Lora v. Lancaster Hosp. Corp.

• Decision Date: 22 July 2015
• Docket Number: B250519
• Court: California Court of Appeals Court of Appeals
• Parties: DIORESLY LORA, Plaintiff and Appellant, v. LANCASTER HOSPITAL CORPORATION, Defendant and Respondent.

DIORESLY LORA, Plaintiff and Appellant, v. LANCASTER HOSPITAL CORPORATION, Defendant and Respondent.

B250519

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

July 22, 2015

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. MC023074)

APPEAL from a judgment of the Superior Court of Los Angeles County, Victor E. Chavez, Judge. Affirmed.

Law Offices of Bruce G. Fagel & Associates, Bruce G. Fagel, Richard P. Akemon, and Eduardo J. Ascencio, Smith & McGinty, Daniel U. Smith, for Plaintiff and Appellant.

Greenberg Traurig, Karin L. Bohmholdt, Kendyl T. Hanks, and Jay Yagoda, for Defendant and Respondent.

Cole Pedroza, Curtis A. Cole as Amicus Curiae on behalf of Defendant and Respondent.

Plaintiff and appellant Dioresly Lora brought a medical malpractice claim against defendant and respondent Lancaster Hospital Corporation dba Palmdale Regional Medical Center (Palmdale). A jury found for Lora and awarded her approximately $12 million in past and future economic damages ($6.6 million in present cash value) and approximately $3 million in noneconomic damages. On Palmdale's motion, the court reduced Lora's noneconomic damages to $250,000, the maximum allowable under the Medical Injury Compensation Reform Act of 1975 (MICRA) (Stats. 1975, 2d Ex. Sess. 1975-1976, ch. 1, § 26.6, pp. 3975-3997; Civ. Code, § 3333.2).¹

In the briefing she submitted in connection with this appeal, Lora challenged the constitutionality of the $250,000 cap on noneconomic damages. She contended that the cap violates the equal protection clause because the conditions prompting its enactment no longer exist and because inflation has eroded its value. She also contended that the cap deprives her and other medical malpractice victims of their constitutional right to a jury trial. Our Supreme Court and sister courts of appeal have considered and rejected these very arguments, which Lora unequivocally abandoned during oral argument in favor of an unbriefed request that we interpret MICRA to account for inflation. We reject the arguments Lora raised in her briefs, decline to consider the new theory she raised belatedly at oral argument, and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL SUMMARY

According to the allegations of the charging pleading, Lora was 24 years old when she sought treatment for asthma at Palmdale's telemetry unit in November 2011. Lora went into respiratory arrest during treatment and was found with no pulse or blood pressure. She was resuscitated but sustained severe neurological damage.

By and through her mother and guardian ad litem Hortensia Lora, Lora brought a medical malpractice suit against Palmdale and prevailed after a jury trial. As is pertinenthere, the jury awarded her $3,072,856.00 in noneconomic damages for past and future pain and suffering by special verdict on March 22, 2013.

Palmdale subsequently filed a motion pursuant to MICRA, section 3333.2, to reduce Lora's noneconomic damages to $250,000. In a written opposition filed prior to and in anticipation of Palmdale's motion, Lora objected that the cap on noneconomic damages deprived her of her constitutional rights to a jury trial and equal protection of the laws. She also requested an evidentiary hearing so she could present evidence in support of her argument that the damages cap no longer had a rational basis in light of changed conditions. (See Stinnett v. Tam (2011) 198 Cal.App.4th 1412, 1434 (conc. & dis. opn. of Dawson, J.) (Stinnett).) Lora attached to her filing a declaration from economist Peter Formuzis, Ph.D., who testified that inflation had eroded the purchasing power of $250,000 in 1975 dollars to a mere $57,472 in 2013 dollars. Formuzis also testified that if the $250,000 cap imposed in 1975 had been indexed to inflation, it would be worth $1,087,477 in 2013 dollars.

Lora filed a second opposition document after Palmdale filed its motion. In it, she argued that her noneconomic damages "should not be reduced to the $250,000 cap per Civil Code § 3333.2, but only to $1,076,000 based on the declaration of Dr. Formuzis."² Lora clarified that she was "not requesting that the court invalidate MICRA or section 3333.2 entirely." Instead, she "request[ed] the court to interpret the statute to mean that any limitation in non-economic damages should be in present value since the legislature would not have intended a limitation placed on non-economic damages 38 years ago to be worth less and less each year." Lora also contended that Proposition 103, a measure passed in 1988 that "prohibits the Insurance Commissioner from approving rates that are excessive, inadequate, or unfairly discriminatory, and from allowing such rates to remain in effect" (Chan v. Curran (2015) 237 Cal.App.4th 601, 610, (Chan); see also Cal. CodeRegs. tit. 10, §§ 2641.1-2648.4), ensures that a medical malpractice insurance crisis like the one that led to the passage of MICRA will not recur. She attached a lengthy declaration from actuary Allan I. Schwartz, stipulations and consent orders between the Insurance Commissioner and various medical malpractice insurers, and profitability reports for medical malpractice insurers for the years 1993-2010.

Lora subsequently filed a request for judicial notice. She provided nine additional documents from the Department of Insurance that in her view were relevant both to "her opposition to the reduction of her non-economic damages, and her request that non-economic damages be expressed in present value." She contended that the documents - letters, decisions, and stipulations involving the Department of Insurance - demonstrated that section 3333.2 "no longer has a "reasonably conceivable" "rational basis" that is "plausible" because the rational basis for section 3333.2's [sic] was removed in 1988 when Proposition 103 gave the Insurance Commissioner the power to reduce "excessive" rates and thereby protect insureds (doctors, hospitals and other healthcare providers) from skyrocketing rates." Palmdale opposed Lora's requests to reduce her damages to $1,076,000 and for judicial notice.

The parties appeared in court on May 9, 2013. Lora reiterated to the court that she "is not asking you to ignore or strike down the MICRA statute that reduces the noneconomic damages to a maximum of $250,000. [¶] What plaintiff is asking you to do is what courts are always asked to do when looking at a law passed by the Legislature. We are asking you to interpret that law in a way that makes both legal and moral sense." She argued that the Legislature "could not have intended that in placing such an artificial cap on the value of human life, that such a value would decrease each year such that today that value is less than 25 percent of the original cap." She implored the court, "So finding that amount in reducing the noneconomic damages from $3,000,000 to 1,000,000, you are still following the requirements of MICRA, but you are interpreting the law in a way that makes sense, going back 38 years and saying Legislature, if you are going to pass this kind of cap and ultimately that places a value on human life in medical malpractice cases, it much [sic] be indexed for inflation. And if it wasn't by theLegislature, then it needs to be by the court; otherwise, what we have is every year the value of human life decreases."

The court stated, "I regrettably agree with your position and cannot find the way you suggest." It continued, "I have to follow the law, and I think - - as I see the law, that's the law. [¶] The Legislature is the place this should be changed, not here, not in this court unfortunately." The court accordingly granted Palmdale's motion and reduced Lora's noneconomic damages to $250,000 pursuant to section 3333.2. It did not address Lora's requests for an evidentiary hearing and judicial notice, and Lora did not mention them.

Lora timely appealed.

DISCUSSION

I. Issues Presented on Appeal

In her briefing, Lora presented two issues for consideration on appeal. She characterized these issues as follows: (1) "Is the discrimination inflicted by MICRA's $250,000 noneconomic damages cap on severely injured medical malpractice plaintiffs an unconstitutional denial of equal protection of the law due to a lack of a rational basis because the modest increases in medical malpractice insurance rates—regulated since 1988 by the Insurance Commissioner under Proposition 103—no longer threaten the availability of health care in California?" and (2) "Does MICRA's $250,000 noneconomic damages cap, fixed since 1975, by reducing noneconomic damages to $250,000—without regard to the jury's evidence-based award of damages and without offering plaintiffs the alternative of a new trial—deny medical malpractice victims their "inviolate" constitutional right to a jury determination of damages?" At the conclusion of both her opening and reply briefs, she requested that we "declare the damages cap in section 3333.2 unconstitutional and modify the judgment to include the jury's award of noneconomic damages."

Palmdale contended that Lora should not be permitted to raise these issues because she abandoned them below. Specifically, Palmdale argued that Lora jettisoned the constitutional challenges in favor of asking the trial court to "interpret" section 3333.2 asthough the damages cap were indexed to inflation. In the alternative, Palmdale argued that Lora's constitutional arguments failed on the merits. Palmdale came to oral argument prepared to address the merits of Lora's constitutional arguments.

So did we. At oral argument, however, Lora indicated that she no longer wished to argue that section 3333.2 be declared...