.
Still Two Claims
As in any California wrongful death matter, two claims usually exist: the survivors’ wrongful death claim, and a survival action belonging to the estate for losses the decedent sustained before death. They cover different things and are governed by different rules.
One recent change matters here. A temporary rule allowing an estate to recover a decedent’s pre-death pain and suffering expired at the end of 2025, and for actions filed on or after January 1, 2026, California has returned to its earlier position. Much of the material published on this predates the change. Our wrongful death page covers the two-claim structure, and who can file a wrongful death lawsuit covers standing and the one-action rule, both of which apply here unchanged.
What Is Not Capped
Worth stating plainly, because the cap gets more attention than the rest of the claim. Economic damages are not limited by MICRA: the financial support the decedent would have provided, the value of household services, pre-death medical expenses, funeral and burial costs, and lost future earnings. Our economic damages page covers how each is established, and pain and suffering covers the non-economic category the cap applies to.
No page can tell you what a claim is worth. What it depends on is the documented loss, whether the standard of care can be established, whether causation survives the defence experts, and the applicable cap in the year of resolution.
How Vaksman Khalfin Can Help
The first questions in one of these matters are which limitations rule is running, whether an arbitration clause applies, and whether the standard of care can be established by a qualified expert — and those need answering early, because the one-year discovery period can expire while a family is still trying to understand what happened.
Our California personal injury practice is led by Alan D. Khalfin, admitted in California. We also handle dental malpractice claims. Where a matter falls outside what we handle, we will tell you rather than take it.
Fees in medical negligence matters are limited by statute, and we go through the applicable fee structure and how case costs are handled with you in writing before anything is signed. Initial consultations are free.
To speak with a California attorney, call (877) 780-4727 or schedule a free consultation. Related reading: our California personal injury guides.
Reviewed by Alan D. Khalfin, Partner and Managing Attorney, Vaksman Khalfin, PC (admitted in California). Last reviewed: 09/15/2026
Frequently Asked Questions
No. Medical malpractice is the underlying wrong — a health care provider's departure from the professional standard of care. Wrongful death is the type of claim brought when that wrong results in a patient's death, and it belongs to the surviving family and the estate rather than to the patient. A malpractice claim that does not involve a death follows different rules, including a lower damages cap.
Under Code of Civil Procedure section 340.5, three years from the date of injury or one year from when the claim was discovered or reasonably should have been discovered, whichever comes first. This replaces the two-year rule that applies to ordinary wrongful death claims. A 90-day notice of intent must also be served on the provider before the action is commenced.
On non-economic damages, yes. Civil Code section 3333.2 caps them, and Assembly Bill 35 replaced the old fixed figure with a rising schedule: for wrongful death actions the cap began at $500,000 on January 1, 2023 and increases $50,000 each January 1 for ten years to $1,000,000, then adjusts for inflation. The applicable figure depends on the year the claim is resolved. Economic damages — lost support, pre-death medical costs, lost earnings — are not capped.
Because Assembly Bill 35 created two separate schedules. Non-death professional negligence actions began at $350,000 with $40,000 annual increases to $750,000; wrongful death actions began at $500,000 with $50,000 annual increases to $1,000,000. Before 2023 a single figure applied to both.
Get advice on the timing first. A letter setting out the claim and the losses can be treated as the statutory notice of intent, which can defeat a 90-day extension a lawyer might otherwise rely on when a deadline is close. The instinct to put it in writing is understandable and can have consequences nobody warns you about.
Harder than an ordinary wrongful death claim, and there is no general answer. The standard of care has to be established by qualified expert testimony, causation is contested by the defence as a matter of course, an arbitration clause may control the forum, and the procedural requirements are unforgiving. Cases with clear departures from accepted practice and well-documented losses sit very differently from cases where the underlying illness offers the defence an alternative explanation.
Many provider and health plan agreements contain binding arbitration clauses, and where one applies the claim is decided by an arbitrator rather than a jury. Whether such a clause binds a wrongful death claimant who never signed it depends on the agreement and the claimant's relationship to the decedent. It is worth examining early, because it determines the forum before anything else.
There is no reliable average and published figures pool cases with nothing in common. What determines it is the documented economic loss, which is not capped; the applicable non-economic cap in the year of resolution; whether the standard of care and causation can be established; and the coverage available.
