MICRA: fifty years of capped damages, and the 2022 deal that changed it
No state’s malpractice law is more famous than California’s. The Medical Injury Compensation Reform Act of 1975, known as MICRA, capped non-economic damages at $250,000, and held that number frozen, without inflation adjustment, for 47 years. A cap worth roughly $1.4 million in 1975 purchasing power was still $250,000 in 2022, and generations of catastrophically injured California children felt the difference. That era ended with AB 35, the legislative compromise that headed off a 2022 ballot fight: beginning January 1, 2023, the caps escalate every year, and MICRA’s other machinery (periodic payment of future damages, sliding-scale attorney fee limits under Bus. & Prof. Code § 6146) was updated alongside it.
Where California’s caps stand now
Under AB 35 (Civ. Code §§ 3333.2), the non-economic cap depends on the year the case resolves and whether the patient died:
| Case type | 2023 start | Annual step | Ceiling | 2026 figure |
|---|---|---|---|---|
| Injury (child survives) | $350,000 | +$40,000/year | $750,000 by 2033, then +2%/year | $470,000 |
| Wrongful death | $500,000 | +$50,000/year | $1,000,000 by 2033, then +2%/year | $650,000 |
Two further points matter for birth injury families. First, the caps can now apply separately against up to three categories of defendants (providers, healthcare institutions, and unaffiliated third parties), so the practical ceiling in a multi-defendant case can be higher than a single cap. Second, and most important: economic damages have never been capped in California. The lifetime cost of care for a child with severe cerebral palsy or hypoxic-ischemic encephalopathy (HIE) (attendant care, therapy, equipment, home modification, lost earning capacity) is compensable in full, proven through an expert life-care plan, and it is almost always the largest number in the case.
California’s deadlines: the eighth-birthday rule
California’s malpractice limitations statute (Code Civ. Proc. § 340.5) gives adults three years from injury or one year from discovery, whichever comes first. For children the rule is different, and for birth injuries it is specific: a minor’s claim must be brought within three years of the wrongful act, but a child injured before age six may file within three years or before the eighth birthday, whichever is longer. For a baby injured at delivery, the eighth birthday is the operative deadline for the child’s own claim, extendable only in narrow circumstances such as fraud, intentional concealment, or a foreign object. The parents’ own derivative claims run on the short adult clocks, where one year from discovery is easy to miss, and any claim against a public hospital (county facilities, UC medical centers) triggers the Government Claims Act’s six-month claim presentation deadline, the trap that catches more California families than any other.
Notice of intent, and what California doesn’t require
California’s pre-suit procedure is lighter than most states’: a plaintiff must serve each provider a 90-day notice of intent to sue before filing (Code Civ. Proc. § 364), but California requires no certificate of merit and no review panel for malpractice claims. The screening is practical rather than procedural: the standard of care and causation must still be proven through qualified medical experts, so no serious case is filed without a physician’s records review behind it. Our birth injury lawsuit guide explains how that review becomes a case, stage by stage.
Between the eighth-birthday rule, the one-year discovery clock, and the six-month government claim deadline, California families rarely know which date actually governs. The answer is in the records and the facts. The review is free, and we will connect you with a vetted California birth injury attorney if the records support a claim.
How birth injury claims work in California
A California birth injury claim must prove that care during pregnancy, labor, or delivery fell below the standard of care, and that the failure caused the child’s injury. Some birth injuries occur despite careful, appropriate care, and a candid records review sometimes ends with that answer. The failures that do become claims follow familiar patterns: fetal heart-rate tracings showing distress that no one acted on, a delayed emergency cesarean, mismanaged shoulder dystocia, untreated newborn jaundice leading to kernicterus, or excessive force with a vacuum or forceps. With more births than any other state, spread across academic centers, Kaiser hospitals, county facilities, and military installations from San Diego to the Central Valley, California cases turn early on where the delivery happened, because that determines the defendant, the claim procedure, and sometimes the deadline itself. Deliveries at military hospitals proceed under federal law, not MICRA.
Who handles California birth injury cases
Birth Injury Advocate is an alliance between two named law firms: Banville Law (New York and Washington, D.C.) and The Weitz Firm, LLC (Pennsylvania and New Jersey). Neither firm’s attorneys are licensed in California, and we say so plainly. When you contact us about a California delivery, we connect your family with the alliance’s vetted network of local birth injury attorneys: California-licensed lawyers who value cases under the post-AB 35 cap schedule, handle Government Claims Act deadlines, and try malpractice cases in California courts. The referral costs nothing, the consultation is free, and any fee comes only from a recovery under MICRA’s fee limits.
Frequently asked questions
How long do I have to file a birth injury lawsuit in California?
A child injured before age six may file within three years of the malpractice or before the eighth birthday, whichever is longer (Code Civ. Proc. § 340.5) — so the eighth birthday governs most birth injury claims. Parents’ own claims run on the adult clocks (three years, or one year from discovery), and claims against public hospitals require a government claim within six months.
Does California cap damages in birth injury cases?
Only non-economic damages. Under MICRA as amended by AB 35, the injury cap started at $350,000 in 2023 and rises $40,000 per year ($470,000 in 2026), reaching $750,000 by 2033; wrongful-death caps run higher. Caps can apply separately against up to three categories of defendants. Economic damages such as lifetime care, therapy, and lost earnings have never been capped.
Does California require a certificate of merit?
No. California requires a 90-day notice of intent to sue (Code Civ. Proc. § 364) but no certificate of merit and no review panel. Expert physician testimony is still required to prove the standard of care and causation, so every serious case is built on a records review before filing.
Is every birth injury in California grounds for a lawsuit?
No. Some birth injuries occur despite careful, appropriate care. A claim exists only when care fell below the accepted standard and that failure caused the injury, and a records review is how a family finds out which situation theirs is.
Sources
- Cal. Civ. Code § 3333.2 (as amended by AB 35, Stats. 2022, ch. 17): MICRA noneconomic damages caps; annual escalation; separate caps by defendant category.
- Cal. Code Civ. Proc. § 340.5: Malpractice limitations; minors; children injured before age six.
- Cal. Code Civ. Proc. § 364: 90-day notice of intent to commence action.
- Cal. Bus. & Prof. Code § 6146: Contingency fee limits in malpractice actions (as amended by AB 35).
- Cal. Gov. Code § 911.2: Claims against public entities; six-month presentation deadline.
This page is for general education and is not legal advice; statutes and cases summarized above are cited by name and number so you can verify them, and deadlines depend on facts specific to your case. Legal statements reflect the reviewing attorneys’ professional experience. Attorney advertising. Prior results do not guarantee a similar outcome.