California's MICRA Cap After AB 35: $350,000 in 2023, $750,000 by 2033

The MICRA cap on non-economic damages was the most consequential constraint on California medical malpractice cases for 47 years. Set at $250,000 in 1975 dollars, it stayed at $250,000 in nominal terms while inflation reduced its real value by roughly 80%. A jury could find a doctor’s negligence caused a young patient’s lifelong incontinence, paralysis, blindness, or chronic pain, and the plaintiff’s recovery for the non-economic consequences of that injury was capped at $250,000 regardless of jury sympathy or severity. AB 35, signed by Governor Newsom in May 2022 and effective January 1, 2023, ended that era. The non-economic cap now starts at $350,000 (or $500,000 in death cases) and escalates annually for ten years.

This page explains what MICRA still does, the AB 35 changes to the cap, how the multi-cap rule for multi-defendant cases works, what categories of damages remain uncapped, what claims fall outside MICRA entirely, and the strategic implications for plaintiffs whose injuries fall on either side of the new framework.

What MICRA still does

MICRA is a package of California statutes enacted in response to the medical malpractice insurance “crisis” of the mid-1970s, when carriers withdrew from the California market and providers warned of practice closures. The package, originally passed as AB 1XX in 1975 and refined since:

• Civil Code § 3333.2 — the non-economic damages cap (the provision discussed throughout this page).
• Code of Civil Procedure § 340.5 — the one-year-from-discovery / three-year-outer-cap statute of limitations for professional negligence claims against healthcare providers. See Statute Of Limitations.
• Business & Professions Code § 6146 — caps on plaintiffs’ contingent attorney fees on a sliding scale.
• Code of Civil Procedure § 667.7 — periodic payment of large future damages awards at the request of either party.
• Code of Civil Procedure § 364 — 90-day pre-suit notice of intent to commence action.
• Evidence Code § 1158 — discovery and prelitigation procedure provisions.

The package was upheld against constitutional challenge in Fein v. Permanente Medical Group, 38 Cal.3d 137 (1985), and American Bank & Trust Co. v. Community Hospital, 36 Cal.3d 359 (1984). The constitutional question — whether the cap’s disparate impact on the most seriously injured plaintiffs violates equal protection or due process — has been litigated repeatedly and consistently lost.

AB 35: the escalator and the new caps

AB 35 was the product of a settlement between trial lawyers, healthcare providers, and the legislature that pulled an ambitious ballot initiative (Proposition 35 of 2022) off the November ballot. The negotiated deal raised the cap, locked in an escalator, and made structural changes to the multi-defendant rule. The framework:

Non-death cases (injury claims by a living plaintiff):

Death cases (wrongful death and survival claims arising from medical malpractice):

The cap that applies is the cap in effect on the date the case is filed, not the date of the underlying injury or treatment. A case stemming from 2019 malpractice that wasn’t filed until 2024 is subject to the 2024 cap ($390,000), not the 2019 cap ($250,000) — a substantial change that benefits plaintiffs whose claims were sitting on the longer end of the statute of limitations.

The three-cap rule for multi-defendant cases

The pre-AB 35 rule was one $250,000 cap per case, regardless of how many defendants were involved. A patient injured by both a negligent surgeon and a negligent hospital received a single $250,000 cap that had to be apportioned among the defendants.

AB 35 changed this. For non-death cases starting in 2023, the rule allows up to three separate caps:

1. One cap for each healthcare provider found liable — but all “healthcare providers” in the case share a single cap among themselves.
2. One cap for each healthcare institution found liable — institutions share a single cap among themselves.
3. One cap for unaffiliated providers — but again, all unaffiliated providers share that cap among themselves.

The practical effect: in a case where a hospital, an affiliated doctor, and an independently-billing anesthesiologist (unaffiliated) are all found at fault, three separate caps apply. At 2023 rates, that’s up to $1.05 million in non-economic damages on the non-death side, or $1.5 million on the death side. At 2033 rates, $2.25 million or $3 million.

This is significant. The pre-AB 35 cap structure incentivized plaintiff’s lawyers to add as few defendants as possible (since adding defendants didn’t grow the cap, but added cost). The post-AB 35 structure incentivizes the opposite — identifying every separately-categorized defendant to expand the recoverable non-economic damages.

The same multi-cap rule applies to death cases at the higher death-cap rates.

What MICRA doesn’t cap

MICRA’s caps apply only to non-economic damages for “professional negligence” by “healthcare providers” and “healthcare institutions.” Several categories of damages and claims fall entirely outside the cap:

Economic damages are uncapped. Medical bills past and future, lost wages, lost earning capacity, the cost of future medical care, the cost of attendant care, the cost of household services — none of these are capped, regardless of total amount. A catastrophic injury can produce multi-million-dollar economic damages awards without running into MICRA. Future medical care for a young person with permanent disability commonly exceeds $10 million on its own.

Ordinary negligence by a healthcare provider. A slip and fall on a hospital lobby floor is premises liability, not professional negligence. A patient sexually assaulted by a hospital employee is suing for assault and battery, not malpractice. Hospital-acquired infections caused by cleaning failures may sound in ordinary negligence rather than professional negligence depending on the facts. The MICRA cap does not apply to claims that aren’t for “professional negligence.”

Products liability. A claim against the manufacturer of a defective medical device — surgical mesh, hip implant, hernia patch, breast implant — is product liability, not malpractice. Not capped.

Intentional torts. Battery (operation without informed consent that rises to battery), assault, false imprisonment, sexual misconduct by a healthcare provider. These are not “professional negligence” and not capped.

Claims against non-healthcare-provider defendants in the same case. If the same lawsuit names a healthcare provider and a non-healthcare defendant (e.g., the hospital and the property owner of a parking lot where security failed), the MICRA cap applies only to the healthcare-provider’s share. The non-healthcare defendant pays uncapped non-economic damages.

Punitive damages. MICRA does not cap punitive damages; they are governed by Civil Code § 3294’s general rules. Punitives are rarely awarded against healthcare providers because the “malice, oppression, or fraud” standard is hard to meet for negligence, but in cases of egregious conduct (concealment of test results, deliberate falsification of records) they are not foreclosed.

Strategic implications for plaintiffs

The AB 35 changes shift how cases are evaluated, filed, and tried:

Cases with mid-range non-economic damages now have headroom. Pre-2023, a case with serious but not catastrophic injuries (a botched routine surgery causing chronic pain and partial functional loss) was often valued near the $250,000 cap regardless of jury sympathy — and the cap absorbed the risk premium. At 2024 rates ($390,000), 2026 ($470,000), and beyond, the cap is no longer a quick ceiling, and the case’s settlement value depends more on the actual jury-trial calculus.

Multi-defendant cases produce dramatically larger recoverable amounts. A surgical injury involving the surgeon, the hospital, and an unaffiliated anesthesiology group can recover up to three caps. Plaintiffs’ counsel evaluating new cases ask immediately: how many separately-categorized defendants are in this case?

Filing date matters. A case with a 2022 statute-of-limitations expiration is on the old $250,000 cap. A case with a 2023 expiration moves to the new escalator. The difference between filing on December 31, 2022 versus January 1, 2023 was $100,000 in cap headroom, and that gap widens each year.

Catastrophic cases turn on economic damages. When non-economic damages are capped (even at $750,000 by 2033), the case value of a catastrophic injury — quadriplegia, severe TBI, the death of a child — is driven by the economic damages model. Life-care planning, vocational economics, and future medical cost projections become the central battle.

For the underlying procedural deadlines that apply in any med-mal case, see Statute Of Limitations. For how MICRA-capped damages interact with uncapped damages from non-medical defendants in the same case, see Pain And Suffering Damages.