Proving Causation in California Wrongful Death Claims Arising from Surgical Errors

In California, a wrongful death claim based on a surgical mistake must be brought as a professional negligence (medical malpractice) claim. The plaintiff must prove duty, breach of the standard of care, causation, and damages. Expert medical testimony is required to establish both the standard of care and causation, unless the negligence is so obvious that a layperson could recognize it without experts. Causation must be shown by proving to a reasonable medical probability that the defendant’s conduct was a substantial factor in causing the death.

Under MICRA, noneconomic damages in wrongful death medical malpractice cases are capped at $500,000 in 2025, and the cap increases by $50,000 per year until it reaches $1,000,000. Plaintiffs must serve a 90-day pre-suit notice on the defendants before filing the lawsuit, but failure to serve the notice does not void the case. The statute of limitations is generally one year from discovery of the injury, and no more than three years from the date of injury, subject to limited tolling exceptions.

Background and Relevant Law

Legislative Framework

Elements of the Claim and Causation Standard

California’s wrongful death statute allows certain heirs to recover for the death of a person caused by the wrongful act or neglect of another, including professional negligence by health care providers. The essential elements are: (1) a tortious act (such as negligence), (2) resulting death, and (3) damages suffered by the heirs, typically pecuniary loss (Quiroz v. Seventh Ave. Center, 45 Cal.Rptr.3d 222, 140 Cal.App.4th 1256 (Cal. App. 2006)).

Professional negligence is defined as a negligent act or omission by a health care provider in the rendering of professional services, which is the proximate cause of personal injury or wrongful death, provided the services are within the provider’s licensed scope (Ca. Civ. Code § 3333.1).

MICRA Cap on Noneconomic Damages

The Medical Injury Compensation Reform Act (MICRA) imposes a cap on noneconomic damages in actions against health care providers for professional negligence. As of 2025, the cap for wrongful death claims is $500,000, increasing by $50,000 each year on January 1 until it reaches $1,000,000 (Ca. Civ. Code § 3333.2). 

Statute of Limitations

Actions for injury or death against a health care provider based on professional negligence must be commenced within three years after the date of injury or one year after the plaintiff discovers, or should have discovered, the injury, whichever occurs first. There are exceptions for fraud, intentional concealment, or the presence of a foreign body, and special rules for minors (Ca. Civ. Proc. Code § 340.5).

Pre-suit Notice Requirement

Before filing suit, plaintiffs must provide at least 90 days’ notice to the defendant health care provider of their intent to commence an action for professional negligence (Ca. Civ. Proc. Code § 364). However, failure to comply with this requirement does not invalidate the proceedings and is not jurisdictional, though it may subject the plaintiff’s attorney to disciplinary action (Woods v. Young, 53 Cal.3d 315, 279 Cal.Rptr. 613, 807 P.2d 455 (Cal. 1991)).

Expert Testimony and Causation

California law requires that both the standard of care and causation in medical malpractice cases be established by competent expert testimony, unless the matter is within common knowledge (Ca. Evid. Code § 801.1; Flowers v. Torrance Memorial Hospital Medical Center, 35 Cal.Rptr.2d 685, 8 Cal.4th 992, 884 P.2d 142 (Cal. 1994)). The plaintiff’s expert must opine that causation exists to a reasonable medical probability, and the defense expert must meet the same standard if offering an alternative cause (Ca. Evid. Code § 801.1).

Analysis

Elements of the Claim

A wrongful death claim based on surgical error in California requires proof of: (1) a wrongful act or negligence by the defendant, (2) causation (the act or omission caused the decedent’s death), and (3) damages to the plaintiff (Scaccia v. Kennedy, C093627 (Cal. App. Mar 30, 2023); Quiroz v. Seventh Ave. Center, 45 Cal.Rptr.3d 222, 140 Cal.App.4th 1256 (Cal. App. 2006)). 

Role of Expert Testimony

The centrality of expert testimony in these cases. Both the standard of care and causation are generally matters outside the common knowledge of laypersons and must be established by expert opinion (San Antonio Reg’l Hosp. v. Super. Ct. of San Bernardino Cty., 321 Cal.Rptr.3d 167 (Cal. App. 2024); Chow v. Leyba, B307432 (Cal. App. Apr 19, 2022)). The only exception is where the negligence is so obvious that a layperson could recognize it without expert input, which is rare in surgical error cases.

Under current law, both plaintiff and defense experts must express their opinions on causation to a reasonable medical probability (Ca. Evid. Code § 801.1). This means the expert must testify that it is more likely than not that the defendant’s conduct was a substantial factor in causing the death (Uriell v. Regents of the Univ. of Cal., 184 Cal.Rptr.3d 79, 234 Cal.App.4th 735 (Cal. App. 2015)).

Causation Standards

The plaintiff must prove, by a preponderance of the evidence, that the defendant’s negligence was a substantial factor in causing the decedent’s death (Scaccia v. Kennedy, C093627 (Cal. App. Mar 30, 2023); Hernandez v. Qureshi, B290866 (Cal. App. Aug 19, 2020)). In cases involving failure to diagnose or treat a potentially fatal condition, the plaintiff must show that the decedent would have had a greater than 50 percent chance of survival but for the defendant’s negligence (Bromme v. Pavitt, 7 Cal.Rptr.2d 608, 5 Cal.App.4th 1487 (Cal. App. 1992)). 

MICRA Cap

The current MICRA cap for noneconomic damages in wrongful death claims. As of 2025, the cap is $500,000, increasing by $50,000 each year until it reaches $1,000,000 (Ca. Civ. Code § 3333.2). Any reference to the previous $250,000 cap is outdated and inaccurate. The cap applies collectively to all health care providers and institutions, regardless of the number of defendants or causes of action.

Pre-suit Notice and Procedural Requirements

Plaintiffs must provide at least 90 days’ notice to the defendant before filing suit (Ca. Civ. Proc. Code § 364). However, it is important to clarify that failure to provide this notice does not invalidate the lawsuit or deprive the court of jurisdiction, though it may subject the plaintiff’s attorney to discipline (Woods v. Young, 53 Cal.3d 315, 279 Cal.Rptr. 613, 807 P.2d 455 (Cal. 1991)).

The statute of limitations is generally one year from the date the plaintiff discovers, or should have discovered, the injury, but in no event more than three years from the date of injury, with certain exceptions for fraud, concealment, or foreign bodies, and special rules for minors (Ca. Civ. Proc. Code § 340.5). 

Arbitration Agreements

Wrongful death claims arising from medical malpractice may be subject to arbitration agreements under MICRA (Holland v. Silverscreen Healthcare, Inc., 321 Cal.Rptr.3d 23 (Cal. App. 2024)). However, this is not a universal procedural requirement and should not be presented as such.

Exceptions and Caveats

• Common Knowledge Exception: In rare cases where the negligence is obvious (e.g., leaving a surgical instrument inside a patient), expert testimony may not be required (Flowers v. Torrance Memorial Hospital Medical Center, 35 Cal.Rptr.2d 685, 8 Cal.4th 992, 884 P.2d 142 (Cal. 1994)).
• Presumption of Causation: In exceptional cases where the defendant’s conduct makes it impossible for the plaintiff to prove causation, a presumption may arise, shifting the burden to the defendant (Negligence, Secondary Material, 2022-03-31).
• Defense Expert Testimony: Under current law, defense experts must also meet the reasonable medical probability standard when offering alternative causes (Ca. Evid. Code § 801.1).

Conclusion

Bringing a wrongful death case in California based on a surgical mistake involves strict rules. The family must use qualified medical experts to show that the health care provider’s negligence was a substantial factor in causing the death, and that this is true to a reasonable medical probability.

They must also follow the required 90-day notice rules before filing suit and understand the current MICRA limits on noneconomic damages — which are $500,000 in 2025 and increase each year. In addition, they must file within the legal deadlines and present evidence that meets the standards set by law.

Following these rules carefully is crucial to improving the chances of success in these difficult and highly regulated cases.

For a free, confidential review of a wrongful death claim involving a surgical error, contact experienced personal injury attorney Andrew Ritholz to discuss your options and next steps.