*1 No. 24611. Dec. [S.F. 1985.] WATERS,
BARBARA v. Plaintiff and Appellant, al., RAY BOURHIS et Defendants and Respondents.
Counsel Katz, Robert Jay Katz & and Richard J. Kohlman for Plaintiff Lapdes Appellant.
Musick, Garrett, Ludlam, Hassard, Peeler & James E. Bonnington, Rogers Huber, Willett, & Horvitz, David E. Horvitz & Ellis J. S. Thomas Levy, Todd and David M. as Amici Curiae on behalf of Plaintiff and Harney Appellant. Bourhis,
Ray Bourhis, Goff, in pro. Lawless & Victoria J. De per., Harvey, Sherman, Nemerovski, De Goff & Falk, Jr., Howard, Rice, Jerome B. Falk, Canady, Wines, Robertson & B. K. & Wood for Wines Robinson Defendants and Respondents.
Opinion KAUS, J.* 1980, In March filed Barbara Waters Bourhis, against defendant Ray an had her in an attorney who represented earlier suit fee which psychiatrist, contending contingency defendant had obtained after exceeded the settlement of the earlier action maximum fee permitted by Business and Professions Code section of the provision Medical Reform Act of 1975 Injury Compensation (MICRA).1 Defendant that the ear- moved summary judgment, asserting *Retired Supreme Associate Justice of sitting assignment Court under the Chair- person of the Judicial Council. indicated, 1Unless otherwise all section and Professions references are to the Business Code. Bourhis, In addition to complaint Because named Bourhis’ law firm as a defendant. firm independent has no significance term “defend- proceeding, for this we shall use the ant” to refer individually both to group. Bourhis and to defendants as
lier lawsuit was not an action for within the “professional negligence” and, meaning of section 6146 that the fee collected in that consequently, action was not subject to section 6146’s limitations. Declarations were filed and, motion, of and in support after a the trial opposition hearing, court granted summary in defendant’s favor. For the reasons dis- judgment hereafter, cussed we conclude that the must be reversed.
I difficulties, January who had a mental plaintiff, history began Shonkwiler, treatment with Dr. Jack to the alle- According psychiatrist. gations filed in the complaint earlier that were action—allegations never admitted or started to in a proven—Shonkwiler engage variety sexual activities with a few months after treatment These began. activities her allegedly “rang[ed] from to observe as he directing [him] masturbated to her to submit to intercourse.” The com- compelling sexual plaint that at alleged times Shonkwiler induced participate sexual conduct by that it suggesting was part therapy designed alleviate inhibitions, her sexual and at he her to other coerced partic- times *5 ipate by to have her threatening institutionalized if she did not cooperate.
Plaintiff stopped Shonkwiler in The seeing August following spring, 1977. plaintiff with cooperated in a criminal of Shonkwil- police investigation er. In defendant, October she consulted who her agreed represent in a civil action Shonkwiler. against
In a declaration in filed in of his motion summary support present defendant stated that when to him proceeding, described her, the facts surrounding Shonkwiler’s sexual activities with he “did not regard allegations by of the conduct of Shonkwiler as consti- [plaintiff] medical tuting and declaration also negligence so advised His [plaintiff].” stated that he not view although negli- did the case as one of professional he gence, advised and told her that existence of section 6146 Instead, he would not her under the limitations of that statute.2 represent $65 defendant ($50 offered to take the an case “either on basis hourly hour) per or on the fee in basis of our standard contingency agreement cases,” if re- personal injury (1) which for fees of 33% percent provided lawsuit, covery (2) was obtained before the and 40 after of a filing percent such a suit was filed. told him that she wanted to be represented Plaintiff $50,000 (1) applicable, attorney percent 2When the first section 6146 limits fees to 40 of recovered, $100,000 (2) $50,000, (3) percent percent and 33‘/3 of the next of the next (4) $200,000. percent any exceeding amount that de- on a and fee contingency agreement basis signed contingency fendant had prepared.3 motion,
In a disputed counterdeclaration filed in opposition assert- defendant’s account of their interview in a number of respects, first Shonkwiler’s that defendant never advised her that he did not Dr. ing regard conduct as her the existence of medical and did not inform negligence section 6146 or of her under its limitations. unwillingness represent
A few after for dam- days their first defendant filed a meeting, complaint ages against Shonkwiler on behalf. The plaintiff’s complaint—entitled for on a “Complaint recovery Damages—Malpractice-Medical’’—sought faith, variety (2) theories: breach of legal duty good negligence, intentional or com- reckless infliction of emotional distress.4 Both pensatory were punitive damages requested.
In the course of was insured discovery, defendant learned that Shonkwiler under a had a limit of “Psychiatrist’s Professional which Liability” policy $200,000 and which for . . . awarded provided coverage “damages psychiatrist] to services rendered him his respect practice [the based, alia, psychiatry” inter . . . negli- on “malpractice, restraint, . . . gence, assault, personal . . undue . . . .” familiarity . [and] copy 3A agreement present was attached in the action. complaint as an exhibit to the Bourhis, The hereby Harvey my first sentence employ reads: “I retain and Lawless & attorneys prosecute damage against or settle all or others who claims Dr. Shonkwiler shall be liable on malp/intl account of med occurred or about ment distress which inf ” (Italics added.) 1977-78. phrases longhand. The italicized had been filled in in alia, 4The first cause of negligence count—alleged, plaintiif action—the inter was *6 patient advised, in “carelessly negligently Shonkwiler’s care and that coun- Shonkwiler and seled plaintiff; and treated carelessly, and her of negligently inadequately and informed treatment, intended causing her causing condition to deteriorate and her further sustain injuries additional damages. alleged and describing specific ...” After some of the incidents misconduct, “Throughout cause of action continued: the entire course of conduct repeatedly described Shonkwiler continuously psychological and the reverse condition used plaintiff, dependence her into position psychiatrist, on him and to coerce her his as believing that her mental condition was due inhibitions which would be resolved to sexual by his described only by plaintiff treatment of her. of these following It was the disclosure party psychiatrist facts to a third subsequent and between and Shonk- confrontation wiler he psychological that admitted that and her taking advantage he had been of her state dependence on him her therapist.” as count, count, The second incorporating allegations after asserted the factual of the initial that the statutory duty good defendant had “both a exercise faith and to common law and fairly deal patients conjunction alleged with in that defend- with his treatment of them” ant duty by disregard had breached that acting “in bad and with a “conscious faith” count, similarly incorporating best interests” of patient. Finally, his the third after allegations, outrageous, relevant factual alleged that actions Shonkwiler’s “constitute^] unlawful, harmful “intention they and offensive undertaken with the conduct” and that were of causing recklessly distress to the disregarding possibility causing emotional ” plaintiff. insurer, After between defendant and Shonkwiler’s preliminary negotiations the insurer action August declaratory judgment against initiated a Shonkwiler, for Water’s coverage that its did not alleging policy provide but suit because Shonkwiler’s did not out of services acts arise later, amounted to negotiations criminal acts. Two months after continued behalf, defendant on its own declaratory the insurer dismissed plaintiff’s and, either action liability Shonkwiler without admitting insured, own its behalf or on behalf of to settle agreed plaintiff’s its $200,000, limit. against Shonkwiler for the policy 31, 1979, declaration, at the meet- defendant that on October states her at which he ing ap- the settlement presented agreement how the he her a letter which proval signature, explained with provided $200,000 of the recovery would be he retain 40 percent disbursed: would ($80,000) ($1,797.30) an amount to his plus out-of-pocket expenses equal balance accordance with and the the written fee agreement, ($118,202.70) would be The letter also drew plain- net plaintiff’s recovery. that the tiff’s attention to defendant believed why section explained case,5 lawyer did not her to consult a provision to her and advised apply who In her had no financial in the matter if had any questions. interest she counterdeclaration, letter is dat- states that although explanatory met de- ed October she she recalls it on November 7—when receiving the October fendant at a bank to than at endorse the settlement check—rather at which she meeting agreement. settlement signed advice after other Shortly legal did seek obtaining recovery, plaintiff action, and then defendant had obtained brought alleging present $18,000 he was entitled fees excess of the fees to which than greater answer, on the under section both liability 6146. In his defendant denied and on the ground ground section 6146 was unconstitutional that term lawsuit was not based on underlying negligence” “professional summary judgment is defined in section moved for 6146. Defendant then the facts on the out setting latter on his own declaration ground, relying letter, includes your 5In filed in case acknowledged complaint defendant that “[t]he misconduct, and intentional professional negligence including fraud as well as intentional however, infliction of that the restrictions explain, emotional distress.” It went on to *7 not where the services “apply only negligence section 6146 in medical cases and standard your case agency.’ in In question any imposed by licensing are ‘within the [¶] restriction restriction, and Professions Dr. Business Shonkwiler’s conduct was in violation of such a 726], any act of of provides Code section 730 section which that ‘the commission [now abuse, misconduct, substan- sexual which is patient, or relations with a client or customer functions, which a license tially occupation for qualifications, related to the or duties of the any action for grounds disciplinary unprofessional was issued constitutes conduct and for ” person licensed under this division.’ below, section 6146 rely interpretation of As discussed defendant continues to on this supporting judgment one for the trial court in his favor. basis
431 law- described above and on a number of documents the earlier relating counterdeclaration, noted, disput- suit. As filed a already expressly in declaration. a number of facts contained defendant’s ing motion, At the the conclusion of the the hearing summary find of the was outside damage trial court stated: “I’m that most going of lim- under which the fees is scope professional negligence attorney’s ited. So no limit on the fees in the case Mr. Bourhis handled and I’m going from the for the defendant.” Plaintiff grant summary judgment appeals judgment.
II decision in Roa v. Lodi Medical Inc. (1985) our recent Group, 164], Cal.3d concluded that the stat- 695 P.2d we Cal.Rptr. [211 limits on utory fees not attorney section 6146 are unconstitu- imposed by Here, however, tional on their face. with broad we are not faced questions of the but with the much narrower validity legislative provision, of problem in determining of section 6146 a rather proper application unusual “medical malpractice” setting.
The issue arises because section 6146’s limitations on fees do attorney not to all of apply actions doctors or other “health care types pro- viders,” but—like other of to actions which are provisions MICRA6—only “based upon . . .”7 Sec- provider’s] alleged negligence. [the 6See, e.g., Civil (admissibility Code section 3333.1 of evidence of collateral source ben- (limitation by plaintiff); damages); efits received Civil Code section 3333.2 on noneconomic (statute Code of limitations); Civil Procedure section 340.5 Civil Code of Procedure (notice action). section 364 of intent to file “(a) provides attorney 7Section 6146 in full: An shall not contract for or collect a contin gency representing any person seeking damages fee for with an action connection for injury damage against or provider upon alleged profes a health person’s care based such negligence (1) sional Forty fifty the following percent excess of limits: of the first [¶] recovered, ($50,000) (2) thousand Thirty-three percent dollars of the next and one-third [¶] fifty ($50,000) (3) Twenty-five percent thousand dollars recovered. of the next one [¶] ($100,000) (4) hundred thousand any dollars percent recovered. Ten amount on which [¶] recovery ($200,000). exceeds two hundred thousand dollars The limitations shall [f] arbitration, settlement, apply regardless recovery judgment, by whether the or adult, infant, person recovery whether the whom an or a responsible is made is a mind, person (b) of unsound periodic payments plaintiff pursuant If are awarded to the [¶] Procedure, to Section place 667.7 the Code of Civil a total value on these court shall payments upon based include amount projected expectancy life computing attorney’s the total calculated under this section. award from which fees are (c) purposes For of this [¶] section: ‘Recovered’ means the net sum recovered after [¶] deducting prosecution disbursements or costs incurred in connection with or settlement attorney’s claim. Costs of medical care and the office-over incurred charges purpose, head costs or are deductible or costs for such disbursements [¶] (com provider’ ‘Health care any person pursuant means licensed or certified to Division *8 432 6146, (see
tion subdivision sections of MICRA like the other (c)(3)—again 6, as “a ante)—defines fn. for these purposes “professional negligence” in the rendering or to act a health care provider act omission negligent services, of of act is the cause a which or omission professional proximate death, the are within the or that services personal injury wrongful provided and which are not within of services for which the is licensed scope provider restriction or licensed any hospital.” imposed by licensing agency or reach of to the scope We addressed a different question relating proper of MICRA in Hedlund v. Superior “professional negligence” language 805, 41, 41 A.L.R.4th (1983) Court 34 695 669 P.2d Cal.Rptr. Cal.3d [194 Hedlund, MICRA’s statute of was whether question presented 1063]. to an limitations—Code of Civil Procedure section 340.5—was applicable failure alleged action a which rested on the psychiatrist’s psychiatrist psychiatrist’s to warn a victim of potential dangerous proclivities i.e., an care recognized from the patient, deriving duty Tarasoff Cal.Rptr. v. 17 Cal.3d Regents University [131 of California 6146, 1166], Like section section 340.5 551 P.2d 83 A.L.R.3d alleged to actions based on a health care applies only provider’s “profes- the action in sional in Hedlund argued and the defendant negligence,” that a psychiatrist’s did not fall within that on the category ground case in- failure to did not take to victim of steps protect potential patient ordinary but rather an act of volve a failure to render services professional negligence. Hedlund, to warn that the duty
We that contention in rejected concluding responsibili- interwoven” with the doctor’s professional was “inextricably that a licensed ties. We reasoned: to right expect recognizes “Tarasoff to another will a serious danger realize when psychotherapist patient poses identifiable, and, will act reasonably protect if that victim is potential victim. The and the necessary protect diagnosis appropriate steps severable, the duty giving victim are not or but constitute separate together 704.) (34 at p. rise to the cause of action.” Cal.3d to actions MICRA’s reference Hedlund does demonstrate that Although classic limited to strictly sponge- is not based “professional negligence” Act, or the 500), Osteopathic Initiative mencing pursuant or with Section licensed (commencing with Section Act, pursuant Chapter 2.5 Initiative or licensed Chiropractic clinic, Code; or 1440) dispensary, Safety health Division of the Health and 1200) of the (commencing with Section facility, pursuant health licensed to Division health legal representatives of a includes the Safety provider’ Health and Code. ‘Health care ’ by a omission to act negligent act or negligence is a provider, care [¶] ‘Professional services, act or omission is provider rendering which health care in the death, are within wrongful provided that the services proximate personal injury cause of any restric which are not within provider licensed and scope services which the ” (Italics added.) licensing agency or licensed hospital. imposed by tion *9 433 direct actions, little that decision provides medical in-the-patient malpractice action earlier Here, claim that the for the case at bar. defendant’s guidance not rest on limitations does of MICRA not fee attorney was subject the health not a to whom a that the was injured person contention victim course, was, of of care: she duty care owed a provider trial court Instead, properly essentially argues defendant patient. in the earlier concluded, in that her recovery granting summary judgment, engaged in which the suit was based on intentional misconduct psychiatrist motives, an action such to and that personal, opposed professional, does actions not fall within of category “professional negligence” claim, it is which MICRA intended defendant’s analyzing was to apply. of embraced a lines argument number of distinct necessary separate the contention.
A with, the summary To defendant maintains that begin insofar as record in this be that the in his favor can affirmed on ground ac- case in the earlier demonstrates—as matter of law—that the recovery think his tion on an we was based action for professional negligence, is untenable for a number of reasons. position all, is, course,
First of it from the that the complaint clear record quite on theories in the action both psychiatrist earlier from sought recovery and many of intentional tortious conduct. negligence Although factual rendered the true—may well have allegations complaint—if those were never liable on an tort psychiatrist theory, allegations intentional al that action In addition to the because the casé was settled. Resolved misconduct, of intentional that the legations psychia the complaint alleged treatment, out-of- many trist’s of conduct course constituted negligent state decisions have found conduct between that similar instances sexual on a medical psychiatrist may rise to patient give malpractice 37 (See, Kambly (1980) such v. 101 just e.g., Mich.App. a basis. Cotton 627, 628-629]; (Mo. 1968) 436 S.W.2d N.W.2d v. Freeman Zipkin [300 753, 761-762; 1983) 556 (E.D.Pa. Aetna & Cas. Co. v. McCabe Life (1982) 164 1342; Co. Mitchell St. Paul Fire & Marine Ins. v. F.Supp. 85 1]; Ga.App. Roy Hartogs S.E.2d 33 A.L.R.4th v. [296 Wilkinson Manor v. 587]; Misc.2d 891 N.Y.S.2d Anclote Foundation [381 did 1972) 256.)8 Because the settlement agreement So.2d (Fla.Ct.App. malpractice action when upholding patient’s right 8For maintain medical example, engage in sexual had “induced her to complaint alleged psychiatrist that the defendant treatment,” during guise psychiatric intercourse with him under the course or 627, 628-629, Kambly, supra, plaintiff’s court Cotton v. “Part of explained: 300 N.W.2d member of the defined as the failure of a malpractice, claim for medical which has been not foreclose the rested liability simply possibility psychiatrist’s *10 (see of the so-called “transference phenomenon” negligent mishandling ante), the record does not establish as a matter 8, of law that the earlier fn. was not based on recovery professional negligence.9 Furthermore, even if the of intentional misconduct complaint’s allegations established, that the was based recovery had been it still would not follow decisions have solely on an intentional tort A number of out-of-state theory. that even abuses the explained when a psychiatrist intentionally therapist- desires, no there is reason for his own sexual patient relationship personal for an intentional maintain both an action the not why injured patient may (See, tort and an action e.g., for professional malpractice negligence. & Cas. Co. v. 629; Cotton v. Aetna 627, Kambly, supra, 300 N.W.2d Life McCabe, case, 1342, 1353.) In a supra, such psychiatrist F.Supp. has breached both the to refrain from intention- duty imposed everyone a owes to his another and the ally injuring special duty psychiatrist of the health in the conduct therapist- to use due care for the patient patient’s circumstances, Under there is little patient justification such relationship. for tort action psy- to an intentional limiting patient solely insur- chiatrist and her from available foreclosing recovery any malpractice which, all, ance after from the risks is intended to generally protect patients duty to exercise to fulfill the profession, employed professionally, medical to treat a case skill, profession. . . . by members of the same degree diligence care and exercised alleges part him engage Plaintiff that defendant her to in sexual relations with induced type malpractice prescribed therapy. distinguishing her others, We see no reason for situation, In drug operation. or defective each improper such as administration of a practice. of medical departure proper from standards the essence of the claim is the doctor’s for may subject professional . . . The fact that sanctions defendant also be to criminal malprac- right bring a civil action for denying plaintiff his conduct is no reason for her tice.” Freeman, rejected malpractice supra, the court Similarly, Zipkin v. 436 S.W.2d arising out of its insured obligated pay judgment insurer’s contention that it not was response insurer’s claim that the psychiatrist’s patient. sexual misconduct with a to the con- professional, tortious damages psychiatrist’s personal, were based on the rather than duct, that defendant did not gravamen petition is Zipkin court observed: “The transference Zipkin injured. treat Mrs. He mishandled the properly and as a result she was be handled phenomenon, anticipate and which must psychiatrists which is a reaction the petition and the . . properly. long period He mishandled it over a of time. . [U]nder evidence, he should have. professional service psychiatrist] give Zipkin did not Mrs. [the ” coverage. damages policy The she sustained resulted from such failure and are within (436 761-762.) pp. at S.W.2d defendant’s motion as an exhibit to police report 9The dissent refers to a that was attached suggestion psychiatrist report, there is no summary judgment. As we read the but, event, man, arranged for a sexual encounter between and another gave police and does report simply summary which of a statement basis certainly not establish the report The does purport to assess the truth of the statement. a matter of law. recovery for the in the earlier lawsuit as Thus, out of the arising even if we could professional legit- relationship.10 assume mis- imately that the earlier of intentional allegations complaint’s true—and, record, conduct on the we were on this part psychiatrist not—we still may recovery could not rule out the that the earlier possibility rested, Ameri- (Cf. at least in on a part, theory negligence. can Employer’s Ins. Co. v. Smith 100-102 Cal.App.3d [163 law Cal.Rptr. of willfulness does not as a matter of showing 649] [“A negate negligence.”].)11
B Nor can we defendant’s set forth his accept theory—first explan- atory 5, letter to (see ante)—that when she fn. was still his client the summary can be sustained on the that the initial action ground was excluded from the of section the in the 6146 virtue of scope by proviso definition of That from the “professional negligence.” proviso excepts reach of MICRA acts or which are omissions of a health care provider “within any restriction the or licensed imposed by licensing hospi- agency tal.” Hartogs Employers (1977) 10In v. Mut. Ins. Co. Misc.2d 468 N.Y.S.2d 89 [391 of Wis. 962, 964], facts, a case arising out of similar the court observed that distinction should “[a]
be drawn in a factual situation malpractice such as between this medical in the mind of the patient and malpractice medical Plainly in the mind of patient the doctor. when the submitted the doctor’s [to she believed appropriate therapy being acts] that medical was administered. Only some time thereafter did she duped, discover that she had been the victim of fraud and hand, subterfuge. knew, On the other the administering doctor at all times ‘treatment’ motion, has so stated in previous doing trial and on this what he in no that was was way pursuant to the doctor-patient relationship. permit The him to purpose obvious was to accomplish personal injured satisfaction. The distinction to be drawn between the [U] party and the insured longer is clear. No liability policy is it the law in this state ‘that the solely existed protection for the recognize the insured’ The courts [citation]. injured person protected.” also is to be Accordingly, while the court indicated that the injured insurer, patient properly had injuries recovered for her from the it concluded the doctor was not by entitled to be reimbursed the insurer for costs he had incurred in defending against patient’s claim. between those and his insurer “[A]s [doctor] actions could not constitute malpractice and were never to be included within the intended protective coverage (Id., malpractice 965.) of the policy.” p. at 11Amicus Hospital California argues “professional negligence” Association in section 6146 other provisions only “negligent” MICRA encompass should be construed to not provider acts a health care but which provider also those “intentional” acts of such a are insurable under Insurance Code interpreted section 533 as in Clemmer v. Insurance Hartford (at Co. 22 Cal.3d Cal.Rptr. explains 865 587 P.2d As Clemmer [151 1098]. 887), p. “. . . an act which meaning is ‘intentional’ or of traditional tort ‘willful’ within the principles will not liability exonerate the insurer from Code section 533 under Insurance ” unless it is done ‘preconceived design with a injury.’ to inflict We have no proposed occasion in this is an case decide whether amicus’ construction appropriate interpretation statutory of the language. Because the initial lawsuit settled, psychiatrist was psychiatrist’s the record conduct falls does not establish whether the into the opposed “uninsurable” category, any to the “insurable” more than it establishes Thus, whether his conduct sug- was “intentional” even if amicus’ “negligent.” rather than gested reading of the proper, statute were it result in this case. would not affect the
Defendant that because toward argues sexual misconduct aby psychiatrist a patient has been basis for long by licensing the state’s disciplinary (see, agency Cooper v. Board Medical Examiners e.g., Cal.App.3d which 563]),12 cause of action is Cal.Rptr. [123 based on such misconduct falls within the as a “restriction imposed proviso, view, In our licensing contention misconceives agency.” clearly this the purpose and which was not intended to scope proviso obviously exclude an action section from 6146—or rest of be- MICRA—simply cause a health care en- acts standards or provider contrary in one of the gages many conduct.” specified instances “unprofessional Instead, it was intended to render when a simply pro- MICRA inapplicable vider in a operates for which he when capacity licensed—for example, a psychologist heart performs On basis of the record surgery. case, we think it is clear that the conduct arose out psychiatrist’s course of the treatment he psychiatric was licensed provide.
C *12 There is one on which the in remaining theory summary judgment seen, defendant’s favor could be in As we have on the record upheld. case we cannot find a matter of law in the first action recovery that rested on an tort intentional rather than a negligence theory; complaint alleged both theories and case was without on what settled specifying If, however, theory was based. on recovery section 6146’s limitations attorney fees are whenever have inapplicable may a plaintiff’s recovery action, been based on both non-MICRA the trial and MICRA causes of then court have may been limitations should justified concluding in this case. apply
Neither section nor other of MICRA ad- any provision specifically dresses the of how such a treated. question should be “hybrid” proceeding unaware, however, We are of MICRA in the of anything legislative history which suggests that the either to a Legislature intended require plaintiff make an election between two viable of and theories MICRA recovery—one one non-MICRA—or to prohibit such a from MICRA joining non-MICRA noth- causes of action in a there is Because single proceeding. in section ing 6146 that the fee an earn may to limit purports attorney 1977, 12In psychiatrist plain- when the with allegedly engaged improper sexual conduct tiff, (1) former “unprofessional section physician 2361 defined conduct” to include acts,” “repeated (2) immorality” (3) similar negligent “gross act “commission (Former 2361, (e), 1979, involving (c), (f).) moral turpitude.” section— subds. a new § abuse, currently section expressly provides “any 726—was enacted which act of sexual misconduct or . func- patient substantially with a . . related to the . . . which is relations tions, or duties of the occupation unprofessional for which a was issued constitutes license 1, 3294.) (Stats. grounds disciplinary conduct and p. for action . . . .” ch. § context, outside of the MICRA when MICRA and non-MICRA causes of action are in one we can find no basis for lim- properly joined proceeding the fee that an liti- iting successfully obtain attorney may permissibly the non-MICRA gating claim.
For a there are both and detriments in plaintiff, benefits potential pro- on a non-MICRA ceeding when a MICRA action theory may also be main- benefits, course, tained. The are that in a non-MICRA action principal $250,000 is not limit on noneconomic subject damages (Civ. Code, 3333.2), (2) the potential § reduction of economic damages the basis of the (Civ. Code, plaintiff’s collateral source benefits receipt 3333.1), (Code periodic payment § Civ. damages procedure Proc., 667.7); the main detriment § is that the is attorney plaintiff’s per- mitted to charge Indeed, fee than greater is allowed under MICRA. as we Roa, noted in one of the of section 6146’s limitation on purposes attorney fees have may been to help preserve of a greater proportion plaintiff’s diminished MICRA (See for the recovery own benefit. 37 Cal.3d plaintiff’s 932.) at p. when Accordingly, and recovers on a plaintiff pursues non-MICRA action, cause of it is reasonable to conclude that section 6146’s fee attorney limits should not even if the at apply, the same time also succeeds on a MICRA cause of action. separate true,
It course, is when—as this case—a hybrid is proceeding settled based, without on what it will specifying theory recovery be generally *13 impossible to determine with what role certainty the defend- ant’s potential non-MICRA in liability the settlement. played producing Nonetheless, matter, at least as a general it reasonable to assume appears that the possibility that the recover a in plaintiff might judgment excess of MICRA’s limits will have had at least some effect on the amount of the settlement received. Since the in such a case will have plaintiff generally obtained the benefit of on a non-MICRA in proceeding the form of theory a award, settlement larger it would be to such a inequitable permit thereafter to insist that his or her fee be limited the MICRA attorney’s by reason, For provision. this we conclude that when a plaintiff knowingly chooses to proceed action, on both non-MICRA and MICRA causes of obtains a that recovery be based on a non-MICRA may theory, the limita- tions of section 6146 should not apply.13 course, recognize, 13We many malpractice pursued that actions will be both on MICRA theories, and non-MICRA hopes circumventing provisions. respect in the MICRA’s With provisions of MICRA provider’s—or which affect the amount of a health care its insurer’s—liability, filing hybrid may pose significant problem; a not a if a viable,
plaintiff’s presum- non-MICRA theories are not offer would defendant’s settlement ably significantly recovery not be plaintiff’s probable affected and should reflect the if the Nonetheless, in favor of on the record the present summary of a client’s fee attorney defendant cannot be Because the amount upheld. MICRA or non- on a be affected whether an action is by pursued may MICRA of interest be- basis and because there be a conflict may potential matter, that an attorney tween the and client on this we believe attorney that authorized by in to collect a fee than larger who such a case seeks section 6146 must advise the client or client pros specifically potential attorney including potential cons alternative litigation strategies, fees, a non-MICRA consent to and settle and obtain client’s pursue case, the action as well as a MICRA In the affidavits claim.14 present client in to his attorney are conflict as to what advice provided declaration, at their first he meeting defendant states that regard. advised that he did the action as one involving profes- not consider before she signed sional and that he informed her negligence specifically her under the restrictions of the fee that he would not agreement represent go case were to to trial. 6146, however, admittedly different. Since settle- the situation is respect With to section ordinarily ments will were without merit and establish whether the non-MICRA theories recovery, potential danger that the played significant no role in the settlement there is a improperly limits of section 6146 could be avoided. fashion, however, assumes that will be undermined in this The risk that section 6146 interests, plaintiffs’ attorneys routinely interposing frivo- will act their own clients’ contingency extremely their own fees simply lous or weak non-MICRA theories to increase attorneys quite Although plaintiffs’ will be expense at the of their clients. we assume that good they believe in faith attempting non-MICRA theories when innovative devise benefit, they will properly such innovation will work to their clients’ we cannot assume contrary to their clients’ adopt simply such tactics when it is in their own interest and interest, clients. Fur- professional obligations conduct would their their for such violate hereafter, thermore, permitted of those attorney may recover fees excess as indicated non-MICRA only knowingly pursuit under section 6146 if the client consents to the cause of action. The regulating contingency fee contracts. Legislature 14In enacted section “(a) represent on a contin attorney An who contracts to provides in full: section into, shall, duplicate copy of gency provide fee basis at the time the is entered contract contract, representative, attorney plaintiff, guardian or his or signed both the and the include, The contract shall plaintiff, plaintiff’s guardian representative. or to the to, contingency fee rate which following: A but is not limited statement [¶] *14 (2) and attorney as to how disbursements agreed upon, the client and have A statement [¶] claim will affect the prosecution incurred in connection with the or settlement of the costs extent, (3) any, if recovery. A as to what contingency fee and the client’s statement [¶] that attorney for related matters any compensation to the plaintiff required pay could be may contingency This in relationship by arise out of their not covered their fee contract. the claim is plaintiff by attorney. Unless clude amounts collected for the [¶] 6146, by not set law but is subject a statement that the fee is provisions to the of Section subject provisions to the attorney If the claim is negotiable between and client. [¶] Section forth in that section are the maximum limits a statement that the rates set may negotiate a lower rate. agreement, attorney and client contingency fee and [¶] agreement (b) render the comply any provision of this section shall Failure to with be entitled to collect attorney thereupon shall option plaintiff, and the voidable at the (c) contingency fee contracts for the apply a reasonable shall not fee. This section [¶] benefits.” recovery compensation of workers’ declaration, section 6146.15 In her defendant’s directly disputes plaintiff statement, he not regard that defendant did not advise her that did asserting her of conduct as did not inform psychiatrist’s constituting negligence, the existence of section 6146 did that he would not repre- and not indicate sent her under the of that of whether limitations section.16 Since question a cause of plaintiff knowingly consented to the and settlement of pursuit action that would not be to the of section 6146 remains subject limitations in dispute, summary should not have been judgment granted. reversal,
The reversed. Because of the limited ground each shall bear party its own costs on appeal.
Broussard, J., J., Grodin, J., Lucas, J., Reynoso, concurred.
MOSK, I dissent. J.
The are correct when majority declare that “when a know- they action, ingly chooses on both proceed non-MICRA and MICRA causes and obtains a be recovery may based on a non-MICRA theory, limitation of 437.) section (Ante, 6146 should not At that apply.” p. point, rule, are majority on the track. have right With that the matter should ended. however,
Unfortunately, become derailed in much of the balance of they their opinion, their view of what medical treatment is incre- constitutes dible. They speak (ante, “a rather unusual ‘medical malpractice’ setting” 431) and then p. conclude “it is clear that the conduct arose psychiatrist’s out of the course of treatment he was licensed to psychiatric provide.” (Ante, 436.) p.
To the contrary, sexual been misconduct a medical doctor has long treatment; indeed, considered entirely outside the medical licenses scope have been (See, revoked therefor. v. Board Medical Ex- Cooper e.g., aminers (1975) 563].) Cal.App.3d Cal.Rptr. [123
Under the majority’s gross extension of what be deemed “the may treatment,” course of psychiatric I can conceive of them finding course, 15Of even if knowingly agreed attorney’s had with stated condition respect to the fee charge, solely that he recovery would if thereafter had obtained a action, on the attorney basis of MICRA cause of section limit the fee not- 6146 would withstanding plaintiff’s higher consent to a fee. noted, 16As there is also a gave plaintiff conflict in the declarations to whether defendant *15 the letter which provisions explained advised her of the of section 6146 and his conclusion case, (See its apply limits did not plaintiff agreed in this before to the settlement. 430, ante.) p.
MICRA when libelous in (1) a medical doctor statement applies publishes the and local about a doctor berserk in his office press his patient; goes out of commits on his steals mayhem jewelry patient; psychiatrist misconduct her session on the couch. Sexual patient’s handbag during than, as, medical treatment just egregious no less independent libel, mayhem and theft. court, trial after
Most the the significantly, majority finding ignore court, in was hearing asserted open damage by plaintiff primarily deliberate, the result of mere intentional conduct the and not by psychiatrist determination. That professional We are bound that factual negligence. than testimony was based on affidavits and the rather finding pleadings does not our negate duty to it. accept
At the for on the motion for counsel hearing summary judgment, relied fact almost on the contract and the terms of insurance exclusively that settlement But the had been made on the basis of insurance coverage. trial court observed that the broad of the insurance unusually provisions covered the but also policy for psychiatrist only professional negligence, assault, slander, for “undue familiari- libel and malicious prosecution all of which are criminal acts. ty,” intentional torts and most instances The court con- also considered exhibit A to the pleadings, police report cerning entirely three-day camping trip arranged by psychiatrist á trois. It sexual encounter with him and another man: a plaintiff’s ménage mere can be constituted hardly contended that such salacious conduct professional negligence. affidavits,
After and argument the insurance considering policy, counsel, find that most of trial “I’m stated: experienced judge going under which was outside the damage negligence scope Mr. limit on fees the case attorney’s fees is limited. So no [sic] defend- for the summary Bourhis handled and I’m going grant ant.” the matter
Under these I no reason to remand circumstances see trial court for further Let this case now rest peace. proceedings. Bird, J.,C. concurred.