Hughes v. Pham CA4/2 ( 2014 )

Filed 9/22/14 Hughes v. Pham CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
TRENT HUGHES et al.,
Plaintiffs and Appellants, E052469
v. (Super.Ct.No. INC048327)
CHRISTOPHER PHAM, ORDER MODIFYING OPINION
AND DENYING PETITION FOR
Defendant and Appellant. REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT
The petition for rehearing filed on September 8, 2014, is denied. On the court’s
own motion, the opinion filed in this matter on August 22, 2014, is modified as follows:
On page 41, remove the last paragraph in its entirety. The paragraph begins with
“As plaintiffs point out . . . ,” and ends on page 42 with “Accordingly, the trial court did
not abuse its discretion.” The last paragraph on pages 41-42 should read as follows:
The court did not state what near-term expenditures it had in mind. As plaintiffs
point out, however, their life care expert testified that the standard of care required that
1
for the first five years of his injury, Trent should go annually to the spinal cord center at
Craig Hospital in Colorado. There, during a three- to five-day stay, Trent would be
exhaustively evaluated by multiple physicians, receive physical and occupational therapy
and be evaluated for his functional abilities with the various devices he needed to use.
After the first five years, he would need to attend that program only every four or five
years. The witness testified that patients who attend that program typically live longer
than those who do not, and a spinal cord patient who received optimum care could have a
normal life expectancy. The cost of that program would be $7,000 for each of the first
five years. Trent’s attendance at that program could also result in additional equipment
and medical costs if it were determined that Trent’s needs would be better served by
other modalities. Later, less frequent reassessments should suffice because Trent’s needs
would have been determined during the earlier assessments. In addition, plaintiffs’ life
care expert’s summary of future care needs stated that modifications to Trent’s home
were required immediately to accommodate Trent’s needs. Finally, both plaintiffs’ and
defendant’s experts testified that for his overall well-being, Trent needed services and
equipment that would allow him to maximize his independence as soon as possible. This
evidence supports the trial court’s conclusion that Trent needed larger payments earlier in
his life than he would need later and at least minimally satisfies the fundamental goal of
matching losses with compensation as the losses occur. (Salgado v. County of Los
Angeles, supra, 19 Cal.4th at p. 650.) Accordingly, we cannot say that the court abused
its discretion. On remand, however, the court retains the discretion to order a different
payment schedule. (Ibid.)
2
These modifications do not change the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
3
Filed 8/22/14 Hughes v. Pham CA4/2 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
TRENT HUGHES et al.,
Plaintiffs and Appellants, E052469
v. (Super.Ct.No. INC048327)
CHRISTOPHER PHAM, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge.
Affirmed with directions.
Steven B. Stevens; Center for Constitutional Litigation, Valerie M. Nannery;
Waters, Kraus & Paul, David Bricker; Ely, Bettini, Ulman & Rosenblatt and Burt
Rosenblatt for Plaintiffs and Appellants Trent and Lisa Hughes.
Cole Pedroza, Curtis A. Cole, Kenneth R. Pedroza, Cassidy C. Davenport; Davis,
Grass, Goldstein, Housouer & Finlay, Jeffrey W. Grass and Ben Housouer for Defendant
and Appellant Christopher Pham.
1
Tucker Ellis, E. Todd Chayet, Rebecca A. Lefler for the California Medical
Association, the California Dental Association, the California Hospital Association, and
the American Medical Association; Fred J. Hiestand of the Civil Justice Association of
California as Amici Curiae on behalf of Defendant and Appellant Christopher Pham.
Plaintiffs Trent and Lisa Hughes appeal from a judgment in their medical
malpractice case against defendant Christopher Pham, D.O. Plaintiffs contend that the
statutory cap on noneconomic damages in medical malpractice cases (Civ. Code,
§ 3333.2),1 which is part of the Medical Injury Compensation Reform Act of 1975,2 or
MICRA, is unconstitutional. They also contend that the trial court improperly calculated
the offset resulting from their prior settlement with a former codefendant and erroneously
calculated the amount of periodic payments for future damages.
Dr. Pham cross-appeals, contending, among other things, that there was
insufficient evidence to establish causation, that the trial court erroneously excluded
critical evidence, that the award for future medical care costs was not justified by the
evidence, and that the judgment ordering periodic payments is erroneous in several
respects.
We agree in part with plaintiffs and in part with defendant concerning the structure
of the judgment, and will remand for further proceedings to correct it. Otherwise, we will
affirm the judgment.
1 All further statutory citations refer to the Civil Code unless another code is
specified.
2 (Stats. 1975, 2d Ex. Sess. 1975–1976, chs. 1 & 2, pp. 3949–4007.)
2
BACKGROUND
On November 2, 2003, Trent Hughes suffered a spinal cord injury while operating
an off-road vehicle in the desert. He experienced immediate severe pain in his back and
realized he was unable to move his feet, which felt numb and “tingly.” He was taken by
helicopter to Desert Regional Medical Center in Palm Springs.
Dr. Pham was the neurosurgeon on call. He was summoned to the emergency
department upon Hughes’ arrival. Hospital rules provided that Pham was required to
respond within 20 minutes of being summoned. Although Pham insisted that he did
respond promptly and that he did perform a comprehensive examination and evaluation
of Hughes’ condition, other evidence showed that this was not true. He did order an
MRI, which showed that Hughes had a burst fracture of the first vertebra in his lumbar
spine (L1) and compression fractures in the thoracic spine. Pham interpreted the MRI as
showing 70 percent transection of the thoracic spine and concluded that prompt surgery
to decompress and stabilize the spine at L1 was not necessary because the thoracic injury
would render Hughes a paraplegic in any event. Pham did not operate until November 4,
2003.
Plaintiffs’ experts established that the thoracic spine was not transected and had
not sustained any injury which would have rendered Hughes a paraplegic in the absence
of the L1 injury. The L1 injury was not complete—that is, it had not caused a complete
loss of sensation and movement from L1 down—when Hughes arrived at the hospital.
Hughes still had feeling in his legs and lower abdomen and could move his legs, and
prompt surgery would have resulted in at least partial return of sensation and motor
3
function in his legs, as well as the return of bowel, bladder and sexual function. The
delay in surgery resulted in the incomplete L1 injury progressing irreversibly, leaving
Hughes a paraplegic with no bladder, bowel or sexual function. (We discuss the details
of the testimony on this issue in our discussion of defendant’s claim, in his cross-appeal,
that the verdict is not supported by substantial evidence.)
Trent Hughes sued Desert Regional Medical Center and Pham for medical
malpractice. Lisa Hughes sued for loss of consortium. Both settled with Desert Regional
Medical Center and proceeded to trial against Pham. The jury found in favor of
plaintiffs. Both plaintiffs and defendant filed timely notices of appeal from the amended
judgment entered on March 8, 2011. (We discuss the details of the settlement and the
verdict elsewhere.)
PLAINTIFFS’ APPEAL
1.
SECTION 3333.2 IS NOT UNCONSTITUTIONAL ON THE GROUNDS
ASSERTED BY PLAINTIFFS
A. Introduction
The jury determined that Lisa Hughes suffered $1 million in noneconomic
damages and that Trent Hughes suffered $2,750,000 in noneconomic damages. The trial
court reduced plaintiffs’ noneconomic damages to $250,000 each pursuant to section
3333.2. That statute states: “(a) In any action for injury against a health care provider
based on professional negligence, the injured plaintiff shall be entitled to recover
noneconomic losses to compensate for pain, suffering, inconvenience, physical
4
impairment, disfigurement and other nonpecuniary damage. [¶] (b) In no action shall
the amount of damages for noneconomic losses exceed two hundred fifty thousand
dollars ($250,000).” (§ 3333.2.)
Plaintiffs contend that the damages cap provided for in section 3333.2 violates
constitutional guarantees of equal protection, the right to a jury trial, and separation of
powers.
We determine the constitutionality of a statute de novo. (Prigmore v. City of
Redding (2012) 211 Cal. App. 4th 1322.)
B. Background
MICRA is a comprehensive statutory scheme enacted by the Legislature to
address “serious problems” associated with the rapid increase in medical malpractice
insurance premiums throughout the state. (American Bank & Trust Co. v. Community
Hospital (1984) 36 Cal. 3d 359, 363 (American Bank ).) “In broad outline, the act
(1) attempted to reduce the incidence and severity of medical malpractice injuries by
strengthening governmental oversight of the education, licensing and discipline of
physicians and health care providers, (2) sought to curtail unwarranted insurance
premium increases by authorizing alternative insurance coverage programs and by
establishing new procedures to review substantial rate increases, and (3) attempted to
reduce the cost and increase the efficiency of medical malpractice litigation by revising a
number of legal rules applicable to such litigation.” (Id. at pp. 363-364.)
5
“[I]n enacting MICRA the Legislature was acting in a situation in which it had
found that the rising cost of medical malpractice insurance was posing serious problems
for the health care system in California, threatening to curtail the availability of medical
care in some parts of the state and creating the very real possibility that many doctors
would practice without insurance, leaving patients who might be injured by such doctors
with the prospect of uncollectible judgments. In attempting to reduce the cost of medical
malpractice insurance in MICRA, the Legislature enacted a variety of provisions
affecting doctors, insurance companies and malpractice plaintiffs.” (Fein v. Permanente
Medical Group (1985) 38 Cal. 3d 137, 158-159 (Fein).)
In the years since MICRA was enacted, the California Supreme Court has rejected
constitutional challenges to a number of its provisions. (See American Bank, supra,
36 Cal. 3d 359 [Code Civ. Proc., § 667.7, which regulates payment of future damages
awards, does not violate due process, equal protection or the right to a jury trial]; Barme
v. Wood (1984) 37 Cal. 3d 174 [Civ. Code, § 3333.1, which limits collateral source
recovery from malpractice defendants, does not violate due process]; Roa v. Lodi Medical
Group, Inc. (1985) 37 Cal. 3d 920 [Bus. & Prof. Code, § 6146, which caps attorney fee
recovery in malpractice cases, does not violate due process]; Fein, supra, 38 Cal. 3d 137
[Civ. Code, § 3333.2, which does not violate due process or equal protection].) Plaintiffs,
however, contend that our Supreme Court has not addressed the precise claims they raise.
Accordingly, we will address each claim.
6
C. Right to Jury Trial
Article I, section 16 of the California Constitution states in pertinent part: “Trial
by jury is an inviolate right and shall be secured to all . . . .” Plaintiffs contend that this
means that in any action in which a jury trial was available at common law, such as an
action for personal injury, the court may not override a jury’s factual finding that the
plaintiff suffered a particular dollar amount in noneconomic damages. They also contend
that in an action triable by jury at common law, the Legislature has no authority to limit
the plaintiff’s recovery by placing a cap on noneconomic damages.
In California, the right to a jury trial applies in any action in which the parties
would have had the right to a jury trial under the common law as it existed in 1850, when
the California Constitution was adopted. (People v. One 1941 Chevrolet Coupe (1951)
37 Cal. 2d 283, 286-287.) However, the right to a jury trial in a civil case is not
immutable, even if the right existed at common law, nor is the scope of the constitutional
right as sweeping as plaintiffs contend. The word “inviolate” “connotes no more than
freedom from substantial impairment.” (People v. Peete (1921) 54 Cal. App. 333, 364.)
Deviations from the right as it existed at common law are permissible as long as there is
no impairment of the “substantial features” of a jury trial. (Jehl v. Southern Pacific Co.
(1967) 66 Cal. 2d 821, 828-829 (Jehl).) For example, in American Bank, supra, 36 Cal. 3d
359, the court rejected the contention that MICRA’s provision for periodic payments
(Code Civ. Proc., § 667.7) impermissibly infringes the right to a jury trial because at
common law a personal injury plaintiff received his or her damages in a lump sum. The
plaintiff’s contentions in American Bank were based on the premise that periodic
7
payments may deprive the plaintiff, or the plaintiff’s estate, of the full amount of future
damages found by the jury because the payments cease upon the plaintiff’s death.
(American Bank, at pp. 366, 374-377.) The court held that although the constitution
required that the jury determine the amount of future damages, “the court’s authority
under [Code of Civil Procedure] section 667.7, subdivision (b)(1), to fashion the details
of a periodic payment schedule does not infringe the constitutional right to jury trial.”
(American Bank, at p. 376.) American Bank thus stands for the proposition that the
Legislature may enact measures which may have the effect of limiting a medical
malpractice plaintiff’s recovery of the amount of damages awarded by the jury.
Accordingly, we reject plaintiffs’ contention that because juries were the sole arbiters of
damages at common law, any limitation on that function violates the constitutional
guarantee of a jury trial.
Moreover, even if a right to a jury trial in a particular context existed at common
law, it may be modified in furtherance of a legitimate state interest: “While the general
propriety of noneconomic damages is ‘firmly imbedded in our common law
jurisprudence [citation],’ no California case ‘has ever suggested that the right to recover
for such noneconomic injuries is constitutionally immune from legislative limitation or
revision. [Citation.]’ ([Fein], supra, 38 Cal.3d at pp. 159-160.)” (Yates v. Pollock
(1987) 194 Cal. App. 3d 195, 200.) On the contrary, the California Supreme Court has
repeatedly held that “the Legislature retains broad control over the measure . . . of
damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and that
[it] may expand or limit recoverable damages so long as its action is rationally related to
8
a legitimate state interest.” (Fein, supra, 38 Cal.3d at p. 158 and cases cited therein; see
also American Bank, supra, 36 Cal.3d at pp. 368-369 [“a plaintiff has no vested property
right in a particular measure of damages, and . . . the Legislature possesses broad
authority to modify the scope and nature of such damages” so long as the legislation is
rationally related to a legitimate state interest].) Indeed, in Werner v. Southern Cal. etc.
Newspapers (1950) 35 Cal. 2d 121, the court held that the Legislature may place a limit
on the damages available in a cause of action, even though no such limit existed at
common law, and may even abolish a cause of action which existed at common law.
“To hold otherwise would result in freezing the law . . . as it was when the constitutional
provision was originally adopted . . . .” (Id. at p. 124.)3
In Fein, supra, 38 Cal. 3d 137, after noting the Legislature’s broad authority to
determine the measure of damages available in a cause of action, the court held that
section 3333.2 does not violate due process because the cap is rationally related to a
legitimate state interest. (Fein, at pp. 158-159.) Relying on Fein’s due process analysis,
the court in Yates, supra, 194 Cal. App. 3d 195, rejected the contention that section 3333.2
unconstitutionally abridges the right to a jury trial. Rather, the court held, the argument
“is but an indirect attack upon the Legislature’s power to place a cap on damages.”
3 We acknowledge that courts in other states which provide a constitutional right
to jury trial similar to ours have held that allowing a legislature to place a cap on the
amount of damages means that the right to a jury trial is directly and impermissibly
subject to legislative limitation. (See, e.g., Watts ex rel. Watts v. Lester E. Cox Med.
Ctrs. (2012) 376 S.W.3d 633, 642 [Missouri].) As we have discussed above, our
Supreme Court clearly disagrees. (Fein, supra, 38 Cal.3d at pp. 158-159 and cases cited
therein.)
9
(Yates, at p. 200.) The court held that even though section 3333.2 will in some cases
result in the recovery of a lower judgment than would have been obtained before the
enactment of the statute, the cap does not violate a plaintiff’s right to a jury determination
as to noneconomic damages. (Yates, at p. 200; accord, Stinnett v. Tam (2011) 198
Cal. App. 4th 1412, 1433.)4 We agree with Yates’ reasoning. Moreover, even though it is
true that the California Supreme Court has not engaged in an analysis of a contention that
section 3333.2 violates a constitutional right to an award of the full amount of
noneconomic damages as determined by a jury, the court has stated that section 3333.2
“places no limit on the amount of injury sustained by the plaintiff, as assessed by the trier
of fact, but only on the amount of the defendant’s liability therefor.” (Salgado v. County
of Los Angeles (1998) 19 Cal. 4th 629, 640.) Because the court was not addressing the
constitutionality of section 3333.2, this statement is properly viewed as dictum with
respect to that issue. Nevertheless, we find it highly persuasive of the court’s view of the
effect of section 3333.2 on a plaintiff’s constitutional right to the full measure of
noneconomic damages found by the jury, as that issue was analyzed in Yates.
4 Plaintiffs also argue that Yates and Stinnett are inapposite because both involved
actions for wrongful death, which, they assert, is not a cause of action recognized at
common law, thus giving rise to a constitutional right to a jury trial. The California
Supreme Court has held that although the cause of action for wrongful death may have
existed at common law, it is nevertheless deemed to be purely a creature of statute in
California, created by the Legislature in 1862. (Justus v. Atchison (1977) 19 Cal. 3d 564,
572-575, overruled on another point in Ochoa v. Superior Court (1985) 39 Cal. 3d 159,
171.) However, the California Supreme Court has also held that wrongful death actions
do fall into the category of “actions for damages that would have been tried to a jury at
common law.” (Ruiz v. Podolsky (2010) 50 Cal. 4th 838, 853.) In any event, neither
Yates nor Stinnett based its analysis on the premise that the parties did not have a
common law right to a jury trial.
10
Accordingly, we conclude that the MICRA cap does not improperly interfere with a jury
verdict on noneconomic damages.
Plaintiffs assert that Feltner v. Columbia Pictures Tel. (1998) 523 U.S. 340
(Feltner) is dispositive. Plaintiffs cite that case as holding that “damages [are] peculiarly
within the province of the jury,” and that any interference with a jury’s determination of
damages violates the Seventh Amendment. We disagree, for two reasons. First, Feltner
concerns the Seventh Amendment right to jury trial. That amendment is not applicable to
the states (McDonald v. City of Chicago (2010) 561 U.S. ____ [130 S. Ct. 3020, 3024-
3035, fn. 13]; Jehl, supra, 66 Cal.2d at p. 827), and it “differs significantly in language”
from the jury trial guarantee in the California Constitution. (Jehl, at p. 827.) Second,
Feltner does not address the constitutionality of a statutory cap on damages. Rather, the
issue in Feltner is whether title 17 of the United States Code, section 504(c), a part of the
Copyright Act of 1976, violates the Seventh Amendment right to a jury trial because it
expressly provides for a determination of damages by a court rather than a jury. Section
504(c) “permits a copyright owner ‘to recover, instead of actual damages and profits, an
award of statutory damages . . . , in a sum of not less than $500 or more than $20,000 as
the court considers just.’” (Feltner, supra, 523 U.S. at p. 342.) The court held that
because the common law provided for recovery of damages for copyright infringement
and provided for a jury determination of such damages, section 504(c) is unconstitutional
unless it is construed to permit a jury trial to determine statutory damages. (Feltner, at
pp. 342, 347-355.) Accordingly, Feltner does not assist us in resolving the issue before
us, even by analogy.
11
D. Separation of Powers
Plaintiffs next contend that section 3333.2 violates the separation of powers
doctrine embodied in article III, section 3 and article VI, section 1 of the California
Constitution. Plaintiffs note that the California Supreme Court has not yet addressed this
issue.
Plaintiffs are correct that the court has not explicitly framed a holding concerning
section 3333.2 in terms of separation of powers. Nevertheless, in Fein, the court
reiterated prior holdings that “the Legislature retains broad control over the measure, as
well as the timing, of damages that a defendant is obligated to pay and a plaintiff is
entitled to receive, and that the Legislature may expand or limit recoverable damages so
long as its action is rationally related to a legitimate state interest.” (Fein, supra,
38 Cal.3d at p. 158.) The court went on to state, “[W]e know of no principle of
California—or federal—constitutional law which prohibits the Legislature from limiting
the recovery of damages in a particular setting in order to further a legitimate state
interest.” (Id. at p. 161.) We are not persuaded by plaintiffs’ arguments to the contrary.
E. Equal Protection
The California Constitution provides that “A person may not be . . . denied equal
protection of the laws.” (Cal. Const., art. I, § 7(a).) The Fourteenth Amendment contains
a similar provision. (U.S. Const., 14th Amend.) Plaintiffs contend that section 3333.2
violates this constitutional guarantee because it “arbitrarily and irrationally singles out the
most severely injured victims of medical malpractice for unfavorable treatment.”
Furthermore, they contend, “even if the MICRA cap served a rational purpose when it
12
was enacted, it is no longer needed, it is no longer rational and, therefore, it is no longer
constitutional.”
“‘“[I]n areas of social and economic policy, a statutory classification that neither
proceeds along suspect lines nor infringes fundamental constitutional rights must be
upheld against equal protection challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification. [Citations.] Where there
are ‘plausible reasons’ for [the classification] ‘our inquiry is at an end.’” [Citations.]
Past decisions also establish that, under the rational relationship test, the state may
recognize that different categories or classes of persons within a larger classification may
pose varying degrees of risk of harm, and properly may limit a regulation to those classes
of persons as to whom the need for regulation is thought to be more crucial or imperative.
[Citations.]’” (Kasler v. Lockyer (2000) 23 Cal. 4th 472, 481-482, italics omitted.)
In Fein, supra, 38 Cal. 3d 137, our Supreme Court applied this rational basis
inquiry and concluded that the statutory classifications created by section 3333.2 are
rationally related to the legislative purposes of MICRA. First, the distinction between
medical malpractice plaintiffs and other tort victims is rationally related to the legislative
purpose of responding to an insurance crisis in that particular area. (Id. at p. 162.)
Second, the differential impact of the $250,000 cap among subclasses of medical
malpractice plaintiffs is also rationally related to the objective of reducing the costs of
defendants and their insurers. (Ibid.) In this regard, the court underscored that “the
Legislature clearly had a reasonable basis for drawing a distinction between economic
and noneconomic damages, providing that the desired cost savings should be obtained
13
only by limiting the recovery of noneconomic damage.” (Ibid.) The court noted that
there are inherent difficulties in placing a monetary value on losses for such intangible
injuries, that money damages are imperfect compensation for such injuries, that such
damages are generally passed on to and borne by innocent consumers, and that the right
to recover damages for noneconomic injuries is not “constitutionally immune from
legislative limitation or revision.” (Id. at pp. 159-160.)
Fein expressly holds that the statutory classifications created by section 3333.2
“are rationally related to the ‘realistically conceivable legislative [purposes]’ [citation] of
MICRA.” (Fein, supra, 38 Cal.3d at p. 163.) As the Fein court cautioned, we may not
“properly strike down a statute simply because we disagree with the wisdom of the law or
because we believe that there is a fairer method for dealing with the problem. [Citation.]
. . . . ‘[A] court cannot eliminate measures which do not happen to suit its tastes if it
seeks to maintain a democratic system. The forum for the correction of ill-considered
legislation is a responsive legislature.’” (Id. at pp. 163-164.) Decisions of the California
Supreme Court “are binding upon and must be followed by all the state courts of
California.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455.)
Because plaintiffs’ first equal protection argument was rejected in Fein, we also must
reject it.
14
Plaintiffs’ argument that conditions have changed since Fein was decided in 1985
and that section 3333.2 is no longer rationally related to a legitimate state interest was
rejected in Stinnett, supra, 198 Cal.App.4th at pages 1428 through 1432. We agree with
that court’s reasoning and need not repeat it at length here. In essence, Stinnett holds that
except in narrow circumstances which do not exist with respect to section 3333.2, it is not
the judiciary’s function to determine when constitutionally valid legislation has served its
purpose. (Stinnett, at pp. 1430-1431.) For this reason, we decline plaintiffs’ request that
we remand the matter to the trial court for further litigation as to the continued viability
of section 3333.2.
2.
CALCULATION OF THE OFFSET FROM THE SETTLEMENT WITH DESERT
REGIONAL MEDICAL CENTER
Before trial, plaintiffs settled with former defendant Desert Regional Medical
Center for $3,000,000.5 The trial court found the settlement to be in good faith. On
motion of defendant, the trial court applied the settlement to offset the judgment.
Plaintiffs concede that an offset was required but contend that the trial erred with respect
to the principles it applied with respect to the offset, as we discuss below.
5 The plaintiffs’ settlement with the hospital was confidential, and the settlement
agreement itself is not contained in the record on appeal. Defendant states that the
settlement did not differentiate between economic and noneconomic damages. Plaintiffs
refer to the settlement as a lump sum and do not otherwise describe its terms. From these
statements, we infer that the settlement also did not differentiate between the claim of
Trent Hughes and the claim of Lisa Hughes.
15
A. The Applicable Law
Code of Civil Procedure section 877 provides that when one or more tortfeasors
“claimed to be liable for the same tort” enters into a good faith settlement with the
plaintiff, the settlement “shall have the following effect: [¶] (a) It shall not discharge
any other such party from liability unless its terms so provide, but it shall reduce the
claims against the others in the amount stipulated by the release, the dismissal or the
covenant, or in the amount of the consideration paid for it, whichever is the greater.
[¶] (b) It shall discharge the party to whom it is given from all liability for any
contribution to any other parties.” (Code Civ. Proc., § 877, italics added.)
Prior to the enactment of section 1431.2, tortfeasors were jointly and severally
liable for both economic and noneconomic damages. In 1986, the electorate adopted
Proposition 51, which altered the long-standing doctrine of joint and several liability.
(Evangelatos v. Superior Court (1988) 44 Cal. 3d 1188, 1192-1193.) Section 1431.2,
which was enacted pursuant to Proposition 51, provides, in pertinent part: “(a) In any
action for personal injury, property damage, or wrongful death, based upon principles of
comparative fault, the liability of each defendant for non-economic damages shall be
several only and shall not be joint. Each defendant shall be liable only for the amount of
non-economic damages allocated to that defendant in direct proportion to that
defendant’s percentage of fault, and a separate judgment shall be rendered against that
defendant for that amount.” (§ 1431.2, subd. (a).) Because each defendant is now solely
responsible for his or her share of the noneconomic damages, to allow an offset for the
portion of a settlement which is designated for noneconomic damages would, in effect,
16
cause money paid in settlement of a several liability to be treated as if it were paid as a
joint liability. Accordingly, except as we discuss below, any portion of a settlement
attributable to noneconomic damages is not available to offset the judgment against a
nonsettling defendant. (Espinoza v. Machonga (1992) 9 Cal. App. 4th 268, 274-275, 276-
277 (Espinoza).)
If the pretrial settlement does not differentiate between economic and
noneconomic damages, offset against the later judgment is calculated in proportion to the
ratio of economic to noneconomic damages awarded by the trier of fact and in proportion
to the nonsettling defendant’s percentage of fault. (Espinoza, supra, 9 Cal.App.4th at
pp. 276-277; Wilson v. John Crane, Inc. (2000) 81 Cal. App. 4th 847, 864.)
B. Application to This Case
The trial court calculated the offset as follows: It first applied the MICRA cap on
plaintiffs’ noneconomic damages and deducted $500,000 from the $3,000,000 settlement.
It also deducted $125,000, the award for Trent’s past lost earnings, and an additional
$500,000, the present value of Trent’s lost future earnings. This left a settlement balance
of $1,850,000,6 which the court then applied as an offset against Trent’s future damages.
Plaintiffs argue that this was incorrect because it fails to apply the Espinoza
calculus, because the court was required to calculate the ratio of economic to
noneconomic damages before it applied the MICRA cap, and because the court should
first have applied an Espinoza-style calculus to determine the portion of the settlement
6 This was the amount reflected in the court’s ruling. The correct balance under
the court’s calculation is $1,875,000.
17
which constituted Lisa’s damages. They point out that Lisa’s damages, for loss of
consortium, were entirely noneconomic and should therefore not have been used to offset
Trent’s economic damages. Defendant contends that the trial court properly applied the
MICRA cap to the noneconomic damages before determining the offset and that the court
implicitly recognized that Espinoza, which is not a medical malpractice case, does not
apply to medical malpractice cases because it results in an award of noneconomic
damages in excess of the MICRA cap. We agree with both parties, in part.7
The jury assessed the damages as follows:
Trent Hughes:
Past economic loss:
Lost earnings: $ 125,000
Future economic loss:
Lost earnings:
Future value: $ 1,400,000
Present cash value: $ 500,000
Life care plan expenses:
Future value: $11,200,000
Present cash value: $ 4,000,000
Past noneconomic loss: $ 750,000
Future noneconomic loss: $ 2,000,000
Lisa Hughes:
Noneconomic damages: $ 1,000,0008
7The proper calculation of the offset is a question of law which we review
independently. (See Francies v. Kapla (2005) 127 Cal. App. 4th 1381, 1386.)
8 The special verdict did not ask the jury to determine the present value of Trent’s
future noneconomic damages, nor did it ask the jury to allocate Lisa’s damages between
past and future or to set present and future values for Lisa’s damages. For purposes of
calculating the ratios, we will assume that Trent’s future noneconomic damages and all of
Lisa’s noneconomic damages are stated as present value.
18
We first address the question of apportioning the settlement to account for Lisa’s
damages for loss of consortium. Loss of consortium is expressly included in section
1431.2 as an item of noneconomic damages. (§ 1431.2, subd. (b)(2).) Loss of
consortium may, however, in some cases include the cost of obtaining substitute domestic
services and, in such a case, would therefore constitute economic damages, at least in
part. (Kellogg v. Asbestos Corp. Ltd. (1996) 41 Cal. App. 4th 1397, 1408; § 1431.2,
subd. (b)(1).) However, Lisa’s testimony did not include any claim for such costs, and
the special verdict expressly stated her damages in terms of “the loss of her husband’s
love, companionship, comfort, care, assistance, protection, affection, society, moral
support, and the loss of the enjoyment of sexual relations.” Accordingly, all of Lisa’s
damages were noneconomic. That being the case, her damages could not be applied to
offset the economic damages verdict and therefore “should have been excluded entirely
from the Espinoza calculus.” (Wilson v. John Crane, Inc., supra, 81 Cal.App.4th at
pp. 863-864.) Moreover, as plaintiffs point out, the jury awarded separate damages for
Trent’s and Lisa’s separate causes of action, but the trial court treated the judgment as
though damages were awarded to plaintiffs jointly. We are not aware of any authority
permitting the use of damages awarded to one plaintiff to offset damages awarded to
another.
19
Accordingly, the portion of the settlement attributable to Lisa’s damages should
have been deducted from the settlement prior to apportioning the balance of the
settlement between Trent’s economic and noneconomic damages. Lisa’s damages of
$1,000,000 equal 11.94 percent of the plaintiffs’ total damages. 11.94 percent of
$3,000,000 is $358,200. (1,000,000 ÷ 8,375,000 = .1194; .1194 x 3,000,000 =
$358,200.) The remaining balance of the settlement is $2,641,800.
Applying Espinoza to calculate the offset against Trent’s economic damages
yields the following: Trent’s total damages, reduced to present value (see fn. 7, above),
are $7,375,000. His economic damages ($4,625,000) constitute 62.71 percent of that
amount. 62.71 percent of $2,641,800 equals $1,656,673. (4,625,000 ÷ 7,375,000 =
.6271; .6271 x 2,641,800 = 1,656,673.) (All amounts are rounded to the nearest dollar.)
Offsetting Trent’s economic damages by that amount, however, leaves a settlement
balance of $985,127 attributable to Trent’s noneconomic damages. That amount exceeds
the MICRA cap, as does the portion of the settlement attributable to Lisa’s damages
($358,200). Under Espinoza and under section 1431.2, that balance cannot be applied to
offset the judgment for economic damages. But allowing plaintiffs to retain those
amounts violates section 3333.2.
For this reason, defendant contends that the Espinoza calculus does not apply to a
settlement involving the MICRA cap. (As noted above, Espinoza itself is not a MICRA
case.) Defendant contends that reducing Trent’s noneconomic damages to the MICRA
cap of $250,000 before calculating the ratio of economic to noneconomic damages, as the
trial court did, eliminates this problem. He relies on Mayes v. Bryan (2006) 139
20
Cal. App. 4th 1075. In Mayes, the court held that where two or more defendants are
subject to the MICRA cap, the court should apply the cap to reduce the award of
noneconomic damages before engaging in the Espinoza calculus. (Id. at pp. 1098-1103.)
In Francies v. Kapla, supra, 127 Cal. App. 4th 1381, on the other hand, the court held that
the cap should be applied after the court determines the ratio of economic to
noneconomic damages. In that case, however, only the nonsettling defendant was a
health care provider subject to MICRA. The settling defendant was the plaintiff’s former
employer. (Francies v. Kapla, at pp. 1383-1384.) Because MICRA did not apply to the
settlement with the employer, the court held, it did not serve the purpose of sections
3333.2 or 1431.2 to reduce the noneconomic damages to $250,000 before calculating the
ratio of economic to noneconomic damages. (Id. at pp. 1385-1389.) Here, Mayes
applies, and it produces a result in keeping with the intent of MICRA.
If plaintiffs’ noneconomic damages are reduced prior to applying Espinoza, the
total judgment is $5,125,000 ($4,625,000 + $500,000). Lisa’s percentage of the
judgment is .04878. (250,000 ÷ 5,125,000 = .04878.) The portion of the settlement
attributable to Lisa’s damages is $146,340. (.04878 x 3,000,000 = 146,340.) Deducting
Lisa’s share leaves a settlement balance of $2,853,660. The total judgment for Trent’s
economic and noneconomic damages is $4,875,000 ($250,000 + $4,625,000). The
percentage of the total judgment attributable to Trent’s economic damages is .94871.
(4,625,000 ÷ 4,875,000 = .94871.) The portion of the settlement available to offset
Trent’s economic damages is $2,707,296. (2,853,660 x .94871 = 2,707,296.) This leaves
a settlement balance of $146,364 attributable to Trent’s noneconomic damages and does
21
not leave any portion of the settlement funds which is not attributable to economic
damages or which exceeds the MICRA cap.
This approach eliminates the problem which arises when the MICRA cap is not
applied before determining the ratio of economic to noneconomic damages, as we have
discussed above. It does not, however, solve the remaining problem, which is how to
apportion the noneconomic damages between the hospital and Dr. Pham.
Defendant did not present any evidence on apportionment of fault between himself
and the hospital, and the jury was not asked to apportion fault. In Hoch v. Allied-Signal,
Inc. (1994) 24 Cal. App. 4th 48, the court held that a defendant who fails to meet his or her
burden of proof on the apportionment of fault is liable for all of the plaintiff’s
noneconomic damages with no offset for the plaintiff’s settlement with another tortfeasor,
even if that would result in the plaintiff’s net recovery of noneconomic damages in excess
of the amount awarded at trial. (Id. at pp. 67-68.) The court reasoned, “‘[S]ettlement
dollars are not the same as damages. Settlement dollars represent a contractual estimate
of the value of the settling tortfeasor’s liability and may be more or less than the
proportionate share of the plaintiff[’]s damages. The settlement includes not only
damages, but also the value of avoiding the risk, expense, and adverse public exposure
that accompany going to trial. There is no conceptual inconsistency in allowing a
plaintiff to recover more from a settlement or partial settlement than he could receive as
damages. [Citations.]’” (Ibid.) Because Hoch is not a medical malpractice case,
however, the court was not required to address the effect of MICRA. MICRA compels a
different result.
22
The purpose of the cap on noneconomic damages provided for in section 3333.2 is
“to reduce the cost of medical malpractice litigation, and thereby restrain the increase in
medical malpractice insurance premiums.” (Fein, supra, 38 Cal.3d at p. 159.) In
furtherance of that purpose, the statute establishes the limit which a plaintiff may receive
for a single injury, regardless of the number of health care providers who are in some
degree liable for that injury. (Gilman v. Beverly California Corp. (1991) 231 Cal. App. 3d
121, 128.) Because section 3333.2 bars any medical malpractice plaintiff from
recovering more than $250,000 from any number of health care providers, it necessarily
requires a court to apply settlement dollars for noneconomic damages to a subsequent
judgment for such damages, unless the settlement and the judgment combined do not
exceed $250,000.
“To the extent a specific statute is inconsistent with a general statute potentially
covering the same subject matter, the specific statute must be read as an exception to the
more general statute.” (Salazar v. Eastin (1995) 9 Cal. 4th 836, 857.) Because section
3333.2 places a cap on the total recovery of noneconomic damages from health care
providers, it is the more specific statute, and we read it as an exception to section
1431.2.9
9 Whether MICRA operates as an exception to the bar created by section 1431.2
is currently on review before the California Supreme Court in Rashidi v. Moser, review
granted January 15, 2014, S214430.
23
Accordingly, we conclude that the judgment for Trent’s economic damages is to
be offset by $2,707,296, and the judgment for his noneconomic damages is to be offset
by $146,364. The judgment for Lisa’s damages is to be offset by $146,340.
3.
PERIODIC PAYMENTS
Upon the request of a party in a personal injury action in which future damages of
$50,000 or more are awarded, the court may order the judgment paid in whole or in part
by periodic payments rather than a lump sum. (Code Civ. Proc., § 667.7, subd. (a).)
Here, the court ordered Trent’s future economic damages paid over 18 years. It
ordered an initial double payment of $626,315, followed by 17 annual installments of
$313,158.10 Plaintiffs contend that the order was erroneous because the court gave
defendant a dollar-for-dollar credit for the settlement with Desert Regional Medical
Center, even though only a percentage of the settlement was attributable to economic
damages, and because the court reduced Trent’s future damages to present value and then
ordered payment over 18 years.
The legislative purpose behind Code of Civil Procedure section 667.7 is as
follows: “By authorizing periodic payment judgments, it is the . . . intent of the
Legislature that the courts will utilize such judgments to provide compensation sufficient
10 There is substantial evidence that Trent’s life expectancy from the time of trial
was 19 years. The court initially ordered 19 equal annual payments, then modified the
judgment to provide for a initial double payment to cover attorney fees and costs,
followed by 17 equal annual payments. Plaintiffs do not object to the payment schedule;
they object only to the amount of the payments.
24
to meet the needs of an injured plaintiff and those persons who are dependent on the
plaintiff for whatever period is necessary while eliminating the potential windfall from a
lump-sum recovery which was intended to provide for the care of an injured plaintiff over
an extended period who then dies shortly after the judgment is paid.” (Code Civ. Proc.,
§ 667.7, subd. (f).) The fundamental goal is to match losses with compensation as the
losses occur. (Salgado v. County of Los Angeles, supra, 19 Cal.4th at pp. 638, 640.)
When an award of future damages is to be paid over a period of years, the plaintiff is
entitled to periodic payments based on the gross award of future damages, not on the
present value. “‘This is because if a present value award is periodized, a plaintiff might
not be fully compensated for his or her future losses; the judgment, in effect, would be
discounted twice: first by reducing the gross amount to present value and second by
deferring payment.’” (Id. at p. 639.)
As we have discussed above, plaintiffs are correct that the court erred with respect
to its treatment of the settlement to offset the judgment. Contrary to plaintiffs’ other
contention, however, the trial did not base the award of periodic payments on the current
value of Trent’s future damages.
The trial court arrived at the sum to be converted to periodic payments as follows:
The court deducted Trent’s lost past earnings ($125,000), the present value of Trent’s lost
future earnings ($500,000) and both plaintiffs’ noneconomic damages ($500,000) from
the $3 million settlement, leaving a settlement balance of $1,850,000 to be offset against
future damages. The court concluded that it could not deduct the present value of the
settlement proceeds from the future value of Trent’s damages (“apples and oranges”).
25
The court reduced Trent’s future damages of $11.2 million to the present value
determined by the jury, $4 million. The court found that this was a ratio of 2.8 to 1. It
then subtracted $1,850,000 from the present value of Trent’s future damages
($4,000,000) and multiplied the balance ($2,125,000) by 2.8, arriving at $5,950,000 as
the amount of future damages to be converted to periodic payments.11 Accordingly,
although the court first reduced the future damages to present value, its final award
represents the future value of the damages less the future value of the settlement
proceeds. Because the trial court’s calculation of the periodic payments is founded on its
erroneous treatment of the settlement agreement, as we have discussed above, however,
we will remand the matter to the trial court with directions to recalculate the periodic
payments in a manner consistent with this opinion.12
4.
THE SUFFICIENCY OF THE UNDERTAKING
Finally, plaintiffs contend that the trial court allowed defendant to appeal without
posting a sufficient undertaking. Because we are remanding for recalculation of the
offset and the periodic payment amount, this issue is moot. (City of Lodi v. Randtron
(2004) 118 Cal. App. 4th 337, 362-363.) Should there be a subsequent appeal, the parties
may revisit the appropriate amount of undertaking.
11 Either the court’s arithmetic was faulty or its ruling contains two typographical
errors. Subtracting $1,125,000 from $3,000,000 leaves $1,875,000, not $1,850,000.
And, subtracting $1,850,000 from $4,000,000 leaves $2,150,000, not $2,125,000.
12 We will address defendant’s contentions concerning the periodic payments,
raised in his cross-appeal, below.
26
DEFENDANT’S CROSS-APPEAL
1.
SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S FINDING
THAT DEFENDANT’S NEGLIGENCE WAS A SUBSTANTIAL
FACTOR IN HUGHES’ INJURY
Defendant contends that there was no evidence that any negligence on his part
caused plaintiffs’ damages because all of the experts agreed that Trent Hughes would
have been rendered paraplegic by an independent thoracic/cervical spinal injury
regardless of the L1 injury and because plaintiffs offered no evidence that defendant
could have done anything to alter that outcome.
As a threshold issue, the parties disagree about just what plaintiffs were required
to prove in order to meet their burden of proof as to causation. Defendant contends that
plaintiffs had the burden to prove that but for defendant’s negligence, the harm would not
have occurred. Plaintiffs contend that the “but for” test does not apply and that their
burden was to prove that defendant’s negligence was a substantial factor in causing their
damages. Defendant responds that the jury was instructed to apply the “but for” test and
that plaintiffs are in error in asserting that “substantial factor” is the standard for medical
malpractice cases. Both are partly correct.
In a medical malpractice action, the plaintiff must produce sufficient evidence to
allow the jury to infer that in the absence of the defendant’s negligence, there was a
reasonable medical probability that the plaintiff would have obtained a better result.
(Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal. App. 4th 1304, 1314-1315.) The
27
defendant’s negligence need not be the sole cause of the plaintiff’s damages; it is
sufficient that the defendant’s negligence was a substantial factor in bringing about the
harm suffered by the plaintiff. (Mitchell v. Gonzales (1991) 54 Cal. 3d 1041, 1049.) The
“substantial factor” test subsumes the “but for” test: “‘If the conduct which is claimed to
have caused the injury had nothing at all to do with the injuries, it could not be said that
the conduct was a factor, let alone a substantial factor, in the production of the injuries.’”
(Id. at p. 1052.) Stated another way, if the same harm would have resulted even if the
defendant had not acted negligently, the defendant’s conduct is not a substantial factor in
causing that harm. (Viner v. Sweet (2003) 30 Cal. 4th 1232, 1239-1240.) CACI No. 430,
which the court used in this case, reflects this. It provides: “A substantial factor in
causing harm is a factor that a reasonable person would consider to have contributed to
the harm. It must be more than a remote or trivial factor. It does not have to be the only
cause of the harm. [¶] [Conduct is not a substantial factor in causing harm if the same
harm would have occurred without that conduct.]” (CACI No. 430.)
Here, there was arguably more than one cause for Trent’s injuries: the accident
itself, defendant’s negligence, and subsequent complications which might have arisen
even if defendant had acted promptly to stabilize the L1 fracture. (We discuss this
below.) Accordingly, plaintiffs were required to prove that defendant’s conduct was a
substantial factor in causing their damages.
28
We apply the substantial evidence rule.13 “‘Where findings of fact are challenged
on a civil appeal . . . the power of an appellate court begins and ends with a determination
as to whether there is any substantial evidence, contradicted or uncontradicted’” to
support the finding below. (Bickel v. City of Piedmont (1997) 16 Cal. 4th 1040, 1053,
citation omitted.) Substantial evidence is “evidence . . . ‘of ponderable legal significance,
. . . reasonable in nature, credible, and of sold value.’” (Bowers v. Bernards (1984) 150
Cal. App. 3d 870, 873, citations and italics omitted.) In determining whether substantial
evidence supports a factual finding, we review the entire record. (Ibid.) We review the
record in the light most favorable to the prevailing party, giving that party the benefit of
every favorable inference and resolving all conflicts in its favor. (Bickel v. City of
13 Defendant does not state the standard of review. The standard of review is
crucial to a reviewing court’s analysis, and failure to acknowledge the proper scope of
review may be deemed a concession of a lack of merit. (Sonic Manufacturing
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal. App. 4th 456, 465.) Moreover, a
defendant who asserts that a judgment is not supported by substantial evidence must set
forth all of the material evidence on the point in question, not just the evidence which
favors his position. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 881.) When
the defendant’s brief states only the favorable facts, the appellate court may treat the
issue as waived and presume that the record contains evidence sufficient to sustain every
finding of fact. (Arechiga v. Dolores Press, Inc. (2011) 192 Cal. App. 4th 567, 571-572;
Huong Que, Inc. v. Luu (2007) 150 Cal. App. 4th 400, 409-410.) Here, defendant does not
state the facts favorable to the judgment and states only those favorable to his position.
For this reason as well, we would be acting within the scope of our discretion simply to
disregard defendant’s contention. Nevertheless, we choose to address the merits of the
issue.
We disregard plaintiffs’ contention that defendant waived review because he did
not assert the insufficiency of the evidence in a motion for new trial. Plaintiffs do not cite
any relevant authority that a new trial motion is a necessary prerequisite to raising the
sufficiency of the evidence on appeal, and we are aware of none. On the contrary, the
sufficiency of the evidence may always be raised for the first time on appeal. (Tahoe
National Bank v. Phillips (1971) 4 Cal. 3d 11, 23 & fn 17.)
29
Piedmont, at p. 1053.) If there is substantial evidence which supports the disputed
finding, the judgment will be upheld even though substantial evidence to the contrary
also exists and the trier of fact might have reached a different conclusion had it believed
other evidence. (Howard v. Owens Corning (1999) 72 Cal. App. 4th 621, 631.)
Here, defendant asserts that all of the expert witnesses agreed that Trent Hughes
had suffered injury to his thoracic spine at T1 in addition to the lumbar injury and that all
agreed that these injuries were caused by the accident. However, it is simply not the
case, as defendant asserts, that even plaintiffs’ experts agreed that “the T1 injury
paralyzed plaintiff, notwithstanding Dr. Pham’s treatment or the L1 injury.”
Defendant’s contention is based on the testimony of his expert, Dr. Hesselink, a
neuroradiologist. Dr. Hesselink studied all of Trent’s medical records and the reports and
depositions of other expert witnesses in this case. Dr. Hesselink testified that when Trent
left Desert Regional Medical Center and was transferred to a hospital in Arizona,14 the
level of his injury was L1, meaning that he had no sensory or motor function below that
level. Dr. Hesselink testified that Trent’s medical records showed that in the accident on
November 2, 2003, he also sustained a fracture at T4, one which was not clinically
significant.15 While Trent was being treated at hospitals in Arizona, however, “his deficit
was changing . . . [and] was ascending above L1 eventually reaching up to C7, T1” or C8.
14 Plaintiffs reside in Arizona.
15 Drs. Coufal and Moser, expert witnesses who testified for plaintiffs, agreed that
the thoracic compression fracture sustained during the accident was not medically
significant and required no treatment.
30
There was also swelling of the spinal cord from C6 down to T5. Dr. Hesselink opined
that the swelling showed a spinal cord infarct. He explained that an infarct results when
insufficient blood and oxygen reach tissues. The spinal cord was normal size below T5,
and the main area of swelling was in the upper thoracic area of T2 to T5. He believed
that some of the arteries that supply the spinal cord at that level were damaged in the
accident. After the transfer to Arizona, Trent suffered complications. His hemoglobin
was very low, he had a fever and he also had hypotension, or low blood pressure. All of
those complications exacerbated the low blood and oxygen supply to the damaged
thoracic vertebrae, resulting in infarction at the T1 level. The result of the infarct was
that the spinal tissue degenerated and died, resulting in an irreversibly atrophied spinal
cord. If atrophy is total, there is no function.
An MRI done on December 1, 2005, a little more than two years after Trent’s
accident, showed severe cord atrophy at C7, T1. It also showed severe atrophy in the
lower thoracic spine, just above L1. Dr. Hesselink testified that the entire spinal cord
between T1 and L1 was abnormal and had no function. He stated that the atrophy at T1
was not caused by the accident. Rather, it resulted from the complications which arose
several weeks after the accident. If plaintiff had had a contusion at T1 resulting from the
accident, he would have had problems above L1 before the second or third week of his
hospitalization, when those complications arose. Dr. Hesselink testified that atrophy at
T1, C7 would not affect Trent’s use of his arms because the nerves which supply the
arms come from elsewhere. The T1, C7 injury would affect only muscles on the side of
the hand and the little finger. He opined that because the infarct and resulting cord
31
atrophy at T1 resulted in lack of sensory and motor function below that level, Trent
would have been left paraplegic even if the L1 injury had not occurred.
It is unquestionable that Dr. Hesselink’s testimony is substantial evidence on
which the jury could have relied to reject plaintiffs’ claim that defendant’s negligence
caused their damages. However, defendant is in error when he states that plaintiffs’
experts agreed with Dr. Hesselink.
Defendant implies that Dr. Moser, plaintiffs’ expert in neuroradiology, testified
consistently with Dr. Hesselink that “given the severe cord atrophy at T1, plaintiff would
have been in the same position even if the L1 burst fracture had never occurred because
the spinal cord was destroyed at the level of T1.” This is incorrect. Although Dr. Moser
acknowledged that the radiological study conducted in 2005 showed atrophy at the T1
level, he said that such an injury might or might not affect function below that level.
Moreover, Dr. Moser disagreed with Dr. Hesselink’s assessment of the type of injury
Trent sustained to his upper thoracic or cervical spine. Dr. Hesselink believed it was a
spinal cord infarct; Dr. Moser described it as a contusion, i.e., a bruise. Dr. Moser did not
agree with Dr. Hesselink that Trent would have been paralyzed because of the lesion in
the thoracic/cervical spine regardless of the treatment of the L1 injury. He testified that if
Trent had suffered the injury Dr. Hesselink described, Trent’s arms would be very weak
and that he would in all likelihood be a complete quadriplegic. Moreover, infarcts cause
permanent damage. An infarct would be inconsistent with the testimony of Dr. Ladin,
plaintiffs’ spinal cord rehabilitation expert, who testified that although Trent had lost
32
hand strength, over a period of years he had regained normal strength. This would be a
highly unusual outcome following an infarct.
Dr. Ladin testified that Trent’s MRI done on November 26, 2003, showed a
posttraumatic injury to the cervical spine which had previously gone unnoticed. (He later
testified that the lesion first appeared during a study done in 2005.) He described it as a
lesion at C5, C7. There was hemorrhage present which indicated a traumatic injury
rather than an ischemic event or an infarct, both of which result from loss of blood supply
to an affected area. This caused a transient loss of neurological function in the upper
extremities. He testified that if Trent had suffered an infarct at C5, C6, C7 or C8, Trent
would be a quadriplegic. An infarct is by definition a permanent injury. Accordingly, if
the cervical injury had been an infarct, Trent could not have regained arm or hand
function. At the time of the trial, however, Trent had normal function and strength in his
hands, and he was routinely using his arms to move himself to and from his wheelchair.
Dr. Coufal, a neurosurgeon who testified for plaintiffs, also disagreed that Trent
had suffered a cord infarct. An infarct is a sudden and catastrophic event; it does not
come on gradually. Trent’s medical records did not reflect any sudden and catastrophic
change in his condition following his transfer to a hospital in Phoenix. Instead, he opined
that the deterioration in Trent’s condition, leading to weakness in his upper extremities,
was the result of a syrinx, a cyst which can form when there are disturbances in the
circulation of spinal fluid. The burst fracture at L1 caused such a disturbance because
bone fragments pressing on the spinal cord were not removed during the surgery. Trent’s
syrinx was located in the high thoracic or lower cervical spine. A syrinx at that location
33
could cause loss of neurologic function in the arms as well as the lower extremities and
torso. Dr. Coufal testified that because Trent ultimately regained arm and hand function,
the deterioration he suffered was better explained by a syrinx than an infarct. Moreover,
the scans performed on November 26, 2003, and in 2005 showed chronic bleeding in the
low cervical/high thoracic region. Chronic hemorrhage is not consistent with an infarct,
which results from lack of blood flow. Dr. Coufal opined that the hemorrhage was more
consistent with consequences from the L1 injury. Finally, Dr. Coufal testified that if
Trent had suffered an infarct in the low cervical/high thoracic region, he would have been
left quadriplegic.
Moreover, both Dr. Coufal and Dr. Ladin testified that Trent, to a reasonable
medical certainty, would have had a better outcome if defendant had operated promptly
to stabilize the L1 injury, which both described as incomplete when Trent first arrived at
Desert Regional Medical Center. Dr. Coufal testified that defendant’s negligent response
to Trent’s condition allowed an incomplete spinal cord injury to progress to a complete
spinal cord injury.16 He testified that with an urgent decompression of the spinal cord at
the signs that Trent’s neurological condition was deteriorating, Trent had a chance of
functional recovery. He testified that it was more probable than not that Trent would
have had a return of sensation, a return of motor function, a return of bowel and bladder
16 The reporter’s transcript shows that Dr. Coufal said defendant’s failure to act
promptly “allow[ed] a complete [sic] spinal cord injury to progress to a complete spinal
cord injury.” This may be a transcription error. In any event, it is clear from the context
that he meant to say that defendant’s failure allowed an incomplete spinal cord injury to
progress to a complete spinal cord injury.
34
function, and a partial recovery of sexual function if defendant had acted promptly and
appropriately. Dr. Ladin testified to similar effect. In addition to a probable recovery of
bowel, bladder and sexual function, Dr. Ladin also testified that with timely intervention,
there was a high likelihood that Trent would have been able to walk again.
The foregoing is clearly substantial evidence the jury was entitled to find credible
and which is sufficient to meet plaintiffs’ burden to prove that defendant’s negligence
was a substantial factor in causing plaintiffs’ damages. It is irrelevant that there was also
evidence to the contrary. (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.)
2.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
IN EXCLUDING TESTIMONY
Dr. Powell was the trauma surgeon who first examined Trent when he arrived in
the emergency room at Desert Regional Medical Center.17 Defendant wished to have her
testify concerning Trent’s condition upon his arrival, including her impression that Trent
had lower extremity paralysis, which was reflected in the notes she dictated on
November 3, 2003, the day after she examined Trent. Plaintiffs objected to her testimony
on several grounds, including Dr. Powell’s lack of expertise in neurology. Following a
hearing pursuant to Evidence Code section 402, the court allowed her to testify
concerning her examination of Trent and her objective observations, but excluded her
conclusion concerning Trent’s paralysis because she testified that assessment and
17 By the time of trial, Dr. Powell had changed her name to Geisman. The parties
refer to her as Dr. Powell.
35
diagnosis of spinal cord injuries was beyond her expertise. The court ordered
Dr. Powell’s dictated report redacted to excise the phrase “lower extremity paralysis.”
Defendant contends that this was reversible error.
Evidence Code section 720 provides: “(a) A person is qualified to testify as an
expert if he has special knowledge, skill, experience, training, or education sufficient to
qualify him as an expert on the subject to which his testimony relates. Against the
objection of a party, such special knowledge, skill, experience, training, or education
must be shown before the witness may testify as an expert. [¶] (b) A witness’ special
knowledge, skill, experience, training, or education may be shown by any otherwise
admissible evidence, including his own testimony.”
“‘“The trial court is given considerable latitude in determining the qualifications
of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of
discretion is shown.”’” (People v. Davenport (1995) 11 Cal. 4th 1171, 1207, disapproved
on another point in People v. Griffin (2004) 33 Cal. 4th 536, 555, fn. 5.) Here, defendant
has not shown that the trial court abused its discretion. Dr. Powell stated unequivocally
that she lacked expertise in the assessment and diagnosis of spinal cord injuries. The
court’s decision to limit her testimony to her examination procedure and her objective
observations was not an abuse of discretion.
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3.
SUBSTANTIAL EVIDENCE SUPPORTS THE AWARD FOR
FUTURE MEDICAL AND LIFE CARE COSTS
Defendant contends that the jury’s award of $11,200,000 ($4,000,000 present
value) for Trent’s future medical and life care is excessive. He contends that the jury was
required to select a life expectancy of 19 years or 30.9 years and either 12 hours or
24 hours a day of attendant care. He contends that none of the possible combinations of
life expectancy and level of attendant care results in the amount awarded by the jury. He
also contends that “plaintiff’s level of paralysis does not require 24-hour per day
attendant care.”
As was the case with defendant’s contention that the evidence did not support a
finding of causation (ante, at pp. 26-35), defendant fails to state the standard of review.
Arguments are to be tailored according to the applicable standard of review. Failure to
acknowledge the proper scope of review may be seen as a concession that the argument
lacks merit. (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc., supra,
196 Cal.App.4th at p. 465.) He also discusses only selected items of evidence and argues
that they do not support the verdict. Failure to state the evidence in the light most
favorable to the verdict is another valid reason to reject a substantial evidence question
without analysis. (Arechiga v. Dolores Press, Inc., supra, 192 Cal.App.4th at pp. 571-
572.) Accordingly, we could simply disregard his argument all together. Instead, we will
address defendant’s arguments briefly.
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First, contrary to defendant’s contention, it was not undisputed that Trent’s life
expectancy was 19 years. Rather, the evidence showed that Trent’s life expectancy
ranged anywhere from 19 years to 35 years.
It is also not the case that the jury’s award was necessarily based on 30.9 years, as
defendant contends. The jury was not instructed that it had to choose between a life
expectancy of 19 years and a life expectancy of 30.9 years. Rather, it was instructed to
determine Trent’s life expectancy based on any applicable considerations. A primary
factor brought to the jury’s attention which might affect Trent’s actual longevity was the
amount and quality of the care he received. Based on the report of plaintiffs’ life care
planner, their economist estimated that if Trent lived 19 years, 12 hours of care a day
would cost $5,783,907, and 24 hours a day for 19 years would cost $8,771,032. At
30.9 years, the cost of his care at 12 hours a day would be $12,170,144, and at 24 hours
a day for 30.9 years, the cost would be $18,300,019. The jury’s award falls more or less
in the middle of this range, apparently reflecting that the jury determined that Trent’s life
expectancy and life care needs fell somewhere in the middle of the spectrum established
by the evidence.
As to defendant’s contention that Trent does not require 24-hour a day attendant
care, we note that the jury was not asked to return a special verdict stating the number of
hours of care Trent required and we can therefore not assume that the award was based
on that amount of care.
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Because the evidence supports a range of life expectancies and future damages,
including the amount awarded by the jury, we reject defendant’s contention that the
award was excessive.
Defendant also complains that the jury’s calculation of the present value of the
$11.2 million award was erroneous. He cites no authority as to how a jury is required to
compute present value, and in any event his contention is based on an unwarranted
assumption as to how the jury arrived at the future value. Moreover, according to
defendant’s calculation, the jury erroneously stated the present value to be approximately
$600,000 less than it should have. If this was an error, defendant is not prejudiced by it.
4.
THE COURT’S ORDER FOR PERIODIC PAYMENTS
WAS WITHIN ITS DISCRETION
An order for periodic payments is reviewed for abuse of discretion. (Salgado v.
County of Los Angeles, supra, 19 Cal.4th at p. 650.)
Defendant contends that the court abused its discretion in ordering 19 equal
payments for several reasons. We see no abuse of discretion.
All of defendant’s arguments are based on the assumption that the future damages
award was necessarily based on a jury finding that Trent’s life expectancy was
30.9 years. We have rejected this assumption and therefore need not address defendant’s
contentions concerning the periodic payments to the extent that they are based on that
assumption.
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We will address defendant’s contention that it was an abuse of discretion to order
equal annual payments. Defendant contends that the equal annual payments are an abuse
of discretion because “[w]hile plaintiff’s future medical costs remain relatively constant,
inflation increases the actual price plaintiff will have to pay in the future.” He points out
that the economist calculated the current cost of 12 hours a day attendant care as
$109,500 per year, but projected a total cost, over 30.9 years, of $6,129,876. Simply
multiplying $109,500 by 30.9 years equals $3,383,550, reflecting that the economist
included 30 years of inflation in her calculation.
Defendant relies on Holt v. Regents of University of California (1999) 73
Cal. App. 4th 871. In that case, the court found that equal annual payments were an abuse
of discretion because the evidence showed that the plaintiff’s losses would be greater in
her later years. The plaintiff’s parents would continue to care for her as long as possible,
thus minimizing her expenses in her earlier years. (Id. at p. 883.) Whether an order for
equal periodic payments is an abuse of discretion, however, depends upon the specific
facts of the individual case. In Salgado v. County of Los Angeles, supra, 19 Cal. 4th 629,
for example, the court held that equal annual periodic payments did not constitute an
abuse of discretion because in that case, the evidence showed that although the value of
the payments would decrease over time, the plaintiff’s expenses would also decrease.
Therefore, the payment schedule did not fail to satisfy the goal of Code of Civil
Procedure section 667.7 of “matching losses with compensation as the losses occur.”
(Salgado, at p. 650.)
40
Here, the court found that “the only expert testimony concerning life expectancy
was that plaintiff would likely live about 19 more years.” It acknowledged, however, that
the jury could have used a longer life expectancy in calculating the future value of life
care expenses. The court recognized that if it did not apply “some sort of discount
factor” there was a risk that the periodic payments would not cover Trent’s future
medical and life care needs some years in the future. However, the court concluded that
the risk was outweighed by Trent’s “need to make some expenditures now or in the near
future that may well serve him for many years in the future.” The court preferred to err
on the side of ensuring that Trent had sufficient funds available for those purposes now.
As plaintiffs point out, their life care experts testified that the standard of care
required that for the first five years of his injury, Trent should be evaluated annually by
the spinal cord center at Craig Hospital in Colorado. There, during a three- to five-day
stay, Trent would be exhaustively evaluated by multiple physicians, receive physical and
occupational therapy and be evaluated for his functional abilities with the various devices
he needed to use. After the first five years, he would need to attend that program only
every four or five years. The witness testified that patients who attend that program
typically live longer than those who do not, and that a spinal cord patient who received
optimum care could have a normal life expectancy. The annual cost of that program for
Trent from ages 46 to 51 would be $60,843.59. Trent’s attendance at that program could
also result in additional equipment and medical costs if it were determined that Trent’s
needs would be better served by other modalities. Later, less frequent reassessments
should suffice because Trent’s needs would have been determined during the earlier
41
assessments. This evidence supports the trial court’s conclusion that Trent needed larger
payments earlier in his life than he would need later. Accordingly, the trial court did not
abuse its discretion.
5.
THE JUDGMENT WAS ERRONEOUSLY ENTERED IN FAVOR
OF PLAINTIFFS JOINTLY
Defendant also points out that the judgment of $5,950,002 for compensatory
damages was entered in favor of both Trent and Lisa Hughes. We have previously noted
that the court erroneously treated both the settlement and the judgment as though they
applied equally to Trent and Lisa. The judgment should separately state the damages
awarded to each plaintiff.
6.
DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO POST
SECURITY FOR PAYMENT OF THE JUDGMENT
Code of Civil Procedure section 667.6 provides in part: “As a condition to
authorizing periodic payments of future damages, the court shall require the judgment
debtor who is not adequately insured to post security adequate to assure full payment of
such damages awarded by the judgment.” (Code Civ. Proc., § 667.7, subd. (a).)
Here, the judgment required defendant to post security adequate to assure full
payment of the judgment. Defendant contends that this was error because he submitted a
declaration from his professional liability insurer which stated that the insurer accepted
responsibility to pay the entire judgment, and that the insurer had assets exceeding
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$1 billion. The point appears to be well taken. Plaintiffs do not provide any argument or
authority in opposition to defendant’s assertion, nor do they point to any contrary
evidence in the record. Accordingly, on remand, we will direct the trial court to omit the
security requirement from the judgment.
DISPOSITION
The superior court is directed to correct the judgment as follows:
1. Offset the judgment for Trent Hughes’ economic damages by
$2,707,296;
2. Offset the judgment for Trent Hughes’ noneconomic damages by
$146,364;
3. Offset the judgment for Lisa Hughes’ damages by $146,340;
4. Recalculate the periodic payments applying the above offset to Trent
Hughes’ economic damages; and
5. Delete the requirement that defendant post security for payment of the
judgment.
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The superior court is further directed to issue an amended judgment incorporating
the above corrections. The judgment is otherwise affirmed. Plaintiffs are awarded costs
on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
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