Yes. And you might be able to go after two different people for it.
The person who caused your accident is generally responsible for your original injuries and for any extra harm from the medical treatment those injuries required, even if that treatment was done carelessly. Separately, if the surgeon or hospital fell below the standard of care, you may have a medical malpractice claim against them too.
That’s the good news. The bad news is the malpractice side comes with some of the shortest deadlines in California law.
Usually, yes. Most people don’t know this.
Think about it the way the law does. You’d never have been on that operating table if they hadn’t hit you. California courts have followed this rule since the state Supreme Court’s 1944 decision in Ash v. Mortensen.
Today, juries are instructed under CACI No. 3929 that a defendant responsible for your injury is also responsible for additional harm from the medical care that injury reasonably required, even if the care was negligent.
Two conditions. You had to use reasonable care choosing your doctor, and a licensed surgeon your own doctor referred you to checks that box. And the surgery had to be treatment your accident injuries actually called for.
One catch: when the driver and the surgeon are both to blame, Proposition 51 can split your pain and suffering damages based on each one’s share of fault. That’s a big reason to look at both claims, not just one.
Straight answer: a bad result isn’t automatically malpractice.
Surgery has real risks even when it’s done right. Some people don’t heal the way anyone hoped. Malpractice means your surgeon did something a reasonably careful surgeon wouldn’t have done, or failed to do something they should have. California calls that the standard of care.
After accident injuries, the surgical errors we see most include:
Some red flags: new symptoms right after surgery that don’t match what you were told to expect. Being told you need a second surgery to “correct” the first. Explanations that keep changing. Records that don’t match what your doctor said.
These cases almost always need another physician to review your care and explain what went wrong. Your gut feeling is where it starts, not where it ends.
Money. More specifically, insurance limits.
California’s minimum auto liability policy is $30,000 per person. If the driver who hit you carries the minimum and your surgery left you with permanent nerve damage and a second operation, $30,000 is gone before you’re out of the hospital. The surgeon’s and hospital’s malpractice coverage can be a second source of recovery.
Malpractice claims do come with caps. Under Civil Code section 3333.2, pain and suffering damages in a non-death malpractice case are capped at $470,000 in 2026, rising $40,000 a year. There can be separate caps for the doctors and the hospital. Medical bills and lost income aren’t capped at all.
This is where people lose cases. You could be up against several clocks at once:
| Claim | Deadline |
| Against whoever caused your accident | Generally 2 years (CCP § 335.1) |
| Malpractice against a private surgeon or hospital | 1 year from when you discovered (or should have discovered) the injury, or 3 years from the injury, whichever comes first (CCP § 340.5) |
| Notice before filing a malpractice suit | At least 90 days’ written notice to the provider (CCP § 364) |
| Public hospitals | Government claim, generally within 6 months (Gov. Code § 911.2) |
| VA and military hospitals | Federal rules, including a written claim within 2 years |
Where you had surgery in San Diego matters. UC San Diego Health is part of the University of California, a public entity, so government claim rules may apply. The VA San Diego and Naval Medical Center San Diego fall under federal law. And if you’re a Kaiser member, you probably agreed to binding arbitration when you enrolled.
A year goes fast when you’re recovering from a second surgery. Don’t spend it waiting to see if things get better on their own.
It can.
Insurance release forms often cover “all persons” connected to your injury. Sign the wrong one and you can give up claims you didn’t even know you had. And once you settle your accident claim, it’s done. If you settle before you know how bad the surgery really went, you could leave a lot on the table.
Don’t sign anything until a lawyer has read every line.
First the crash. Then the operating room. At DP Injury Attorneys, we look at the whole chain of what happened to you, and we go after everyone who owes you, from the driver who started it to the providers who made it worse.
If your injuries are serious or permanent, see how our San Diego catastrophic injury lawyers and car accident attorneys handle cases like yours. Hit by a commercial vehicle? Our truck accident team can help, and those cases often have much larger insurance policies behind them.
Your consultation is free. You pay nothing unless we win. Hablamos español.
Arthur Paul D’Egidio is the Managing Partner of DP Injury Attorneys, a San Diego personal injury law firm. With more than 12 years of experience in California injury law, he has dedicated his practice to representing clients in a wide range of personal injury matters, including car accidents, workers’ compensation, slip and falls, catastrophic injury, and wrongful death cases.
Arthur received his Juris Doctor from the Thomas Jefferson School of Law and is a member of the State Bar of California as well as the San Diego County Bar Association. He has received numerous accolades for his work, including being named a Super Lawyer for seven straight years by Thomson Reuters and a “Top 40 Under 40” by the National Trial Lawyers.
