American Bank & Trust Co. v. Community Hospital of Los Gatos-Saratoga, Inc.

• Decision Date: 04 April 1980
• Docket Number: GATOS-SARATOG,INC
• Citation: 104 Cal.App.3d 219,163 Cal.Rptr. 513
• Court: California Court of Appeals Court of Appeals
• Parties: AMERICAN BANK & TRUST CO., as Special Administrator of the Estate of Mary Louise Thompson English, Deceased, Plaintiff and Respondent, v. COMMUNITY HOSPITAL OF LOS, Defendant and Appellant. Civ. 45785.

Page 513

163 Cal.Rptr. 513

104 Cal.App.3d 219

AMERICAN BANK & TRUST CO., as Special Administrator of the Estate of Mary Louise Thompson English, Deceased, Plaintiff and Respondent, v. COMMUNITY HOSPITAL OF LOS GATOS-SARATOGA, INC., Defendant and Appellant.

Civ. 45785.

Court of Appeal, First District, Division 2, California.

April 4, 1980.

As Modified May 2, 1980.

For Opinion on Hearing, see, 190 Cal.Rptr. 371, 660 P2d. 829

Popelka, Allard, McCowan & Jones, San Jose, Michael J. Murray, Eureka, for plaintiff and respondent.

Wines, Robinson, Wood & Anderson, Burton K. Wines, Thomas R. Fellows, San Jose, for defendant and appellant.

Wylie Aitken, Santa Ana, Robert E. Cartwright, San Francisco, Sanford M. Gage, Beverly Hills, Stephen Zetterberg, Claremont, Edward J. Pollock, Los Angeles, J. Nick DeMeo, Santa Rosa, Harvey R. Levine, San Diego, Leonard Sacks, Encino, amicus curiae on behalf of plaintiff and respondent.

Musick, Peeler & Garrett, James E. Ludlam, Los Angeles, Horvitz, Greines & Poster, Ellis J. Horvitz, Encino, Hassard, Bonnington, Rogers & Huber, San Francisco, Charles Bond, Professional Law Corp., San Francisco, amicus curiae on behalf of defendant and appellant.

MILLER, Associate Justice.

In this action for medical malpractice, defendant Community Hospital appeals from a judgment entered upon a jury verdict in the amount of $198,069.68 in favor of plaintiff Mary T. English, and from the court's order denying defendant's motion for periodic payments.

The appeal turns in large part upon a constitutional question of first impression in California. The trial judge (sitting pro tem.) expressly held that section 667.7 of the Code of Civil Procedure, an integral part of the 1975 Medical Injury Compensation Reform Act (hereafter "MICRA"), is unconstitutional and violates the federal and state guarantees of "equal protection" and "due process." Additionally, defendant hospital contends the damages were excessive and the court erred in failing to reduce the verdict in accordance with the stipulation of the parties to that effect.

The following facts are viewed in a light most favorable to the plaintiff as prevailing party. Mary English, a 49 year old woman, was admitted to Community Hospital for brain surgery on December 18, 1976. On December 20, 1976, the evening prior to her scheduled surgery, she fainted or fell in a shower stall in the hospital, sustaining a variety of burns to her thigh, hip and groin. The burns were caused by overheated shower water. Immediately after the accident, Mrs. English's burns were dressed and treated by Dr. Vernal, her neurosurgeon.

Despite this accident, Mrs. English's brain surgery by Dr. Vernal was performed as scheduled the following day. The brain tumor was found to be malignant and was diagnosed as glioblastome multiforme. Though not invariably fatal, this disease has a marked effect in shortening life expectancy. On a statistical basis, approximately 95 percent of all patients with this disease die within one year following detection.

Mrs. English remained at Community Hospital until her discharge on January 1, 1977. Although she suffered great pain from her burns, the patient's hospital stay was not prolonged in any way by reason of her burn injuries. After discharge, Mrs. English remained under the care of Dr. Vernal for her brain tumor, and she received radiation and chemotherapy for that condition through a team of surgeons and oncologists at Santa Clara Valley Medical Center.

Treatment for Mrs. English's burn injuries was undertaken by Dr. Pardoe, a plastic surgeon, on January 5, 1977. The early treatment consisted of numerous and frequent dressing changes, application of topical antibacterial ointments, and Hubbard tank therapy on a daily basis from January 25 to February 25, 1977. Dr. Pardoe suggested a split-thickness skin graft for the uppermost burn area, but this surgical treatment was rejected by the patient. English's burns healed steadily, but gradually. Dr. Pardoe testified that Mrs. English was totally disabled for four months and partially disabled for another two months. Active treatment for the burns terminated on March 25, 1977.

Thereafter, Mrs. English continued to experience intermittent breakdown and blistering of the healed burn tissues. For these problems she used a Jobst stocking to support the tissues, continuing in its use until December, 1977.

In March 1978, at the time of trial, there was still residual disability. Dr. Pardoe testified that Mrs. English had a permanent cosmetic deformity. He also stated that continued friction and irritation upon the raised areas of the scars might cause future breakdowns of the tissue, requiring future surgical intervention. At least one surgical process would be required in an attempt to replace the thin wrinkled atrophic skin with a better quality skin. Such surgery would require a minimum of one and a maximum of two weeks in the hospital and the patient would be completely disabled for about four weeks and partially disabled for a period up to six months. Pardoe estimated the cost of the surgery to be from $5,000 to $10,000.

Mrs. English testified that because of her burn injuries she was not able to work during 1977. Since she still was not able to drive a car at the time of trial, she did not anticipate being able to return to her job at I.B.M. during 1978. Her salary at I.B.M. was $875 per month. She also stated that if Dr. Pardoe recommended future surgery she would certainly do it.

On March 13, 1978, the jury brought in a verdict in favor of Mary English for $198,069.68. Thereafter, defendant moved for a new trial and/or remittitur of the amount sought a reduction of the verdict by at least $2,023.04, in accordance with the stipulation of the parties to that effect; and sought the entry of a "periodic payments" judgment, as provided by section 667.7 of the Code of Civil Procedure. The motions were denied.

After the "lump sum" judgment was entered for the entire verdict, Mary English died of an ovarian cancer, and for causes unrelated to the accident in question. ¹

Excessiveness of Damages

Appellant hospital contends that the damages awarded were excessive as a matter of law and could only have been engendered by passion, prejudice and sympathy. The contention is without merit.

The standard to be used on review of damages is that there is a presumption in favor of the correctness of the award and it should only be set aside after a consideration of the entire record reveals that the award resulted from passion or prejudice by the jury. (Fletcher v. Western National Life Insurance Co. (1970) 10 Cal.App.3d 376, 408, 89 Cal.Rptr. 78.) As our Supreme Court stated in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 508, 15 Cal.Rptr. 161, 167, 364 P.2d 337, 343: "There are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant. The duty of an appellate court is to uphold the jury and trial judge whenever possible. (Citation.) The amount to be awarded is 'a matter on which there legitimately may be a wide difference of opinion.' (Citation.) In considering the contention that the damages are excessive the appellate court must determine every conflict in the evidence in respondent's favor, and must give him the benefit of every inference reasonably to be drawn from the record. (Citation.)"

As appellant points out in its statement of facts, the trial of this action occurred about 15 months after the accident. During that time, Mrs. English incurred $2,569.68 in medical expenses solely as a result of her burn injuries. Prior to the discovery of her brain tumor, Mrs. English had been employed at I.B.M. at a salary of $875 per month. Appellant concedes that taking into account all special damages for past medical expenses and past income loss, total compensation to Mrs. English could have amounted to $15,000 in "special damages." Counsel for Mrs. English also urged the jury to award $30,000 for past "general damages." Thus, the amount of the jury's award attributable to past (general and special) damages would have been close to $45,000. Additionally, with regard to future damages, Dr. Pardoe testified that at least one surgical procedure would be required at a cost of from $5,000 to $10,000. Such surgery would leave Mrs. English at least partially disabled for approximately six months. Given this evidence of both past and future damages, the award of $198,068.68 does not appear excessive.

The record reveals and respondent concedes that the parties stipulated to a $2,500 reduction of any judgment because of Medi-Cal involvement.

Constitutionality of Code of Civil Procedure section 667.7

The lower court denied appellant hospital's motion for periodic payments, concluding that section 667.7 violates the equal protection clause of the Fourteenth Amendment of the Federal Constitution and article I, section 7(b) of the California Constitution. Additionally, the court found that since California law provides that an award of damages for personal injuries constitutes community property, Mr. English had a vested interest in his wife's award and to deprive him of such vested interest in the event of his wife's death would be violative of the due process clauses of the federal and state Constitutions. Application of the relevant constitutional principles compels the conclusion that the lower court's decision must be affirmed.

Our analysis properly begins with a discussion of the appropriate standard of review. California courts have traditionally adhered to the two-tiered standard of review whenever statutes are subjected to "equal protection" attack. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16-17, 112 Cal.Rptr. 786, 520 P.2d 10; Serrano v. Priest (1971) 5 Cal.3d 584, 596-597, 96 Cal.Rptr. 601, 487 P.2d 1241.) Under this two-tiered...