Perry v. Shaw

• Decision Date: 23 April 2001
• Citation: 106 Cal.Rptr.2d 70,88 Cal.App.4th 658
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 2001) SANDRA PERRY, Plaintiff and Respondent, v. WILLIAM SHAW et al., Defendants and Appellants. B133608 Filed

106 Cal.Rptr.2d 70 (Cal.App. 2 Dist. 2001)

SANDRA PERRY, Plaintiff and Respondent, v. WILLIAM SHAW et al., Defendants and Appellants.

B133608

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

Filed 4/23/01

APPEAL from a judgment of the Superior Court of Los Angeles County, C. Robert Simpson, Jr., Judge. Affirmed. (Super. Ct. No. SC039535)

Garcia, Emmons, Maranga & Morgenstern, Joseph G. Emmons; Greines, Martin, Stein & Richland, Martin Stein and Jennifer L. King for Defendants and Appellants.

Thelen Reid & Priest, Curtis A. Cole and Kenneth R. Pedroza for California Medical Association, California Dental Association and California Healthcare Association as Amici Curiae on behalf of Defendants and Appellants.

Fogel, Feldman, Ostrov, Ringler & Klevens, Larry R. Feldman, Jan G. Levine and David Bricker for Plaintiff and Respondent. CERTIFIED FOR PUBLICATION

VOGEL (MIRIAM A.), J.

In 1972, our Supreme Court held that when a patient gives permission to a doctor to perform one type of surgical procedure but the doctor performs a substantially different operation, "the requisite element of deliberate intent to deviate from the consent given is present" and a battery has been committed. (Cobbs v. Grant (1972) 8 Cal.3d 229, 239-240.)

In 1975, our Legislature enacted the Medical Injury Compensation Reform Act (MICRA), substantially changing the law governing medical malpractice actions. Among other things, the Legislature imposed a $250,000 limitation on noneconomic damages in any action "based on professional negligence," with "professional negligence" defined as "a negligent act or omission to act by a health care provider in the rendering of professional services . . . ." (Civ. Code, 3333.2, subds. (a), (c)(2).)¹

In 1985, our Supreme Court held that when a plaintiff proceeds on both non-MICRA and MICRA causes of action and obtains a recovery that may be based on a non-MICRA theory, another MICRA statutory limitation does not apply. (Waters v. Bourhis (1985) 40 Cal.3d 424, 437-438.)

In 1987, Division Five of our Court held that the MICRA definition of "professional negligence" in another MICRA statute was "a deliberate choice" by the Legislature to exclude intentional torts, including battery. (Noble v. Superior Court (1987) 191 Cal.App.3d 1189, 1191-1194.)

In other contexts, the Supreme Court has applied an expansive definition to the MICRA definition of "professional negligence," but it has not done so in the context of section 3333.2. To the contrary, our high court has said that the meaning of "'based on professional negligence' may vary depending upon the legislative history and 'the purpose underlying each of the individual statutes.'" (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 115-116.) We take the Supreme Court at its word and hold in this case that where, as here, a common law battery -- something more than a "technical battery" -- has been proved, the limitation imposed by section 3333.2 does not apply.

FACTS

Following a very substantial loss of weight, Sandra Perry asked William Shaw, M.D., to surgically remove excess skin from her arms, back, thighs and stomach. During one office visit, they discussed a breast enlargement procedure in which muscle is moved from the back to the breasts, but Ms. Perry told Dr. Shaw she did not want that procedure. During another office visit, they talked about a breast lifting procedure designed to lift but not enlarge the breasts, but Ms. Perry told Dr. Shaw she "had definitely decided not to have any breast surgery at that time." At the hospital, Ms. Perry was asked to sign a form that included a consent to the breast lifting procedure. Ms. Perry twice refused to sign the form and only changed her mind after she was medicated, taken to the operating room, and reassured by Dr. Shaw that he would not perform breast surgery.²

Ms. Perry awoke to discover that, in addition to the skin removal procedures, Dr. Shaw had performed a breast enlargement procedure by moving tissue flaps from the sides of her chest into her breasts. To her shock and dismay, Dr. Shaw had substantially augmented her breasts (from a 34B to a 40DD), making them "many, many times bigger" than they had been. When Ms. Perry questioned Dr. Shaw, he told her that although she might then be upset, she would be happy within a year -- after one or two additional surgeries for minor revisions.

Ms. Perry sued Dr. Shaw and the Regents of the University of California (collectively Dr. Shaw), alleging both medical negligence and battery. Dr. Shaw answered, alleging that Ms. Perry's noneconomic damages for both claims were limited to $250,000 by section 3333.2. A jury rejected Dr. Shaw's testimony and returned special verdicts in favor of Ms. Perry, finding that Dr. Shaw was negligent, that he had committed a battery, and that both had caused Ms. Perry's injury (but that Ms. Perry was not entitled to punitive damages). The jury awarded Ms. Perry $59,000 for medical expenses (past and future) and $1,030,000 for her noneconomic damages (past and future). The trial court denied Dr. Shaw's motion to reduce the noneconomic damage award to $250,000 (and later denied his motion for a new trial made on the same ground) and entered judgment in favor of Ms. Perry. Dr. Shaw appeals.

DISCUSSION

Dr. Shaw contends section 3333.2 applies to Ms. Perry's entire noneconomic damage award "because both her medical malpractice and battery claims were based on a single course of conduct constituting professional negligence as defined by that statute." We disagree.

A.

As relevant, section 3333.2 provides: "(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage. [] (b) In no action shall the amount of damages for noneconomic losses exceed . . . $250,000. . . . [] (c) . . . . [] (1) 'Health care provider' [includes doctors and hospitals]. [] (2) 'Professional negligence' means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital." (Italics added.)

B.

In Cobbs v. Grant, supra, 8 Cal.3d 229, our Supreme Court held that where "a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery. . . . [] [W]hen an undisclosed potential complication results, the occurrence of which was not an integral part of the treatment procedure but merely a known risk, the courts are divided on the issue of whether this should be deemed to be a battery or negligence. . . . California authorities have favored a negligence theory. . . . [] Dean Prosser surveyed the decisions in this area and concluded, 'The earliest cases treated this as a matter of vitiating the consent, so that there was liability for battery. Beginning with a decision in Kansas in 1960 . . . , it began to be recognized that this was really a matter of the standard of professional conduct . . . . [T]he prevailing view now is that the action . . . is in reality one for negligence in failing to conform to the proper standard. . . .'

"Although this is a close question, either prong of which is supportable by authority, the trend appears to be towards categorizing failure to obtain informed consent as negligence. That this result now appears with growing frequency is of more than academic interest; it reflects an appreciation of the several significant consequences of favoring negligence over a battery theory. . . . [M]ost jurisdictions have permitted a doctor in an informed consent action to interpose a defense that the disclosure he omitted to make was not required within his medical community. However, expert opinion as to community standard is not required in a battery count, in which the patient must merely prove failure to give informed consent and a mere touching absent consent. Moreover a doctor could be held liable for punitive damages under a battery count, and if held liable for the intentional tort of battery he might not be covered by his malpractice insurance. . . .

"We agree with the majority trend. The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence." (Cobbs v. Grant, supra, 8 Cal.3d at pp. 239-241, italics added; see also Prosser and Keeton, The Law of Torts (5th ed. 1984) 119 ["With the patient unconscious under an anaesthetic, and unable to be consulted, the mere desirability of the operation does not protect the surgeon, who becomes liable for battery -- which . . . renders quite immaterial any question of whether he has complied with good professional practice"].)

In our case, Dr. Shaw performed an operation to which Ms. Perry did not consent. He committed a battery. We agree with Ms. Perry that, as a result, Dr. Shaw's liability is greater than it would have...