Yates v. Pollock
| Decision Date | 19 August 1987 |
| Citation | 194 Cal.App.3d 195,239 Cal.Rptr. 383 |
| Parties | Dorothy YATES, Richard Yates, Darlene Dominguez, Charles Yates, Jr., Debbie Everett and Lydia Yates, Plaintiffs and Appellants, v. Lawrence POLLOCK, M.D., Defendant and Appellant. B014640. |
| Court | California Court of Appeals Court of Appeals |
Law Offices of Samuel Shore by David M. Luboff, Los Angeles, and James R. McGrath, Glendale, for plaintiffs and appellants.
Bonne, Jones, Bridges, Mueller & O'Keefe by Joseph D. McNeil and Thelen, Marrin, Johnson & Bridges by Curtis A. Cole and Susan A. Beytin, Los Angeles, for defendant and appellant.
Horvitz, Levy & Amerian by S. Thomas Todd and Frederic D. Cohen, Encino, as amici curiae on behalf of California Hosp. Ass'n and Truck Ins. Exchange.
Fred J. Hiestand, San Francisco, as amici curiae on behalf of Ass'n for California Tort Reform.
Defendant Lawrence Pollock, a surgeon, appeals from the judgment entered pursuant to a jury verdict that awarded damages to plaintiffs Dorothy Yates, Richard Yates, Darlene Dominguez, Charles Yates, Jr., Debbie Everett and Lydia Yates, the spouse and adult children of decedent Charles Yates, in this wrongful death action based upon medical malpractice. He contends:
"I. The judgment for noneconomic damages is contrary to both fact and law.[[/]]
Plaintiffs cross-appeal from the order denying defendant's motion for new trial which was conditioned upon their acceptance of a reduction in the judgment from $1,903,560 to $1,603,560. 1
On August 24, 1982, defendant performed surgery on decedent to remove his gallbladder. Following the operation decedent developed a number of serious postoperative complications. Because defendant made no attempt to determine the cause of these problems, decedent sought treatment from another physician, Doctor Herman Smith.
Doctor Smith suspected decedent might have an abscess and that his common bile duct was obstructed. When decedent's condition had improved sufficiently to permit further surgery, Smith's suspicions were confirmed. He found an abscess below the liver where decedent's gallbladder had been removed and discovered defendant had ligated decedent's common bile duct rather than his cystic duct during the August 24, surgery. Unfortunately, the corrective measures taken by Smith failed to stem the bacterial infection in decedent's abdominal cavity necessitating additional surgery a week later in a final attempt to save his life. This procedure, too, was unsuccessful and on October 31, 1982, Charles Yates died.
All doctors testifying at the time of trial, including defendant, concurred that ligation of the common bile duct violates the standard of care required of a reasonably prudent surgeon. Doctor Smith further agreed it was probable decedent would have "been alive today" were it not for "the events that took place in the course of the surgery on August the 24th at Pico Rivera Community Hospital which resulted in the obstruction of the common bile duct and the development of abscesses and infections and the consequences of that act...."
Defendant's first contention is persuasive insofar as he challenges the trial court's refusal to reduce noneconomic damages to $250,000 as required by the Medical Injury Compensation Reform Act of 1975 (MICRA). (Stats. 1975, 2nd Ex. Sess., chs. 1 and 2.) Civil Code section 3333.2 provides in pertinent part: (Emphasis added.)
We have no difficulty ascertaining the legislative intent of this statute since it is unambiguous on its face. Its plain language unequivocably manifests a desire to place a $250,000 cap on awards for noneconomic damages in all medical malpractice litigation, whether recovery is sought by patients who have themselves suffered personal injuries or by the survivors of such victims who initiate suits for wrongful death.
Should any lingering doubt exist on this point, it is quickly dispelled by an examination of the legislative history of section 3333.2. Certain of the tentative drafts of the proposed MICRA legislation actually did explicitly exclude plaintiffs in wrongful death actions from the specified ceiling on noneconomic damages and permitted them to recover "[a]ll noneconomic damages...." Utimately, however, the Legislature rejected that approach in favor of a comprehensive provision which restricted the amount of noneconomic damages without regard to the status of the plaintiff.
Despite the clear wording of the statute plaintiffs maintain it has no applicability to wrongful death actions because subdivision (a) refers only to actions for "injury" rather than "injury or wrongful death." This argument fails, inter alia, because it ignores the fact that wrongful death claims are for "injuries" suffered by the heirs of medical malpractice victims. (See Krouse v. Graham (1977) 19 Cal.3d 59, 68, 137 Cal.Rptr. 863, 562 P.2d 1022.)
Plaintiffs also urge that inasmuch as survivors may not recover for "pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage" (§ 3333.2, subd. (a)), the Legislature must have intended to exclude wrongful death actions from the reach of the statute. We disagree. Subdivision (a) does not purport to set forth a comprehensive catalogue of the types of losses to which the statute is applicable; it simply identifies certain of the more common types of noneconomic damages which arise in malpractice actions.
Similarly the statute's reference to "nonpecuniary damage" is not fatal to its application in the wrongful death context. Although it is true that California decisional law indicates only "pecuniary" losses are compensable in wrongful death suits, nonetheless, as our highest court recognized in Krouse v. Graham, supra, 19 Cal.3d at pp. 67-68, 137 Cal.Rptr. 863, 562 P.2d 1022, damage awards in such cases, in fact, have never been restricted to those elements having an ascertainable economic value. That is to say, they have included what are, in effect, inherently nonpecuniary factors akin to pain and suffering, e.g., the loss of a decedent's society, comfort, protection, care, companionship, etc. The continued affirmance of such awards, notwithstanding their "noneconomic" nature, undoubtedly reflects "a realization that if damages truly were limited to 'pecuniary' loss, recovery frequently would be barred by the heirs' inability to prove such loss...." (Krouse, supra, 19 Cal.3d at p. 68, 137 Cal.Rptr. 863, 562 P.2d 1022.)
Plaintiffs' contention that section 3333.2 unconstitutionally abridges the right to a jury trial (Cal. Const., art. 1, § 16) is but...
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Engalla v. Permanente Medical Group, Inc., s. A062642
...a total claim for non-economic damages of $500,000. However, upon the passing of Mr. Engalla, the case of Yates v. Pollock (1987) 194 Cal.App.3d 195, 239 Cal.Rptr. 383, required merger of the widow's loss of consortium claim into an indivisible claim for wrongful death, which warrants only ......
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Chan v. Curran
...right to jury trial “is but an indirect attack upon the Legislature's power to place a cap on damages.” (Yates v. Pollock (1987) 194 Cal.App.3d 195, 200, 239 Cal.Rptr. 383 (Yates ).) Yet, as we have discussed, our Supreme Court has repeatedly held “the Legislature retains broad control over......
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Potomac Elec. Power Co. v. Smith
...recently held that California's $250,000 noneconomic damages cap applied to wrongful death actions. See Yates v. Pollock, 194 Cal.App.3d 195, 239 Cal.Rptr. 383 (2 Dist.1987). In responding to plaintiff's contention on appeal that the cap does not apply to wrongful death actions because its ......
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Engalla v. Permanente Medical Group, Inc.
...authorized a total claim for noneconomic damages of $500,000. However, upon the passing of Engalla, the case of Yates v. Pollock (1987) 194 Cal.App.3d 195, 239 Cal.Rptr. 383, required merger of the widow's loss of consortium claim into an indivisible claim for wrongful death, which warrants......