Commentators on California law generally view the state as plaintiff-friendly with good reason. One of the more well-known exceptions is the Medical Injury Compensation Reform Act of 1975 (known as MICRA), which limits the recovery for “any action for injury against a health care provider based on professional negligence” under California’s Civil Code section 3333.2(a) to $250,000. Over the years since the passing of this landmark legislation, the plaintiff’s bar has used several tactics, including recharacterizing medical malpractice claims under different or additional causes of action, to avoid the $250,000 cap with little success. Until now.
In 2014, 41-year-old Keith Burchell underwent what was supposed to be a simple, outpatient procedure to remove a 1 cm (about the size of a fingernail) scrotal mass for testing. His surgeon, Dr. Gary Barker, instead discovered the mass was 8 x 5 x 2.5 cm (about the size of a medium apple). Believing it was malignant, Dr. Barker performed a substantially more invasive procedure than planned without consulting either Burchell (who was under anesthesia) or his designated medical proxy and removed the mass from both the scrotum and the penis. It proved later to be a benign lesion known as a cystic lamphangioma.
Unfortunately for both Dr. Barker and the patient, Mr. Burchell suffered permanent and irreversible side effects, so he sued both Dr. Barker and his employer, Faculty Physicians & Surgeons of the Loma Linda University School of Medicine, alleging professional negligence and medical battery. A jury awarded $4 million in past noneconomic damages and $5.25 million in future noneconomic damages. An additional $22,346.11 in economic damages brought total damages to $9,272,346.11.
Faculty Physicians appealed, relying on MICRA to limit the recovery, but the Court of Appeal in a published opinion dated September 10, 2020, sided with the Plaintiff and upheld the award. Unlike medical malpractice, the California Supreme Court has previously ruled that intentional torts such as when a physician obtains the patient’s consent to perform one type of treatment but performs a substantially different treatment for which the plaintiff never consented is subject to no limitation. The Court of Appeal reasoned that Burchell’s medical battery claim “falls squarely [into this] category of medical battery.” “Burchell alleged and proved to the jury’s satisfaction that he consented to one treatment, and Barker performed a substantially different treatment for which Burchell gave no consent, in the absence of any emergency that would justify doing so. We conclude that MICRA’s limitation on noneconomic damages does not apply here.”
The Faculty Physicians and Dr. Barker argued that the emergency consent exception of physicians going beyond the patient’s express authorization in “life-or health-threatening situations” applied, but the Court of Appeal disagreed finding “there was substantial evidence to support a finding that there was no such emergency.” Dr. Barker believed he was potentially saving a life, but instead he and his employer got an almost eight-figure bill.
The Court acknowledged that “a plaintiff hoping to evade the restrictions of MICRA may choose to assert only seemingly non-MICRA causes of action. When a plaintiff does so, the court must determine whether a cause of action framed as something other than medical malpractice is nevertheless based on a health care provider’s professional negligence and therefore subject to MICRA’s damages cap; the answer is sometimes yes and sometimes no. The focus of the court’s analysis must be on the nature or gravamen of the claim, not the label or form of action the plaintiff selects.” In other words, it is a case-by-case basis giving little comfort in advance to health care providers seeking guidance as to whether MICRA applies in “informed consent” cases.
Given the amount of the award and the issues at stake, an appeal to the California Supreme Court is likely. Attorneys for both plaintiffs and defendants in personal injury cases involving alleged medical malpractice will certainly be watching.
For healthcare providers with a presence in the state of California and those that represent them, it is important to review your patient pre-procedure paperwork and practitioner notice practices in advance of performing medical procedures, especially when the patient may be unable to provide further consent during a procedure that proceeds other than as planned. As nauseating as healthcare providers might find the new gaping hole in the protections previously afforded under MICRA, here knowing is more than half the battle.
The case is Burchell v. Faculty Physicians & Surgeons of Loma Linda University School of Medicine (2020) 54 Cal.App.5th 515.
Brian Walters is a partner at Poole Shaffery. He is a founding member of the firm’s Healthcare Practice Group and advises healthcare providers on all aspects of their businesses.
Brian D. Walters
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