S214430
In the
Supreme Court of California _______________________________________________________
HAMID RASHIDI, Plaintiff, Respondent, and Cross-Appellant,
v.
FRANKLIN MOSER, M.D., Defendant, Appellant, and Cross-Respondent
________________________________________________________
After a Decision by the Court of Appeal, Second Appellate District, Division Four, Case No. B237476
Application for Leave to File Amici Curiae Brief in
Support of Franklin Moser, M.D.;
Brief of Amici Curiae California Medical Association,
California Dental Association, and
California Hospital Association
TUCKER ELLIS LLP
*Rebecca A. Lefler, SBN 225414 Lauren H. Bragin, SBN 286414
515 South Flower Street, Forty-Second Floor Los Angeles, CA 90071-2223
Telephone: 213.430.3400; Facsimile: 213.430.3409 [email protected] [email protected]
Counsel for Amici Curiae California Medical Association, California Dental Association, and California Hospital Association
ii
TABLE OF CONTENTS
Page
APPLICATION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE ... 1
I. INTERESTS OF AMICI CURIAE ............................................... 1
II. NEED FOR FURTHER BRIEFING ............................................. 2
BRIEF OF AMICI CURIAE ..................................................................... 4
I. INTRODUCTION ......................................................................... 4
II. LEGAL ARGUMENT ................................................................... 5
A. The ongoing importance of MICRA. .............................. 5
B. Other cases interpreting Section 3333.2 have held that it limits all liability relating to an injury from professional negligence. .................... 7
C. To preserve the purposes of MICRA, Section 3333.2 should apply consistently to any malpractice “action.” ............................................... 12
III. CONCLUSION ........................................................................... 16
iii
TABLE OF AUTHORITIES
Page
CASES
American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359 .......................................................................... 5, 15
Barme v. Wood (1984) 37 Cal.3d 174 ................................................................................ 8
Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788 ............................................................................. 13
Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181 ................................................................................. 2
Crowley v. Katleman (1994) 8 Cal.4th 666 ............................................................................... 13
DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593 ............................................................................... 14
Delaney v. Baker (1999) 20 Cal.4th 23 ................................................................................. 2
Fein v. Permanente Medical Group (1985) 38 Cal.3d 137 ........................................................................ 3, 5, 7
Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 121 .............................................................. 9, 10
Hayes v. County of San Diego (2013) 57 Cal.4th 622 ............................................................................. 13
Hrimnak v. Watkins (1995) 38 Cal.App.4th 964 ...................................................................... 3
Leung v. Verdugo Hills Hosp. (2008) 168 Cal.App.4th 205 .................................................................... 2
Mayes v. Bryan (2006) 139 Cal.App.4th 1075 .......................................................... 10, 11
Palmer v. Superior Court (2002) 103 Cal.App.4th 953 .................................................................... 2
Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208 ....................................................................... 15, 16
iv
Ruiz v. Podolsky (2010) 50 Cal.4th 838 ......................................................................... 2, 16
Salgado v. County of Los Angeles (1998) 19 Cal.4th 629 ............................................................................... 2
Slater v. Blackwood (1975) 15 Cal.3d 791 .............................................................................. 14
Stinnett v. Tam (2011) 198 Cal.App.4th 1412 .................................................................. 2
Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 .............................................................................. 16
Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100 ................................................................. 7, 8, 12, 14
Yates v. Pollock (1987) 194 Cal.App.3d 195 ............................................................... 9, 13
STATUTES
Bus. & Prof. Code, § 6146 .......................................................................... 6
Civ. Code, § 1431.1 ................................................................................... 10
Civ. Code, § 1431.2 ......................................................................... 4, 12, 14
Civ. Code, § 3333.1 ..................................................................................... 6
Civ. Code, § 3333.2 .......................................................................... passim
Code Civ. Proc., § 1295 ........................................................................ 6, 16
Code Civ. Proc., § 340.5 ............................................................................. 6
Code Civ. Proc., § 364 .......................................................................... 6, 16
Code Civ. Proc., § 877 ................................................................................ 4
Code Civ. Proc., § 877.6 ........................................................................... 16
RULES
California Rules of Court, Rule 8.520(f) .................................................. 1
OTHER AUTHORITIES
Richard E. Anderson, M.D., Effective Legal Reform and the Malpractice Insurance Crisis (2005) 5 Yale J. Health Pol’y, L. & Ethics 341, 35 .... 6
v
William G. Hamm, Ph.D., et al., MICRA and Access to Health Care (Jan. 2014), <http://www.cmanet.org/files/pdf/micra/final-2014-micra-report-012114-web.pdf> .................................................... 6
1
APPLICATION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE
Pursuant to California Rules of Court, rule 8.520(f), the
California Medical Association (CMA), California Hospital
Association (CHA), and California Dental Association (CDA) request
permission to file the attached Amici Curiae Brief in support of
Defendant, Appellant, and Cross-Respondent Franklin Moser, M.D.
I. INTERESTS OF AMICI CURIAE
CMA is a nonprofit, incorporated, professional association of
more than 39,000 physicians practicing in California, in all specialties.
CDA represents almost 24,000 California dentists, over 70 percent of
the dentists engaged in the private practice of dentistry in California.
CMA and CDA are the largest organizations representing physicians
and dentists engaged in private practice in California. CHA is the
statewide leader representing the interests of nearly 400 hospitals and
health systems in California. CMA, CDA, and CHA are active in
California’s courts in cases involving issues of concern to the healthcare
community.
Some funding for this brief was provided by organizations and
entities that share Amici’s interests, including physician-owned and
other medical and dental professional liability organizations and
nonprofit and governmental entities engaging physicians for the
provision of medical services, specifically: Cooperative of American
Physicians, Inc.; Kaiser Foundation Health Plan, Inc.; The Mutual Risk
Retention Group, Inc.; Medical Insurance Exchange of California; The
Dentists Insurance Company; Norcal Mutual Insurance Company; and
The Regents of the University of California.
No party or counsel for a party authored the proposed Amici
Curiae Brief in whole or in part, nor has any party or counsel for a
2
party made a monetary contribution intended to fund the preparation or
submission of the proposed Amici Curiae Brief.
II. NEED FOR FURTHER BRIEFING
This appeal involves the limitation on the recovery of
noneconomic damages in the Medical Injury Compensation Reform
Act of 1975 (MICRA), codified at Civil Code section 3333.2. This
statute, its effect on noneconomic damages awards in medical
malpractice cases, and its effect on the practice of medicine and access
to care for patients is of great interest to Amici.
Counsel for CMA, CHA, and CDA have reviewed the parties’
briefs in this case. The Opening Brief on the Merits, Answer Brief on
the Merits, and Reply Brief on the Merits discuss issues directly
affecting Amici and their involvement in the provision of medical care
in California.
Amici believe this Court will benefit from additional briefing.
This brief supplements, but does not duplicate, the parties’ briefs.
Rather, it discusses case law and aspects of other authorities not directly
addressed by the parties.
The limit on the recovery of noneconomic damages is an
important part of MICRA, which Amici have endeavored to protect
since the Legislature enacted MICRA in 1975. (See, e.g., Ruiz v. Podolsky
(2010) 50 Cal.4th 838, 851 fn. 4; Stinnett v. Tam (2011) 198 Cal.App.4th
1412; Leung v. Verdugo Hills Hosp. (2008) 168 Cal.App.4th 205, 212;
Palmer v. Superior Court (2002) 103 Cal.App.4th 953, 961; Delaney v.
Baker (1999) 20 Cal.4th 23, 31 fn. 4; Central Pathology Service Medical
Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 188 fn. 3; Salgado v.
County of Los Angeles (1998) 19 Cal.4th 629, 640 fn. 2, 643 fn. 3, 649 fn.
3
7; Hrimnak v. Watkins (1995) 38 Cal.App.4th 964, 979; Fein v. Permanente
Medical Group (1985) 38 Cal.3d 137, 171.)
Dated: June 10, 2014
Respectfully submitted, TUCKER ELLIS LLP Rebecca A. Lefler
By: /s/ Rebecca A. Lefler Rebecca A. Lefler Counsel for Amici Curiae California Medical Association, California Dental Association, and California Hospital Association
4
BRIEF OF AMICI CURIAE
I. INTRODUCTION
Civil Code section 3333.2 (“Section 3333.2”) limits the recovery
of noneconomic damages in cases involving professional negligence
against health care providers: “In no action shall the amount of
damages for noneconomic losses exceed two hundred fifty thousand
dollars ($250,000).” (Civ. Code, § 333.2, subd. (b).) This case presents a
question of statutory interpretation: In a case alleging professional
negligence, does the limitation in Section 3333.2 encompass solely the
noneconomic damages assessed by a jury, or does it include all
noneconomic damages, including settlements, compensating the alleged
injury? Amici assert that the Court of Appeal was correct in finding that
Section 3333.2 “sets an absolute limit on the total amount of damages a
plaintiff can recover from health care providers for noneconomic
losses” (Slip Opn., p. 8) regardless of the application of Code of Civil
Procedure section 877 or Civil Code section 1431.2.
A jury found in favor of plaintiff Hamid Rashidi on his medical
negligence claim against defendant Franklin Moser, M.D., and awarded
Plaintiff a total of $1,450,000 in damages, including $1,325,000 in
noneconomic damages. However, by the time of trial Plaintiff had
settled with a product liability defendant for $2 million and with Cedars
Sinai Hospital for $350,000, so he had already recovered more than the
jury held he had been damaged. Nevertheless, Plaintiff claims the jury’s
damages award should not be reduced to account for the monies he
received in settlement.
According to Plaintiff, the “damages” limited by Civil Code
section 3333.2 only include those damages awarded by a jury. In other
words, Plaintiff argues that any jury award is limited to $250,000 in
noneconomic damages, but a plaintiff can recover more than $250,000
5
in noneconomic damages if some of that recovery comes from
settlements with professional negligence defendants. Section 3333.2,
however, does not distinguish between settlements and verdicts; rather,
the statutory limitation applies to each “action.” Based on the language
of Civil Code section 3333.2, authority interpreting that statute, and the
policies behind the Medical Injury Compensation Reform Act of 1975
(MICRA), Section 3333.2 establishes a limitation on the total amount
that a plaintiff may recover for noneconomic damages from all health
care provider defendants as compensation for injury caused by
professional negligence. To hold otherwise would obliterate MICRA’s
purpose of reducing the costs of healthcare litigation; Plaintiff ’s
interpretation would result in health care providers’ liability and
plaintiffs’ noneconomic recovery being dependent on whether particular
defendants settle or proceed to trial, introducing volatility into a
statutory limitation intended to stabilize such awards.
II. LEGAL ARGUMENT
A. The ongoing importance of MICRA.
MICRA was enacted to address the malpractice insurance crisis
that threatened access to health care in California. In the 1970s, medical
malpractice insurance rates were so high they became impossible for
doctors to reasonably afford. “One of the problems…was the
unpredictability of the size of large noneconomic damage awards,
resulting from the inherent difficulties in valuing such damages and the
great disparity in the price tag which different juries placed on such
losses.” (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 163.) As
a result, “many doctors decided either to stop providing medical care
with respect to certain high risk procedures or treatment [or] to
terminate their practice in this state altogether.” (American Bank & Trust
Co. v. Community Hospital (1984) 36 Cal.3d 359, 371.) In other cases,
6
physicians decided to “‘go bare,’ i.e., to practice without malpractice
insurance. The result was that in parts of the state medical care was not
fully available, and patients who were treated by uninsured doctors
faced the prospect of obtaining only unenforceable judgments if they
should suffer serious injury as a result of malpractice.” (Ibid.)
In response, a special session of the California Legislature passed
MICRA, which includes statutes relating to arbitration agreements
(Code Civ. Proc., § 1295), contingency fees (Bus. & Prof. Code, § 6146),
notice before bringing suit (Code Civ. Proc., § 364), the applicable
statute of limitations (Code Civ. Proc., § 340.5), the collateral source
rule (Civ. Code, § 3333.1), the recoverability of noneconomic damages
(Civ. Code, § 3333.2), and periodic payments on certain judgments
(Code Civ. Proc., § 667.7).
MICRA has been extremely successful in keeping professional
liability insurance for health care providers affordable. A comparison of
liability insurance premiums in a variety of states with higher damages
limitations or no limitation at all shows that California’s insurance
premiums are significantly lower. (William G. Hamm, Ph.D., et al.,
MICRA and Access to Health Care (Jan. 2014), pp. 21-24
<http://www.cmanet.org/files/pdf/micra/final-2014-micra-report-
012114-web.pdf> [as of June 5, 2014].) MICRA has resulted in
“increases in insurance premiums of less than three percent per year,
less than one-third the rate at which premiums have risen nationally.”
(Richard E. Anderson, M.D., Effective Legal Reform and the Malpractice
Insurance Crisis (2005) 5 Yale J. Health Pol’y, L. & Ethics 341, 351
(footnotes omitted).) The continuing problems with medical liability
premiums in other states show how important it is that MICRA reforms
remain in place.
7
The MICRA provision at issue in this case is the limitation on
the recovery of noneconomic damages in Civil Code section 3333.2,
subdivision (b): “In no action shall the amount of damages for
noneconomic losses exceed two hundred fifty thousand dollars
($250,000).” As recognized by this Court decades ago, “[B]y placing a
ceiling of $250,000 on the recovery of noneconomic damages,” Section
3333.2 serves the purposes of MICRA by reducing costs and stabilizing
the inherent unpredictability of noneconomic damages awards. (Fein v.
Permanente Medical Group, supra, 38 Cal.3d at p. 159.) This Court has
held that a broad application of Section 3333.2 is “necessary to
effectuate the intent and policies prompting the MICRA legislation.”
(Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8
Cal.4th 100, 112.)
B. Other cases interpreting Section 3333.2 have held that it limits
all liability relating to an injury from professional negligence.
Plaintiff ’s inquiry—whether Section 3333.2 limits jury awards
only, or whether it limits recovery for noneconomic damages as a
whole—is a question of first impression. However, several cases
addressing Section 3333.2 provide guidance.
In Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital,
supra, 8 Cal.4th 100 (“Western Steamship”), Western Steamship Lines
was held strictly liable under maritime law for the medical injuries
suffered by one of its employees; it settled on appeal. Then Western
Steamship Lines brought an indemnity action against one of the
physicians alleged to have contributed to the employee’s harm, and the
question before this Court was whether Section 3333.2 should limit a
health care provider’s liability in an action for partial equitable
indemnification by a concurrent tortfeasor. (See 8 Cal.4th at 104.)
8
This Court held that the limitation in Section 3333.2 applied. The
Court discussed the purposes of MICRA, stating that it “reflects a
strong public policy to contain the costs of malpractice insurance by
controlling or redistributing liability for damages, thereby maximizing
the availability of medical services to meet the state’s health care
needs.” (8 Cal.4th at p. 112, citing Barme v. Wood (1984) 37 Cal.3d 174,
181.) The Court said, “Exempting indemnity actions from the $250,000
limit would threaten not only this goal but, the broader purpose of
MICRA by resurrecting the pre-MICRA instability associated with
unlimited noneconomic damages and increasing the overall cost of
malpractice insurance to account for these larger recoveries.” (Western
Steamship, 8 Cal.4th at p. 112.) A broad reading of Section 3333.2 was
therefore appropriate.
The Western Steamship Court noted that Section 3333.2 “operates
as a limitation on liability.” (Western Steamship, supra, 8 Cal.4th at p.
116.) To hold otherwise, the Court said, would be to “preclud[e] a
defense to liability in a separate proceeding for indemnification that the
health care provider would otherwise have available if joined in the
original litigation by complaint or cross-complaint.” (Id., at p. 116 n.
12.) The Court went on to say, “A non-MICRA tortfeasor should not be
entitled to greater indemnity simply because the health care defendant
was not a party to the underlying negligence action in which it could
have asserted the limitation of section 3333.2 simultaneously against
the injured plaintiff and the indemnitee.” (Ibid.)
Western Steamship is instructive in two ways. First, Plaintiff argues
that settlements are exempt from Section 3333.2, because the statute
only limits verdicts. But in Western Steamship it did not matter that the
plaintiff was attempting to recoup money paid in settlement; the
limitation in Section 3333.2 applied nonetheless. As Section 3333.2
9
operates as a limitation on liability, the form of the damages (jury
verdict or settlement) is irrelevant. Second, Plaintiff argues that the
noneconomic damages cap would apply to both Dr. Moser and Cedars
Sinai Hospital had they both been trial defendants, but because Cedars
settled and only Dr. Moser went to trial, Dr. Moser is liable for the full
amount. In Western Steamship the Court rejected the argument that the
limitation in Section 3333.2 can vary depending on whether certain
parties are before the court or named within the same lawsuit. Rather,
the purposes of MICRA are best served when the limitation applies
consistently.
California Courts of Appeal have similarly held that Section
3333.2 is best read to limit the total noneconomic damages in a
professional negligence action. For example, Yates v. Pollock (1987) 194
Cal.App.3d 195 (“Yates”) was a case in the Second Appellate District in
which several plaintiffs alleged professional negligence and wrongful
death. The plaintiffs, the decedent’s heirs, asserted that Section 3333.2
should be read to allow for $250,000 in noneconomic damages per
plaintiff. The Court of Appeal rejected that argument, holding instead
that “it is evident from the terms of the statute that while each injured
plaintiff is entitled to seek noneconomic damages, the maximum
recovery permitted in any single medical malpractice action is $250,000,
regardless of the number of plaintiffs involved.” (Yates, 194 Cal.App.3d
at p. 200 (emphasis in original).) Since all claims for wrongful death
must necessarily be consolidated under the one action rule, the court
concluded that the Legislature’s “use of the word ‘action’ in section
3333.2 represents its conscious decision to limit the total recovery for
noneconomic loss in such suits to $250,000.” (Id. at 200-201.)
The Sixth Appellate District expanded on the reasoning in Yates
in Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 121
10
(“Gilman”). In Gilman, the trial court reduced the jury’s $400,000
noneconomic damage award to Section 3333.2’s limit of $250,000, and
then reduced the damages an additional ten percent for the liability
attributable to another defendant not present at trial, Dr. Schulkin. The
question in the Court of Appeal was “whether in a medical malpractice
action noneconomic damages should be reduced pursuant to Civil Code
section 3333.2 (the MICRA cap) before or after noneconomic damages
are reduced pursuant to Civil Code section 1431.1 et seq. (Proposition
51) to reflect a defendant’s several, rather than joint, liability.” (Gilman,
supra, 231 Cal.App.3d at p. 126.) The court noted, citing Yates, that
“[u]nder MICRA, where more than one health care provider jointly
contributes to a single injury, the maximum a plaintiff may recover for
noneconomic damages is $250,000.” (Id., at p. 128.)
The Gilman court, considering different hypothetical situations,
rejected the plaintiff ’s argument that the plaintiff could simply collect
the entire $250,000 from the trial defendant, Beverly, despite the
percentage attributable to Dr. Schulkin, either because Dr. Schulkin was
insolvent or because he was not present before the court. “To apply
plaintiffs’ analysis would result in Beverly owing an additional $40,000
simply because a concurrent tortfeasor, whose act of medical
malpractice contributed to the plaintiffs’ injury, was insolvent or not
named in the lawsuit.” (Gilman, supra, 231 Cal.App.3d 128-129.) Here,
Plaintiff essentially asserts the same position the Gilman court
rejected—that one defendant’s liability may be increased simply because
a concurrent tortfeasor is not currently before the court.
In Mayes v. Bryan (2006) 139 Cal.App.4th 1075, a professional
negligence case, the jury found the trial defendants twenty percent
responsible and the settling doctors eighty percent responsible for the
plaintiff ’s total damages. After reducing the damages to reflect the
11
limitation in Section 3333.2, the allocation of fault, and prior
settlements, the trial court entered judgment against the trial defendant.
The Second Appellate District examined whether it was proper for the
trial court to limit noneconomic damages before apportioning the
damages among defendants.
The court held that in a case where more than one defendant
shares responsibility for the plaintiff ’s injury and the plaintiff is not at
fault, “each defendant is only responsible for the percentage of non-
economic damages in proportion to his or her proportionate fault. The
$250,000 MICRA maximum for non-economic damages”—not the
damages as awarded by the jury—“must be apportioned according to
Proposition 51.” (Mayes, supra, 139 Cal.App.4th 1075, 1102.) The Mayes
court therefore concluded that the co-tortfeasors’ settlements applied
toward the maximum noneconomic damages limitation of $250,000,
and that the plaintiff could not collect more than $250,000 in
noneconomic damages due to the limitation in Section 3333.2.
Thus Gilman and Mayes both held the $250,000 limit in Section
3333.2 was the maximum allowable amount that a plaintiff may collect
from all professional negligence defendants—without regard to whether
those defendants were present at trial. Plaintiff argues that Gilman and
Mayes are not applicable because in those cases “the compensation
recovered by the plaintiff for noneconomic damages from both the
settlement and the judgment were less than $250,000.” (Opening Brief,
p. 14.) But the amount is irrelevant; both cases show that other courts
interpreting Section 3333.2 read the limitation on noneconomic
damages to include a plaintiff ’s entire recovery, not just the liability
assessed against a single remaining trial defendant, and not just the
damages assessed at trial. Indeed, Plaintiff ’s argument that the amount
12
of damages in Gilman and Mayes affects how the statute should be
applied reveals the capriciousness of the argument.
Plaintiff ’s position—that the $250,000 limitation applies only to
jury verdicts and not settlements—contradicts the many cases that have
held otherwise. No case has held, as Plaintiff asserts here, that a
plaintiff may collect more than $250,000 simply because some
defendants have settled or are not present at trial, or that trial
defendants’ liability is increased because co-tortfeasors have settled.
This Court in Western Steamship rejected a narrow reading of Section
3333.2 that would have applied only to defendants present at trial, and
the Court should reject Plaintiff ’s narrow interpretation in this case.
C. To preserve the purposes of MICRA, Section 3333.2 should
apply consistently to any malpractice “action.”
Following the reasoning of the cases discussed above, this Court
should hold that Section 3333.2 limits all compensation for the
noneconomic damages allegedly suffered by Plaintiff as a result of
professional negligence. Such an interpretation of Section 3333.2
comports with the language and policies of Section 3333.2 and MICRA
as a whole. The limitation in Section 3333.2 should not shift or change
based on whether alleged co-tortfeasors have settled or are not before
the court, as Plaintiff asserts.
The analysis in the Court of Appeal below was correct. The court
held that Section 3333.2 limits Plaintiff ’s total recovery for
noneconomic damages resulting from professional negligence,
regardless of which defendants were present before the court at trial.
The court did not rely on offsets under Civil Code section 1431.2, since
there was no apportionment of fault by the jury. (Slip Opn., pp. 7-8.)
Instead, the court held that “MICRA…sets an absolute limit on the
total amount of damages a plaintiff can recover from health care
13
providers from noneconomic losses.” (Id., p. 8.) The court noted that
the focus of Section 3333.2 is “the total amount of damages for
noneconomic loss an injured plaintiff may recover from all defendant
health care providers in a single action.” (Ibid., emphasis in original.) In
rejecting Plaintiff ’s position, the court observed that “MICRA does not
distinguish between settlement dollars and judgments; it addresses a
plaintiff ’s total recovery for noneconomic damages.” (Id., p. 9.) The
Court of Appeal was correct to focus on Plaintiff ’s recovery, rather than
allowing Section 3333.2 to apply differently depending on which
defendants were present at trial.
This is a common-sense application of Section 3333.2 that
comports with the language and intent of the statute. Section 3333.2,
subdivision (b) limits noneconomic damages in any “action.” The
subdivision should be interpreted as encompassing all noneconomic
recovery for an injury arising from professional negligence.
As the Court of Appeal held in Yates, “action” encompasses all
claims for wrongful death based on the one action rule, which requires
all plaintiffs to join in a single action. (See Yates, supra, 194 Cal.App.3d
at 200-201, discussed supra at section (B).) Similarly, under California’s
primary right approach, a single injury gives rise to only a single claim
for relief. “[A] primary right is…indivisible: the violation of a single
primary right gives rise to but a single cause of action.” (Hayes v. County of
San Diego (2013) 57 Cal.4th 622, 630-631, quoting Crowley v. Katleman
(1994) 8 Cal.4th 666, 681 (emphasis in Hayes).) A “cause of action” in
this sense does not mean the various counts listed in a complaint, but
instead “the right to obtain redress for a harm suffered.” (Hayes v. County
of San Diego, supra, 57 Cal.4th at p. 631, citing Boeken v. Philip Morris
USA, Inc. (2010) 48 Cal.4th 788, 798.) “[O]ne injury gives rise to only
14
one claim for relief.” (Boeken v. Philip Morris, supra, 48 Cal.4th at p. 798,
quoting Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) An “action,” as
stated in Section 3333.2, encompasses that primary right to obtain relief
from harm suffered as a result of professional negligence.
Plaintiff does not disagree with this interpretation of the term
“action,” but he argues that settlements are not “damages” and
therefore they are not limited by Section 3333.2. (Reply Brief, p. 10.)
The two, however, cannot be divorced. Section 3333.2 does not apply
separately to each individual defendant in an action, or each non-
settling defendant in an action. And Section 3333.2 is “a limitation on
liability” (Western Steamship, supra, 8 Cal.4th at p. 116), not a limitation
on jury verdicts or a limitation on liability of only those defendants who
go to trial. It is a limitation on defendants’ liability for an alleged
violation of a plaintiff ’s primary right—regardless of the trial status of
any particular defendant or co-tortfeasor. (See id., at p. 116 n. 12
(liability for health care providers does not vary depending on whether
they are present at trial).)
In other circumstances, this Court has rejected the position that a
defendant should be liable for damages caused by other defendants who
are not before the court at the time a verdict is rendered: “A defendant’s
liability for noneconomic damages cannot exceed his or her
proportionate share of fault as compared with all fault responsible for
the plaintiff ’s injuries, not merely that of defendants present in the
lawsuit.” (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 603 (internal
alterations omitted) (interpreting Civil Code, section 1431.2).) Just as
liability for economic damages does not shift and change depending on
whether co-tortfeasors have settled, liability for the limited
noneconomic damages in a professional negligence lawsuit should not
change simply because co-tortfeasors have settled.
15
Furthermore, Plaintiff ’s interpretation of Section 3333.2
undermines important policies inherent in MICRA, including the
incentive to resolve cases before trial. “MICRA provisions should be
construed liberally in order to promote the legislative interest in
negotiated resolution of medical malpractice disputes and to reduce
malpractice insurance premiums.” (Preferred Risk Mutual Ins. Co. v.
Reiswig (1999) 21 Cal.4th 208, 215, citing Russell, supra, 15 Cal.4th at p.
790 and American Bank & Trust Co. v. Community Hospital (1984) 36
Cal.3d 359, 363–364 (emphasis added).)
Plaintiff agrees that if a jury’s verdict were against multiple
healthcare providers, “section 3333.2 [would limit] the total recovery of
noneconomic damages as to these multiple defendants.” (Reply Brief,
7.) But if some alleged co-tortfeasors settle, according to Plaintiff, a
plaintiff would be entitled to more than $250,000 in noneconomic
damages. Plaintiff argues that this interpretation would not inhibit
settlement. (Reply Brief, p. 13.) To the contrary, Plaintiff ’s position
would allow for an end-run around the statutory limitation in Section
3333.2, incentivizing plaintiffs to name as many defendants as possible
in a lawsuit in hopes of getting more money in settlements. And in high
noneconomic damages cases involving multiple defendants, defendants
would be incentivized to stay in a case and not settle, as their liability
would be reduced as a result. Creating a system in which settlements are
not subject to MICRA’s limit on noneconomic damages but trial verdicts
are does not encourage settlement.
Furthermore, a pronouncement from this Court that the
limitation on noneconomic damages does not apply to settlements
would make settlement negotiations wildly unpredictable. Under this
approach, determining whether a settlement is in good faith would
become difficult, as the noneconomic damages cap would apply in
16
varying amounts depending on which defendants proceed to trial, and
no damages cap would apply at all to settlements. (See Code Civ. Proc.,
§ 877.6; Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d
488, 499 (a determination of good faith should take into account a
settlor’s expected liability at trial).)
The alternative resolution of claims is central to MICRA’s
purpose of reducing the costs inherent in professional negligence
litigation. (See, e.g., MICRA’s Code Civ. Proc., § 364 (requiring pre-
lawsuit notice in professional negligence cases); Preferred Risk Mutual Ins.
Co. v. Reiswig (1999) 21 Cal.4th 208, 215 (“the clear policy behind
section 364 [is] to encourage settlements and lower insurance
premiums”); MICRA’s Code Civ. Proc., § 1295 (providing for
arbitration in professional negligence cases); Ruiz v. Podolsky (2010) 50
Cal.4th 838, 849 (“section 1295 was part of MICRA’s efforts to control
the runaway costs of medical malpractice, and that statute does so by
promoting arbitration of malpractice disputes”). Any interpretation of
Section 3333.2 that discourages settlement and makes resolution of
professional negligence cases more difficult contradicts the overall goals
and policies of MICRA and should be avoided.
III. CONCLUSION
Civil Code section 3333.2, subdivision (b) limits noneconomic
damages in an “action” for professional negligence. It does not allow a
plaintiff to collect more than the statutory maximum if co-tortfeasors
settle, and it does not allow for health care defendants’ liability to
change depending on which defendants are currently before the court.
Plaintiff ’s preferred interpretation would re-introduce the volatility and
lack of predictability that MICRA was intended to prevent. The Court
of Appeal’s common-sense approach should be affirmed.
17
Dated: June 10, 2014 Respectfully submitted, TUCKER ELLIS LLP Rebecca A. Lefler
By: /s/ Rebecca A. Lefler Rebecca A. Lefler Counsel for Amici Curiae California Medical Association, California Dental Association, and California Hospital Association
18
CERTIFICATE OF COMPLIANCE
Pursuant to rule 8.520 of the California Rules of Court, I hereby
certify that this brief contains 3,734 words, including footnotes. In
making this certification, I have relied on the word count of the
computer program used to prepare the brief.
By /s/ Rebecca A. Lefler Rebecca A. Lefler
996235
1001162.1
PROOF OF SERVICE
Hamid Rashidi Plaintiff, Respondent and Cross-Appellant
v. Franklin Moser, M.D.
Defendant, Appellant and Cross-Respondent
In the Supreme Court of the State of California, Case No. S214430 Court of Appeal, Second Appellate District, Division Four
Case No. B237476
I, Estella Licon, declare as follows:
On June 10, 2014, I served the following: Application for Leave to File Amici Curiae Brief in Support of Franklin Moser, M.D.; Brief of Amici Curiae California Medical Association, California Dental Association, and California Hospital Association on the interested parties in this action by:
X U. S. MAIL: By placing a true copy thereof enclosed in a sealed envelope(s) addressed as above, and placing each for collection and mailing on that date following ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service in Los Angeles, California, in a sealed envelope with postage fully prepaid.
PLEASE SEE ATTACHED SERVICE LIST
X (STATE): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed at Los Angeles, California on June 10, 2014.
/s/ Estella Licon
ESTELLA LICON
2 1001162.1
SERVICE LIST
Hamid Rashidi Plaintiff, Respondent and Cross-Appellant
v. Franklin Moser, M.D.
Defendant, Appellant and Cross-Respondent
In the Supreme Court of the State of California, Case No. S214430 Court of Appeal, Second Appellate District, Division Four
Case No. B237476
Curtis A. Cole, Esq. Kenneth R. Pedroza, Esq. Cole Pedroza LLP 2670 Mission Street Suite 200 San Marino, CA 91108 Tel: (626) 431-2787 Fax: (626) 431-2788 (Attorneys for Defendant, Appellant and Cross-Respondent Franklin Moser, M.D.)
Robert C. Reback, Esq. Reback, McAndrews, Kjar, Warford & Stockalper, LLP 1230 Rosecrans Ave., Suite 450 Manhattan Beach, CA 90266 Tel: (310) 297-9900 Fax: (310) 297-9800 (Attorneys for Defendant, Appellant and Cross-Respondent Franklin Moser, M.D.)
Daniel K. Balaban, Esq. Andrew J. Spielberger, Esq. Balaban & Spielberger, LLP 11999 San Vicente Blvd., Suite 345 Los Angeles, CA 90049 Tel: (424) 832-7677 (Attorneys for Plaintiff, Respondent, and Cross-Appellant Hamid Rashidi)
Stuart B. Esner, Esq. Holly N. Boyer, Esq. Esner, Chang & Boyer 234 East Colorado Blvd. Suite 750 Pasadena, CA 91101 Tel: (626) 535-9860 Fax: (626) 535-9859 (Attorneys for Plaintiff, Respondent, and Cross-Appellant Hamid Rashidi)
Clerk California Court of Appeal Second Appellate District, Division 4 300 South Spring Street Second Floor, North Tower Los Angeles, CA 90013-1213
Court of Appeal Case No. B237476
Hon. Richard L. Fruin, Jr. Los Angeles Superior Court 111 North Hill Street, Dept. 15 Los Angeles, CA 90012
Superior Court Case No. BC392082