When Your Lawyer Drops a Filed Medical Malpractice Case

Attorney Answer

The urgent question is not whether you can "use" the old claim — it is whether that case is still open. A lawsuit does not end because the lawyer stops working on it, but it also does not survive on its own. Everything turns on the docket, and finding out where it stands is something you should do this week.

There are two possibilities. If the case is still on file, it is still yours: you can appear in it yourself or bring in a new attorney, and the deadlines that matter now are the court's own scheduling and dismissal rules rather than the original filing deadline. If it was dismissed, the situation is much harder, because a dismissal does not restart the clock.

That clock is Cal. Code Civ. Proc. § 340.5. A California malpractice claim must be brought within three years of the date of injury or one year after the patient discovered, or with reasonable diligence should have discovered, the injury — whichever occurs first. Because the underlying care necessarily came before the 2019 filing, both of those periods have very likely run by now. That is the plain answer to "has it been too long": for starting over, almost certainly yes. For continuing something already on file, not necessarily. The difference is worth finding out precisely.

A firm withdrawing is not, by itself, wrongdoing. Lawyers decline and withdraw from cases for many reasons, including an honest reassessment of the case's merits. But if something was mishandled — a deadline missed, a case allowed to be dismissed, a client not told — that is a separate claim with its own deadline. Cal. Code Civ. Proc. § 340.6(a) requires an action against an attorney for a wrongful act or omission, other than actual fraud, to be brought within one year after the client discovers, or with reasonable diligence should have discovered, the facts constituting the act or omission, or four years from the act or omission, whichever occurs first. That period is short and it may already be running.

What you can do

1. Find out the current status of the case. Contact the clerk of the court where it was filed, with the case number, and ask whether it is open, dismissed, or otherwise closed.

2. Write to the former firm and ask for a copy of your complete file, the case number, and the name of the court. Keep a copy of the request.

3. Keep the letter or email in which the firm told you it would not continue, and note the date you received it.

4. Gather your medical records and the dates of the underlying treatment, so a new lawyer can measure the deadlines against real documents.

5. Take all of it to a local attorney right away, and ask two questions: whether anything can still be done in the existing case, and whether you have a claim about how the case was handled.

Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. The malpractice claim itself is governed by Cal. Code Civ. Proc. § 340.5 — three years from injury or one year from discovery, whichever occurs first. Any claim about how the case was handled is governed by Cal. Code Civ. Proc. § 340.6(a) — one year from discovery or four years from the act, whichever occurs first. Both depend on dates only you and the court file can supply, and one of them may be close. Have a local attorney review them immediately.