Let’s face it. California trial courts are NOTORIOUS for high jury awards. One might think exorbitant jury awards would not survive given California’s judicial structure of “checks and balances” (the California Courts of Appeal) charged would providing a check on unreasonable or otherwise improper decisions. Unfortunately, such is not always the case: Just this month, a California appellate panel refused to reduce a $9.25 million noneconomic damages award! (Burchell v. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine, 2020 WL 5422950).
In the lawsuit, Plaintiff Keith Burchell accused Defendants Dr. Gary Barker and his practice group employer, Faculty Physicians & Surgeons of the Loma Linda University School of Medicine of removing a mass from his scrotum and penis without consent. The removal caused permanent injuries including impotence and a total loss of feeling in the penis.
The lawsuit specifically alleges instead of a simple outpatient procedure to remove a small mass from Mr. Burchell’s scrotum for testing, Dr. Barker, without consulting the patient or his ex-wife who had power to make medical decisions, converted the procedure into a more invasive one after finding the mass was more extensive than expected and believed to be malignant. It turned out to be benign, according to the opinion.
Issue on Appeal
At issue on appeal was whether Mr. Burchell’s claim falls within the purview of California’s Medical Injury Compensation Reform Act of 1975 (“MICRA”), which sets a $250,000 cap on noneconomic damages such as pain and suffering in medical malpractice cases and if so, whether the jury’s award of $9.25 million in non-economic damages was excessive.
The appellate panel held Mr. Burchell’s medical battery claim could be considered an intentional tort not subject to the MICRA cap. The appellate court distinguished another type of medical battery, when a physician allegedly causes a complication not disclosed to the patient as a potential risk, is subject to the cap. The court reasoned: “Burchell consented to have a small mass removed from his scrotum. He did not consent to Barker performing any surgery involving his penis, nor did his designated proxy consent for him.” (Opinion, p. 5). Although the surgery Dr. Barker performed was somewhat similar to the procedure to which Mr. Burchell provided consent, “it was nevertheless a substantially different treatment than the one to which Burchell consented,” the panel said. (Ibid.)
Although it was argued the MICRA cap should apply to “hybrid” cases such as Mr. Burchell’s that allege both medical battery and medical malpractice, the appellate panel did not directly address this argument. Instead, the panel said California case law has established when a plaintiff wins on a “non-MICRA theory” in a hybrid suit, MICRA’s cap does not apply.
After determining, Mr. Burchell’s medical battery claim was not subject to the MICRA cap on non-economic damages, the court then analyzed whether the $9.25 million award was excessive. The court noted the standard of appellate review of jury’s award is deferential and the court is to uphold the jury and trial judge whenever possible. (Opinion, p. 7). The court further noted valuing non-economic damages is left to the subjective discretion of the jury and as such is one of the most difficult tasks assigned to a jury.(Id. at p. 6).
As to whether there was a reasonable relationship between the non-economic damage award and the economic damage award, the court noted it is not the ratio between the two awards which is analyzed, but whether each award was reasonable and supported by substantial evidence. (Opinion, p. 8). The court concluded both damage awards were supported by the evidence. (Ibid.). Further, the appellate court deferred to the trial court’s ruling denying the defense motion for a new trial based on improper argument by plaintiff’s counsel. (Opinion, p. 9). The appellate court agreed it was improper for plaintiff’s counsel during argument to ask the jury to cast itself in the role of protecting consumers and to send a “message” to Dr. Barker and the medical community at large. (Ibid.). Nonetheless, the court found such conduct was not prejudicial because the jury had been properly instructed not to award punitive damages and did not find anything wrong with the trial court’s assessment the improper argument did not contribute to the verdict. (Ibid.).
There are a couple of takeaways from the Court of Appeal’s refusal to reduce this noneconomic damages award. First, the decision bolsters the popular opinion California is the home of high damages awards in personal injury actions and such awards do survive the review process in the Court of Appeal. Second, this decision had provided clarity in personal injury and medical malpractice actions. There has been an absence of law regarding medical battery versus medical negligence and this decision provided must needed clarity on when noneconomic damages may be capped under MICRA.