Surgical Errors in California
Average Settlement: $500,000 - $1,500,000 | Statute: 1 year from discovery of the injury or 3 years from the date of injury, whichever comes first
About Surgical Errors
Surgical errors occur when a surgeon or surgical team makes a preventable mistake during an operation, resulting in harm to the patient. These errors range from wrong-site surgery to leaving instruments inside the body, and they can lead to permanent disability, additional surgeries, or death. Surgical malpractice cases often involve clear deviations from accepted medical standards that can be demonstrated through operative reports and expert testimony.
California Medical Malpractice Laws
Statute of Limitations
1 year from discovery of the injury or 3 years from the date of injury, whichever comes first
Damage Cap
$350,000 non-economic damages (MICRA — increasing annually under AB 35 starting 2023; rises to $750,000 for non-death cases and $1,000,000 for death cases by 2033)
Discovery Rule
California applies a robust discovery rule — the 1-year period begins when the patient discovers, or through reasonable diligence should have discovered, the injury.
Pre-Filing Requirements
Plaintiffs must provide 90 days' notice of intent to sue before filing a medical malpractice lawsuit.
Common Examples of Surgical Errors
- •Wrong-site or wrong-patient surgery
- •Surgical instruments or sponges left inside the patient
- •Damage to surrounding organs, nerves, or blood vessels during surgery
- •Performing an unnecessary surgical procedure
- •Inadequate post-operative monitoring leading to complications
- •Failure to obtain proper informed consent before surgery
- •Errors during minimally invasive or robotic surgery due to insufficient training
Key Facts
- ✓Operating room records, including time-stamped logs and surgical checklists, are critical evidence in proving surgical error claims
- ✓Wrong-site surgeries are considered 'never events' — incidents so clearly preventable they should never occur — which strengthens the plaintiff's case considerably
- ✓Expert surgical testimony is almost always required to establish what the accepted standard of care was and how it was breached
- ✓Many surgical error cases involve multiple defendants, including the surgeon, anesthesiologist, surgical nurses, and the hospital itself
- ✓The discovery of retained surgical instruments may not occur until weeks or months after the procedure, but statutes of limitations typically begin at the time of discovery
- ✓MICRA (Medical Injury Compensation Reform Act of 1975) was significantly amended by AB 35 in 2022, raising the non-economic damage cap for the first time in nearly 50 years.
- ✓California uses a pure comparative negligence system, allowing plaintiffs to recover damages even if they are primarily at fault.
- ✓Attorney fees in medical malpractice cases are limited by a sliding scale under MICRA.
- ✓Punitive damages are not subject to MICRA's cap and may be awarded upon proof of malice, oppression, or fraud.
- ✓Periodic payment of future damages can be ordered for judgments exceeding $50,000.
Victim of Surgical Error in California?
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Other Malpractice Types in California
This information is for educational purposes only and is not legal advice. Consult a licensed medical malpractice attorney in California.