Judge: Mark A. Young, Case: 19STCV25703, Date: 2023-05-05 Tentative Ruling

Case Number: 19STCV25703    Hearing Date: May 5, 2023    Dept: M

Based on the allocation rule stated by Perry v. Shaw (2001) 88 Cal. App. 4th 658, Defendants are neither entitled to parse out the stated damages, nor apply the MICRA cap to the battery damages. To allocate the damages here would not even make factual sense, as the damages from the negligence and battery stem from the same source: Dr. Lahar’s unconsented surgery, which the jury also concluded that he also negligently performed. (See Perry, supra, at 670 [“This is not, as Dr. Shaw suggests, a matter of separate items of compensable damages recoverable when shown by distinct and independent evidence.”].) As found in Perry, Defendant in this matter consented to the special verdict form, which did not allocate between the two causes of action. The Court was not required to have the special verdict form separately allocate the damages.

Defendants cite inapposite cases that state general rules regarding MICRA allocation, including (1) Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1158-60, which held that medical malpractice actions are not joint and several liability; (2) Rashidi v. Moser (2014) 60 Cal.4th 718, 727), where there was no battery that went beyond the scope of consent; (3) Central Pathology Service v. Superior Court (1992) 3 Cal.4th 181, 192, in which defendant health care providers intentionally and fraudulently failed to notify her of the presence of abnormal cells in a pap smear to cover up their negligence in diagnosing cancer; (4) Davis v. Superior Court (1994) 27 Cal. App. 4th 623, in which defendant physicians conspired against plaintiff with his employer's workers' compensation carrier to defraud him out of his benefits; and (5) Cooper v. Superior Court (1997) 56 Cal. App.4th 744, in which gravamen of each claim was the allegation that the defendant doctor, in the course of rendering gynecological services, committed a sexual battery by touching and manipulating plaintiff's genitalia.

              In this matter, the MICRA cap does not apply to count one, the medical battery cause of action since the gravamen of that complaint was not professional negligence, but the intentional tort of battery.  (Perry 88 Cal. App. 4th at 671.)  Here, there is one item of damage with two concurrent and legally overlapping causes, that is, battery and negligence.

              Here, Defendant is liable for 30% of the entire verdict of $1,650,000, which is $495,000.  The Court shall sign the judgment filed by Plaintiff on April 17, 2023.