Topic:
LITIGATION; MEDICAL MALPRACTICE INSURANCE; MALPRACTICE; MEDICAL MALPRACTICE;
Location:
MALPRACTICE;
Scope:
Court Cases; Other States laws/regulations;

OLR Research Report


March 8, 2002

 

2002-R-0325

CALIFORNIA MEDICAL MALPRACTICE LAW

 

By: Jerome Harleston, Senior Attorney

You want a summary of the California law that limits damages in medical malpractice cases.

California places a $250,000 “cap” on non-economic damages in medical malpractice cases (Cal. Civil Code 3333.2). Non-economic damages is defined as compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary injury.

The cap on non-economic damages was held to be constitutional in Fein vs. Permanente Medical Group, 38 Cal. 3d 137, 695 P.2d 665, 211 Cal Rptr. 368). It applies whether the case is for injury or death, and allows only one $250,000 recovery in a wrongful death case. There is case law authority for allowing separate caps for the patient and a spouse claiming loss of consortium (See, Atkins vs. Strayhorn, 223 Cal. App. 3d 1380, 273 Cal. Rptr. 231)

California also limits the amount attorneys in medical malpractice cases can collect under a contingency fee arrangement to 40 % of the first $50,000, 33 1/3 % of the next $50,000, 25 % of the next $500,000, and 15 % of any amount that exceeds $600,000 (Cal. Bus. and Prof. Code 6146). These limits apply regardless of whether the recovery is by settlement, arbitration, or judgment. If the contingency fee arrangement is based on an award of periodic payments, the court must place a total value on the payments based on the projected life expectancy of the claimant, and then calculate the contingency fee percentage.

JH:ro