When a birth injury occurs in a public hospital (or other governmental health facility) in California, families face a complex legal regime. They must comply not only with medical malpractice law but also with the California Government Claims Act (which governs suits against public entities). Key issues in 2025 include the six-month claims presentation deadline, the updated MICRA/AB 35 caps on non-economic damages, and how tolling rules for minors interact with these constraints. This article explains those rules in the context of the Law Offices of Michael D. Payne in West Covina, CA.
Why This Topic Matters
In a public hospital birth injury case, failing to timely present a claim can forever bar recovery—even if the medical error is clear. The statutory framework imposes short deadlines and strict procedural requirements. Understanding how MICRA’s caps have shifted under AB 35 and how minor tolling works is essential. The challenge is that many families miss critical deadlines or misapply the tolling rules.
Why People Struggle
- They assume the standard medical malpractice timeline (e.g. one year) applies even for public entities, instead of the six-month Government Claims Act deadline.
- They do not realize AB 35 has modified MICRA’s non-economic damage caps, including potential stacking of caps.
- They misunderstand how tolling for minors (or incapacity) interacts with the Government Claims Act deadlines and MICRA.
- They miss that the public entity has only 45 days to act on a claim, or it is deemed rejected.
- They rely on late-claim or court relief assuming it is easy, when courts impose strict tests (excusable neglect, prejudice, etc.).
In this article, you’ll learn how to avoid these pitfalls and make informed choices.
1. The 6-Month Government Claims Act Deadline: What You Must Do and When
In California, before suing a public hospital or governmental health provider, a claimant must first present a written claim to the governmental entity within **six months** of the accrual of the cause of action. (Gov. Code §§ 945.4, 911.2)
“Accrual” here generally means the date when the injury is discovered or should have been discovered through reasonable diligence, though delayed discovery doctrines can apply (especially in birth injuries where damage may manifest later).
The claim must be delivered (or mailed) to the appropriate public entity’s clerk or board, and it must include the following:
- Claimant name and address, and address for notices;
- Date, place, and circumstances giving rise to the claim;
- General description of injury and damages;
- Name of public employee(s) involved, if known;
- Dollar amount if under $10,000 (if more, indication of type of case). (Gov. Code § 910)
After presentation, the public entity has **45 days** to accept or reject the claim. If it does nothing, the claim is deemed rejected by operation of law (45 days). (Gov. Code § 912.4)
If your claim is rejected (or deemed rejected), you then have **six months** from the date of rejection (delivery or mailing) to file a court lawsuit (Gov. Code § 945.6).
If the public entity fails to give a proper written rejection notice as required under § 913, then the statute of limitations for filing may extend to **two years** from accrual, rather than six months after notice.
Late Claim Relief (Application Under § 911.4)
If you miss the six-month deadline, you may file an **Application to Present a Late Claim** under Government Code § 911.4, but only if done within **one year** of accrual and showing a valid excuse (e.g. mistake, inadvertence, excusable neglect, minor status, incapacity, etc.).
If that Application is denied (or deemed denied), you can petition the court for relief from § 945.4 under § 911.6, subject to stringent criteria (prejudice to entity, excusable neglect, timely application, etc.).
2. MICRA, AB 35, and Caps on Non-Economic Damages in 2025
The Medical Injury Compensation Reform Act (MICRA) originally capped non-economic damages in medical malpractice (professional negligence) claims at **$250,000** per plaintiff.
With the passage and implementation of **Assembly Bill 35**, MICRA’s nondamages structure has been revised. Among key changes:
- The new non-economic damage cap for non-death cases starts at **$350,000** for claims resolved in 2023, rising over time.
- For wrongful death cases, the new starting cap is **$500,000**, with phased increases.
- AB 35 allows **stacking** of caps in some cases: up to three times (e.g. healthcare providers, institutions, unaffiliated providers) under certain negligence structures.
- Attorney contingency fee limits are adjusted under AB 35.
- AB 35 also clarifies that expressions of sympathy or admissions made by providers are privileged and not admissible as evidence.
However, not all claims will be subject to the new caps: claims filed (or resolved) before AB 35’s effective dates might still invoke the old $250,000 cap.
Also, note that MICRA caps apply only to *professional negligence* claims (i.e. medical malpractice). If a claim is characterized as general negligence (outside medical decision-making), MICRA’s one-year statute or caps may not apply. (For example, the California Supreme Court recently confirmed that negligent ambulance driving may not fall under MICRA’s scope.)
3. Tolling Rules for Minors and Birth Injury Cases
Because birth injuries typically affect a minor, tolling rules (i.e. pauses in statutory deadlines) play a critical role. Under California law, limitations for minors are tolled until the child’s 18th birthday for certain causes of action (e.g. under Code Civ. Proc. § 340.5).
Under MICRA’s minor tolling provisions, the one-year statute of limitations for a minor’s medical malpractice claim is tolled during minority, but there is a maximum “statute of repose” (e.g. 8 years for children in many malpractice settings).
But **that tolling does not automatically extend the six-month Government Claims Act presentation deadline**. The claims statute is distinct and strict. Some cases hold that a claim for a minor must still be presented within six months (or within one year via § 911.4) unless a specific statutory exception operates.
In fact, under *Government Code § 911.4*, one of the valid grounds for a late claim application is that the claimant was a minor during the entire six-month period. In such cases, the governmental board is required to accept the late claim if filed within one year of accrual.
Even then, when a late-claim application is rejected, the child may petition the court for relief under § 911.6, but must meet rigorous standards (excusable neglect, absence of prejudice, timely application, etc.).
4. How These Rules Interact in Birth Injury Lawsuits
To illustrate how these rules interplay, consider a hypothetical:
A child is born on January 1, 2025, in a public hospital. The child later is diagnosed with cerebral palsy at age two, with medical reviewers opining the injury occurred during delivery. The parents wish to sue the hospital.
- The cause of action likely accrues when the injury is discovered (age two). But the six-month Government Claims Act “clock” may begin from that discovery date or potential constructive discovery, depending on fact patterns and law. Attorneys will often calendar from the earliest possible accrual to avoid risk.
- They must then present a claim to the hospital within six months of accrual (unless they qualify for a late claim under § 911.4). If the child is a minor (as all are), that may be a reason to accept a late claim, but only if filed within one year of accrual. If the hospital rejects, they must file suit within six months of that rejection (or two years if no proper notice).
- Once in court (if timely), they must consider MICRA/AB 35 caps. The non-economic damages may be capped (e.g. $350,000 or higher by year of resolution) and possibly stacked caps, depending on negligence structure.
- The minor tolling ensures the child’s direct claim under MICRA doesn’t expire while under age 18 (subject to the statute of repose). But it does not inherently protect the claims presentation requirement against missed deadlines. Thus, the procedural demands remain strict.
Key Practical Tips
- Always assume the earliest possible accrual and calendar the six-month claim presentation deadline immediately.
- If the deadline is missed, evaluate whether § 911.4 relief is available (especially for minors), but do not rely on it as a safety net.
- Monitor all public entity responses (45-day window) carefully to trigger your subsequent six-month lawsuit deadline.
- Structure your pleadings and evidence with awareness of AB 35’s caps and stacking possibilities.
- Where possible, engage legal counsel experienced in public entity birth injury claims, such as a medical malpractice attorney in California, to navigate the complex interplay of statutes.
FAQs
When does the six-month claims deadline begin to run in a birth injury case?
Generally, the six months run from the date the cause of action accrues (i.e. when injury is or should have been discovered). In birth injury cases, that may be delayed discovery, but courts will scrutinize the discovery argument. The safer approach is to treat accrual at the earliest possible point.
Can a minor’s status extend the six-month requirement for public entities?
Being a minor is one of the statutorily recognized grounds for late-claim relief under § 911.4, which allows a late claim within one year of accrual. But that is not an automatic extension—courts may reject applications, and the petition relief under § 911.6 is hard to secure.
How do AB 35 changes affect birth injury damages caps under MICRA?
AB 35 raised the non-economic damages cap (for non-death cases to $350,000 initially, wrongful death to $500,000) and also permits stacking caps in certain negligence structures. But claims filed (or resolved) before AB 35 may still be subject to the prior $250,000 cap.
What happens if the public hospital fails to respond to a claim in 45 days?
If the public entity does not act within 45 days, the claim is deemed rejected by operation of law (Gov. Code § 912.4). That rejection triggers the six-month window to file suit.
Conclusion
Public hospital birth injury claims in California pose significant procedural hazards. The six-month claims presentation rule is unforgiving; the public entity’s 45-day political timeline is short; minor tolling provides only limited relief; and AB 35 changes to MICRA’s caps and stacking add further complexity. For families in West Covina or across California, early, expert legal guidance is critical to preserve rights and build a viable case.
For families in West Covina or across California, early guidance from experienced California birth injury lawyers is critical to preserve rights and build a viable case.
For help with public hospital birth injury claims in the West Covina and greater Los Angeles area, contact the Law Offices of Michael D. Payne at (888) 964-1530 or visit mikepaynelaw.com.
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