MICRA and Damage Caps in California Medical Malpractice Cases
California’s medical malpractice system has been dominated for nearly fifty years by the Medical Injury Compensation Reform Act (MICRA).
Enacted in 1975 during a perceived medical malpractice crisis, MICRA’s primary and most controversial feature was the imposition of a hard limit, or “cap,” on the amount of non-economic damages a patient could recover.
These damages, intended to compensate for subjective, non-monetary losses such as physical pain, mental suffering, disfigurement, and loss of enjoyment of life, were capped at a then-significant but now woefully outdated $250,000.
While non-economic damages were strictly limited, economic damages which cover quantifiable losses like medical bills, future medical care, and lost earnings remained uncapped.
The decades following MICRA’s passage saw an entrenched, fiercely debated legal battleground. Proponents, largely from the medical and insurance industries, argued that the cap stabilized medical malpractice premiums, ensured the availability of healthcare providers, and prevented frivolous lawsuits.
Critics, including patient advocates and trial attorneys, countered that the cap was grossly unfair, devaluing the lives and injuries of victims, particularly those with severe, life-altering injuries and low or no lost wages (such as children, retirees, and non-working spouses).
For nearly five decades, despite the eroding effect of inflation, the $250,000 cap remained rigid, a symbol of the law's legislative resilience.
The Modernization of MICRA: Assembly Bill 35 (AB 35)
In 2022, a historic compromise between the state's most prominent stakeholders, the California Medical Association and the Consumer Attorneys of California led to the passage and signing of Assembly Bill No. 35
This landmark legislation, which took effect on January 1, 2023, modernized MICRA for the first time since its inception.
The significance of the change was underscored by the Governor's office in an official statement confirming the signing of legislation to modernize California’s medical malpractice system, which introduced a structured, two-tiered system of caps with scheduled annual increases and a long-overdue provision for inflation adjustment.
The previous single $250,000 non-economic damages cap was replaced with a rising scale for two distinct case types:
- Non-Death Cases (Personal Injury): The cap immediately increased to $350,000 for claims resolved in 2023. This amount is scheduled to increase by $40,000 each year for the next ten years until it reaches **$750,000** in 2033.
- Wrongful Death Cases: The cap immediately increased to $500,000 for claims resolved in 2023. This amount is scheduled to increase by $50,000 each year for the next ten years until it reaches **$1,000,000** in 2033.
Crucially, starting in 2034, both caps will be subject to a 2% annual adjustment for inflation, preventing the same stagnation that plagued the original MICRA cap.
These damage limitations are codified in California Civil Code section 3333.2, which was substantially updated by AB 35.
The "Stacking" Provision and Multiple Defendants
Perhaps one of the most significant changes, which dramatically increases the potential non-economic recovery in complex cases, is the creation of three separate categories of defendants against which the non-economic cap can be "stacked."
This means a patient may recover up to the full applicable cap (e.g., $350,000 in 2023 for a non-death case) against up to three distinct entities:
- A Health Care Provider: (e.g., the primary physician)
- A Health Care Institution: (e.g., the hospital or clinic)
- An Unaffiliated Health Care Provider or Institution: (e.g., an anesthesiologist operating independently from the hospital)
In a single personal injury case in 2023, for example, this stacking provision allows the total non-economic damages to potentially reach up to **$1.05 million** ($350,000 x 3).
In a wrongful death case, the potential cap rises to **$1.5 million** ($500,000 x 3).
This change fundamentally re-shapes the litigation strategy in multi-defendant cases, giving victims a far greater chance at substantial non-economic compensation than the original MICRA ever allowed.
MICRA's Reach Across California Medical Malpractice Subsets
The laws governing professional negligence apply broadly to a variety of healthcare settings and practitioners.
In every area of practice, a plaintiff must establish that the healthcare provider's actions fell below the acceptable professional standard of care and that this failure directly caused the patient's harm.
While the liability standard remains consistent, the application of MICRA's damage caps is critical to the potential recovery in each of these specific contexts:
Medical Malpractice & Professional Negligence in California
At its core, a medical malpractice claim in California requires proving a direct link between a provider's substandard care and a patient's injury.
The law is less concerned with proving ill-intent and more focused on demonstrating that a reasonably skilled professional would have acted differently.
This is why expert testimony is vital in defining the standard of care for a particular specialty.
MICRA and its AB 35 amendments play their central role not in the initial determination of negligence, but in the final quantification of the patient’s subjective losses, imposing the updated caps (currently beginning at $350,000 for personal injury or $500,000 for wrongful death, and potentially tripled to $1.05 million or $1.5 million via stacking) on non-economic awards while leaving economic damages entirely unlimited.
Medical Malpractice in California: What Counts as Negligence
Negligence in a medical context involves a provider acting or failing to act in a way that a reasonably skilled professional in the same specialty would have.
Examples include misdiagnosing a serious illness, failing to order necessary tests, or making avoidable surgical errors.
MICRA does not limit a patient’s ability to prove negligence, but it does restrict the maximum compensation they can receive for the pain, trauma, and emotional distress caused by such mistakes.
Birth Injury Lawsuits in California
Birth injury claims, often involving catastrophic, lifelong conditions like cerebral palsy or Erb’s palsy caused by negligent delivery or prenatal care, are one of the areas where the distinction between economic and non-economic damages is most dramatic.
The economic damages, future medical care, specialized equipment, therapy, and lifetime in-home care—frequently escalate into multi-million dollar figures, often tens of millions.
Because these costs are uncapped by MICRA, they form the largest component of a verdict or settlement.
The new, higher non-economic caps under AB 35 still limit recovery for the parents' pain, trauma, and emotional distress, but the stacking provision offers greater potential relief, especially when multiple negligent parties (e.g., an attending physician, a nurse, and the hospital) are involved.
Surgical Errors: Patient Rights in California
When a patient undergoes surgery, the risks are high, and errors can be devastating. Surgical errors include operating on the wrong body part, leaving surgical tools inside the patient, or failing to monitor for complications.
The patient’s full economic damages for corrective surgery, additional medical bills, and lost time from work are fully recoverable.
However, the psychological trauma, physical disfigurement, and prolonged pain—the non-economic components—are constrained by the AB 35 caps.
This limitation is what critics of MICRA long argued failed to fully compensate a patient for the profound, non-financial consequences of a devastating surgical mistake.
Misdiagnosis and Delayed Diagnosis Claims in California
Cases involving misdiagnosis or delayed diagnosis often center on the provider's failure to recognize or promptly act on warning signs of serious conditions like cancer, heart disease, or stroke.
The delay in treatment can be terminal or lead to a significantly poorer prognosis, reduced life expectancy, and permanent disability.
While the economic damages in these claims (e.g., advanced-stage treatment costs) can be high, the non-economic loss—the fear, the loss of life-years, and the pain associated with a now-worse condition—is often the core of the patient’s suffering.
The modernizing influence of AB 35 is keenly felt here, where the increased caps, and the ability to potentially stack them across multiple negligent providers or institutions (e.g., a radiology group and the treating physician), offer a more realistic, albeit still limited, compensation for the intangible devastation caused by the error.
Medication and Pharmacy Error Lawsuits in California
Malpractice related to prescriptions includes errors in dosing, dispensing the wrong drug, or failing to check for dangerous drug interactions or patient allergies.
These errors can occur at the prescribing stage by a physician or during the dispensing stage by a pharmacist. Economic damages cover the cost of detox, emergency room visits, and any permanent organ damage resulting from the mistake.
Non-economic damages, such as the pain of a severe allergic reaction or the suffering from a life-threatening overdose, are subject to the AB 35 caps.
Nursing Home Abuse and Neglect in California
Claims against nursing homes frequently involve allegations of systemic negligence, such as neglect leading to severe bedsores (pressure ulcers), falls, malnutrition, or over-medication.
While these are often litigated under the Elder Abuse and Dependent Adult Civil Protection Act, any claim specifically targeting the professional medical care—a doctor’s order, a nurse’s administration of medicine, or wound care treatment—falls within the scope of MICRA.
Under MICRA, the non-economic emotional distress and suffering are capped. However, the plaintiff may also pursue uncapped economic damages for the cost of transferring the resident to a superior, safer facility, and the extra medical care required to treat the injuries sustained from the neglect.
Dental Malpractice Claims in California
Dental malpractice, which is a form of medical malpractice, most commonly involves claims of severe nerve damage from implant procedures or extractions, anesthesia complications, or failure to properly diagnose serious conditions like oral cancer.
The patient may recover uncapped economic damages for corrective surgeries and all related dental or medical expenses.
The non-economic caps under AB 35 apply directly to compensation for chronic pain, loss of taste, or permanent numbness caused by the negligent dental treatment.
Psychiatric Malpractice and Mental Health Provider Liability
Psychiatric malpractice is a unique area, often involving failure to prevent patient suicide, negligent administration of psychotropic medications, or boundary violations during therapy.
The injuries are often profoundly psychological, meaning a high percentage of the damages sought are non-economic (emotional distress, psychological suffering, anxiety, and depression).
Given the subjective nature of the injury, the MICRA caps significantly impact the potential recovery in these cases, though uncapped economic damages for hospitalization, new therapy, and lost ability to work remain available.
Telemedicine Malpractice: Emerging Issues in California
The rise of virtual healthcare has presented new challenges to the standard of care, which now must account for the limitations of a remote setting.
According to the Medical Board of California’s Telehealth guidance, providers are required to obtain informed consent before providing telemedicine services, and they remain bound to the same professional standards as in-person care.
Malpractice claims related to telemedicine could involve a misdiagnosis due to the inability to conduct a physical exam, a failure to follow up on tests, or prescription errors made during a video consultation.
Despite the modern context, these claims are still governed by the decades-old MICRA, meaning the same damage caps and the same uncapped economic recovery provisions apply.
The legal focus shifts to whether the provider met the appropriate standard of care given the constraints of the technology.
MICRA’s Evolving Role and Future Outlook
The Medical Injury Compensation Reform Act, even with the significant amendments introduced by AB 35, remains a pillar of California’s medical malpractice system.
Its original goal—to contain the cost of medical liability insurance and ensure access to healthcare continues to be its purported justification.
The 2022 reforms, however, represent a major shift, acknowledging that the original $250,000 cap had become an untenable injustice due to inflation.
While the new, higher caps, and especially the stacking provision, offer a substantially better chance at fair compensation for injured patients, non-economic damages remain restricted in a way that economic damages are not.
For a victim with a catastrophic injury and low lost wages, the non-economic cap still places a firm limit on justice.
For all patients and families navigating the aftermath of medical negligence in California, the critical distinction between unlimited economic recovery and capped non-economic recovery is paramount.
The ultimate challenge in any California medical malpractice lawsuit is to secure the maximum possible recovery for both categories, fully utilizing the uncapped economic relief while strategically applying the stacking provision of the reformed MICRA to secure the greatest possible non-economic award.
The 2022 compromise has not ended the debate over damage caps, but it has certainly ushered in a new, slightly fairer chapter for medical malpractice victims in the state.
People Also Ask (PAA)
What is MICRA in California medical malpractice?
MICRA, the Medical Injury Compensation Reform Act, is a California law that caps non-economic damages in medical malpractice lawsuits. It was enacted in 1975 and modernized by AB 35 in 2022.
How much is the malpractice cap in California?
As of 2023, non-economic damages are capped at $350,000 in personal injury cases and $500,000 in wrongful death cases. These caps will gradually increase each year until they reach $750,000 and $1,000,000 in 2033.
Does MICRA apply to wrongful death cases in California?
Yes. MICRA applies to wrongful death cases, with a higher cap of $500,000 in 2023 that increases annually to $1 million by 2033, plus inflation adjustments starting in 2034.
What damages are not capped by MICRA in California?
Economic damages—such as medical bills, future care costs, lost income, and rehabilitation expenses—are not capped under MICRA. Only non-economic damages like pain and suffering are limited.
What is the stacking rule under California’s new malpractice law?
Under AB 35, plaintiffs can “stack” non-economic damage caps against up to three categories of defendants: an individual healthcare provider, a healthcare institution, and an unaffiliated provider or institution. This can raise potential non-economic recovery to $1.05 million for personal injury cases and $1.5 million for wrongful death cases in 2023.
Does MICRA affect birth injury lawsuits in California?
Yes. While non-economic damages are capped, economic damages for lifelong medical care, therapy, and specialized equipment remain unlimited, making them the largest part of most birth injury settlements or verdicts.
Is MICRA still in effect in California?
Yes. MICRA is still law, but it was modernized in 2022 by AB 35, which raised the outdated $250,000 cap and introduced annual increases and inflation adjustments.
