Judge: Michael Shultz, Case: 21STCV02308, Date: 2024-04-23 Tentative Ruling
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Case Number: 21STCV02308 Hearing Date: April 23, 2024 Dept: A
21STCV02308
Kalli Williams, a minor, et al. v. Wilber Troutman, M.D., et al.
[TENTATIVE] ORDER
I.
BACKGROUND
The first amended
complaint (“FAC") alleges claims for negligence against Defendants for
birth injuries suffered by the minor claimant (“Claimant”). The FAC also
alleges injuries suffered by Claimant’s mother for negligence and intentional
tort arising from the use of a vacuum extractor without her consent. The FAC is
also brought on behalf of Plaintiff, Jerall Williams, although injuries
suffered by Jerall Williams, are not clearly articulated.
II.
ARGUMENTS
The
Claimant, through her Guardian ad Litem, Daranisha Perry, requests the Court’s
approval of Claimant’s settlement with Defendant, St Francis Medical Center
(“St. Francis”), for $150,000 in exchange for the dismissal of claims asserted
by all three Plaintiffs. Medi-Cal has asserted a lien against any recovery for
medical expenses totaling $50,167.07, which Plaintiffs’ counsel has not
resolved but requests that the amount be held in Plaintiffs' counsel’s trust
account subject to resolution of the lien. Counsel also requests reimbursement
of all costs incurred to date totaling $36,588.02 without appropriation among
the three Plaintiffs. (Pet. Attachment 13a, ¶ 4-6.)
Counsel
requests attorney’s fees of $40,018.00 according to the fee structure required
by the Medical Injury Compensation Reform Act (“MICRA”). (Bus.
& Prof. Code, § 6146.) Counsel’s retainer agreement states that
Plaintiffs will pay for services rendered on a contingency basis. (Attachment
17a, ¶ 2.)
After
deduction for fees and costs and medical expenses, the net settlement to
Claimant is $23,226.91. While the gross settlement amount appears reasonable
given St. Francis’s bankruptcy proceeding, the requested disbursement does not
appear to be in the Claimant’s best interest.
Because
the settlement involves a Medi-Cal lien, the State Director of Health Care
Services requires notice of the hearing as well as a copy of the petition. (Prob.
Code, § 3602 subd. (f). The proof of service does not reflect that the
required notice was given.
While
counsel’s fee request may satisfy the fee structure required by statute, the
court is not obligated to award fees under MICRA. (Gonzalez
v. Chen (2011) 197 Cal.App.4th 881, 885 [“MICRA establishes caps
on a recovery, not guarantees."].) The court must consider the factors
under California Rules of Court 7.955, to determine whether the fee request is
reasonable. (Id.)
Counsel
proposes to retain the Claimant’s net settlement as an advance on costs to
“fund the remainder of the litigation, including pre-trial and trial costs”
although Counsel also proposes immediate distribution of attorney’s fees of $40,018.
(Att. 13a, ¶ 6.) Distribution of the net
settlement to counsel in this manner is not authorized by statute. In pertinent
part, the statute limits distribution of the net settlement to deposit into a
blocked account, investment in an annuity, paid to a special needs trust, or delivered
to a custodian for the minor’s benefit. (Prob.
Code, § 3611.)
The
Claimant suffers from permanent injuries (brachial plexus paralysis) and
suffers from a congenital club foot, amniotic band syndrome, and developmental speech
and language disorders. (Petition, .pdf p. 13.) While the petition includes an
operative report for surgery conducted on October 22, 2020, the petition does
not include a doctor’s report containing a prognosis for Claimant’s recovery.
(Pet. ¶ 8.) Given that the injuries are permanent, the prognosis should discuss
the Claimant’s future needs if any. Disbursing the Claimant’s settlement funds
to counsel jeopardizes the Claimant’s ability to address her immediate and
future needs.
The
requested disbursement to counsel elevates counsel’s interests over that of the
minor Claimant. Counsel agreed to represent Plaintiffs on a contingency basis, however,
retention of the funds for Counsel’s benefit transfers the risks associated
with the litigation in part to the Claimant.
For all
the foregoing reasons, the petition is DENIED.