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Understanding Medical Malpractice Mediation - What You Need To Know

An article by Forbes journalists notes that California has some of the highest rates of medical malpractice claims per capita, with 4,638 reports made in 2022 alone. Regardless of the frequency of these claims, only five percent lead to in-court settlements. A typical medical malpractice case will be settled in mediation. In this post, our San Francisco medical malpractice attorneys explain what you need to know to understand medical malpractice mediation before you file your claim.

What Is Medical Malpractice Mediation?

Medical malpractice is one of the leading causes of death in the US every year. Medical malpractice cases are complex and demanding – and the victims have a limited time to hold the at-fault parties responsible.

Per California Civil Jury Instructions (CACI No. 501), medical negligence occurs when a provider fails to use the skill, knowledge, and care level in diagnosis and treatment that other reasonably careful providers/specialists would use in the same or similar circumstances.

When a medical malpractice case is brought to mediation, both parties engage in structured discussions facilitated by a neutral third-party mediator. This mediator helps the parties explore potential solutions and encourages open communication to identify mutually agreeable terms. Mediation aims to reach a settlement that satisfies both parties, thus avoiding a trial.

California’s Medical Malpractice Cap

For decades, California had been one of several states to impose controversial caps limiting the amount of compensation plaintiffs in medical malpractice lawsuits can recover.

Namely, a California state law that had been in place since 1975 placed a $250,000 cap on non-economic damages for the entire case, no matter how many defendants. This cap includes damages for pain and suffering, physical and mental impairment, loss of quality of life, and other physical and emotional injuries. The cap is a major reason why results in California medical malpractice cases may appear lower than in comparable cases in states without caps.

But thanks to AB 35, a bill signed into law by Gov. Gavin Newsom in May 2022, California is finally updating its outdated damages cap policy for the first time in approximately 50 years. Since January 1, 2023, patients are entitled to a higher payout for non-economic medical malpractice damages with a cap of $350,000, which will continue to increase over the next decade, eventually rising to $750,000.

Medical Malpractice Trial Vs. Mediation

When evaluating the merits of proceeding to trial versus opting for settlement through mediation, two primary factors warrant careful consideration: the duration of the process and the potential compensation outcomes:
  • Trial
    • Duration: A medical malpractice trial can take two to three years.
    • Compensation: When a case settles through mediation, both parties will likely receive less compensation.
  • Mediation:
    • Duration: Mediation generally lasts a few hours to a few days
    • Compensation: If the case goes to trial, you may receive maximum compensation, but there is the risk of receiving little to no compensation. It is important to note that with mediation, litigation costs are far less than if you go to trial, and you are likely to receive your compensation sooner than if you went to trial.

Each and every medical malpractice case is unique, reinforcing the importance of working with highly experienced medical malpractice attorneys who can guide you in making the best decision based on your case.

Work With Experienced Medical Malpractice Attorneys

If you or a loved one have been injured by the negligence of a medical professional, you will want highly experienced medical malpractice attorneys on your side. Here are questions to ask when hiring a medical malpractice lawyer.


Bostwick & Peterson has decades of experience with serious personal injury and medical malpractice cases. Through carefully and thoroughly examining your case-related medical records with a team of experts, we will help guide you through the mediation process and trial if necessary.

Contact our team for expert guidance on your medical malpractice claim. We will help you get on the path to justice.