RandallFabiano said:
What is the name of your state? California
Now if I understand this correctly, battery in tort is not covered under MIRCA right? (Perry V. Shaw)... the courts in their infinate wisdom have said that battery does not arise from professional negligence... My question is this...
Can you sue for Battery, false imprisonment, and intrinsic fraud all predicated upon one incident that could seemingly also be interpreted on the negligence theory of a doctor or hospital? If so, can't you circumvent the negligence claim all together and just sue for the torts. thereby circumventing the monitary caps and the rules of civil procedure that prohibits a plaintiff from including punitive damages on the claim of action?
My response:
By its terms, Ca Civ Pro § 364 applies only to actions for "professional negligence."
This term has been interpreted by some courts to exclude causes of action for intentional torts (e.g., battery). [Noble v. Sup.Ct. (Katz) (1987) 191 Cal.App.3d 1189, 1192, 237 Cal.Rptr. 38, 40; Perry v. Shaw (2001) 88 Cal.App.4th 658, 668, 106 Cal.Rptr.2d 70, 77]
However, in a different context (the Ca Civ Pro § 425.13 non-MICRA provisions limiting punitive damage claims against health care providers, the Supreme Court has interpreted "professional negligence" more broadly: "(A)n action for damages arises out of the professional negligence of a health care provider if the injury for which damages are sought is directly related to the professional services provided by the health care provider." [Central Pathology Service Med. Clinic, Inc. v. Sup.Ct. (Hull) (1992) 3 Cal.4th 181, 187, 10 Cal.Rptr.2d 208, 212 (emphasis added)]
Although ultimately declining to decide whether "professional negligence" as defined by MICRA encompasses intentional torts, the Supreme Court has indicated that Central Pathology's expansive interpretation (above) would not apply in the MICRA context: "Central Pathology did not purport to define the meaning of the term 'professional negligence' as used in MICRA." [Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 116, 83 Cal.Rptr.2d 145, 154-155--meaning of "professional negligence" varies depending upon legislative history and purpose of underlying statute]
The Medical Injury Compensation Reform Act of 1975 (MICRA) was enacted in an effort to control the rising cost of medical malpractice insurance. [See Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, 83 Cal.Rptr.2d 145, 149; Perry v. Shaw (2001) 88 Cal.App.4th 658, 667, 106 Cal.Rptr.2d 70, 76]
MICRA affects a "professional negligence" action against a "health care provider" by (among other things) limiting plaintiff's attorney fees and imposing the following restrictions on recoverable damages:
• A $250,000 "cap" on general damages (pain and suffering);
• The right to request periodic payment of future damages awards of $50,000 or more; and
• Abolition of the "collateral source rule" in regard to medical malpractice defendants.
Ca Civil § 3333.2 general damages cap:
The $250,000 ceiling on general damages liability passes muster under both the Federal and California State Constitutions. The statute is deemed "rationally related" to the "legitimate state interest" in alleviating the pressure on malpractice insurance rates (limiting recoveries is a rational means of curbing rise in medical malpractice insurance costs). [Fein v. Permanente Med. Group (1985) 38 Cal.3d 137, 211 Cal.Rptr. 368; Yates v. Pollock (1987) 194 Cal.App.3d 195, 200, 239 Cal.Rptr. 383, 385-386--per Fein reasoning, no unconstitutional abridgement of right to jury trial; see Perry v. Shaw, supra, 88 Cal.App.4th at 667-668, 106 Cal.Rptr.2d at 77]
Medical battery (unconsented/deceptive procedure):
A medical battery based on a medical procedure performed without the patient's consent (as where the patient consents to one type of treatment and the physician performs an entirely different procedure) is not subject to the MICRA statutory cap on noneconomic damages (Ca Civil § 3333.2). "[T]here is nothing in the legislative history generally or with regard to section 3333.2 specifically to suggest that the Legislature intended to extend the $250,000 limitation to intentional torts." [Perry v. Shaw (2001) 88 Cal.App.4th 658, 669-670, 106 Cal.Rptr.2d 70, 78--MICRA cap inapplicable where P's emotional distress damages resulted from "overlapping" medical battery and medical negligence (unwanted surgery)]
Most likely, medical battery would be outside the scope of other MICRA provisions (Ca Civil § 3333.1 abolition of collateral source rule, Ca Civ Pro § 667.7 periodic payment of future damages, etc.) for the same reasons identified in Perry. But the Perry court dealt only with Ca Civil § 3333.2.
Other intentional torts?
Whether the Perry reasoning removes other intentional torts in the rendition of medical services from the purview of MICRA is an open question. The Perry court emphasized that
its holding was limited to lack of consent medical battery cases. [Perry v. Shaw, supra, 88 Cal.App.4th at 662, 106 Cal.Rptr.2d at 72, fn. 2]
Limitation on Damages Recoverable for "Noneconomic Losses" (Ca Civil § 3333.2):
Under Ca Civil § 3333.2, damages for "noneconomic losses" in an injury action against a health care provider based on professional negligence cannot exceed $250,000. [Ca Civil § 3333.2; Fein v. Permanente Med. Group (1985) 38 Cal.3d 137, 157-164, 211 Cal.Rptr. 368, 382-387; Western Steamship Lines, Inc. v. San Pedro Peninsula Hosp. (1994) 8 Cal.4th 100, 107, 32 Cal.Rptr.2d 263, 266; compare Perry v. Shaw (2001) 88 Cal.App.4th 658, 669-670, 106 Cal.Rptr.2d 70, 78--§ 3333.2 cap inapplicable in medical battery action because not "based upon professional negligence"]
IAAL
