In this article 8 sections
Nothing prepares you for the moment a doctor tells you something went wrong during your baby’s birth. Maybe your child was rushed to the NICU and cooled for days. Maybe the shoulder got stuck and now one arm hangs limp. Maybe everything seemed fine at first, and only months later did a pediatrician start using words like “developmental delay” or “cerebral palsy.”
Most parents in that position are thinking about therapy appointments and insurance approvals, not lawyers. That is as it should be. But California has deadlines and procedural rules for claims against doctors and hospitals that are different from an ordinary injury case, and some of them can run out while a family is focused on the medical side.
This guide explains, in general terms, what California law says about birth injury claims as of September 2026: the medical conditions involved, who has a claim, how long you have, and how the MICRA damage caps work. It is not a substitute for advice about your family’s specific situation.
Common Birth Injuries and What Causes Them
Not every difficult delivery involves negligence. These are some of the conditions often at the center of birth injury cases.
Hypoxic-ischemic encephalopathy (HIE). The National Institutes of Health describes HIE as a brain injury caused by a lack of oxygen supply, which can cause cerebral palsy. NIH also notes that studies have shown cooling treatment (hypothermia) to be effective in treating neurologic symptoms in full-term or late preterm babies less than one month old with HIE.
Cerebral palsy (CP). The CDC describes CP as a group of disorders that affect a person’s ability to move and maintain balance and posture. It is important to be honest about the science here: the CDC says people used to think CP was mainly caused by a lack of oxygen during birth, but scientists now think this causes only a small number of cases. NINDS adds that a baby’s breathing or circulation problems during labor may have started well before delivery. That does not mean a birth-related claim is impossible. It means causation is usually the central fight, and it is answered by medical experts, not assumptions.
Brachial plexus injuries, including Erb’s palsy. The National Institute of Neurological Disorders and Stroke (NINDS) explains that the brachial plexus is the network of nerves running from the spinal cord to the shoulder, arm, and hand, and that some brachial plexus injuries happen to babies during birth. Erb’s palsy refers to numbness and paralysis of the upper brachial plexus. NINDS notes that some children injured during birth improve or recover on their own by 3 to 4 months of age, most recover some function through physical and occupational therapy, and some need surgery.
If your child has any of these diagnoses, the first priority is care. Keep every discharge summary and therapy note, and request the complete labor and delivery records, including fetal monitoring strips, for both mother and baby.
Whose Claim Is It? The Child and the Parents
A birth injury can give rise to more than one claim, and they belong to different people.
The child’s claim is for the child’s own injuries: pain and suffering, future medical care, and the loss of the ability to earn a living as an adult, among other things. Because the child is a minor, the claim is brought on the child’s behalf by a parent or a court-appointed guardian ad litem (Code of Civil Procedure section 372). Any settlement of a minor’s claim must be approved by the court (Probate Code section 3500; CCP section 372), and the money is paid under court-supervised rules designed to protect the child.
The parents may have their own claims. In Burgess v. Superior Court (1992) 2 Cal.4th 1064, the California Supreme Court held that a mother whose obstetrician negligently managed her labor, leaving her son with permanent brain damage, could recover for her own emotional distress as a “direct victim,” because the physician-patient relationship covered care for both her and her baby. The same court drew a line, though: damages for loss of the child’s affection, society, and companionship, and for the disruption of the parent’s life to care for the child, could not be recovered. Separately, California does not allow a parent to recover loss of consortium for a nonfatal injury to a child (Baxter v. Superior Court (1977) 19 Cal.3d 461).
These distinctions matter because the claims can carry different deadlines.
How Long You Have: CCP Section 340.5
Claims against health care providers for professional negligence are governed by Code of Civil Procedure section 340.5. For adults, the deadline is three years after the date of injury or one year after the injury is discovered (or reasonably should have been discovered), whichever comes first.
For children, the statute has its own rule. An action by a minor must generally be filed within three years from the date of the alleged wrongful act, but for a child who was under six years old, the deadline is three years or before the child’s eighth birthday, whichever provides a longer period. For most injuries at birth, that means the child’s own claim can generally be filed up to the eighth birthday. The statute also tolls the time for any period in which a parent or guardian and the defendant’s insurer or health care provider committed fraud or collusion in failing to bring the child’s claim.
Two cautions. First, a parent’s own claim is not “an action by a minor,” so do not assume the child’s longer deadline protects the parents’ claims. Second, if the delivery happened at a public hospital, such as a county medical center or a University of California facility, a written government claim generally must be presented within six months (Government Code section 911.2) before a lawsuit can be filed. We explain that trap in our post on the six-month government claims rule.
The 90-Day Notice Before Filing
California also requires a step before filing a malpractice lawsuit. Under CCP section 364, no action based on a health care provider’s professional negligence may be filed unless the provider has been given at least 90 days’ prior notice of the intention to sue. The notice must explain the legal basis of the claim and the type of loss, including the nature of the injuries. If the notice is served within the last 90 days before the deadline, the statute extends the time to file by 90 days from service of the notice. It is not something to leave to the last month.
MICRA Damage Caps in 2026
The Medical Injury Compensation Reform Act (MICRA) limits noneconomic damages, meaning pain, suffering, inconvenience, physical impairment, disfigurement, and other non-financial harm, in professional negligence cases against health care providers. AB 35 rewrote the caps in Civil Code section 3333.2 for cases filed or arbitrations demanded on or after January 1, 2023.
Here is how the current statute works:
- The amounts rise every January 1. Starting from $350,000 for injury cases and $500,000 for wrongful death in 2023, the statute adds $40,000 and $50,000 per year. For 2026, that is $470,000 for injury cases and $650,000 for wrongful death cases. The increases continue until the caps reach $750,000 and $1,000,000, followed by 2 percent annual inflation adjustments beginning January 1, 2034.
- The cap is fixed when the case resolves. Section 3333.2 says the dollar amount in effect at the time of judgment, arbitration award, or settlement applies.
- There can be up to three separate caps. The statute sets one cap for health care providers collectively (such as physicians and their medical groups), one for health care institutions collectively (such as a hospital and those it is vicariously responsible for), and a third for unaffiliated providers or institutions whose separate, independent negligence occurred at, or in transport to, an unaffiliated institution. No single defendant pays under more than one category.
- Economic damages are not capped by section 3333.2. Medical bills, future care, and lost earning capacity can be the largest part of a serious birth injury case, which is why careful life-care planning matters.
Our earlier post on the 2026 MICRA cap increase covers the cap schedule in more detail. For our approach to these cases, see our birth injury practice page.
Other Rules That Shape a Recovery
Periodic payments. Under CCP section 667.7, in an action against a health care provider, the court must, at either party’s request, order that future damages be paid in whole or in part through periodic payments rather than a lump sum if the award for future damages is $250,000 or more. The judgment must specify the recipients, amounts, intervals, and duration of the payments, and a defendant who is not adequately insured must post security.
Medi-Cal reimbursement. If Medi-Cal paid for your child’s care, the state generally has a right to be reimbursed from a recovery for the reasonable value of those benefits (Welfare and Institutions Code section 14124.71). Notice must be given to the state within 30 days of filing (section 14124.73), and its recovery is limited to the portion of a settlement or judgment that represents payment for medical expenses (section 14124.76). Private health plans may have reimbursement rights of their own.
What Parents Can Do Now
- Get your child the care and evaluations they need, and keep a folder of every record and bill.
- Request complete records for both mother and baby, including fetal monitoring data.
- Write down what you remember about labor and delivery while it is fresh: times, who was in the room, and what you were told.
- Talk to a lawyer before the deadlines described above get close, especially the six-month claim period for public hospitals.
Talk to Us About Your Family’s Situation
You should not have to become a medical-legal expert while caring for an injured child. If you have questions about what happened during your baby’s birth, we will listen, review the records with you, and explain your options honestly, including when a case is not the right path. Contact Reardon Stodolka for a free consultation at 657.522.7122. You pay nothing unless we recover compensation for you.