Fein v. Permanente Medical Group

• Decision Date: 28 February 1985
• Docket Number: S.F. 24336
• Citation: 211 Cal.Rptr. 368,38 Cal.3d 137,695 P.2d 665
• Court: California Supreme Court
• Parties: , 695 P.2d 665, 53 USLW 2460 Lawrence FEIN, Plaintiff and Appellant, v. PERMANENTE MEDICAL GROUP, Defendant and Appellant

Page 368

211 Cal.Rptr. 368

38 Cal.3d 137, 695 P.2d 665, 53 USLW 2460

Lawrence FEIN, Plaintiff and Appellant, v. PERMANENTE MEDICAL GROUP, Defendant and Appellant.

S.F. 24336.

Supreme Court of California

Feb. 28, 1985.

Rehearing Denied April 4, 1985. ^*

Thelen, Marrin, Johnson & Bridges, Curtis A. Cole, Terry M. Burt, Michael T. Hornak, Rebecca A. Lewis and Donald A. Newman, Los Angeles, for defendant and appellant.

Alschuler, Grossman & Pines, Burt Pines, Howard Wollitz, Machida & Rosten, Kenneth F. Moss, Latham & Watkins, Bryant C. Danner, Donald P. Newell, Los Angeles, Joseph A. Wheelock, Jr., Milton A. Miller, Newport Beach, Musick, Peeler & Garrett, James E. Ludlam, Los Angeles, Horvitz & Levy, Ellis J. Horvitz, Kent L. Richland, Marjorie G. Romans, John L. Klein, Encino, L. Savannah Lichtman, San Francisco, Cotkin, Collins, Kolts & Franscell, Raphael Cotkin, Los Angeles, Larry W. Mitchell, Hassard, Bonnington, Rogers & Huber, Howard Hassard, David E. Willett, Charles Bond, San Francisco, and Fred J. Hiestand, Los Angeles, as amici curiae on behalf of defendant and appellant.

Morton L. Friedman, Allan J. Owen, Rex-Ann S. Gualco and Friedman, Collard, Poswall & Thompson, Sacramento, for plaintiff and appellant.

Jerome B. Falk, Jr., H. Joseph Escher III, Howard, Prim, Rice, Nemerovski, Canady & Pollak and David M. Harney, Los Angeles, amici curiae on behalf of plaintiff and appellant.

KAUS, Justice.

In this medical malpractice action, both parties appeal from a judgment awarding plaintiff about $1 million in damages. Defendant claims that the trial court committed reversible error during the selection of the jury, in instructions on liability as well as damages, and in failing to order that the bulk of plaintiff's award be paid periodically rather than in a lump sum. Plaintiff defends the judgment against defendant's attacks, but maintains that the trial court, in fixing damages, should not have applied two provisions of the Medical Injury Compensation Reform Act of 1975 (MICRA): Civil Code section 3333.2, which limits noneconomic damages in medical malpractice cases to $250,000, and Civil Code section 3333.1, which modifies the traditional "collateral source" rule in such litigation. Plaintiff's claims are based on a constitutional challenge similar to the challenges to other provisions of MICRA that we recently addressed and rejected in American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 204 Cal.Rptr. 671, 683 P.2d 670, Barme v. Wood (1984) 37 Cal.3d 174, 207 Cal.Rptr. 816, 689 P.2d 446, and Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 211 Cal.Rptr. 77, 695 P.2d 164. We conclude that the judgment should be affirmed in all respects.

I

On Saturday, February 21, 1976, plaintiff Lawrence Fein, a 34-year-old attorney employed by the Legislative Counsel Bureau of the California State Legislature in Sacramento, felt a brief pain in his chest as he was riding his bicycle to work. The pain lasted a minute or two. He noticed a similar brief pain the following day while he was jogging, and then, three days later, experienced another episode while walking after lunch. When the chest pain returned again while he was working at his office that evening, he became concerned for his health and, the following morning, called the office of his regular physician, Dr. Arlene Brandwein, who was employed by defendant Permanente Medical Group, an affiliate of the Kaiser Health Foundation (Kaiser).

Dr. Brandwein had no open appointment available that day, and her receptionist advised plaintiff to call Kaiser's central appointment desk for a "short appointment." He did so and was given an appointment for 4 p.m. that afternoon, Thursday, February 26. Plaintiff testified that he did not feel that the problem was so severe as to require immediate treatment at Kaiser Hospital's emergency room, and that he worked until the time for his scheduled appointment.

When he appeared for his appointment, plaintiff was examined by a nurse practitioner, Cheryl Welch, who was working under the supervision of a physician-consultant, Dr. Wintrop Frantz; plaintiff was aware that Nurse Welch was a nurse practitioner and he did not ask to see a doctor. After examining plaintiff and taking a history, Nurse Welch left the room to consult with Dr. Frantz. When she returned, she advised plaintiff that she and Dr. Frantz believed his pain was due to muscle spasm and that the doctor had given him a prescription for Valium. Plaintiff went home, took the Valium, and went to sleep.

That night, about 1 a.m., plaintiff awoke with severe chest pains. His wife drove him to the Kaiser emergency room where he was examined by Dr. Lowell Redding about 1:30 a.m. Following an examination that the doctor felt showed no signs of a heart problem, Dr. Redding ordered a chest X-ray. On the basis of his examination and the X-ray results, Dr. Redding also concluded that plaintiff was experiencing muscle spasms and gave him an injection of Demerol and a prescription for a codeine medication.

Plaintiff went home but continued to experience intermittent chest pain. About noon that same day, the pain became more severe and constant and plaintiff returned to the Kaiser emergency room where he was seen by another physician, Dr. Donald Oliver. From his initial examination of plaintiff Dr. Oliver also believed that plaintiff's problem was of muscular origin, but, after administering some pain medication, he directed that an electrocardiogram (EKG) be performed. The EKG showed that plaintiff was suffering from a heart attack (acute myocardial infarction). Plaintiff was then transferred to the cardiac care unit.

Following a period of hospitalization and medical treatment without surgery, plaintiff returned to his job on a part-time basis in October 1976, and resumed full-time work in September 1977. By the time of trial, he had been permitted to return to virtually all of his prior recreational activities[695 P.2d 670] --e.g., jogging, swimming, bicycling and skiing.

In February 1977, plaintiff filed the present action, alleging that his heart condition should have been diagnosed earlier and that treatment should have been given either to prevent the heart attack or, at least, to lessen its residual effects. The case went to judgment only against Permanente.

At trial, Dr. Harold Swan, the head of cardiology at the Cedars-Sinai Medical Center in Los Angeles, was the principal witness for plaintiff. Dr. Swan testified that an important signal that a heart attack may be imminent is chest pain which can radiate to other parts of the body. Such pain is not relieved by rest or pain medication. He stated that if the condition is properly diagnosed, a patient can be given Inderal to stabilize his condition, and that continued medication or surgery may relieve the condition.

Dr. Swan further testified that in his opinion any patient who appears with chest pains should be given an EKG to rule out the worst possibility, a heart problem. He stated that the symptoms that plaintiff had described to Nurse Welch at the 4 p.m. examination on Thursday, February 26, should have indicated to her that an EKG was in order. He also stated that when plaintiff returned to Kaiser late that same night with his chest pain unrelieved by the medication he had been given, Dr. Redding should also have ordered an EKG. According to Dr. Swan, if an EKG had been ordered at those times it could have revealed plaintiff's imminent heart attack, and treatment could have been administered which might have prevented or minimized the attack.

Dr. Swan also testified to the damage caused by the attack. He stated that as a result of the attack a large portion of plaintiff's heart muscle had died, reducing plaintiff's future life expectancy by about one-half, to about 16 or 17 years. Although Dr. Swan acknowledged that some of plaintiff's other coronary arteries also suffer from disease, he felt that if plaintiff had been properly treated his future life expectancy would be decreased by only 10 to 15 percent, rather than half.

Nurse Welch and Dr. Redding testified on behalf of the defense, indicating that the symptoms that plaintiff had reported to them at the time of the examinations were not the same symptoms he had described at trial. Defendant also introduced a number of expert witnesses--not employed by Kaiser--who stated that on the basis of the symptoms reported and observed before the heart attack, the medical personnel could not reasonably have determined that a heart attack was imminent. Additional defense evidence indicated (1) that an EKG would not have shown that a heart attack was imminent, (2) that because of the severe disease in the coronary arteries which caused plaintiff's heart attack, the attack could not have been prevented even had it been known that it was about to occur, and finally (3) that, given the deterioration in plaintiff's other coronary arteries, the heart attack had not affected plaintiff's life expectancy to the degree suggested by Dr. Swan.

In the face of this sharply conflicting evidence, the jury found in favor of plaintiff on the issue of liability and, pursuant to the trial court's instructions, returned special verdicts itemizing various elements of damages. The jury awarded $24,733 for wages lost by plaintiff to the time of trial, $63,000 for future medical expenses, and $700,000 for wages lost in the future as a result of the reduction in plaintiff's life expectancy. ¹ Finally, the jury awarded $500,000 for "noneconomic damages," to compensate for pain, suffering, inconvenience, physical impairment and other intangible damages sustained by plaintiff from the time of the injury until his death.

After the verdict was returned, defendant requested the court to modify the award and enter a judgment pursuant to three separate provisions of MICRA: (1) Civil Code section 3333.2--which places a $250,000 limit on noneconomic damages, (2) ...