Breaking Down California’s New Medical Malpractice Law!

After seemingly endless negotiations among lawyers, doctors, consumer groups, and malpractice victims, Governor Gavin Newsom signed AB 35 into law in May 2025.

“I’m proud to have worked together with all stakeholders to get this done. AB 35 provides a better system for both providers and patients, creating a fair process that will have a real impact on Californians for decades to come,” said Assembly Majority Leader Eloise Gómez Reyes.

“Injured patients deserve to be fairly compensated when their rights have been violated, and we commend the leadership of Governor Newsom to help get this done. Injured patients and their families are better off under the modified MICRA [Medical Injury Compensation Reform Act], and we look forward to continuing to serve in the best interest of our clients,” said Consumer Attorneys of California President Craig M. Peters.

Contingent Fee Arrangements

A no-money-upfront fee arrangement opens the courthouse door for victims who can’t afford to hire lawyers. As part of this agreement, the lawyer normally fronts most or all litigation costs as well. These costs are often staggering in a medical malpractice case, mostly because of the expert witness requirement. More on that below.

The old MICRA capped contingency fees based on the amount recovered. An attorney can collect 40 percent of the first $50,000 recovered but only 15 percent of any recovery above $600,000.

This structure prevented Medical Malpractice Attorneys from reaping a windfall at the expense of medical malpractice victims. That’s a laudable goal. But this structure also punished Medical Malpractice Attorneys in Los Angeles who did lots of work and obtained large settlements. It was like attending a school that never gave As or working at a hospital that never paid overtime.

AB 35 ties tiered fee limits to the stage of the representation at which the amount is recovered (25 percent if resolved before filing and 33 percent if resolved after filing).

This arrangement makes more sense for everyone. It ties the limit to the amount of time the lawyer puts into the case, not the results the lawyer obtains. Furthermore, most personal injury attorneys use similar tiered contingency fee agreements in car crash, dog bite, and other negligence cases.

Evidence in Medical Negligence Cases

Additionally, the new law augments the provisions regarding physician apologies. Under the old law, apologies were inadmissible on the issue of liability. Apologies were admissible for other purposes, such as witness impeachment. These statements were also admissible in disciplinary and other ancillary proceedings. In other words, if a doctor told a victim or a family “I’m sorry” to express sympathy, the doctor was usually the person who was sorry later.

The new law states that such statements are “confidential, privileged, protected, not subject to subpoena, discovery, or disclosure, and shall not be used or admitted into evidence in any civil, administrative, regulatory, licensing, or disciplinary board, agency, or body action or proceeding, and shall not be used or admitted in relation to any sanction, penalty, or other liability, as evidence of an admission of liability or for any other purpose.”

Expert testimony is also critical in medical malpractice cases. Usually, an expert must establish the standard of care and highlight the defendant’s breach of that care. For example, the standard of care following a broken arm is an evaluation, an X-ray, a cast, and physical therapy. If a doctor skips or scrimps in one area (e.g., not ordering physical therapy or ordering an insufficient amount of PT), the doctor could be negligent.

These witness fees are outrageously high. The best medical experts often charge several thousand dollars to prepare reports. They charge several times that amount to testify in court. Most victims cannot possibly pay these costs out of pocket, underscoring the need for contingency fees, as outlined above.

Damages in Medical Malpractice Matters

Medical malpractice damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

The old MICRA set a $250,000 cap on noneconomic damages. Most people agreed this cap was too low. If a young person dies due to a medical mistake, such as an anesthesia error, that person’s life was worth more than $250k.

The new MICRA increases the cap to $500,000 ($1 million by January 1, 2035). In injury cases, the cap starts at $350,000 and increases $40,000 each year until it reaches $750,000. That amount of noneconomic damages isn’t guaranteed in all cases, or even most of them. However, jurors have the ability to award these amounts if they feel the evidence warrants such awards.

Substantial punitive damages are usually available as well. These damages punish negligent doctors and force them to change the way they do business. Unlike most other states, California doesn’t cap punitive damages in personal injury cases. However, the awards must be reasonable and not excessive or arbitrary.

The new med-mal law in California could affect you. For a free consultation with an experienced personal injury lawyer in California, contact the Law Offices of Eslamboly Hakim. Virtual, home, and hospital visits are available.

Credit: Photo by Midjourney