54 Cal.App.5th 515
Cal. Ct. App.2020Background
- In 2014 Burchell consented to a simple outpatient "local excision of a scrotal mass." During surgery Dr. Barker removed a much larger specimen that included tissue from the penis (resection of the proximal corpora) without consulting Burchell (under general anesthesia) or his designated medical proxy. The mass proved benign.
- The more extensive resection caused permanent sexual dysfunction, loss of penile sensation, deformity, chronic pain, and only partial improvement after reconstructive surgeries.
- Burchell sued for professional negligence and medical battery. A jury found for Burchell and awarded $4,000,000 (past noneconomic) and $5,250,000 (future noneconomic). Economic damages had been stipulated at $22,346.11, yielding a judgment of $9,272,346.11.
- Burchell sought costs under Code Civ. Proc. § 998 (including expert witness fees totaling $27,868.42) and prejudgment interest. The trial court denied FPS’s motions and awarded those costs; FPS appealed.
- The Court of Appeal affirmed the judgment on liability and noneconomic damages, held MICRA’s $250,000 cap did not apply to this medical battery, but reversed the award of § 998–based expert fees and prejudgment interest because the § 998 offer was invalid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MICRA’s $250,000 cap on noneconomic damages (Civ. Code § 3333.2) applies | Burchell: battery was an unconsented, substantially different procedure (intentional tort), so MICRA does not apply | FPS: battery claim is essentially malpractice; MICRA caps noneconomic damages here | Court: MICRA does not apply because this is an intentional-type medical battery (consented-to procedure substantially exceeded) rather than nondisclosure of a complication |
| Whether the $9.25M noneconomic award was excessive | Burchell: injuries are devastating and warrant substantial noneconomic compensation | FPS: award is grossly excessive compared to analogous cases; ratio to economic damages unreasonable; counsel misconduct inflated verdict | Court: award supported by substantial evidence, not so excessive as to shock conscience; trial court’s denial of new trial upheld |
| Whether counsel’s closing argument (appeals to send a message/protect community) tainted verdict | Burchell: arguments were within advocacy bounds; jury instructed properly | FPS: improper appeals to punitive/result-oriented reasoning and jurors’ self-interest made award the product of passion/prejudice | Court: comments were improper but defendant forfeited objections; instructions cured potential prejudice; trial court not plainly wrong in denying new trial |
| Validity of Burchell’s § 998 offer and entitlement to expert fees & prejudgment interest | Burchell: served a single offer to compromise naming multiple defendants; entitlement to costs and interest followed | FPS: offer invalid because it was conditioned on acceptance by all offerees and was not separately serveable; FPS was not a party when offer expired | Court: § 998 offer was a single, conjunctive offer to multiple defendants and therefore invalid under controlling precedent; reverse award of expert fees and prejudgment interest |
Key Cases Cited
- Cobbs v. Grant, 8 Cal.3d 229 (1972) (distinguishes intentional medical battery—performance of substantially different treatment without consent—from nondisclosure-based battery)
- Central Pathology Service Medical Clinic, Inc. v. Superior Court, 3 Cal.4th 181 (1992) (MICRA can apply beyond claims labeled malpractice depending on claim gravamen)
- Larson v. UHS of Rancho Springs, Inc., 230 Cal.App.4th 336 (2014) (sets out two categories of medical battery and when MICRA applies)
- Seffert v. Los Angeles Transit Lines, 56 Cal.2d 498 (1961) (standard for reviewing jury noneconomic damages awards—appellate restraint unless verdict shocks conscience)
- Menees v. Andrews, 122 Cal.App.4th 1540 (2004) (a § 998 offer may not be conditioned on acceptance by all offerees; single conjunctive offer invalid)
- Wickware v. Tanner, 53 Cal.App.4th 570 (1997) (invalidates single-document § 998 offers that require joint acceptance by multiple defendants)
- Corn v. French, 71 Nev. 280 (1955) (illustrative case: patient consented to exploratory surgery but physician performed mastectomy—paradigm of unconsented substantial deviation)