*1 No. 24336. Feb. [S.F. 1985.] FEIN,
LAWRENCE Plaintiff and Appellant, GROUP,
PERMANENTE MEDICAL Defendant Appellant.
Counsel Gualco, Friedman, Friedman, Owen, Rex-Ann S. Morton L. Allan J. Collard, Schwimmer and Lawrence H. Poswall & Arthur E. Thompson, Tribe for Plaintiff and Appellant. Prim, Rice, III, Howard, Falk, Jr., Escher
Jerome B. H. Joseph Nemerovski, M. as Amici Curiae Harney & Poliak and David Canady of Plaintiff and behalf Appellant. Cole, Burt, M.
Thelen, Marrin, Terry & Curtis A. Bridges, Johnson Hornak, Donald A. Newman A. Lewis and Michael T. Rebecca Defendant Appellant. Wollitz, Pines, Machida &
Alschuler, Pines, & Howard Grossman Burt Danner, Watkins, Donald Rosten, Moss, C. Bryant Kenneth F. Latham & Miller, Musick, Peeler & Newell, Wheelock, Jr., P. Milton A. Joseph A. Horvitz, Poster, Garrett, Greines, & Ludlam, Greines James E. Horvitz & Richland, Romans, Horvitz, Marjorie G. Horvitz & Ellis J. Kent L. Levy, Lichtman, Cotkin, Collins, Klein, Todd, L. S. Savannah John Thomas L. Hassard, Cotkin, Mitchell, Franscell, W. Kolts & Larry Raphael Willett, Hassard, Charles Huber, David & Howard E. Bonnington, Rogers on behalf Bond, Hiestand as Amici Curiae Catherine I. Hanson and Fred J. *6 of Defendant and Appellant.
Opinion from a action, both
KAUS, J. parties appeal this medical malpractice Defendant claims $1 million in damages. about awarding judgment plaintiff of the the selection error during that the trial court committed reversible to order and in failing in as well as damages, instructions on jury, liability in a lump rather than periodically that bulk of award plaintiff’s paid attacks, but main- defendant’s defends against sum. Plaintiff the judgment two court, applied should in fixing damages, tains that the trial of 1975 Reform Act of the Medical Injury Compensation provisions 3333.2, limits noneconomic (MICRA): which Civil Code section 3333.1, section $250,000, Civil Code and medical cases in such litigation. source” rule “collateral which modifies the traditional to the chai- similar challenge on a constitutional claims are based Plaintiff’s
143 to other addressed and re- lenges recently of MICRA that we provisions Community American Bank & Trust Co. v. (1984) Hospital jected v. Wood 670], Barme Cal.3d 359 P.2d Cal.Rptr. [204 Roa Lodi Medical 446], Cal.3d 174 689 P.2d and Cal.Rptr. Inc. Group, Cal.3d 920 We 164]. conclude that judgment should be affirmed all respects.
I Saturday, 21, 1976, Fein, On February Lawrence a 34-year-old plaintiff attorney employed by Counsel Bureau California State Legislative Sacramento, Legislature felt brief in his chest as he was his pain riding similar work. bicycle a minute pain lasted or two. He noticed brief pain then, later, following day while he was and three jogging, days another experienced while When the episode after lunch. chest walking pain returned again while he was his office that he became working evening, concerned and, for his health called the office his following morning, regular physician, Brandwein, Dr. Arlene who was employed by defendant Permanente Medical an affiliate of the Kaiser Health Foundation Group, (Kaiser).
Dr. Brandwein no had that available and her re- open appointment day, advised ceptionist plaintiff to call central for Kaiser’s desk appointment “short appointment.” He did so an and was for 4 given appointment p.m. afternoon, Thursday, 26. Plaintiff testified he did not February feel that the so problem was severe as to immediate treatment at Kaiser require Hospital’s room, emergency he until the worked time his sched- uled appointment.
When he appeared his examined was a nurse appointment, plaintiff practitioner, Welch, Cheryl who under the working was supervision Frantz; physician-consultant, Dr. was aware that Nurse Wintrop plaintiff Welch was a nurse he did not ask practitioner to see a doctor. After examining Nurse Welch left the room to con- taking history, *7 sult with returned, Dr. Frantz. When she she advised that she and plaintiff Dr. Frantz believed his was to and pain due muscle that the doctor spasm had home, him a given Plaintiff went took the prescription Valium. Valium, and went to sleep. a.m.,
That about night, awoke with chest His plaintiff pains. severe wife drove him to the Kaiser room where he examined by was emergency Dr. Lowell examination about 1:30 a.m. an that the Redding Following doctor felt showed no of a heart ordered chest signs problem, Dr. Redding On results, X-ray. basis of his examination and Dr. the X-ray Redding him and gave muscle spasms
also concluded that was plaintiff experiencing codeine medication. an of Demerol and a for a injection prescription pain. intermittent chest Plaintiff went home but continued to experience and constant noon became more severe About that same day, pain an- by he was seen returned to the room emergency Kaiser where plaintiff of plaintiff From his initial examination other Dr. Donald Oliver. physician, of muscular origin, also was problem Dr. Oliver believed that plaintiff’s medication, but, directed that an electro- he administering after some pain was suf- (EKG) that plaintiff The EKG showed cardiogram performed. infarction). Plaintiff was then (acute from a heart attack fering myocardial to transferred the cardiac care unit. without sur- treatment and medical
Following period hospitalization 1976, and in October returned basis to his on gery, plaintiff job part-time trial, he had time full-time 1977. By resumed work September activities— been all of his recreational prior return to permitted virtually skiing. e.g., jogging, swimming, bicycling his heart action, alleging February filed plaintiff present have should and that treatment condition should have been earlier diagnosed or, least, lessen its residual been either the heart attack given prevent Permanente. against effects. The case went to only judgment Cedars-Sinai trial, Swan, at the At Harold the head cardiology Dr. Dr. witness for plaintiff. Medical Center Los was Angeles, principal be imminent attack Swan testified that that heart signal an important body. pain Such is chest which can radiate to other pain parts the condition prop- He stated that if relieved rest or medication. by pain condition, and his Inderal to stabilize erly can be diagnosed, patient given condition. relieve the surgery may that continued medication with appears who any patient further in his opinion Dr. Swan testified that a heart rule the worst possibility, should be EKG to out given chest an pains to Nurse had described He stated that the symptoms problem. have should Thursday, February Welch at examination p.m. when plaintiff stated that an EKG was in order. He also indicated to her that unrelieved with his chest pain returned to Kaiser late that same night ordered an also have should Redding medication he had been Dr. given, times ordered at those Swan, EKG had been if an EKG. Dr. According attack, could treatment heart it could revealed imminent plaintiff’s *8 at- or minimized have have been administered which might prevented tack.
Dr. Swan also caused attack. He stated that testified to the damage by died, as a heart had result the attack a muscle portion plaintiff’s large one-half, about plaintiff’s by future life about reducing expectancy Dr. other years. Swan that some Although acknowledged plaintiff’s disease, arteries also he if had been coronary suffer from felt that plaintiff treated his by future life would be decreased properly expectancy only to 15 rather than half. percent, defense,
Nurse Welch and Dr. testified on behalf indicat- Redding ing that them had at the time of the symptoms reported plaintiff examinations not were the same he had described at trial. De- symptoms fendant also introduced by a number of witnesses—not expert employed Kaiser—who stated that on the basis of the observed symptoms reported attack, before the heart the medical could not reasonably have personnel determined imminent. that a heart attack was Additional defense evidence (1) indicated that an EKG would not have shown that a attack heart was imminent, (2) that because of the severe in the coronary disease arteries attack, which caused plaintiff’s heart the attack could not been pre- vented occur, even had it been known (3) that it was about to and finally that, arteries, given deterioration in other the heart plaintiff’s coronary attack not had affected life plaintiff’s by expectancy degree suggested Dr. Swan.
In the face of evidence, this found in sharply conflicting jury favor and, plaintiff issue of liability to the trial court’s instruc- pursuant tions, returned verdicts special various elements of The itemizing damages. $24,733 awarded jury trial, for $63,000 lost time by to the wages for future medical $700,000 expenses, and lost in the future as a wages result of the reduction in life Finally, plaintiff’s expectancy.1 jury $500,000 awarded for “noneconomic damages,” compensate pain, inconvenience, suffering, physical and other impairment intangible damages sustained plaintiff from the time of the until his death. injury returned, After the verdict was defendant the court to modify requested award enter a to three judgment pursuant separate provisions (1) MICRA: $250,000 Civil Code section 3333.2—which limit on places noneconomic Civil Code alters the col- damages, section 3333.1—which rule, lateral source Code of Civil Procedure section 667.7—which court, for the provides trial which periodic had payment damages. rejected plaintiff’s constitutional to Civil Code sections 3333.2 challenge did earning 1Plaintiff capacity during claim that the heart attack would reduce his his lifetime. *9 3333.1 in a the noneconomic to damages reduced pretrial ruling,2 $250,000, to $5,430—deducting reduced the award for lost past wages com- $19,303 already disability that had received plaintiff payments the lost to first pay for such ordered defendant pensation wages—and $63,000 medical insurance by not covered any future medical expenses At were incurred. the as such provided by expenses plaintiff’s employer, time, lost wages to the award future same the court declined order that of Civil to Code damages pursuant noneconomic be paid periodically 667.7, “mandatory” Procedure that the statute was not section determining and that “under the facts and circumstances this case” unique periodic rather than promote[]” award such would payment “defeat[] the of section 667.7. purpose noted, both from Defendant main-
As parties appealed judgment. (1) committed excusing that trial error in all Kaiser tains court reversible of a (2) members from the on the of care nurse instructing duty prac- jury, titioner, causation, (4) to recover instructing permitting lost his refusing because of diminished life wages expectancy, order the of all Plaintiff that the damages. argues future periodic payment affirmed, that the court erred in in his favor should be but asserts judgment MICRA Since defendant’s claims upholding go at issue here. provisions turn of the we first its plaintiff, the basic favor validity judgment contentions.
II indicated it At outset of the the court jury, empanelment refuse to would excuse from the those who would jurors jury prospective those to Kaiser for under and also go prospec- treatment circumstances When defendant tive who members of Kaiser medical jurors plan. were its the Kaiser members without noted to the court’s exclusion of objection examinations, to the jury voir dire the court conducting explained individual “I found that we this time we’ve panel: am to excuse at because going you time just very by going through can selection such a prolong jury by long I’m suggesting each and these every juror under circumstances. mind and with an everyone open . . . who to Kaiser could not fairly goes case, weeks trying resolve the issues in this but be here four we 3333.1 before anticipated of sections 3333.2 and possible application 2Plaintiff had at that time. After unconstitutional requested trial and had the court to declare statutes ruled The court also time briefing, rejected full the constitutional attack. the court inform of the jury, would not them possible that in order to avoid confusion $250,000 were not collateral source benefits dis and that—since the amounts limit benefits; objected party such neither to the verdict puted—it simply reduce the would fashion. the matter this decision to handle court’s *10 circumstances, a under the I can get jury that. hope you appreciate [f] Probably some of in on you have sat situations where we’ve tried get in cases jurors and it on on on and on because just goes you’ll and and in On of questioned detail.” it turned out that 24 the 60 great inquiry, on the initial persons were members of Kaiser. were ex- jury panel They fashion, Voir then cused. dire in the with each ordinary proceeded party questioning jurors and for cause and remaining exercising challenges peremptory challenges.
Although defendant not does contend that who jurors ultimately it, served on the and decided jury the case were biased it nonetheless against asserts that the discharge of Kaiser members was and warrants improper contention, reversal. In support its that a mere argues juror’s potential in Kaiser membership does not a for a for basis cause provide challenge under the statute, applicable California of Civil Procedure section Code 602.
Past decisions do not a provide clear-cut answer to the whether question a potential juror’s in Kaiser itself render membership juror would sub to a ject statutory for 602 not cause. Section does define with challenge precision of “interest” or that will degree party connection with a sup port cause,3 challenge and in courts other states have come to different conclusions with to the respect whose relation eligibility jurors potential to one ship of the similar parties Kaiser members’ relationship defendant. Some cases have found error when a trial court has failed to excuse (see, such persons cause M A Power e.g., Coopera & Electric tive v. Georger (Mo. 1972) 868, 480 S.W.2d 871-874 A.L.R.3d [69 1286] of “consumer” [members electrical Weatherbee v. Hutcheson cooperative]; (1966) 114 761 Ga.App. S.E.2d mutual [policyholder [152 718-719] decisions, relies, insurance company]); other defendant which found no error when a trial court jurors. has refused to excuse such (Rowley Health Group Coop. (1976) Puget Sound Wn.App. of health care McKernan v. Los cooperative].) 252-254] [member Angeles (1911) Gas Co. etc. P. Cal.App. 677]—perhaps part more of relationships—(1) porated city or of a taxpayer does of a bank . . . shall not subsection except servant... As 3Section 602 not, the above of the his interest as member or citizen or however, juror solely by or principal following grounds: to a town, provides quotation governmental entity—do the event of the state whether the reason of his or other relationship in relevant be deemed a creditor of demonstrates, agent, political ... being or action, part: of a designated exceptions debtor and subdivision of a [1] section 602 such bank (4) “Challenges or in taxpayer Standing depositor justify depositor creditor, the main such county, municipal for cause its terms establishes that two bank to a bank challenge the relation ... question are county, city either or ... exclusive [t] party for the ... involved in the for cause. The statute be taken on one or .... . . . master and purpose water district.” Interest on the illustrative. county, relationship A depositor action, incor types this fact indicated that the mere the closest California case court point—the utility that some of were of the defendant company customers jurors not, itself, would their excusal for cause. mandate ren in Kaiser membership
But whether or not under California law *11 602, we dered the excludable cause under section prospective jurors it is of such members discharge pro believe that clear that the trial court’s with, To even vides no basis for the in this case. begin reversing judgment that if in Kaiser not it is not disqualifying, apparent itself membership selection the trial court the broad retains over the jury abused discretion it 256 (see, (1967) Movers Rousseau v. West Coast House process e.g., 878, 655]) the members by excusing 883-886 Cal.App.2d Cal.Rptr. [64 its court had apparently this case. As comments to the the jury suggest, the individual voir discovered that in situation this through past experience awith unproductive, dire would and procedure prove very time-consuming subject of ultimately being substantial the members proportion Kaiser Furthermore, rea trial court may one or the other. challenge by party voir dire of an extensive sonably have felt that the of process conducting who did not might jurors all Kaiser members itself prospective prejudice such From have foreseen that belong ques Kaiser. experience, may of potentially prej would involve the tioning invariably recounting specific, Kaiser, as as well udicial incidents concerning prospective jurors of dissatisfaction with Kaiser of relative satisfaction or exploration would, course, of not be jurors this venire. Such matters particular case, feared that admissible in the trial of the the court actual such revelations on voir dire all of the other prospective “taint” might circumstances, be said that in the courtroom. Under these it cannot jurors members without the trial court abused its discretion in the Kaiser excusing individual examination.
Further, clearly error even if the court did err in this regard, trial er rule an would not warrant This follows from the general reversal. overturning no roneous exclusion of a for cause basis juror provides 293, P. (See, 300-301 (1893) Asevado v. Orr 100 Cal. judgment. e.g., [34 Co., 280, 777]; 16 Cal.App. McKernan v. Los Gas etc. Angeles 7.41, 283; 1982) (Cont.Ed.Bar 1 § Cal. Civil Procedure Trial During (1952) 110 Slosson As the Dragovich court explained “ 370, or a party ‘Since a defendant Cal.App.2d 371 P.2d [242 945]: may of its the court jurors, entitled to a jury composed particular error, committing any pro own without discharge juror motion qualified and competent vided there is selected a finally jury composed qualified case within the to fit this defendant Although attempts persons.’” the removal of Kaiser theory the above rule—on the proviso (cf. unconstitutionally nonrepresentative rendered the jury panel members 149 Thiel v. (1946) Southern Co. L.Ed. 66 S.Ct. U.S. [90 Pacific 984, 166 earners])—defendant A.L.R. wage daily points 1412] [exclusion to no authority which even its claim that Kaiser members remotely supports class,” are a and the no evidence “cognizable record this case provides kind suggest this has the group experiences, shared ideology background that have been as sine non of identified such class. qua (See, e.g., People v. Fields 347-349 Cal.3d 803, 673 P.2d cf. v. White [plurality opinion]; People 680] Cal.2d system selection from jury primarily 9] [“The rosters certain clubs and membership organizations private [such Lions, Rotary the Chamber of would tend to normally Commerce] result in systematic inclusion of business and large profes- proportion *12 sional and a people definite of such exclusion certain classes as ordinary record, working On this we people.”].) cannot find that the that tried jury this matter was any a less cross-section of the than it would have community been had Kaiser members been not excused. the
Accordingly, manner in no which the was selected basis jury provides for reversing the judgment.
III Defendant next that contends the trial court misinstructed the jury the standard of care which by Nurse Welch’s conduct should be In judged. addition to the general BAJI of duty instruction on care of a graduate nurse, the court told the that care of jury “the standard of a nurse required is of practitioner physician a and . . when the nurse . surgeon practi tioner is a examining patient or making diagnosis.”4
We agree with defendant that this instruction is inconsistent with recent legislation forth setting for the services that general guidelines may properly be performed by registered in of nurses this state. Section 2725 the Business Code, and Professions as amended in explicitly declares a legislative intent “to recognize the existence of functions between overlapping physi- cians and registered nurses and to additional of permit sharing functions service of a trained or graduate the members of instruct practitioner an added instruction and and under similar sessed, 4The relevant surgeon duly initial and to you paragraph exercise the examining nursing instruction read in the standard of circumstances. Failure to licensed given profession this instruction tracks care patient making diagnosis.” plaintiff’s request. practice and care or practicing full: “It is skill nurse to have required medicine in the state of California when ordinarily fulfill either their of a BAJI No. profession in the same or similar used duty nurse knowledge in of of practitioner like 6.25; one who undertakes these duties cases, the second and by is that skill trained and skilled negligence. ordinarily paragraph to physician perform locality nurse [5] pos was I be- which collaboration provide
within health care systems organized includes, 2725 also tween nurses.”5 Section registered physicians in nursing” “the practice fall within among functions properly illness, reactions California, signs symptoms “[observation condition, treatment, behavior, and . . . de- or general general physical reactions, or gen- behavior termination of such signs, whether symptoms, . these light eral exhibit abnormal characteristics ...” appearance in all of a cannot the “examination” or provisions, patient “diagnosis” be a function reserved circumstances be said—as a matter law—to Although rather than nurses or nurse registered practitioners.6 physicians, (1) determine whether de- was entitled to have the certainly jury nurse fendant was practitioner medical center negligent permitting complained which plaintiff see a who exhibited the patient symptoms prudent of care of a reasonably whether Nurse Welch met standard treatment nurse examination and conducting prescribing practitioner the court should with her conjunction physician, supervising a matter of law— told the that the conduct this case must—as jury nurse’s (See Fraijo surgeon. be measured of care of a physician standard Hartland Hospital 340-344 Cal.App.3d *13 currently part: “In this at the 1973- provides amending 5Section 2725 in relevant section field, session, of which recognizes dynamic practice the Legislature nursing the that is It patient activities. is the intent continually evolving sophisticated to include more care legal amending provide of to clear Legislature the this section at the 1973-74 session It is usage. authority procedures acceptance common and for functions and which have physicians legislative recognize overlapping intent of functions between also existence organized health permit sharing functions within registered and nurses and to additional of registered . physicians nurses. . . systems provide care which for collaboration between and functions, in meaning chapter means those practice nursing The of within the of this care, cope daily living which are cluding help people with difficulties basic health which thereof or the treatment potential problems with or health or illness associated their actual skill, and includes require or knowledge which amount of scientific technical substantial safety, (a) patient that insure following: all of the and indirect care services Direct ft] comfort, performance pre of disease personal hygiene, protection patients; and the and measures, services, (b) including, patient care vention and Direct and indirect restorative ft] necessary to, therapeutic agents, but not limited the administration of medications and treatment, by ordered and within prevention, regimen implement a disease or rehabilitative tests, (c) immunization performance of skin scope physician of licensure of a ... ft] arteries, (d) Observation techniques, human blood from veins and ft] and the withdrawal of treatment, behavior, illness', general phys or symptoms general signs and reactions to reactions, behavior, condition, (1) signs, symptoms, ical of whether such determination characteristics; (2) based on implementation, áppearance or general exhibit abnormal referral, abnormalities, procedures, or standardized appropriate reporting, or observed procedures, or initia standardized changes regimen in accordance with treatment emergency procedures.” tion practitioners,” “nurse adopted legislation specifically related to Legislature 6In also meet the registered be both a nurse and providing practitioner” a “nurse must (See Nursing. by Registered Board of Bus. practitioner established for nurse standards Code, Nurse Welch had case established that seq.) et The evidence this & Prof. § “family practitioner.” nurse registered nurse and as both been certified Note, See A Revolution in White—New in Treat- generally Approaches 246]. 839, 871-879.) Nurses as ing 30 Vand.L.Rev. Professionals erroneous, But while the instruction was probable not reasonably (See error affected the in this v. Watson judgment People case. noted, Cal.2d 243].) As several hours after Nurse Welch examined plaintiff him the that her Valium gave supervising doctor had prescribed, returned to the medical center with similar examined and was complaints there by physician, Redding. Although Dr. was considerable that the of the medication to expert testimony failure pro- vide relief and the continued chest rendered the of muscle pain diagnosis spasm more questionable, Dr. Nurse Welch—failed order Redding—like facts, an EKG. Given these could jury reasonably not have found Nurse Welch negligent under the physician standard of care without also finding Dr. Redding—who had more information and to whom the stan- physician dard care was properly applicable—similarly Defendant does negligent. point any evidence which the award in this case was suggests affected whether defendant’s liability was on the grounded solely negli- gence Dr. Redding, rather than on the Redding both Dr. negligence Welch, and, and Nurse record, from our review we conclude that it is not reasonably probable that the instructional error affected the judg- ment.7 Accordingly, erroneous instruction on the standard of care of a nurse practitioner does not warrant reversal.
IV Defendant First, also objects to several instructions on causation. defendant contends an *14 that instruction on concurrent ac- causation8—though experts 7The medical on both agreed major probably sides that occurred the infarction about nine Redding’s hours after Dr. examination. While Dr. Swan did indicate that the chances of preventing minimizing or injury improved by possible are the earliest detection attack, impending of an he also assuming plaintiff preinfarctive testified that were still in the stage at the Redding’s time of Dr. assumption by examination—an the ex shared defense perts—if an performed EKG had been happy at that time “the same outcome could have happened [i.e., projected that we diagnosis for the 4:15 intervention and treatment at the time of Nurse Welch’s examination].” suggested Defendant never jury by the that its verdict it should be affected whether only Welch, Redding, found Dr. and not negligent. position Nurse to have been Its was simply light symptoms that in of the by plaintiff and the described exhibited at the time of examinations, Redding negligent failing neither Nurse Welch nor Dr. was in an to order that, EKG, event, the heart prevented attack could not have been even if an EKG performed had been at either time. may proximate 8The instruction read: “There injury. be more than one of an When cause negligent persons conduct of two concurrently proximate or more contributes causes injury, an persons proximate injury regardless the conduct of each of a of the said is cause of the injury. operative extent to which each the it contributes to A cause is concurrent if was injury at the produce injury.” moment and acted with another cause to the Permanente been because given the not have curately law—should stating out, however, the points the As plaintiff was the defendant in case. only number of different a evidence that the suggested alleged negligence to the injury, contributed Permanente persons employed by conduct of negligent in terms of the concurrent the instruction—worded jury informed the than one not “defendant”—properly more “person,” regard- the injury could be a cause proximate each act alleged negligent contributed to result. less other acts also of the extent which negligent court strictly necessary, not have been instruction Although might it. did err giving instruc cause proximate of another
Defendant also complains tions, of the defendant the conduct which informed the jury “[i]f plaintiff, or injuries substantial factor about bringing have foreseen the foresaw nor should the fact that the defendant neither the manner which they extent or of the or or damages, nature injuries occurred, of such from cause does not its conduct prevent being proximate of the gen informed the jury This instruction injuries simply damages.” harm extent or nature specific eral rule that the unforeseeability conduct was not the defendant’s suffered does not mean that & (See, Tel. Tel. Bigbee proximate injuries. e.g., cause Pacific See 665 P.2d Co. 947]. 58-59 [192 Torts, Witkin, (8th 1974) Law ed. Summary of Cal. generally § contention, this cited.) to defendant’s Contrary 2911-2912 cases pp. tortfeasors. or not there are concurrent instruction whether applicable inter Furthermore, could have that the suggests jury defendant although plaintiff’s injuries— liable for strictly the instruction render preted (i.e., if to have diagnosed on defendant even its failure imposing liability “foreseen”) suggestion heart condition was not plaintiff’s negligent—that as well as additional was given, the context in which this instruction ignores case depended upon instructions which informed the jury plaintiff’s whole, did not suggest instructions Taken as showing negligence.9 strictly that defendant could be held liable. *15 causation, read the follow- just reading the court example, 9For before the instructions negligent of some con- ing plaintiff injured proximate as a result instructions: “A who was injury from that for such compensation the to recover part duct on of a defendant is entitled Thus, you find, in accordance a verdict in this case plaintiff defendant. the is entitled to [K] if negligence was a my negligent; 2. That such with 1. That was instructions: defendant plaintiff.
proximate injury cause to the of establishing of action, by preponderance the of plaintiff “In this the has the burden negligence 1. The the following issues: necessary prove the evidence all of the facts to of 3. The injury plaintiff. of to proximate cause negligence 2. such was the That defendant. nature added.) (Italics plaintiff’s damages. ...” extent of V
Defendant next in argues jury that the trial court erred the permitting to award to damages for the loss of attributable so-called earnings plaintiff’s i.e., “lost the years,” of time which his life was period by expectancy diminished as a result (See of defendant’s negligence. generally Fleming, The A Lost Years: the Computation Problem in and Distribution Damages of (1962) 50 Years].) Cal.L.Rev. 598 The Lost [hereafter
We believe that this was element of clearly proper plaintiff’s damages. As Services, the United States Court in Sea-Land Inc. Supreme explained v. (1974) 573, 9, 26, Gaudet 414 U.S. L.Ed.2d 9 S.Ct. 806]: rule, “Under the prevailing American a tort victim for suing damages for permanent injuries is to permitted base his ‘on his recovery prospective for the earnings balance of his life at the time of his expectancy injury ’ by any undiminished result the shortening expectancy injury. as a of of James[, & Harper (1956)] 24.6, (em The Law of Torts 1293-1294 pp. § ” coms, (See phasis Torts, d, e, original). also Rest.2d 525- pp. § 526.)10 to our Although, the lost issue has not been knowledge, years pre viously California, decided in recovery of such is consistent with the rule general an of permitting award based on the loss future earnings likely to suffer of inability long “because to work as a period time in the he as could have done had he not sustained the acci of future ” (Italics Atchison, dent. added.) (Robison Ry. & S. F. Co. Topeka Cal.App.2d 260].)
Contrary contention, defendant’s recovery such future lost plaintiff’s will wages defendant to inevitably subject payment” a “double the event plaintiff’s heirs bring death action at some in the wrongful point future. In Blackwell v. American Film Co. 189 Cal. 700-702 plaintiff would or could have losses of nation harm. This difference is the injuries ascertain, person determine the diminution of the upon the during earnings that he will probably now services as sured 10The comments in the future. determined. the remainder of harmed is alive at impairment the earnings as The they injuries nearly prospective length difference, expectancy extent of future will be in view of the harm and as . *16 plaintiff’s during the expected working period . as can be causing . of future (1H viewed his Restatement state: “d. Loss or the time of resultant derived from prospective death, life received done earning harm the as injured person’s expectancy able determination life, of the it is trial, ordinarily advance, to receive capacity. during see Comment life, necessary, time of earning as but for the defendant’s his life a result the difference between the ...” during life at the time of trial, reducing they length capacity e.) expectancy {Ibid.) order to ascertain between of the tort would have been had impairment Accordingly, opinion of life. period the plaintiff present the In the case of but for the harm of his life experts injured value admissible as act. the trier of fact must value earning capacity tort. (On earnings would have had on the person the anticipated . . . expectancy there been damages, permanent plaintiff’s [1] probable determi bearing is mea If the no case, was properly 999], jury held in a death wrongful P. we that
[209 amount the consider the in it should damages instructed that computing as compensa- in an earlier judgment decedent had obtained from defendant in the Sea- Similarly, his earning capacity. tion for the future impairment setoff case, that an appropriate Services Court recognized Land the Supreme Services, Inc. (Sea-Land death action. be made the later wrongful 25- Gaudet, at pp. & fn. 30 L.Ed.2d at 592-594 supra, U.S. pp. 26].) instructed should have been that argues jury
Defendant alternatively of the lost years, earnings gross to deduct from plaintiff’s prospective that period. not incur during would “saved” cost of necessities for the the notion that damages is some authority there Although support (see loss “net” on the basis of plaintiff’s lost should assessed years Years, 23), not decide & we need fn. Lost Cal.L.Rev. such an instruc- neither that issue in this case because defendant requested cost savings of anticipated tion at trial nor evidence any presented circumstances, the Under these would an instruction. such supported (See LeMons v. not err in to instruct on failing point. trial court did 869, 875 (1978) 21 Cal.3d Regents University of California 946].) 582 P.2d VI trial court to verdict, defendant requested After the returned its jury Proce- Code of Civil 667.7 of the to section enter judgment—pursuant than a rather damages, of future for the dure-providing periodic payment constitutional rejected the trial court Although plaintiff’s award. lump-sum with consistent conclusion provision—a challenge periodic payment defendant’s denied nonetheless our recent decision American Bank—it discretion a trial court affording section 667.7 request, interpreting concluding judgment to enter a payment whether determining periodic “would of section 667.7 that on the facts of this case the legislative purpose than rather than by ordering periodic payments be defeated rather promoted misinterpreted trial court that the award.” Defendant contends sum lump future dam- of all to order periodic payment and erred in failing statute ages. insofar as court was error
We with defendant that trial agree “mandatory.” rather than “discretionary” section 667.7 as interpreted action], a superior The statute provides “[i]n [medical shall, ordering that enter a judgment of either request party, court cred judgment or its money damages equivalent for future than a lump- rather payments or in by periodic itor be in whole paid part *17 sum payment ($50,000) if the award or exceeds thousand dollars equals fifty in (Italics future damages.” added.)11 in some contexts the use of Although the term “shall” be with rather than a “discretionary” consistent a Estate Mitchell “mandatory” (see, meaning Cal.2d e.g., of 503]), 50-52 the of section 667.7 leaves little legislative history doubt that here the to a Legislature intended on the impose mandatory duty trial to court enter a in within periodic payment judgment falling cases the four corners of the section.12 judgment judgments
judgment, may, upon petition ments and periodic payment program eliminating payment judgments, it is the for those ages through periodic payments practice which it alter the any obligation not be intent of the given, all damages apportion has exhibited a continuing pattern required periodic payments, the shall be attorney’s of the periodic payments of order the return of this security, (1), adequately insured to post security adequate between payment if by compensate shall be The judgment court shall ment creditor be a a provider judgment 11Section entering law, the the care of an occurrence or recipient the court persons judgment reduced or judgment. pursuant to paid immediately prior to his made. Such actions payments, specifications was fees. of health make a the award 667.7 ordering caused paid, leaving the legislature or recipients of the payments, provide judgment ordering unpaid who are of the shall find the ordering the judgment potential persons against [1] judgment [f] creditor, paid intended. Upon termination of periodic payments payments provides expiration injured subdivision specific by (c) However, and the care payments judgment future that future compensation equals in the health care dependent in enacting to whom the windfall from lump-sum services, whole or in money damages failure to make creditor for in finding as to the number of payment It damages, terminated not be judgment further intent of the of all shall order the original judgment.” relevant is also the intent balance of the specified shall debtor to (a) exceeds rather than the death. In such cases the court which rendered the or so much as In the event any party money of shall a over an extended on the providers obligations subject this only superior sufficient to failing judgment payment of future part by periodic the court shall part: payments debtor in such future by accordance with this subdivision. [1] revert to the section to authorize the with make further fifty be damages such plaintiff or its reason to make the to assure full the “(a) subject dollar amount of judgment court lump-sum payments. By authorizing thousand which judgment certainty modification of future that the court finds that the creditor damages by periodic payments periodic payments, interest, specified dollar amount remains, equivalent or the In meet the needs of contempt legislature awarded shall, for whatever recovery damages. to provide the death of the require period judgment payments modification payments dollars debtor to in die period owed a Legislature award action damages by periodic payments, payments, modify at the payment to of future of for for future who that the courts will utilize such for the the which was intended to some As judgment ordering periodic payments court of ($50,000) for of periodic duty request debtor. loss shall cease and judgment judgment entry rather pay period then time over which the persons injury of including as future time damages, condition to in payment judgment an and, judgment such damages payments, the specified the event of dies damages future support, of injured than ... payment all or judgments in judgment either debtor. [1] debtor who is not judgment shortly necessary damages against future elements of the [1] court by addition to the the court shall earnings (d) to award and purposes which in shall creditor, plaintiff any security future dam of the (f) party, the interval authorizing which will judgment, Following paragraph such lump-sum payments damages. costs the death provided after the periodic awarded It is the provide original creditor in mal specify debtor might while (b)(1) judg enter shall pay but the introduced, originally 12As ultimately provided bill which became section 667.7 “may,” “shall,” trial court request periodic and at the party provide pay either (Assem. (1975-1976 Thereafter, Sess.) ments. Bill 1No. Second Ex. June § *18 facts this
Nonetheless, to the relating specific for several reasons on not be reversed case, should judgment we conclude that the trial court defendant’s with, formally rejected To the court begin although this ground. for the order, pe did provide its judgment motion a periodic payment future awarded for plaintiff’s of the which the damages jury riodic payment (they] such “as expenses the defendant to pay medical directing expenses, $63,000.” incurred to the amount up are
Second, we find that of noneconomic damages, with to the award respect of a periodic payment of the absence no to position complain defendant award noted, for a periodic payment As did not move award. defendant the trial court verdicts. special Although until after the had returned its jury the total designating a verdict special had the to return jury requested facilitate the award—to damage application amount of its noneconomic below—the 3333.2, we discuss constitutionality Code whose Civil section the noneconomic damage the portion was not instructed designate jury Instead, did not do so. and it damages, award that was attributable future dam- noneconomic verdict awarding returned an undifferentiated special $500,000. pay- to raise the periodic of defendant’s failure Because ages a earlier, to seek special of the opportunity ment issue was plaintiff deprived Further- damage.” of “future noneconomic verdict the amount designating Code section more, seen, court, to Civil trial acting pursuant as we have $250,000. 3333.2, $500,000 verdict to noneconomic damage reduced the noneconom- case, $250,000 well reflect Given the facts of this might Under judgment. until the time of ic sustained damage by plaintiff up circumstances, would be served interests of justice we conclude that the (See American award. damage noneconomic by affirming lump-sum 359, 378.) supra, v. Community Hospital, Bank & Trust Co. $700,000 for lost award is the Third and there finally, question of future are earnings type lost future future earnings. Although general pre- this case judgment, suitable to damage particularly periodic payment solely are awarded because the sents somewhat unusual situation trial court had If the years. lost plaintiff’s attributable the earnings the loss when over the time period ordered damages paid periodically such in their have been incurred, paid would to be the damages was expected life death, expectancy and thus—if entirety plaintiff’s expected after of this have received would were predictions accurate—plaintiff which the jury evidence element of Had defendant damages. presented “may” periodic payments. provide for provide simply bill that a court was amended Amend, 12, 1975, 26.) Sess.) (Assem. (1975-1976 June § Second Ex. to Assem. Bill No. however, “may” enactment', permissive to delete again Before the bill was amended the current statute. language appears language mandatory “shall” and to insert Amend, 25, 1975, Sess.) (1975-1976 (Sen. § June Second Ex. to Assem. Bill No. could have determined earnings what of the lost would proportion years’ for the likely spent rather than support plaintiff’s dependents Years, 598, 613), (see himself The Lost had it 50 Cal.L.Rev. raised the periodic timely issue in fashion so that the could payment jury have made findings might strong there well be special question, *19 argument that the dependents’ earnings share of the lost should be years’ subject periodic any In absence of such payment. apportionment, however, we conclude that the trial court determined that section properly 667.7 did not call for the of this payment element periodic plaintiff’s award.
Thus, sum, in we conclude that none of the defendant’s contentions call for a reversal of the judgment.
VII
We now turn to plaintiff’s contentions. noted,
As although jury by special verdict set noneconomic plaintiff’s $500,000, damages the trial $250,000 court reduced that amount to pur- suant to Civil Code section 3333.2.13 Plaintiff this con- challenges ruling, tending section 3333.2 is unconstitutional on a number of In grounds. many respects, plaintiff’s argument tracks the constitutional objections other provisions MICRA that we have in recently rejected American Bank, Barme and Roa.
We
with the
begin
claim that section 3333.2 denies due
be
process
cause it limits the potential
of medical
recovery
claimants with
out
them
providing
an adequate quid
In
a similar
pro quo.
chal
rejecting
lenge
Bank,
periodic
payment
at issue American
we
provision
explained
well established that a
has no vested
“[z"]i
property
right
a particular measure
damages,
Legislature
and that the
possesses
broad authority to modify the
scope
(See,
nature
damages.
such
e.g.,
Werner v.
121,
Southern Cal.
(1950)
etc. Newspapers
35 Cal.2d
129 [216
825,
P.2d
252];
A.L.R.2d
Feckenscher
(1938)
v. Gamble
12 Cal.2d
885];
499-500
Tulley
274, 280.)
v. Tranor
53 Cal.
Since
the demise of the substantive due process analysis of Lochner v. New York
process [i.e., the of the enactment or of the wisdom fairness the legislation is rationally the measure So pro long “adequacy” quid quo]. interest, to the need determinations as related to a state legitimate policy (Italics for, of, Legislature.” are for the desirability the enactment Bank, (American 368-369.) added.) true, course, the periodic payment It that section 3333.2 differs from provision- payment American Bank inasmuch as periodic provision whereas receipt a plaintiff’s large measure—simply postpones noneconomic damages limit on amount of section 3333.2 dollar places difference, however, does not alter That that a obtain.14 plaintiff may *20 in American As our language due standard of review. process applicable the retains Legislature that Bank itself our cases make clear suggests, past a measure, that the of timing, damages broad control over the as well as receive, that and is entitled defendant is and a plaintiff obligated pay as its long so damages the or limit recoverable Legislature may expand In Werner South- a state interest. legitimate action is related to rationally our court for ern Newspapers, supra, example, Cal. etc. a due dismissing process in “rational standard applied relationship” who plaintiff 48a—which permitted attack a statute—Civil Code section to obtain generally libel or slander action brought against newspaper to obtain traditional right “special eliminating only damages,” largely before the statute.15 enjoyed that such had “general damages” plaintiff of and history purposes In of our of the light legislative discussion Roa, Bank, 3333.2 it is clear section MICRA in American Barme and in those As we explained state interests. rationally legitimate related to in in a situation decisions, was acting in MICRA the Legislature enacting insurance was of medical malpractice which had found that the cost rising California, threatening in health system serious care posing problems of state and in curtail of medical care some parts the availability without practice doctors would very real creating possibility many with the such doctors insurance, injured by who patients leaving might of the cost to reduce of judgments. attempting uncollectible prospect Bank—terminating American upheld in periodic payment provision 14One feature plaintiff’s earnings, on the damages of payments damages, other for loss for future than ultimately recovered. death—clearly operate the amount of does to reduce to the by 48a similar damage” drawn section “general damage/special distinction 15The Sec section 3333.2. damage” established damage/economic distinction “noneconomic shame, mortification “damages reputation, of “general damages” for loss tion 48a defines as plaintiff alleges damages which damages” as “all feelings” “special and and defines hurt trade, business, or profession property, to his proves respect he has suffered alleges proves he has money as the occupation, including of such amounts libel, alleged no other.” expended a result of the as MICRA, medical malpractice insurance in enacted a Legislature variety doctors, of provisions affecting insurance and malpractice plain- companies tiffs. 3333.2, Bank,
Section like the sections involved American Barme and Roa, is, course, one of which made provisions changes existing tort rules in an to reduce attempt the cost medical malpractice litigation, and thereby restrain the increase medical insurance malpractice premi- It $250,000 ums. appears obvious that this section—by placing ceiling on the recovery noneconomic related to the ob- damages—is rationally jective reducing the costs of defendants and their insurers. course, There is no denying, that in some cases—like this one—section 3333.2 will result in the of a lower than recovery would have judgment been obtained before the enactment the statute. It is worth how- noting, ever, that in costs, a means of seeking lowering malpractice Legislature no placed limits whatsoever on a plaintiff’s to recover all right economic, pecuniary damages—such medical lost expenses earnings— resulting injury, but instead confined the limitations to statutory from *21 of recovery noneconomic damages, and—even to a then—permitted up $250,000 award for such damages. and. Thoughtful jurists legal scholars have for some time raised serious as to the wisdom of questions awarding for damages and pain case, alia, in suffering any negligence noting, inter the inherent difficulties in losses, a value on such placing monetary fact that money damages are at best only imperfect compensation for such in- tangible injuries to, and that such damages generally are on and passed borne innocent by, consumers.16 While the of such dam- general propriety is, course, of ages firmly (see, imbedded in our common law jurisprudence e.g., Capelouto v. (1972) 889, Kaiser Foundation Hospitals 7 Cal.3d 892- 893 856, Cal.Rptr. 880]), 500 P.2d of no California case which we are aware has ever that the to suggested recover for such noneconomic right Traynor, 16Justice in opinion (1961) a dissenting Angeles v. Los Transit Lines Seffert 498, 337], 56 Cal.2d 511 364 P.2d observed: “There has been forceful criticism of the rationale for awarding damages suffering pain negligence for and cases. (Morris, Liability 476; Plant, Pain Suffering, Damages and 59 Columb.L.Rev. Pain for for Suffering, 200; Jaffe, and 19 Ohio Damages L.J. Injury: Impact Personal The Insur for of ance, 219; & Contemp. Law Damages Probs. Zelermyer, Suffering, Pain and for Syracuse L.Rev. damages Such originated under a of primitive punishing law as means wrongdoers assuaging feelings They of those wronged. who had been [Citations.] increasingly become emphasis society anomalous as in a shifts mechanized from ad hoc punishment orderly to through goods distribution of price losses insurance and the or of transportation. Ultimately by part such losses public price are borne a free fault as Nonetheless, for the benefits of mechanization. long recognized this state [fl has [Citations.] pain suffering [citations]; as damages negligence any change elements of in this cases ” regard by (Italics must problem added.) await reexamination Legislature. or revision. limitation legislative immune from constitutionally is
injuries Cal. etc. (See, Newspapers, Werner v. Southern e.g., 126-128; Morris, Suffering Pain and Liability fn. ante. See generally for relating of rules revision [urging legislative Colum.L.Rev. for pain suffering].) to reduction, that, med- cost in the absence some
Faced with the prospect collect- difficulty matter have as a realistic ical malpractice plaintiffs might as well as nonpecuni- of their damages—pecuniary ing judgments to attempt it was in the interest public concluded that ary—the Legislature damages. Although noneconomic by obtain some cost savings limiting provi- to the wisdom of this can certainly disagree reasonable persons sion,17 to a state it related say rationally legitimate we cannot is not interest.18
has suffered.
Bar Association’s Commission
lar limit
the benefit
whether
first
some
ceiling.
practice
economically undercompensated. In
fund out of which the
awards within realistic
mission
insurance carriers
reflected
including
savings
prove to be the norm.”
companies
to the
injury
of Com. on Medical Professional
of
17Inits
place
judgments.
limiting
an
constitutionality
priority
lowering
arbitrary
plaintiff
actions
will be
[1]
should not be
explained
in
comprehensive report
pain and
statutory ceiling
is
would reflect
non-economic loss are that
imposed
The
lowered
While it
appropriate
as economic
which
TheM]
ceiling
generated
the tort
Commission has
plaintiff by
medical
its
suffering,
of such statutes
on recoveries for
set more accurate rates because
have no
premiums),
plaintiff’s
conclusions as follows:
distinguished
on
arguments against limiting non-economic
*22
limits,
system
(Ibid.)
legitimate
any potential savings in their
recovery,
by ceiling
loss,
on
place
a
collateral
and that the
ceiling
reduce the
on Medical Professional
is to
that a
attorney’s
on the medical
Liability
lead to more settlements
taken no
recovery
from other areas of
from
addition,
ceiling
compensate
would have to be
on
wrongdoer
the Commission’s
on
economic
premiums
sources,
general damages,
recovering
non-economic
exposure of insurers
general
ceiling
fees can be
position,
on the
of non-economic loss.
it
“When
malpractice insurance
it is unconscionable
loss,
should
argued
102 ABA
damages portion of an award
recovery
all
injured party
however,
general
deducted without
but
finally
result from the enactment
liability
rates;
professional
his economic
Liability
pay for all the
losses because
view
expressly
that
greater
Ann.Rep.
and less
of non-economic
no immediate
resolved
damages would contain
to deduct
on whether it
general
has been
(which
loss are that medical
recommended
because the
predictability of the size
malpractice
“[took]
damages, even
litigation,
786, 849.)
losses he has
crisis, the American
before
reductions
damages
preclude
questions
leaving
arguments
payments
demonstrated, the
economic loss
cost or
no
the insurance
ceiling might
loss.”
that no dol
appropriate
position
and
are as
provides a
The com
regarding
of such
premium
could
to or for
plaintiff,
personal
in favor
caused,
though
enable
(Rep.
mal
jury
real
on
he
be
support
18Indeed,
pro quo” to
required
“quid
process principles
if
some
even
due
malpractice
statute,
a viable medical
say
preservation
it
be
would
difficult
legislation
adequate
benefit for the detriment
industry
insurance
this state was not an
upholding
Court observed in
Supreme
As
imposes malpractice plaintiffs.
on
the United States
liability
limit
total
provisions
placed
Act which
dollar
Price-Anderson
“
empha
be
‘It should
accident:
a defendant in the event of a nuclear
would
incurred
lawsuit,
.
.
defendant
that counts.
.
collecting judgment,
filing
[A]
.
sized . .
that it is
obtained.’”
pay judgment
once
liability
be unable to
theoretically
with
‘unlimited’
161
A number of state courts have invalidated statutory
limiting
provisions
damages
(see,
medical
actions on a
of theories
malpractice
variety
e.g.,
(1976)
v. Central
Wright
Hospital
Du
Plaintiff alternatively contends that the section violates the equal protec- clause, tion both because it impermissibly discriminates between medical victims, victims and other tort its limits in med- imposing only cases, ical malpractice because discriminates within the improperly victims, class medical malpractice denying “complete” recovery (Duke Power Study Group (1978) Co. Carolina Env. 438 U.S. *23 89-90 L.Ed.2d 595, 621, 98 [quoting S.Ct. from 2620] Although we suggest do not Legislature that the felt that section 3333.2 alone—or for that single matter other provision of MICRA—was essential to the survival of the medical malpractice system, insurance surely nothing process there is in the due clause which pre- a legislature vents making which, combination, from a statutory changes number of pro- vide the requisite justify to benefit the enactment. Maurer, 19The exception one supra, is Carson v. Hamp A.2d which the New shire provision court struck down a imposed which a on only damages, limit noneconomic a apparently Roa, statute (37 modeled on section As supra 3333.2. we noted in Cal.3d 9), fn. variety Carson court—in invalidating provisions of its medical malpractice legislation—applied scrutiny” an “intermediate standard review that is in consistent with the standard applicable this state. damages with noneconomic to those
damages only malpractice plaintiffs $250,000. exceeding contention, from what it should evident
With to the first respect of section limited the already Legislature application we have said that the to an insur because was responding 3333.2 to medical cases related the statute is rationally ance “crisis” in that area and that particular Bank, Barme and Roa make clear American legislative purpose. no has circumstances, claim equal protection under these initial plaintiff’s Barme, 370-374; Bank, (See supra, merit. American Cal.3d supra, Roa, 920, 930-931.) 174, 181-182; 37 Cal.3d supra, 37 Cal.3d because As for the statute violates equal protection the claim that the consti malpractice plaintiffs, of its differential within the class of effect First, already explained, as we have unavailing. tutional argument equally be a distinction a reasonable basis for drawing had Legislature clearly desired cost damages, providing tween economic and noneconomic of noneconomic the recovery should be obtained savings only by limiting 159-160, certainly does (See ante.) The clause damage. protection pp. equal recovery out-of-pocket to limit victim’s Legislature not require it has found it appropriate medical or lost because earnings simply expenses similar noneco suffering some limit on damages pain place (See, etc. Newspapers, nomic Werner v. Southern Cal. e.g., losses. 121, 126-128.) violates Second, that the statute no merit to the claim there similarly through it obtains cost savings because equal protection principles than, $250,000 through for example, limit rather damages, on noneconomic Although plaintiff damages. elimination of all noneconomic complete $250,000 limit noneconomic that the amicus claim supporting perspective—than an protection is more invidious—from damages equal $250,000 limit on the that the damages ground abolition of such complete if that analysis injuries, more on those with the most serious heavily falls vulnerable equally would be were valid a abolition complete greater obviously imposes abolition an because equal protection challenge, damage larger have obtained on those who would losses monetary plaintiffs Just as lesser amounts. have recovered awards than on those who would invidi- viewed as never been elimination of a cause of action has complete right have lost the who within the class of victims ously discriminating sue, $250,000 victims—does limit—which to all malpractice applies to an unconstitutional discrimination. amount $250,000 limit is un- *24 contention that the Nor can we with amicus’ agree cost its hoped-for have realized the could Legislature constitutional because 163 reduction of all noneconomic dam- savings by mandating a fixed-percentage awards. The choice reasonable methods for achiev- age between alternative are a number ing given objective is for the there generally Legislature, of reasons the the it One of the why have made choice did. Legislature may identified in the problems the was legislative hearings unpredictability awards, the size of the large noneconomic from inherent damage resulting in difficulties in tag such and the the valuing disparity price great which different on such losses. The could reason- juries Legislature placed have determined would ably that an across-the-board limit more provide Furthermore, stable base which to one calculate insurance rates. ami- $250,000 cus the suggests, have felt that the fixed limit Legislature may would settlements promote “the unknown by eliminating possibility phe- nomenal awards for that can worth the pain suffering make litigation gamble.” Finally, Legislature have felt that was fairer to simply malpractice plaintiffs in general only reduce noneconomic very large awards, damage rather than to diminish the more modest recoveries pain and suffering and the in like bulk of Each great grounds cases. of these provides $250,000 sufficient rationale for the limit. light comments, some of the dissent’s one additional observation is
in order. assertion, Contrary dissent’s our application equal pro Bank, Barme, tection principles American Roa and this case is not incon sistent with the principles enunciated Brown v. Merlo 8 Cal.3d 388, 212, Cal.Rptr. 505], 506 P.2d Bray A.L.R.3d v. Cooper (1978) 21 604], Cal.3d 841 148, 582 Cal.Rptr. or like cas es. As Cooper traditional, explains, under the rational relationship “ standard, equal protection what is is that the court ‘conduct “a required serious and genuine judicial inquiry into the correspondence between the classification and the (21 legislative goals.’”” Cal.3d at 848 [quoting p. Newland v. Board (139 Governors Cal.3d 254), 566 P.2d italics added Cooper].) We conducted such an cases, in all of these inquiry and have found that the classifications statutory are rationally related to the conceivable “realistically legislative pur ” pose^] (Cooper, 851) supra, Cal.3d at of MICRA. We have p. invented fictitious that could not purposes have been within contempla Merlo, tion the Legislature (see Brown v. 8 Cal.3d at fn. supra, p. 7) nor ignored in treatment disparity which statute realistic terms (Id. But imposes. Brown and have never been Cooper interpreted to mean that we may strike down a properly statute because we simply disagree with the wisdom the law or because we believe that there is a Shierloh, fairer method for with (See Cory dealing problem. 430, 437-439.) Our recent decisions do not reflect our support challenged provisions of MICRA as a matter but policy, simply
our conclusion that under established constitutional principles Legisla *25 Justice Traynor explained to measures. As had the such authority adopt
ture 35 Cal.2d 129: Newspapers, supra, in Werner v. Southern Cal. etc. do not to suit its tastes measures which happen court cannot eliminate “[A] for the correction of to forum system. if it seeks maintain democratic is a legislation responsive legislature.” ill-considered The trial 3333.2 is constitutional. we conclude that section Accordingly, award pursuant noneconomic reducing damage court did not err its terms.
vin reasons, to Civil Code sec- challenge For similar constitutional plaintiff’s law “collateral source” common tion 3333.1—which modifies this state’s rule—is also without merit. rule, a source jury, calculating
Under the traditional collateral action, bene take into consideration in a tort does not plaintiff’s the plaintiff or disability payments—which fits—such as medical insurance defendant—i.e., “collateral has received from sources other than the (See, e.g., cover from the resulting injury. sources”—to losses Helfend Rapid Southern Cal. Transit Dist. this rule medical 398].) 77 A.L.R.3d Section 3333.1 alters (a), medical 3333.1, mal cases.20 Under section subdivision evidence such collateral defendant is to introduce permitted practice when a defendant to the source benefits received or payable plaintiff; evidence, evidence of introduce may chooses to introduce such the plaintiff secure for example—to the amounts he has insurance paid—in premiums, 3333.1, (a)—as ultimately adopt the benefits. section subdivision Although evidence, the such Legislature ed-does not how the should use specify jury would set plaintiff’s damages assumed that in most cases the jury apparently elects, “(a) the defendant so provides part: 20Section 3333.1 in relevant In the event negli injury against provider upon professional based personal an action for a health care plaintiff as a may any payable as benefit to gence, he introduce evidence of amount Act, Security any state or personal injury the United States Social pursuant result of the health, act, or income- any sickness disability compensation federal or worker’s income insurance, income-disability or disability provides health benefits accident insurance partnership, or any group, organization, cor coverage, any agreement contract or medical, dental, for, hospital, other provide, pay or reimburse the cost poration evidence, plaintiff such health services. Where the defendant elects to introduce care plaintiff paid or contributed to secure any amount which the has introduce evidence has introduced evidence. right concerning benefits which the defendant any his insurance (a) (b) shall recover pursuant introduced to subdivision No source of collateral benefits against rights plaintiff against subrogated nor it be to the amount shall a defendant.” *26 “net” collateral a lower level because of its awareness of plaintiff’s source benefits.21 addition, 3333.1,
In (b) section subdivision that whenever such provides introduced, collateral source is of those benefits is evidence the source pre- cluded from or from the med- obtaining either from the subrogation plaintiff concerned, ical malpractice defendant. As far as the plaintiff malpractice (b) subdivision assures from his that he will suffer no “double deduction” benefits; tort recovery as a result of because his collateral source receipt jury has learned of his benefits his tort award virtue may by reduce benefits, of such source Legislature any eliminated collateral right may have had to obtain those from the As repayment plaintiff. benefits defendant, for the malpractice (b) subdivision assures that reduction any awards malpractice result from the consideration of the may jury’s plaintiff’s collateral source to benefits will inure to its benefit rather than the benefit of the collateral source. Wood,
In our recent case of Barme 174, we Cal.3d addressed 3333.1, constitutional to (b) section challenge subdivision brought by “collateral source” whose subrogation defend- rights against malpractice ant had been eliminated the statute. In by the section’s constitu- upholding (37 3333.1, 21Aswe noted in 5): Barme at p. Cal.3d fn. “Earlier drafts of section (a) subdivision required the trier fact to deduct such collateral source benefits in com- puting damages, (a) but—as simply provides enacted—subdivision for the admission of evi- benefits, dence of such apparently leaving to the trier of fact the decision as how to such evidence should affect damages.” assessment case, In this it is not parties clear from the record recog- whether the and the trial court 3333.1, (a) nized that simply section subdivision damages authorizes the reduction of on the benefits, basis of collateral source but does not specifically mandate such a As reduction. (see noted ante), earlier rejecting plaintiff’s pretrial fh. after constitutional chal- statute, lenge to this the trial any jury court indicated that in order to avoid confusion of and because the amount of dispute, collateral source benefits was not in the evidence would not be admitted at trial simply jury by and the court would reduce the award the amount of such object procedure benefits. Plaintiff did not to respect this and raises no claim with to aspect this of the on ruling appeal. court’s contention, however, Plaintiff does raise minor which is somewhat related to this matter. awarding damages applicable to plaintiff’s expenses, future medical the trial court indi- $63,000 cated that defendant pay by was to the first expenses of such that were not covered Plaintiff, employer-provided may medical pointing by insurance. out that he not covered future, medical insurance in apparently objects any damages reduction future on potential the basis of future collateral source benefits. Under the terms of the trial court’s however, judgment, liability postponed only plaintiff defendant’s for such will be if benefits; thus, does in fact any receive such collateral it plaintiff is difficult see how has Indeed, complain cause to aspect anything, about this of the if award. the trial court to, given plaintiff $63,000 jury’s more than he was entitled since it did not reduce the receive, award likely the collateral source imposed benefits was but instead $63,000 continuing liability on up to pay defendant to a total of noncovered medical expenses plaintiff may injury. incur the future as a result Defendant has objected to portion judgment. this due process source has no vested we that a collateral tionality, explained (b) 3333.1, rationally subdivision and that section right subrogation the costs imposed MICRA since reduces to the purposes related area to of the costs some by shifting medical defendants other insurers. *27 Barme, challenges here because by plaintiff
This case is controlled (b), and contends that (a), rather than subdivision the subdivision validity than the rights rather violates the of a malpractice plaintiff, the statute rights Nonetheless, is challenge constitutional plaintiff’s of a collateral source. still without merit. to the statute. objections we with the due begin process
Again, evi (a) a new terms, category adds its subdivision by simply Although, action, we recognize is in a medical malpractice dence that admissible award, of a damage in the affects the measure reality plaintiff’s provision of collateral source an award on the basis to reduce jury permitting be unaware. None for the would jury benefits of which—but statute—the 3333.2, theless, of section in our discussion already as we have explained of damages. measure has no in a right a vested property particular does not render Thus, a award plaintiff’s the fact that the section reduce to related rationally unconstitutional so as measure long the provision a state interest. legitimate mal- lead to lower 3333.1, (a) to likely section subdivision
Because sec- awards, this no but that provision—like there can be question practice the costs MICRA’s objective reducing tion relates to 3333.2—directly And, we have insurers. defendants and their by incurred malpractice that the reduction seen, determined reasonably could Legislature availability by interest preserving of such costs would serve the public that patients to assure by helping the state and throughout of medical care would have source the future who were medical injured by malpractice to cover their losses. liability of medical insurance choosing Moreover, irrationally did not act the Legislature clearly the costs of lowering rule as one means the collateral source modify rule more than source the collateral analyzing litigation. District, Transit Rapid v. Southern Cal. decade ago Helfend crit- severely had that most commentators legal Cal. 3d we acknowledged he “losses” recovery” “double rule for affording plaintiff icized the sustained,22 had not in had and we noted that reality many jurisdictions (Id., 6-7, either & restricted or at & fns. pp. Although it. repealed we concluded a number considerations counseled policy Helfend rule, we in that it against judicial way abolition no was suggested revision, but, immune from stated legislative on the contrary, desirable, ef- changes commentators “if would more proposed legal (Id., 13.) In the fectively accomplished through reform.” legislative mid-1970’s, California was a modifica- only one states include many tion of the collateral source of medical malpractice rule as its reform part (see Comment, legislation An Legislative State Analysis Responses Medical Malpractice 1447-1450), Crisis Duke L.J.
American Bar Liability Association’s Commission on Medical Professional also recommended abolition of rule as one appropriate response *28 medical malpractice (See “crisis.” of Com. on Medical Professional Rep. Liability, supra, 786, 102 ABA 849-850.) Ann. Rep. Under circum- stances, we think it is clear is provision rationally related to legitimate state interest and does not violate due process.
Plaintiff’s equal to section without protection challenge equally 3333.1 is merit. As with all of the MICRA we have in provisions that examined recent cases, the Legislature could restrict the application statute’s properly medical malpractice cases because the was intended to meet provision help problems that had specifically arisen the medical field. malpractice
Accordingly, the trial court did err in section 3333.1.23 upholding
IX The judgment affirmed. Each shall on bear its own costs party appeal. Broussard, J., Grodin, J., Lucas, J., concurred. J.,
BIRD, decision, C. Dissenting. of this With today’s majority court have fashion, upheld, piecemeal victims statutory provisions require 22See, James, e.g., 25.22, 2 Harper (1968 of Supp.) The Law Torts section page at 52; Fleming, (1966) The Collateral Source and Loss Law 54 Rule Allocation Tort 1478; James, Liability: Cal.L.Rev. Social Insurance Tort The Problem Alternative of (1952) 537; Schwartz, Remedies (1961) 27 N.Y.U.L.Rev. Source Rule 41 Collateral 348; West, Subrogation: B.U.L.Rev. The Collateral Source Rule Sans A Plaintiff’s Windfall (1963) Note, 395; Damages: Okla.L.Rev. in the Unreason Law The Collateral Source of (1964) Rule 741. Harv.L.Rev. majority 23The of passed upheld validity out-of-state cases that have issue on the have provisions modifying (See, e.g., the collateral rule in source medical cases. 744, (1977) 751-753]; Eastin v. Rudolph Ariz. 576 [570 P.2d v. Iowa Broomfield (Iowa 1980) 550, 557-560; Methodist Medical Ctr. 293 N.W.2d Pinillos v. Cedars Le (Fla. 365, Maurer, Hospital Corp. 1981) Contra, banon 403 So.2d 367-368. Carson v. 825, 835-836.) 424 A.2d (Amer-
of medical
their
delayed
judgments
negligence
accept
payment
&
Crisis no this court dutybound apply *29 Today’s invidious classifications. guarantee against legislative irrational and court’s previously a sad from this majority opinion represents departure tradition of that proud fulfilling important duty. now, (See American
By the of MICRA is a familiar one. story generally, Bank, 364.) amidst a nationwide at Enacted in 1975 supra, p. Cal.3d crisis,” that seek “medical a number of provisions it includes malpractice of the costs to relieve healthcare and their insurers from some providers medical Victims medical malpractice litigation. negligence—especially the those out to singled provide afflicted with severe been injuries—have bulk of the benefit of this relief. These have been plaintiffs deprived (See, rules govern injury litigation. various general normally personal imme- Proc., rule requiring Code Civ. 667.7 e.g., general [exception § Code, [special diate of a Bus. & Prof. § sum lump payment judgment]; fees]; Code, limit on non- 3333.2 restrictions on Civ. attorney [special § rule].) source [abrogation economic 3333.1 damages];1 collateral § observed, a truly can be As Paul has crisis scientist Starr political “[a] of established suspension marvelous for the withdrawal or mechanism (Quoted of new privileges.” and the rights, acquisition legitimation Schweinfurth, Injury Compensation Jenkins & Medical Reform California’s (1979) 52 So.Cal. L.Rev. Challenge Act: An Protection Equal 1Henceforth, specified. otherwise statutory are to the Civil Code unless all references However, MICRA.) now the medical malpractice [hereafter California’s “crisis” is into are a closer fading country taking courts around the past, look at medical of this court’s first At the time malpractice legislation. decision, MICRA three had medical only courts invalidated Bank, legislation (American 36 Cal.3d supra, equal protection grounds. 10.) alone, (See at p. fn. that number has doubled. past year 41; Austin (Colo. 1984) v. Litvak 682 P.2d Southeast Texas Baptist Hosp. of 1984) 296; v. Baber v. Hammer (Tex.Ct.App. Kenyon 672 S.W.2d 142 Ariz. 961].)
Unfortunately, a this majority join this court decline to today growing Instead, trend. continue to defer to they resolution Legislature’s “crisis,” with dire both for victims of medical consequences negligence for well-established of constitutional law. principles problems this are approach becoming rapidly apparent
courts begin to confront its human Less than year one consequences. ago, this court rejected first MICRA challenge, upholding periodic pay- Bank, ment (See provision. 359.) American Already, provision itself, has been limited. In severely American Bank this court mandated special (id., to offset the procedures worst effects at provision’s 376, 377, 14) pp. fn. (Id., declined to case at bar. apply 378.) in “the Today, of justice,” interests this court the trial approves court’s refusal to to all but a small apply provision portion present ante, plaintiff’s award. (Maj. at p. opn.,
While the majority various MICRA out of upheld provisions *30 deference to the it is such ad hoc Legislature, unlikely adjust- that judicial ments to the act will a result that is more of ultimately produce respectful the Legislature than a clear-cut constitutional invalidation followed aby legislative revision of the scheme. well majority’s meaning The at attempt “deference” serves only perpetuate fundamentally unjust statutory scheme.
I. time, For the first this court is of confronted with MICRA provision that directly prohibits from for plaintiffs recovering compensation proven In court, injuries. contrast the provisions so far this there is upheld by no pretense $250,000 that the limit on noneconomic affects damages only Bank, windfalls (compare 369), American 36 Cal.3d at that supra, p. ibid.; protects plaintiffs’ awards Roa v. Lodi Medical (compare su- Group, pra, 933), (com- 37 at Cal.3d p. that it nonmeritorious suits discourages
170
id.,
932.)
severely injured
denies
simply
at
The statute
p.
plainly
pare
harm.
inflicted
victims
malpractice
compensation
negligently
from other
time,
authority
jurisdictions
for the first
weight
Also
of the courts
majority
A
challenge.
the constitutional
substantial
supports
medical
constitutionality malpractice
of the nation that have addressed the
(See
v.
Wright
limits have
the challenged provisions.
invalidated
damage
N.E.2d
Court struck down a limit identical to the damage present burden impose unfair and unreasonable explained simply “[i]t who are care those industry solely upon persons the medical supporting (Id., in need of severely compensation.” most and therefore most injured 837.)2 at p. Carson, that, the decisions of majority with the suggest exception It is case.
other are from jurisdictions present factually distinguishable than the oppressive present that the invalidated statutes were more argued (See opn., all they injury. maj. one since restricted recovery types Baber, ante, However, Texas Southeast Baptist Hosp. $500,000 limit invalidated S.W.2d a Texas court supra, appellate Also, in Simon other than medical applied only expenses. damages Center, Ohio an appellate v. St. Medical 355 N.E.2d Elizabeth similar $200,000 on “general” damages, court stated dictum limit case, vio- “noneconomic” the present limit on involved in to the were provisions These lated the United States and Ohio Constitutions. *31 dam- $250,000 limit on noneconomic markedly more severe than MICRA’s ages. Hampshire the New grounds Carson majority attempt distinguish to 2The is not scrutiny, which equal protection Supreme applied Court an “intermediate” form of ante, (See p. fn. opn., at maj. appropriate under California Constitution. However, require the most the Carson court’s conclusion that it was “unreasonable” industry is no care support the medical severely injured negligence of medical victims no basis for The Carson court found rational scrutiny.
less under a lower form relevant the fixed limit. Moreover, no harsh limit be less than many plaintiffs present $500,000 limit on total down the Illinois damages by Supreme struck Association, Court in Wright supra, v. Central Page Hospital Du N.E.2d at 741. page on the relative size Depending particular plaintiff’s economic and more noneconomic limit damages, present might produce or less harsh results than the Illinois statute. the North Dakota and Only (See Ohio statutes Arne more restrictions. imposed substantially stringent Olson, [$300,000 son v. limit on total supra, 270 N.W.2d at dam p. Medicine, Jones v. State Board ages]; P.2d [$150,000 limit on total damages].) The burden on medical is no real virtue of the by victims less fact that it is “noneconomic” uncompensated. which Noneco- injury goes nomic include injuries and loss of but only physical pain enjoyment, nervousness, also mortification, shock, “fright, hu- grief, anxiety, worry, miliation, (Ca- embarrassment, indignity, or terror ordeal.” apprehension, v. Kaiser pelouto Hospitals (1972) Foundation 892-893 [103 856, 500 880].) For a child down, who has been from the neck paralyzed com- only pensation noneconomic lifetime without comes play from damages. Similarly, who person has been hideously disfigured receives non- only economic ameliorate humiliation and resulting embarass- ment.
Pain and are suffering afflictions shared all human beings, regardless of economic status. For noneconomic poor plaintiffs, damages can provide source of principal for reduced or compensation loss lifespan physical capacity. case, Unlike the in the attorney these present plaintiffs may unable to prove substantial loss of future or other economic dam- earnings ages.
At blush, $250,000 first sounds like considerable sum to allow for noneconomic However, as damages. amici California Association Hospital admit, and California Medical candidly Association most recoveries large come cases to infants damage involving permanent young, previ- ously healthy adults. out over the lifetime of a Spread expected young per- son, $250,000 shrinks to Injured infants are from insignificance. prohibited more than three or four no recovering year, thousand dollars matter per how their how truncated their or how excruciating pain, lifespans, grotesque their Even this small will disfigurement. figure decline inflation gradually *32 erodes the real of value the allowable compensation.
172 a limit on are able to a decision majority only single upholding cite Inc., Hospital, In Johnson v. St. Vincent
medical malpractice damages.3 $500,000 585, 601, 404 supra, N.E.2d the Indiana Court upheld Supreme However, than restrict on statute did more limit total Indiana damages. limit, victims’ In order to obtain the benefits recoveries. malpractice compensa- care contribute to a state-run health were to providers required 2-1.) 601; Code, 16, 9.5, ch. (Id., tion fund. Ind. art. at tit. p. contrast, benefit. Insurers By any public limit is not linked to present use. savings private and health care are free to retain any providers Moreover, immense sac- had no that the before it evidence Legislature of to the insurance com- rifices victims would result in savings appreciable MICRA, an In the of years insignificant the enactment panies. preceding maximum, (at compen- number of received single year) individuals 14 $250,000 of economic combined. sation over in noneconomic and (See General, Insurance Crisis Cal. Auditor Malpractice The Medical Further, General].) 31 the Auditor Report California p. [hereafter of had data any specifically does not that the access appear Legislature 30-31; (Id., Cali- generally, at see relating noneconomic damages. pp. MICRA, 951.) at supra, p. fornia’s Roa, a heightened urged
As American Bank and this court is apply Maurer, 424 (Cf. v. A.2d level Carson equal protection scrutiny. However, issue, since the 825.) I do find it address that necessary not “ into the limit cannot survive and genuine judicial inquiry ‘serious ” the legislative goals.’ between classification and correspondence 148, (1978) 21 P.2d (Cooper Bray Cal.Rptr. v. Cal.3d [148 604], (1977) 19 Cal.3d Newland v. Board Governors quoting 254].) statute: that of one Only legitimate support is advanced purpose will be able to medical insurance so that preserving plaintiffs ante, at on (Maj. opn., collect the unrestricted of their portions judgments. 158.) objective legitimate. insurance Admittedly, preserving p. relief And, determined that special Legislature might reasonably case, Neb. 97 erroneously Prendergast Nelson majority 3The cite a second 657], Prendergast three-justice plurality upholding damage In N.W.2d limit. $500,000 damages should Supreme expressed their view limit the Nebraska Court (Id., unconstitutional. equal that the limit was upheld. at An number contended McCown, J.), (dis. White, J.), opn. (Id., (cone. (dis. opn. opn. of pp. 675-677 & dis. J.).) opinion of the constitutional Boslaugh, justice expressed no on the merits The seventh not opinion did plurality that the challenge, pointed dissented from the result and out but Clinton, (Ibid. (dis. J.).) questions. opn. of decide the constitutional short, unconstitutional justices either that the limit was four out of seven concluded justiciable. was question constitutionality that the its
173 to medical and their would effectuate that tortfeasors insurance companies Bank, (See 372.) American at purpose. 36 Cal.3d supra, p. However, it is not tend to serve that the statute as a whole enough might “ ‘ reasonable,
the asserted Each “must purpose. statutory classification not arbitrary, having and must rest of difference a fair upon some ground and substantial so persons relation that all object legislation, ’ ” (Brown similarly circumstanced shall be treated v. Merlo alike.” 505]; 66 A.L.R.3d 848; see also Cooper Bray, at Newland v. Board supra, Cal.3d p. Governors, supra, 711.) 19 Cal.3d at p. There is no logically injured reason the most supportable why severely malpractice victims should be out to for relief to medical singled pay special tortfeasors and their insurers. The idea of by imposing insurance preserving sacrifices on huge a few victims is Insurance is a device logically perverse. risks spreading so no costs numbers of that one among large people person Keeton, is crushed by (See misfortune. Basic Insurance generally, Law 484.) In p. strange reversal this the statute con- principle, centrates the costs of the worst injuries on few individuals.
The result is statute, a fundamentally arbitrary classification. Under who suffers person a severe or injury—for loss of limbs eyesight— example late life may $250,000 receive up for the loss resulting enjoyment his or during her final An years. infant is limited to injuries with identical the same compensation an entire lifetime of blindness immobility.
Such arbitrary treatment cannot be justified with reference to the purpose of the statute. Without on the wisdom of alterna- speculating possible tives, it is plain could relief to Legislature have provided special health care providers and insurers without these burdens imposing crushing aon few arbitrarily selected victims. Most the burden could have obviously, been spread all among statute’s consumers beneficiaries—health care or, more broadly, the could taxpayers. Alternately, Legislature reduced all noneconomic damage awards in medical actions (See MICRA, rata pro amount. at So.Cal.L.Rev. California’s p.
The majority suggest three the most rationales for out singling severely injured First, plaintiffs bear the burden. it is suggested Leg- “[t]he islature could limit reasonably have determined an across-the-board would provide a more stable base on which to calculate insurance rates.” ante, (Maj. opn., 163.) However, the same could be said of any re- striction recoveries, regardless the existence or nature classifica- *34 effect, plain- rationale the fact that
tions tort victims. In this among ignores tiff tort victims. among is classification challenging
Next, have felt that may “the majority Legislature hypothesize $250,000 un- ‘the by eliminating the fixed limit would settlements promote that can suffering known of awards for possibility pain phenomenal ante, 163.) at p. Again, make worth the litigation gamble.’” (Maj. opn., to face the less willing restriction on recoveries make might plaintiffs rationale, fails address theory risk of Like the this litigation. “stability” of among the nature the classifications plaintiffs. felt that it have it that “the
Finally, suggested simply Legislature only very in to reduce large was fairer to malpractice plaintiffs general awards, more modest re- to diminish the damage noneconomic rather than bulk of in the cases.” great coveries for and the like pain suffering ante, 163.) Legislature might at that the (Maj. The notion opn., p. severely injured on the most concentrated burden of medical malpractice of advantage orig- victims of has the certainly out considerations of fairness inality.
While fixed limits malpractice damage courts have concluded that many ante, 169), has (see suggested at none p. are unfair cases cited grossly a limit. If “fairness” as a basis for such fairness possibility legitimate limit, a statute that could be imagine can hard to justify present scrutiny. invalidated under the version of majority’s equal protection they so broad and speculative The of rationales majority’s acceptance the implications could calls attention justify virtually any enactment In American in this state. the MICRA cases for doctrine equal protection Bank, Bird, J.), I C. supra, (dis. joined 36 Cal.3d at opn. page pro of “intermediate” equal of this the notion majority court rejecting However, on the belief- rejection tection I conditioned that scrutiny. the alternative was a two- court—that this grounded past practice (Id., under the lower tier. scrutiny tier with a level of system meaningful 398-401; (1978) 22 Court Cal.3d at see also Hawkins v. Superior pp. Bird, J.).) (conc. C. opn. 607-610 916] Brown, Merlo, 855. In supra, I relied on Brown v. particular, the nature into this court conducted a serious and sensitive inquiry only The court demanded of the automobile statute. purposes guest but legislative purpose, some conceivable the enactment tend to serve might ato le- relationship fair and also that each classification bear a substantial this level (Id., failed 861.) pass at statute p. guest gitimate purpose. insuffi- an bore guests of all automobile since classification scrutiny relation to For the classifi- ciently example, the asserted precise purposes. cation was held to be overinclusive with to the regard purpose preventing (Id., collusive followed in Cooper suits. Brown was subsequently Bray, 841. Cal.3d If case, used Brown and applied present analysis the mode *35 $250,000 limit, Cooper would invalidation the which is compel grossly of underinclusive standard. Millions of healthcare consumers stand Yet, from whatever the burden of gain limit the entire savings produces. for this paying benefit is on a handful of vic- badly injured concentrated tims—fewer than 15 in (See MICRA the year Report was enacted. of General, Auditor 31.) at normally enjoys Although Legislature wide latitude in the burdens of distributing personal injuries, singling of out such a minuscule and vulnerable violates even the most unde- group standard of manding underinclusiveness.
However, the MICRA have made no assess majority opinions attempt over- under-inclusiveness of the at classifications issue. legislative Bank, Barme, American and Roa could from arguably distinguished Brown and Cooper on the that the MICRA at issue did ground provisions not directly deny malpractice victims inflicted compensation negligently However, harm. if Brown and retain their anal- Cooper any vitality today, must be ysis in the applied case. present
At a bare minimum the honestly court should confront existence Brown Cooper. view, In it is my remarkable that neither of these de- cisions—previously to be opinions considered leading application equal protection analysis injury area—is personal capable being distinguished any MICRA majority opinion. conclusion, there is no severely rational basis for out the most singling
injured victims medical relief to health care negligence pay special providers Hence, $250,000 their insurers. limit on noneconomic damages cannot withstand level of any meaningful judicial scrutiny.
II. 3333.1, Plaintiff also challenges section which medical deprives malprac- tice victims of the benefits of the collateral source longstanding rule.4
The collateral source rule bars the deduction collateral compensation, benefits, such (See as insurance from a tort victim’s award. damage Hrnjak ante, 164, 3333.1, 4For opinion, the relevant text majority page of section see the footnote 20. 599, 47 A.L.R.3d Inc. Graymar, Cal.3d 729 [484 Schwartz, 41 B.U. 224]; Rule see Collateral-Source generally, and their tortfeasors The effect of the rule is to prevent L.Rev. funds, which “are source insurers from the benefits of collateral reaping than the other foresight persons created usually through prudence tortfeasor, Car (Gypsum himself.” frequently including injured person rier, 525, 534-535 (9th 1962) 307 F.2d Inc. v. Handelsman Cir. 517].) A.L.R.3d observed, “the ven-
As this court source rule embodies has the collateral premiums erable that a has invested insurance years who concept person thrift. The to assure the benefits his his medical care should receive (Hel- of his victim’s providence.” tortfeasor should not the benefits garner 9-10 (1970) Cal.3d v. Southern Cal. Transit Dist. Rapid *36 fend 173, In the 61, Helfend\.) 465 P.2d 77 A.L.R.3d 398] [hereafter he case, which earned the plaintiff compensation, collected workers’ present his indirectly from employment. under the rational
It not must be reviewed section 3333.1 disputed ra- classifications bear a test. That relationship legislative test requires constitutional muster. tional to a relationship pass state legitimate purpose Merlo, 882; (See Bray, v. Cooper supra, Brown v. at supra, p. 848.) 21 Cal.3d at p.
The that it serves two pur- 3333.1 have proponents suggested section Keene, First, (See by it recoveries victims. seeks to eliminate double poses. Crisis, A Guide to the Legislator’s Medical Malpractice California’s However, 31.) 1976) (Warren Medical Merritt edits. p. Issue & Malpractice no for this should purpose there is enacted legislation reason apparent why (See Satayatham Graley be limited to v. medical victims. malpractice 832, 836-838].) Ohio Ops.2d 316 N.E.2d rule Moreover, source “does the collateral recognized, this court has (Helfend, supra, not for the actually plaintiff.” render ‘double recovery’ 12.) injuries their fully Cal.3d at Tort victims are not p. compensated in the damages only to award their The is directed alone. judgments jury Yet, fees and attorney of the must pay amount plaintiff’s injuries. plaintiffs for a sub- and costs account costs out their recoveries. fees Generally, (See actions. U.S. stantial medical proportion recovery malpractice Health, Welf., Malpractice Com. on Medical Ed. & of Sect.’s Dept, Rep. 32.) p. of these recover some collateral source rule enables him give Hence, usually the rule “will costs from collateral sources. ‘double but recovery,’ a somewhat closer partially approximation provides 13.) to full at (Helfend, for his Cal.3d compensation injuries.” p. Section 3333.1 will tort prevent obtaining relatively victims from this many full were a doctor compensation simply they injured by because instead some nonmedical tortfeasor.
Furthermore, “windfalls,” while victims’ section supposedly eliminating 3333.1, 3333.1 a windfall to provides tortfeasors. Under section negligent negligent healthcare from the providers obtain special exemption general rule that tortfeasors “No negligent must their victims. fully compensate law, reason in equity conscience can be good why advanced a wrongdoer should benefit from from a If part collateral source. ... there payment must a windfall certainly injured is more that the shall just person therefrom, profit rather than the (Grayson . . .” Williams wrongdoer . (10th 1958) 65; Cir. 256 F.2d also Helfend, supra, see Cal.3d 10.) p.
The second advanced to purpose section 3333.1 justify reducing the cost of medical insurance, (See the overall of MICRA. malpractice goal Stats. 1975-1976, 12.5, Second Ex. Sess. ch. It is § argued that the Legislature rationally singled out medical ac- tions order to alleviate a “crisis” medical malpractice insurance rates. *37 However, the between relationship section 3333.1 and the reduction of insurance malpractice premiums is There is no entirely speculative. require ment physicians’ insurers on their in the form of pass savings lowered Hence, premiums. insurance their companies may retain windfall simply private Further, section purposes. 3333.1 of evi only a rule operates dence. Juries may Hence, choose not to offset collateral “a compensation. degree arbitrariness may frustrate the between this provision relationship MICRA, attainment of MICRA’s goal.” (California’s supra, 52 So.Cal. 949.) L.Rev. at p.
The courts of other jurisdictions have had occasion to address consti- Olson, tutionality similar provisions. In 270 supra, Arneson v. N.W.2d 125, 137, the North Dakota Court Supreme invalidated a stat- unanimously ute that effectively abolished the collateral source rule medical malprac- “ tice cases. The court found that there was no ‘close be- correspondence tween statutory (Id., classification and legislative goads’” at [the] [the] 133, 137), and pp. noted that the the tortfeasor “the benefit provision gave of insurance privately (Id., .” purchased by tort victim . . . Maurer, in Carson
Similarly, 835-836, v. 424 A.2d at supra, pages New Hampshire Supreme Court overturned a unanimously kindred provi-
178
sion, favor “arbitrarily unreasonably reasoning discriminate[d] And, supra, v. Graley Satayatham, of health care the class providers.” that collateral 343 N.E.2d at struck down requirement court page it un- reasoning complaints, benefits be listed medical malpractice victims. against discriminated medical constitutionally (See Eastin v. Broom Some jurisdictions similar upheld provisions. 744, 751-753]; v. Cedars (1977) 116 Pinillos Ariz. 576 [570 field 367-368; v. 1981) Rudolph 403 Hospital (Fla. Lebanon So.2d Corp. 550, 552-560.) Two (Iowa 1980) Iowa Methodist Medical Ctr. 293 N.W.2d Pinillos, (See su these decisions were made divided courts. by sharply J.); (dis. Rudolph, 403 C. pra, Sundberg, So.2d at pp. opn. 369-371 J.).) C. More (dis. 293 N.W.2d 561-568 supra, at pp. opn. Reynoldson, over, not that is consistent approach decisions reflect a deferential highly relationship with the California courts’ of the rational rigorous application Merlo, (See, Brown v. e.g., test classifications tort victims. affecting 841; 855; v. Monroe v. Bray, Cal.3d Cooper supra, 384]; Boyle Ayer Monroe Cal.Rptr. Cal.App.3d 636].) Cal.App.3d conclusion, healthcare permits providers section 3333.1 negligent in obtaining their insurers to of their victims’ reap foresight benefits insurance. This from rule deduction prohibiting departure general from related rationally collateral source benefits judgment Hence, be declared uncon- 3333.1 should state section legitimate purpose. stitutional.
Woods, J.,* concurred.
MOSK, I dissent. J. conclusion con-
The of Chief reaches a well-reasoned dissent the Justice victims with the of a democratic to society protect malpractice sistent duty for those favored economic insulation and to refrain from creating specially who commit malpractice. to the only equal protec-
I with Chief Justice regard the part company us the demonstrating The before is a paradigm tion test case employed. or the test. scrutiny relationship strict rational either the impracticality test, and the of an intermediate existence denying My colleagues persist rule with tenacity originated inflexible two-tier suggests the cling an intermediate has Yet test equal protection with the oracle. Delphic * Council. of the Judicial Assigned by Chairperson the (See received frequent many from sources. numerous approval reputable authorities cited in Superior in Hawkins v. Court my separate opinion 584, 916].) 595-603 586 P.2d
Now an intermediate test has been Court of New Supreme adopted in one Hampshire of the most in the persuasive country invalidat- opinions ing legislative provisions to MICRA in California. Carson comparable 825, 831, v. Maurer 1], N.H. 925 A.2d A.L.R.4th court held that in “the determining validity MICRA-type legislation, test is whether the classifications are reasonable and have a fair challenged and substantial relation to Whether object legislation. [Citations.] statute can be malpractice reasonable measure in further- justified ance the public interest depends whether the restriction of upon private to be rights sought is imposed not so serious that it the benefits outweighs sought to be conferred upon general public.”
The Court of Supreme New concluded that the act Hampshire “arbitrarily unreasonably discriminates favor of the class of health care provid- ers. Although statute promote objective containing legislative costs, health care the potential cost to the and the cost general actual public medical many (Id. too plaintiffs high.” simply Once we again have an a test opportunity carefully crafted employ avoid the rigid extremes of the anachronistic two-tier test of equal protec- Hawkins, tion. IAs wrote in Cal.3d at “the ultimate page acceptance an intermediate test is foreordained in Court Supreme opin- ions: the whether, when, question but will the third test become standard. I regret that our court has failed to assume forthrightly leadership the states among on this important of constitutional law.” question petition for a was appellant rehearing denied April Bird, J., Mosk, J., 1985. C. were of the that the should opinion petition granted.