Fein v. Permanente Medical Group

• Decision Date: 30 June 1981
• Citation: 121 Cal.App.3d 135,175 Cal.Rptr. 177
• Court: California Court of Appeals Court of Appeals
• Parties: Lawrence FEIN, Plaintiff, Respondent and Cross-Appellant, v. PERMANENTE MEDICAL GROUP, Defendant, Appellant and Cross-Respondent. Civ. 18349.

Page 177

175 Cal.Rptr. 177

121 Cal.App.3d 135

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

Civ. 18349.

Court of Appeal, Third District, California.

June 30, 1981.

Rehearing Denied July 30, 1981.

For Opinion on Hearing, see 211 Cal.Rptr. 368, 695 P.2d 665.

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

Hassard, Bonnington, Rogers & Huber, Howard Hassard, David E. Willett and Charles Bond, San Francisco, Musick, Peeler & Garrett and James E. Ludlam, Los Angeles, Horvitz, Greines & Poster, Marjorie G. Romans, John L. Klein and Ellis J. Horvitz, Encino, amicus curiae for defendant, appellant and cross-respondent.

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

REYNOSO, Associate Justice.

The constitutionality of major portions of the Medical Injury Compensation Reform Act (MICRA) is challenged. While we uphold the constitutionality of MICRA we reverse on the basis of a trial court error the court impermissibly excused from jury duty, over objection, all prospective jurors who were members of the Kaiser Health Plan. For guidance of the trial court we deal with additional issues: (1) whether nurse practitioners must meet the standard of care of a physician; (2) whether the amount of recovery for loss of wages is to be decreased due to the lowered life expectancy caused by the negligence; and (3) whether the periodic payment provisions of Code of Civil Procedure section 667.7 are mandatory or directory.

The factual setting must be set forth in some detail as background for the various issues with which we deal.

Plaintiff, an attorney employed by the California State Legislature, had worked in the same position for approximately ten years prior to the medical treatment in question, and planned to continue in that capacity until retirement. At 34, he was a young man when the cause arose, and he was two years older at the time of trial.

The medical basis for the law suit evolved on February 21, 1976, a Saturday, when plaintiff was riding his bicycle to work and noticed a pain in his chest. The pain lasted one to two minutes and then stopped. The following day while jogging plaintiff again suffered chest pains also for a brief period of one or two minutes. Three days later, on Wednesday, plaintiff experienced a similar pain while walking after eating lunch. That night, at about 8:00 p. m., when plaintiff was working late, the chest pains returned, this time more severe and lengthy. Plaintiff became concerned for his health and the following day made an appointment with the Kaiser Health Foundation.

On Thursday, February 26, plaintiff was given a brief examination by nurse practitioner Cheryl Welch. After examining plaintiff and taking a history, the nurse practitioner left the room and then returned with a prescription for Valium. She told plaintiff that he was suffering from muscle spasms. Plaintiff went home, took the Valium, and went to sleep.

At about 1:00 a. m., the following morning, plaintiff awoke with excruciating chest pains. His wife drove him to the Kaiser emergency room where he was examined by Dr. Lowell G. Redding who ordered that a chest X-ray be taken. The physician gave plaintiff a shot of Demerol and Codeine pills, and concluded plaintiff was experiencing muscle spasms.

Plaintiff returned to the Kaiser emergency room on Friday. He had continued to experience chest pains which would come and go until about noontime when the pain was constant. The examining physician, Dr. Charles Oliver, ordered that an electrocardiogram (EKG) be given to plaintiff. That examination showed that plaintiff was suffering from a heart attack (acute myocardial infarction). Plaintiff was admitted to the hospital thereafter.

One year and two days after suffering the initial pain, plaintiff filed a complaint in court alleging that his condition should have been diagnosed earlier and treatment given in order to prevent his heart attack or at least to lessen the residual effects. The case went to judgment only against Permanente.

At trial the parties agreed as to the times and dates that plaintiff was examined by staff at the Kaiser clinic and that plaintiff suffered a severe heart attack. All other aspects of the case were controverted. Dr. Harold Swan, the head of cardiology at Cedars-Sinai Medical Center in Los Angeles, and a Fein family acquaintance, testified on plaintiff's behalf. He explained 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 medicine. If the condition is properly diagnosed the patient can be given propranolol or inderol to stabilize his condition. Continued medication or surgery may relieve the condition.

Any patient who appears with chest pains should be given an EKG in order to rule out the worst possibility, heart disease, in the opinion of Dr. Swan. He further testified that the symptoms described by plaintiff should have indicated to Nurse Practitioner Welch that an EKG was in order. Later that night, when plaintiff returned without relief, Dr. Redding, too, should have ordered an EKG based upon the symptoms and history of the patient. According to Dr. Swan, if an EKG had been ordered at those times it could have shown plaintiff's imminent heart attack and that treatment could have prevented or minimized the attack.

As a result of plaintiff's heart attack a large portion of his heart muscle died. After the heart attack, Dr. Swan testified that plaintiff's life expectancy was reduced by about one-half, to 16 or 17 years. On the other hand, though some of plaintiff's other coronary arteries suffer from disease, if plaintiff had been properly treated his normal life expectancy would have been decreased by only 10 to 15 percent.

Defendant introduced testimony of the nurse practitioner and of the emergency room specialist who saw plaintiff prior to his heart attack. Their testimony tended to show that the symptoms he described at the hospital were not the same symptoms he reported at trial. Defendant also introduced expert testimony which tended to show that based upon the symptoms reported and observed prior to the heart attack it could not be determined that a heart attack was imminent. Other expert testimony introduced by defendant indicated (1) an EKG would not have shown that a heart attack would occur in the future, (2) even if it were known that a heart attack was about to occur it could not have been prevented by treatment, and (3) due to the severe disease in the coronary arteries which caused plaintiff's heart attack and existing disease in other of plaintiff's coronary arteries, plaintiff's life expectancy was not affected by the heart attack to the degree claimed.

The jury found in favor of plaintiff and entered special findings on the amount of damages. Noneconomic damages, to compensate for pain, suffering, inconvenience, physical impairment, loss of enjoyment of life and other intangible damages from the time of injury until plaintiff's death were found to be $500,000. Additional damages included lost wages until the time of trial in the sum of $24,733; present cash value of future lost wages as a result of the reduction of plaintiff's life expectancy totalling $700,000; and present value of future medical expenses, amounting to $63,000.

Pursuant to Civil Code section 3333.2, the trial court ordered that the award of damages for noneconomic losses be reduced from $500,000 to $250,000. And following Civil Code section 3333.1, the trial court ordered that the award for lost wages to the time of trial be reduced by collateral source disability payments of $19,302.83, leaving an award of $5,430.40. The court further ordered that defendant pay future medical expenses which are not covered by medical insurance provided by plaintiff's employer up to $63,000. The court declined, however, to order that future lost wages and general damages awarded by the jury be paid periodically pursuant to Code of Civil Procedure section 667.7; it ruled that the section is directory and should not be applied to the case at bench. Both parties appeal.

I

We are called upon to determine the constitutionality of several provisions of MICRA. These sections deal with periodic payment of the judgment (Code of Civ. Procedure, § 667.7), ¹ applicability of collateral benefits to offset damages (Civ.Code, § 3333.1), ² and the $250,000 maximum recovery for noneconomic damages (Civ.Code, § 3333.2) in personal injury actions against health providers. ³ The attack is focused on the asserted unconstitutionality of classifications created by the Act. It is incumbent on us, therefore, to be respectful of the role courts play in such a review.

The power to legislate, needless to say, is in the Legislature, not the courts. Courts do not substitute their social and economic beliefs for the judgment of the legislative bodies. (Ferguson v. Skrupa (1963) 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93, 97.) "Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, ... " (Berman v. Parker (1954) 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27, 37.) The California Supreme Court has enunciated the same concept: "Courts have nothing to do with the wisdom of laws or regulations, and the legislative power must be upheld unless manifestly abused so as to infringe on constitutional guaranties. The duty to uphold the legislative power is as much the duty of appellate...