Wrongful Death from Medical Malpractice in California: Who Can Sue and How Long You Have

Who can sue for a death caused by medical malpractice?

California law sets out who can bring a wrongful death case. The deceased person’s surviving spouse or registered domestic partner can sue, and so can the children and the children of any child who has already died (Code of Civil Procedure 377.60). If your mother died after a medical mistake, you and your brothers and sisters are her children, so each of you is on that list, whether or not she was still married.

If the person who died left no children or other descendants, the claim belongs to the people who would inherit from them under California’s intestate succession rules. Who that is depends on the family. It helps to sketch out the family tree with your lawyer early, so everyone who has a right to be part of the case is identified before anything is filed.

Some people who depended on the deceased can also sue. The statute names a putative spouse, the putative spouse’s children, stepchildren and parents. It also covers a minor who lived in the household for the 180 days before the death and received at least half of their support from the person who died. If you were living with and supported by your family member, mention it in your first call.

How long do you have to file after a death?

A wrongful death claim based on medical negligence follows the malpractice deadline in Code of Civil Procedure 340.5. In a death case, the three-year period runs from the date of death, and the one-year period runs from when the family discovered, or should have discovered, the negligent cause of the death (Larcher v. Wanless (1976) 18 Cal.3d 646). Whichever date comes first is the deadline.

The one-year clock does not wait for proof. It can start once someone has information that would make a reasonable person suspect wrongdoing and look into it, even without knowing every fact (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93). An unexpected autopsy finding or a comment from a nurse can be enough. If your family already has doubts about the care, treat the one-year deadline as running.

Before filing, the family must give the doctor or hospital at least 90 days’ written notice of the intent to sue (Code of Civil Procedure 364). If that notice is served in the last 90 days before the deadline, the one-year period is extended by 90 days (Woods v. Young (1991) 53 Cal.3d 315). County hospitals have a much shorter first step, explained below, and our page on California malpractice deadlines walks through the rest.

The MICRA wrongful death cap in 2026

California’s MICRA law limits non-economic damages in malpractice cases. In a wrongful death case, the cap is $650,000 per category for a judgment, arbitration award or settlement reached in 2026 (Civil Code 3333.2). The cap in effect when the case resolves is the one that applies, and it goes up by $50,000 every January 1 until it reaches $1,000,000. This schedule applies to cases filed, or arbitrations demanded, on or after January 1, 2023.

One case can have up to three separate caps. One covers health care providers, such as doctors, as a group. Another covers health care institutions, such as hospitals, as a group. The third covers an unaffiliated provider or institution whose separate negligence happened at an unaffiliated facility or during medical transport to one. Each defendant counts in only one category, and the caps apply no matter how many defendants or claims are involved.

Lawyer fees are limited by law too. In a malpractice case the contingency fee is capped at 25 percent if the case settles before a lawsuit or arbitration demand is filed, and 33 percent after filing (Business and Professions Code 6146). If the case goes to trial or arbitration, the lawyer may ask the court or arbitrator to approve a higher fee for good cause. At Beverly Law the consultation is free, and you owe no fees or costs unless we win.

Can you sue the hospital, the doctor or both?

Often both. Some doctors who work inside a hospital are independent contractors. A California court held that a hospital can still be responsible for an independent contractor’s negligence when the patient looked to the hospital for care and was not told the doctor was not a hospital employee (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448). In Mejia, the doctor was a radiologist who read the patient’s X-ray.

A hospital also owes its own duty to patients. It must use reasonable care in selecting the doctors it allows to practice there and in periodically reviewing their competence (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332). So a case can look at the decisions the doctors made and at how the hospital chose and reviewed those doctors. Because doctors and hospitals fall in separate MICRA categories, naming the right defendants also affects the caps.

If your family member was elderly, an elder abuse claim against a health care provider that is based on professional negligence is governed by the malpractice laws, including MICRA (Welfare and Institutions Code 15657.2). Pressure injuries that develop during a hospital stay are one example families ask about; see our page on bed sores in the hospital. Our Los Angeles County hospital records hub collects public records on local hospitals.

County hospitals, UCLA hospitals and Kaiser

If a county ran the hospital, such as LAC+USC Medical Center, Harbor-UCLA Medical Center, Olive View-UCLA Medical Center or Rancho Los Amigos, a written government claim generally must be presented within six months after the claim accrues, before any lawsuit (Government Code 911.2). The claim accrues on the same date the malpractice claim would under the regular deadline (Government Code 901). A late-claim application must be made within a reasonable time and no later than one year after accrual (Government Code 911.4).

After the county rejects the claim in writing, the lawsuit generally must be filed within six months of that notice (Government Code 945.6). A Court of Appeal has held that patients must meet both the government claim deadlines and the regular malpractice deadlines, including the one-year discovery rule (Carrillo v. County of Santa Clara (2023)). Our page on suing a county hospital explains each step.

UCLA’s own hospitals follow different rules. Ronald Reagan UCLA Medical Center, UCLA Santa Monica Medical Center and UCLA West Valley Medical Center are run by the Regents of the University of California, and the Government Claims Act’s claim rules, including the six-month claim, do not apply to claims against the Regents (Government Code 905.6). The regular Code of Civil Procedure 340.5 deadlines apply instead. Harbor-UCLA and Olive View-UCLA are county hospitals, so the six-month claim does apply to them.

If your family member was a Kaiser member, the claim generally goes to binding arbitration instead of court, because members agree to arbitration when they enroll (Kaiser enrollment form). A neutral Office of the Independent Administrator runs the system (OIA), and the Demand for Arbitration must be served within the Code of Civil Procedure 340.5 deadline (OIA Rules). Our page on wrongful death claims against Kaiser covers the details.

How a wrongful death malpractice case is proved

The family has to show that the care fell below the standard of care and that this caused the death. Under California’s jury instructions, a health care professional is negligent if they fail to use the skill, knowledge and care in diagnosis and treatment that other reasonably careful practitioners would use in the same or similar circumstances (CACI No. 501). The same standard applies to each doctor and nurse whose decisions are part of the case.

Expert testimony is generally required to prove the standard of care, the breach and causation. There is a narrow exception for matters within common knowledge, such as a sponge left inside a patient after surgery (CACI No. 501, Directions for Use). In a death case, causation is often the hardest part, because the defense may argue the illness would have been fatal anyway. Doctors who review the chart, and the autopsy if one was done, address that question.

A death in the hospital does not by itself prove malpractice. Many seriously ill patients die despite careful treatment. What a lawyer looks for is a decision point where a reasonably careful doctor or nurse would have acted differently, and medical evidence linking that choice to the death. If the chart shows a missed warning sign or a delay in treatment, that is where the review focuses. That review starts with the complete records.

What to do now

Ask for the records in writing. California patients and their representatives can inspect medical records within 5 working days of a written request and receive copies within 15 days of the request (Health and Safety Code 123110). After a death, the records office will usually ask for proof that you can act for your family member, so ask what it needs and keep a copy of every request you send.

Write down what you remember while it is fresh: dates, the names of doctors and nurses, and what the family was told and when. Keep the death certificate, discharge papers, bills and any letters from the hospital. If the hospital, a doctor’s insurer or a risk manager contacts the family, do not sign anything before you talk to a lawyer. Then call us; Beverly Law is in Los Angeles and reviews these cases with families across California.

• Request the full chart in writing from each hospital and doctor involved.
• Write down dates, names and what you were told.
• Do not sign anything from the provider’s insurer.
• Talk to a lawyer early, since the one-year, 90-day and six-month rules can overlap.
• Call Beverly Law at (310) 552-6959. The consultation is free, in English or Spanish.

Michael Shemtoub founded Beverly Law in 2008 and has been licensed to practice law in California since 2007. He earned his law degree at UC Hastings, is admitted to practice in the U.S. District Courts for the Central and Northern Districts of California, and has tried cases to verdict. As the firm’s managing attorney, he oversees its cases.

Common questions

Related pages

California Medical Malpractice Statute of Limitations · Wrongful Death Claims Against Kaiser in California · Los Angeles County hospital records

Important: This page is general information about California law, not legal advice, and reading it does not create an attorney-client relationship. Deadlines and damage limits depend on the facts of each case; talk to a lawyer about yours. MICRA amounts are for judgments, awards and settlements in 2026. Last reviewed: November 5, 2026.