A132291 IN THE CALIFORNIA COURT OF APPEAL FIRST APPELLATE DISTRICT DIVISION TWO KRISTINA GAVELLO, et al.

,
Plaintiffs, Respondents, and Cross-Appellants,

vs. BERNARD MILLMAN,

Defendant, Appellant, and Cross-Respondent.

APPEAL FROM THE SUPERIOR COURT OF SAN FRANCISCO CASE NOS. CGC09485616 HON. JUDGE JAMES MCBRIDE

RESPONDENTS BRIEF and CROSS-APPELLANTS' OPENING BRIEF

PAUL V. MELODIA (SBN 36065) MELINDA DERISH (SBN 228549) WALKUP, MELODIA, KELLY & SCHOENBERGER 650 California Street San Francisco, CA 94108 Tel: 415.981.7210 Fax: 415.391.6965 DANIEL U. SMITH (SBN 43100) VALERIE T. MCGINTY (SBN 250508) SMITH & MCGINTY 220 16th Avenue, # 3 San Francisco, CA 94118 Tel: 415.742.4385 Fax: 415.375.4810

ATTORNEYS FOR RESPONDENTS AND CROSS-APPELLANTS

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Cal. Rules of Court, Rule 8.208 Case name: Kristina Gavello, et al v. Bernard Millman Court of Appeal Case No.: A132291 Initial Certificate: X Interested Entity/Person Kristina Gavello Aubrey Gavello Garrett Gavello Bryant Gavello Supplemental Certificate: Nature of Interest Party/Non-Party

Respondents and Cross Party - Appellants

The undersigned certifies that the above persons/entities (not including government entities or agencies) have either (1) an ownership interest of 10 percent or more in the party if an entity; or (ii) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in Rule 8.208, subd. (d)(2). Attorney submitting form: Daniel U. Smith _____________________________ Date: June 25, 2012 Attorney Signature Party Represented: Respondents and Cross-Appellants Daniel U. Smith (SBN 43100) Smith & McGinty 220 16 th Avenue, Suite 3 San Francisco, CA 94118 415.742.4385 dusmith@pacbell.net

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TABLE OF CONTENTS Page INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. B. Plaintiffs anesthesiology expert Dr. Bruce Halperin was highly qualified... . . 3 Where (as here) a patient is heavily sedated, the anesthesiologists duty is to personally supervise the patient until the patient meets a five-part recovery test. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. The central-nervous-system depressants that Dr. Millman administered were sufficient to pre-dispose Mr. Gavello to a respiratory arrest... . . . . 4 2. The anesthesiologists duty is to care for an anesthetized patient to select medications and detect any symptoms of respiratory arrest until a five-part recovery test is met.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Dr. Millman negligently administered overdoses of central-nervous-system depressants, foreseeably causing Mr. Gavellos arrest.. . . . . . . . . . . . . . . . . . . 7 1. Before surgery: Dr Millman gave an excessive Valium dose, causing Mr. Gavellos oversedation and respiratory arrest.. . . . . . . . . . . . . . . . . . . . . . 7 2. Isoflurane during surgery: Isoflurane is a long-acting CNS drug that lasts a day or longer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. After surgery: using Thorazine (another CNS depressant) for postoperative restlessness was negligent and highly unusual.. . . . . . . . . . . . . 8 4. Dr. Millmans administration of Thorazine via a slow-acting injection was the wrong methodreaching peak effect after Dr. Millman was already gone.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 5. Dr. Millmans multidrug overdose caused Mr. Gavellos respiratory arrest and death.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Dr. Millmans premature departure, failure to give any post-operative orders, and delegation of his post-operative duties to nurse Engle (whom he knew lacked resuscitation skills) made Mr. Gavellos death from lack of resuscitation foreseeable.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 1. When Dr. Millman left, the standard of care required that Mr. Gavello be awake, alert, and cooperative, with stable and appropriate vital signs and good pain control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

C.

D.

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2.

3. 4. 5.

6.

7.

But Dr. Millman left prematurely while Mr. Gavello was still unconscious and only 20 minutes after giving Thorazinea drug he gives to less than 1% of his patientsthat would reach peak effect after he left.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Mr. Gavello never consented to Dr. Millmans early departure.. . . . . . . 18 As Dr. Millman admitted, he left without giving any post-operative ordersviolating the standard of care. . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Dr. Millmans premature departure (before Mr. Gavello emerged from anesthesia) without proper orders violated the standard of care and caused Mr. Gavellos death. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Though Dr. Millman had reason to believe nurse Engle had trouble resuscitating patients, he left her in charge of Mr. Gavellos resuscitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Dr. Millmans delegation to nurse Engle caused Mr. Gavellos death because nurse Engle was unable to resuscitate Mr. Gavello as Dr. Millman would have done.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

E.

No substantial evidence showed that (1) nurse Engle gave Versed postoperatively (2) Versed caused Mr. Gavellos death, or (3) that nurse Engle had any intent to harm... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 1. No substantial evidence showed nurse Engle gave Versed.. . . . . . 25 2. Even if nurse Engle gave Versed, it was not the cause of deathMr. Gavello died of lack of resuscitation.. . . . . . . . . . . . . . . . . . . . . . . 27 3. Even if nurse Engle gave Versed, she had no intent to harm... . . . 28

PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 A. The judge excluded additional evidence that Dr. Millman had reason to foresee nurse Engle would not be able to resuscitate Mr. Gavello... . . . . . . . . . . . . . . 30 The judge declined to give Dr. Millmans Intentional Tort/Criminal Act instruction... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 The jury returned a plaintiffs verdict, voting 11-1 that Dr. Millman was negligent and 9-3 that his negligence caused Mr. Gavellos death.. . . . . . . . . 32

B.

C.

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DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 I. Refusing the Intentional Tort/Criminal Act instruction was proper. . . 33 A. Nurse Engles giving of Versed could not be an Intentional Tort nor a Criminal Act (as required by the title of the instruction) because she had no intent to harm.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 1. Even unlawful conduct cannot be a superseding cause if (as here) the third party did not intend to harm the plaintiff.. . . . . . . . . . . . . . . . . . . . . . . . 34 2. Dr. Millmans counsel admitted nurse Engle had no intent to harm Mr. Gavello.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Refusing CACI 433 was proper because nurse Engles giving of Versed was not conduct of a kind and degree so far beyond the risk [Dr. Millman] should have foreseen.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 1. CACI 433 is only warranted where the third partys conduct is of a kind and degree so far beyond the risk [the tortfeasor] should have foreseen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 2. Nurse Engles conduct was exactly what one could expect even Dr. Millmans counsel admitted it makes some sense.. . . . . . . . . . . . . . . 38 a. Dr. Millmans failure to give specific orders required nurse Engle to exercise her own discretion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 b. Versed would have been appropriate for Mr. Gavellos postoperative restlessness.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 c. Nurse Engle had given Versed before.. . . . . . . . . . . . . . . . . . . . . . 40 Any giving of Versed did not happen[] after Dr. Millmans negligent conduct as required under CACI 433indeed, Dr. Millmans negligent absence was a simultaneous cause... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 1. Dr. Millman had a duty to monitor Mr. Gavello for an oncoming respiratory arrestor successfully resuscitate him... . . . . . . . . . . . . . . . 41 2. Because Dr. Millman breached his duty to stay with Mr. Gavello, any Versed given by nurse Engle and Dr. Millmans negligent absence were simultaneous causes of Mr. Gavellos arrest.. . . . . . . . . . . . . . . . . . . . . 42 The instruction would have been improper because any Versed did not solely cause the respiratory arrestand Mr. Gavello died fromlack of resuscitation (not respiratory arrest). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

B.

C.

D.

II. Refusing the criminal conduct instruction was not prejudicial. .. . . . . . . 45 A. B. The standards for determining prejudice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Refusing the instruction was not prejudicial because, as the defense admitted, Mr. Gavello died from a lack of resuscitation (not Versed). . . . . . . . . . . . . . . 45 The great weight of the evidence is that nurse Engle did not give Versedonly Dr. Benowitz believe[d] she did, even though he had no specific information that she did. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Plaintiffs closing argument would have applied even under the requested instruction... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 The Jurys readback request does not show prejudice. . . . . . . . . . . . . . . . . . . 49 In light of the jurys near-unanimous (11-1) negligence verdict and the defense admissions that Versed alone could not cause respiratory arrest, the jurys 9-3 causation verdict does not suggest prejudice.. . . . . . . . . . . . . . . . . . . . . . . . . . 50 Effect of other instructions: Other instructions embraced the issue and would have compelled the same result.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 1. Another instruction (which Dr. Millman does not assert was erroneous) required the jury to hold Dr. Millman liable for nurse Engles negligent resuscitation if he negligently left early. . . . . . . . . . . . . . . . . . . . . . . . . 51 2. The substantial factor instruction embraced Dr. Millmans superseding cause defenseas shown in his closing argument. . . . . . . . . . . . . . . . . 52 III. Any retrial should be limited to Dr. Millmans superseding cause defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

C.

D.

E. F.

G.

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CROSS-APPELLANTS OPENING BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 A. B. C. Denial of the inviolate right to jury trial... . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Discrimination: Unconstitutional denial of equal protection.. . . . . . . . . . . . . . 57 Erroneous reduction of noneconomic damages to $250,000 before apportioning fault.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Issues presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 1. Does section 3333.2, by reducing noneconomic damages to $250,000, without regard to the jurys evidence-based award of damages, violate the constitutional guarantee that the right to trial by jury shall be inviolate? In light of the Insurance Commissioners power to bar excessive insurance rates under Proposition 103, does MICRAs discrimination against severely injured plaintiffs under Civil Code section 3333.2 still have a rational basis, or does section 3333.2 violate the constitutional guarantee to equal protection of the laws? If section 3333.2 is constitutional, then two issues arise: (A) In a case involving multiple tortfeasors and an award of noneconomic damages over $250,000, should the trial court first apportion damages under Proposition 51 and then apply section 3333.2's damages cap (if needed), or reduce damages to the $250,000 cap and then apportion the cap among all tortfeasors (as the trial court did)? (B) In determining the credit to which a medical malpractice defendant is entitled from another tortfeasorss settlement, should the trial court determine the ratio of economic to noneconomic damages in the settlement by using the jurys award of noneconomic damages or $250,000 based on the MICRA cap (as the trial court did)?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

D.

2.

3.

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PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 A. The instructions allowed a fully compensatory award, without arbitrary limit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 The jury awarded the four plaintiffs $1,000,000.. . . . . . . . . . . . . . . . . . . . . . . 62 The judgment reduced $1,000,000 in noneconomic damages to $50,000$12,500 per plaintiff.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 I. Denial of right to jury trial: MICRAs $250,000 cap abrogates the jurys noneconomic damages award.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 A. The caps arbitrary $250,000 limit on a jurys compensatory award regardless of the evidence and without plaintiffs consentviolates the right to trial by jury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 1. The Constitution guarantees that the judgment reflect the jurys award of damages... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 2. The right to jury trial bars judicial reductions of a damage award without plaintiff's consent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 3. Other state courts hold that damages caps violate the right to jury trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 4. Yates and Stinnett are inapposite... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 II. Denial of equal protection: No rational basis justifies MICRAs discriminatory damages cap.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 A. The constitutions equal protection guarantee requires that statutory classifications have a rational basis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Standard of review: Courts conduct a serious and genuine inquiry on whether the statute has a plausible and reasonably conceivable rational basis... 70 A statute becomes unconstitutional if the relevant factual premise for the statutes rational basis is totally altered.". . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

B. C.

B.

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D.

Section 3333.2's damages cap was enacted to resolve a medical malpractice insurance crisis that threatened health care... . . . . . . . . . . . . . . 1. In 1975, "skyrocketing" medical malpractice insurance rates threatened California's health care system.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Governor and the Legislature found that skyrocketing insurance rates threatened California health care.. . . . . . . . . . . . . . . . . . . . . . . . . . 3. The Supreme Court in Fein upheld the damages cap on the basis that it sought to resolve the insurance crisis that threatened health care. . . . . .

73 73 74 75

E.

MICRAs damages cap, which discriminates against severely injured plaintiffs, no longer has a rational basis, and inflation has made the discrimination even worse.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 1. The damages cap discriminates on its face against severely injured plaintiffs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 2. Inflation has increased the discrimination by a factor of four.. . . . . . . . 77 3. Since 1988, Proposition 103 has protected healthcare providers by requiring the Commissioner to reject excessive rateseliminating any rational basis for the damages cap.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 4. The Insurance Commissioners reductions in malpractice rates removes any rational basis for section 3333.2's discriminatory cap.. . . . . . . . . . . 80 a. In 2012, the Commissioner caused six malpractice insurers to reduce their rates by seven to nineteen percent.. . . . . . . . . . . . . . . . . . . . . 80 b. In 2003, the Commissioner reduced one insurer's rate increase from 15.6 percent to 9.9 percent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 c. Under MICRA, premiums at first still increased 20-40 percent per year, but after Proposition 103 premiums decreased.. . . . . . . . . . . 82 5. No appellate decision has addressed Proposition 103's impact in preventing excessive insurance rates and thereby eliminating any rational basis for MICRAs cap.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

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III. The trial court made two calculation errors: (1) Apportioning the $250,000 cap among tortfeasors who were not in the action; (2) Using the capped amount of $250,000 (rather than the jurys award of noneconomic damages ) to calculate economic damages from Dr. Browns settlement... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 A. B. Procedural history.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 The trial court erroneously reduced noneconomic damages to $250,000 and then applied Proposition 51 to apportion the $250,000 cap among other healthcare providers who were not in the action.. . . . . . . . . . . . . . . . . . 86 1. MICRAs $250,000 limit on noneconomic damages applies to damages awarded in any action, and so should not be apportioned among other healthcare providers who are not in the action.. . . . . . . . . . . . . . . . . . . . 86 2. Apportioning the $250,000 cap among absent healthcare providers violated Californias policy of maximization of plaintiffs recovery.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 3. Cases are in conflict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 a. Cases involving only comparative fault first reduce the award by plaintiffs fault, then apply the $250,000 capif necessary.. . . . . 90 b. Cases involving multiple healthcare providers unjustifiably do the oppositefirst applying the $250,000 cap, then reducing $250,000 to the defendants share of fault.. . . . . . . . . . . . . . . . . . . . . . . . . . . 91 The trial court erred by using the capped amount of $250,000 (not the jurys award of $1,000,000 noneconomic damages ) to calculate the credit from Dr. Browns settlement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

C.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

TABLE OF AUTHORITIES

CASES Page(s) American Bankers Ins. Co. v. Avco-Lycoming Division (1979) 97 Cal.App.3d 732 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578. . . . . . . . . . . 89 Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380. . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49. . . . . . . . . . . . . . . . . . . . 36, 37 Bloomberg v. Interinsurance Exchange (1984) 162 Cal.App.3d 571. . . . . . . . . 36, 37 Bolamperti v. Larco Manufacturing (1985) 164 Cal.App.3d 249. . . . . . . . . . . . . . . 89 Brown v. Merlo (1973) 8 Cal.3d 855.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764. . . . . . . . . . . . . . . . . . . . . . . . 88 Coulter v. Superior Court (1978) 21 Cal.3d 144. . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Deocampo v. Ahn (2002) 101 Cal.App.4th 758. . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Duarte v. Zachariah (1994) 22 Cal.App.4th 1652. . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Espinoza v. Machonga (1992) 9 Cal.App.4th 268.. . . . . . . . . . . . . . . . . . . . . . . . . . 94 Fein v. Permanente Medical Group (1985) 38 Cal.3d 137. . . . . . . . . . . . . . . . . . . . 70 Francies v. Kapla (2005) 127 Cal.App.4th 1381. . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Garza v. Asbestos Corp. LTD (2008) 161 Cal.App.4th 651. . . . . . . . . . . . . . . . . . . 68 Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 121. . . . . . . . . . . . . . . 91 Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124. . . . . . . . . . . . 38 In re Marriage of Martinez (1984) 156 Cal.App.3d 20. . . . . . . . . . . . . . . . . . . . . . . 54 Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830. . . . . . . . . . . . . . 37 xi

Kane v. Hartford Accident & Indemnity Co. (1979) 98 Cal.App.3d 350. . . 34, 35, 43 Koepke v. Loo (1993) 18 Cal.App.4th 1444. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Lewis v. Johnson (1939) 12 Cal.2d 558. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Lugtu v.California Highway Patrol (2001) 26 Cal.App.4th 703. . . . . . . . . . . . . . . . 37 Mayes v. Bryan (2006) 139 Cal.App.4th 1075. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 McAdory v. Rogers (1989) 215 Cal.App.3d 1273.. . . . . . . . . . . . . . . . . . . . . . . . . . 90 Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290. . . . . . . . . . . . . . . . . . . . . 88 Mullin Lumber Co. v. Chandler (1986) 185 Cal.App.3d 1127. . . . . . . . . . . . . . . . . 89 People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744. . . . 89 People v. Banks (1993) 6 Cal.4th 926. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566. . . . . . . . . . . . . . . 69 Richardson v. Ham (1955) 44 Cal.2d 772. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 43 Salgado v. County of Los Angeles (1998) 19 Cal.4th 629. . . . . . . . . . . . . . . . . . . . 91 Sears, Roebuck & Co. v. International Harvester Co. (1978) 82 Cal.App.3d 492.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908. . . . . . . . . . . . . . . . 68 Soule v. General Motors Corp., 8 Cal.4th 548.. . . . . . . . . . . . . . . . . . . . . . . . . . 42, 45 Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51. . . . . . . . . . . . . . . . . . . . . . . . . . 36 Taylor v. DeVaughn (1928) 91 Cal.App. 318. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Teachers Insurance Co. v. Smith (1982) 128 Cal.App.3d 862. . . . . . . . . . . . . . . . . 89 Turcon Construction, Inc. v. Norton-Villiers, Ltd. (1983) 139 Cal.App.3d 280. . . . 89 xii

Vesely v. Sager (1971) 5 Cal.3d 153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Warden v. State Bar (1999) 21 Cal.4th 628.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Yates v. Pollock (1987) 194 Cal.App.3d 195. . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 88 STATUTES Cal. Const. Art. I, 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Cal. Const., art. I., 7(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Cal. Const., Art. I, 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Cal. Const., Art. I, 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Cal. Const., Art. I, 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Civ. Code 3333.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Code Civ. Proc. 877. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Ins. Code 1861.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Ins. Code 1861.05, subd. (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Stats 1988, p. A-276, 2 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Stats. 1975, Second Ex. Sess., ch. 2, 12.5, p. 4007 . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

xiii

INTRODUCTION On August 18, 2008, defendant and appellant Dr. Millman was the anesthesiologist for Gary Gavellos surgery. Before and during surgery, Dr Millman gave Mr. Gavello excessive doses of CNS depressants thataccording to both plaintiffs and defense experts substantially contributed to Mr. Gavellos respiratory arrest. After surgery, despite Dr. Millman having put a combative Mr. Gavello in leather restraints, he left while Mr. Gavello was still unconscious, just 20 minutes after giving Mr. Gavello Thorazine, a drug that would reach peak effect after he was already gone. Moreover, as Dr. Millman admitted, he left without giving any orders to the nurse on which medications to give Mr. Gavello. Accordingly, when Mr. Gavello foreseeably suffered respiratory arrest, Mr. Gavello was in the hands of nurse Engle (whose resuscitation skills Dr. Millman had reason to believe were deficient). Dr. Millman was not there to prevent or treat the respiratory arrest because he had already gone home (before Mr. Gavello ever emerged from anesthesia). The jury found Dr. Millman 20% at fault and judgment was imposed against him. On appeal, Dr. Millman asserts as error only the denial of the CACI 433 instruction, entitled Intentional Tort/Criminal Act as Superseding Cause. Yet Dr. Millmans counsel admitted to the jury that nurse Engle never had any intent to harm Mr. Gavello, thereby conceding that, if nurse Engle administered Versed, that act was not a a superseding cause under CACI 433. 18 RT 2084:16-17, 2085:8-10, 2086:1721 (emphasis added). Finally, after trial the jurys $1,000,000 award was reduced to $250,000 to conform to the MICRA damages cap.

On cross-appeal, plaintiffs will show that the MICRA damages cap is unconstitutional for two reasons: (1) The cap violates the plaintiffs constitutional right to a jury trial because it implements the caps reduction without regard to the jurys finding or the evidence supporting it thus usurping the jurys determination of plaintiffs damages. (2) The caps limitation of noneconomic damages discriminates against the most severely injured medical malpractice plaintiffs, violating their right to equal protection of the law this discrimination no longer has a rational basisunder Proposition 103, enacted in 1988, the Insurance Commissioner can (and does) regulate medical malpractice insurance rates to prevent rates from skyrocketing (the 1975 condition that justified the MICRA caps enactment and judicial approval). Finally, the trial court made two calculation errors using the caps limit of $250,000 rather than the true amount ($1,000,000) of noneconomic damages determined by the jury. These errors wrongly reduced the judgment by almost $400,000.

STATEMENT OF FACTS This Statement of Facts shows three things: (1) Dr. Millman brought about a respiratory arrest by administering and authorizing central nervous system depressants. (2) Dr. Millman left prematurely (before Mr. Gavello had emerged from anesthesia) without leaving any orders and leaving Mr. Gavello in the care of nurse Engle (whose resuscitation skills he had reason to believe were deficient), making Mr. Gavellos death from lack of resuscitation foreseeable. (3) No substantial evidence showed that nurse Engle gave Versed, nor that any Versed was given with an intent to harm. Moreover, even if the mythical dose of Versed was given, it could not have caused a respiratory arrest (absent all the other drugs given by Dr. Millman); and was unrelated to Mr. Gavellos cause of deathlack of resuscitation.

A.

Plaintiffs anesthesiology expert Dr. Bruce Halperin was highly qualified. Plaintiffs expert anesthesiologist, Dr. Bruce Halperin, was a board-certified

anesthesiologist who graduated from Yale Medical School, completed his postgraduate education at Stanford, has been on the faculty in the anesthesia department at Stanford since 1985, and is a member of a private practice anesthesia group based at Stanford University Hospital. 11 RT 1037:7-26. Moreover, for the past 10 or 15 year about 20 to 25 percent of [his] patients are undergoing some form of plastic surgery. 11 RT 1037:7-1038:11. Dr. William Spina was the only defense anesthesiology expert. 15 RT 1586:1516. Defense expert Dr. Neal Benowitz admitted he was trained only as a toxicologist, not as an anesthesiologist. 14 RT 1499:27-28. Dr. Benowitz also admitted he doesnt work in the surgery center at [his] hospital or [in] outpatient

surgery, and is not in the profession of giving patients inhaled isoflurane or seeing how long it takes [isoflurane] to wear off clinically. 14 RT 1500:1-9.

B.

Where (as here) a patient is heavily sedated, the anesthesiologists duty is to personally supervise the patient until the patient meets a five-part recovery test.

1.

The central-nervous-system depressants that Dr. Millman administered were sufficient to pre-dispose Mr. Gavello to a respiratory arrest.

Plaintiffs anesthesiology expert Dr. Bruce Halperin opined that Dr. Millman did not meet [the anesthesia] standard of care. 11 RT 1041:23; 12 RT 1254:7-19. As Dr. Halperin explained, Mr. Gavello received central nervous system depressant drugs that were sufficient (without any Versed) to cause his respiratory arrest at approximately 9:30 p.m. 11 RT 1041:23; 12 RT 1254:7-19. These drugs included: (1) An excessive 20-milligram dose of Valium before surgery (11 RT 1080:11-18; 1048:27, 1050:7); (2) 2.5 milligrams of Versed before surgery (6 RT 388:18-19); (3) 200 milligrams of Propofol before surgery (6 RT 389:10-17); (4) 100 milligrams of Fentanyl before surgery (6 RT 403:20-404:5); (5) 8 hours of long-acting general anesthetic Isoflurane during surgery (15 RT 1677:28-1678:7); (6) Droperidol towards the end of surgery (11 RT 1123:25-27); (7) A shot of Thorazine after surgery reached its peak effect after Dr. Millman was already gone (6 RT 432:14-16, 433:28-434:1); (8) An IV dose of Thorazine after surgery (9 RT 835:14-19); (9) A shot of Demerol after surgery (9 RT 837:1-21; 11 RT 1124:3-6).

As Dr. Halperin explained all anesthesia medications have profound effects on a persons body. 11 RT 1043:6-7. They are potent medications that affect breathing and cause patients to completely lose consciousness and lose their normal protective reflexes. 11 RT 1043:8-12. Moreover, Dr. Millman admitted knowing that CNS depressants and narcotics, (which are also respiratory depressants) are both potentiated by Thorazine. 11 RT 1107:10-12 (Halperin) (emphasis added); 6 RT 432:20-433:11, 433:14-22 (Millman). Dr. Halperin explained that this polypharmacy overdose caused Mr. Gavellos respiratory arrest[m]ultiple drugs working in concert with each other to depress[] the central nervous system. 11 RT 1123:7-11.

2.

The anesthesiologists duty is to care for an anesthetized patient to select medications and detect any symptoms of respiratory arrest until a five-part recovery test is met.

As defense anesthesiology expert Dr. Spina admitted, especially because an "8-1/2 hour general anesthetic is really long" it was "all the more important that the anesthesiologist give their expertise in training and input before any other central nervous system depressant drugs are given.. 15 RT 1664:12-1665:5 (emphasis added). And Dr. Benowitz agreed, admitting that when it comes to patient safety, physicians are expected to select what CNS depressant drugs the patient gets postoperatively. 14 RT 1497:28-1498:3. Dr. Benowitz explained this was so that the anesthesiologist could individualize the drug dosages that their patients are going to receive based on the drugs that they have already given and that he expect[s] that decision to come from a physician with full knowledge about how these drugs interact with each other and how they should be dosed. 14 RT 1521:27-1522:6.

Dr. Halperin explained that this was because the anesthesiologist is "selecting medications" and "those medications can have interactions that are going to affect the conduct" "of the anesthesia," "and you need to be familiar with how those medications at every step are going to affect the patient's physiology." 11 RT 1042: 24-1043:3. The "medications that are commonly used in the practice of anesthesia have profound effects on a person's body. It affects heart rate, it affects breathing, it affects blood pressure. So there are many interactions that are taking place." 11 RT 1043:6-14. As Dr. Halperin explained, the standard of care mandates that the physician must be immediately available to take care of the patient and medically manage the patient until the patient has met discharge criteria from the recovery room or the acute phase of recovery. 11 RT 1085:10-13, 1088:4-5. Accordingly, Dr. Halperin testified and Dr. Spina agreed that the anesthesiologist must stay with the patient during the acute recovery period, which equals the period of time until the patient is (1) awake; (2) alert; (3) cooperative; (4) with [s]table and appropriate vital signs; and (5) good pain control.15 RT 1653:26-1654:7 (Spina); 11 RT 1086:6-1087:7 (Halperin); 15 RT 1689:27-1690:5; accord 11 RT 1085:14-16, 1087:11-14 (Dr. Benowitz). Thus, until these five criteria are met, Dr. Halperin explained that the anesthesiologist cant go home: The anesthesiologist cant go home, because then they are not immediately available. Because there are situations that need to be dealt with on a rapid basis. So . . . the anesthesiologist cannot go home until these criteria are met. 11 RT 1089:1-6 (emphasis added).

C.

Dr. Millman negligently administered overdoses of central-nervoussystem depressants, foreseeably causing Mr. Gavellos arrest.

1.

Before surgery: Dr Millman gave an excessive Valium dose, causing Mr. Gavellos oversedation and respiratory arrest.

Before surgery, Dr. Millman gave an excessive 20-milligram dose of Valium. 11 RT 1048:22-27, 1050:7. [A] reasonably careful anesthesiologist would know that this was too much Valium to give to Mr. Gavello. 11 RT 1050:23-25. Mr. Gavello was not someone who normally takes Valium. 11 RT 1049:12-15. Dr. Benowitz admitted that a 20-milligrams oral dose of Valium to a patient who is not taking [drugs like Valium] on a daily basis is a pretty big dose. 14 RT 1505:13-22. Defense expert anesthesiologist Dr. Spina also admitted that the large dose of Valium contributed to Mr. Gavellos oversedation in the recovery room. 15 RT 1675:13-18, 1676:21-25. Also, Valium has a very long half-life, (30 hours or more) and so it can affect mental status of the patient or can affect their overall sedation during surgery and afterwards because it is so long acting. 11 RT 1050:11-18 (emphasis added); 14 RT 1506:6-7. Thus, Dr. Millman gave an excessive Valium dose, contributing to Mr. Gavellos oversedationcausing respiratory arrest.

2.

Isoflurane during surgery: Isoflurane is a long-acting CNS drug that lasts a day or longer.

At the beginning of surgery, Dr. Millman gave Mr. Gavello inhaled isoflurane at the highest level that can be delivered. 6 RT 406:3-23. Dr. Millman continued giving isoflurane throughout the 8 hour surgery. 11 RT 1080:20-1081:4. And Dr. Halperin, who uses isoflurane anesthesia, does not use as low a flow as Dr. Millman did. 11 RT 1180:3-5.

As Dr. Halperin explained, a great deal of isoflurane gets stored in the fat, and the fat tissue will release this isoflurane back into the blood system and feed[] a little bit back into the brain. 11 RT 1081:2-1082:13 (emphasis added). Accordingly, the Isoflurane was still in [Mr. Gavellos] system for a number of hours. 11 RT 1082:22-23 (emphasis added). Defense expert Dr. Benowitz admitted that isoflurane has some residual effect which can probably last a day or longer. 14 RT 1499:16-17, 1500:10-13 (emphasis added). And Dr. Millmans anesthesiology expert, Dr. Spina, admitted he does not use long-acting isoflurane at all during his facelift procedures because shorter acting medications are available. 15 RT 1677:28-1678:7 (emphasis added). And he didnt know anybody in the outpatient surgery arena thats using high dose isoflurane and low flows. 15 RT 1678:13-15 (emphasis added).

3.

After surgery: using Thorazine (another CNS depressant) for post-operative restlessness was negligent and highly unusual.

At 6:55 p.m. when Mr. Gavello was discharged from the operating room, he was unconscious. 6 RT 419:5-420:11. At that point, Dr. Millman expected Mr. Gavello to become alert and verbal in 30 minutes. 6 RT 419:5-420:11. At 7:10 p.m. Mr. Gavello became "restless," was "trying to pull out his airways," and was "trying to sit up." 6 RT 420:20-26. Even after the airways were removed, Dr. Millman was "holding him down." 6 RT 421:2-14. Dr. Millman did two things in response. First, he ordered nurse Engle to put leather restraints on both [Mr. Gavellos] wrists. 6 RT 422:9-13. Dr. Millman admitted leather restrains were not part of [his] ordinary practice as an anesthesiologist and that it was no minor thing to take a patient and strap them down in a gurney with leather restraints on both wrists. 6 RT 422:21-423:15. And plaintiffs expert Dr. Halperin opined that for a patient to

become so combative and violent that he was placed in leather restraints was extraordinarily unusual, that he had never had to do that, and had never seen that. 11 RT 1066:17-1067:4. Next, Dr. Millman ordered nurse Engle to give Mr. Gavello a shot of Thorazinea drug Dr. Millman admitted using in less than 1 percent of his patients. 6 RT 431:3-12. Moreover, though Dr. Millman admitted the injection would not reach peak effect until 30 to 40 minutes, and would last three to four hours, Dr. Millman left only [t]wenty minutes after the injection. 6 RT 432:14-16, 433:28-434:1. Though Dr. Millman admitted he thought Mr. Gavello might be having a "pain problem" and "anticipated that [Mr. Gavello] would wake up in pain," Dr. Millman gave Mr. Gavello Thorazine, a medication that does not treat pain but was developed "to treat acute schizophrenia. 6 RT 421:18-23, 427:11-16; RA 36. For three reasons, Thorazine was the wrong drug and on top of that, was contraindicated. 12 RT 1262:3-6; 11 RT 1078:14-15 (accord). First, Thorazine was contraindicated because it is another central nervous system depressant that depresses the respiratory function. Dr. Benowitz admitted that when a physician is going to prescribe a central nervous system depressant and a patient is already breathing at a slower than normal rate, the physician must be very careful about the risk of respiratory depression, and thats why patients are monitored intensively . . . in a postoperative recovery room. 14 RT 1495:12-17. In a patient who already has a slow breathing rate, the central nervous system depressant can make that worse, and so the physician is going to be paying attention to the patients breathing. 14 RT 1496:4-12. Moreover, Dr. Benowitz admitted that the combination of Thorazine with an anesthetic is a potentiating combination, because each one makes the other stronger. 14 RT 1494:18-28. Dr. Millman admitted knowing that Thorazine

"prolongs and intensifies the action of central nervous system depressants" and "prolongs and intensifies the action of anesthetics." 6 RT 432:20-433:11, 433:14-19. Second, no expert condoned the use of Thorazine in this case. Defense expert anesthesiologist Dr. Spina admitted he has never used Thorazine in 16 years and had never heard about it at any American Society of Anesthesiologists meetings these 16 years. 15 RT 1697:2-20. Defense critical care expert Dr. Luce also admitted he [doesnt] use Thorazine and certainly [doesnt] use Thorazine in the recovery area following anesthesia. 14 RT 1565:3-5. And Dr. Luce had never heard of Thorazine being given for restlessness in any kind of a postanesthesia setting before this case. 14 RT 1576:16-27. And Dr. Halperin had never seen anyone using I.M. Thorazine to treat a patient after a general anesthesia. 11 RT 1079:13-16. Third, Thorazine was the wrong drug because it did not treat pain. As Dr. Halperin explained, giving Thorazine was below the standard of care because the most likely cause of Mr. Gavellos restlessness was discomfort that should have been treated with a pain medication. 11 RT 1075:3-6. And defense experts agreed. Dr. Spina admitted that the type of surgery Gary [Gavello] had was one [where] patients wake up in pain and that pain (rather than emergence delirium, which was uncommon[] and usually very short-lived) was the most likely explanation of why Mr. Gavello was combative. 15 RT 1686:25-28, 1690:7-21, 1690:25-1691:5. Dr. Benowitz also admitted that if a patient is having restlessness from uncontrolled pain, Thorazine is not the proper treatment, because Thorazine is not a treatment for pain and the proper treatment for pain is a medication that treats pain. 14 RT 1501:15-22. Yet Dr. Millman admitted that before leaving he never gave Mr. Gavello any narcotics totreat pain. 6 RT 424:22-425:27. When Mr. Gavello resumed restless behavior after Dr. Millman left, nurse Engle gave the maximum intramuscular dose

10

of Demerol (50 mg) for pain authorized by the drug menu. 9 RT 837:1-21 (Engle); 11 RT 1124:3-6 (Halperin); RA 36.

4.

Dr. Millmans administration of Thorazine via a slow-acting injection was the wrong methodreaching peak effect after Dr. Millman was already gone.

Dr. Millman admitted it takes some time for an intramuscularly-administered drug to get from the muscle back into the bloodstream [so] it can circulate. 6 RT 359:15-20. Yet he left only twenty minutes [after the Thorazine injection] at 7:35 PM. 6 RT 433:26-434:1. Defense anesthesiologist Dr. Spina admitted he would not give an intramuscular injection if he wanted to have it work in the fastest manner because the I.V. route is the fastest route. 15 RT 1696:14-17. Dr. Spina also agreed that intramuscular Thorazine given to Mr. Gavello was going to have peak plasma levels at around 9;15 to 10:15over an hour after Dr. Millman left. 15 RT 1699:17-19. And Dr. Spina admitted that "when it comes to the medical emergency that existed at 7:15, if someone wants to get control before 7:35 with drugs, you would have to give something intravenous." 15 RT 1715:11-15. And, as Dr. Halperin explained, an "intramuscular injection" may not "start to work" "for 30 minutes, sometimes even an hour"and the doctor "can't leave this patient at risk in this uncontrolled manner while the patient's system absorbs this medication from the shot." 11 RT 1075:18-25. Hence, an "intramuscular injection" of Thorazine did not comply with the standard of care because the situation presented a "medical emergency" and the Thorazine did not "treat the problem" nor "have a rapid onset of action." 11 RT 1075:18-20.

11

5.

Dr. Millmans multidrug overdose caused Mr. Gavellos respiratory arrest and death.

At 9:26 p.m., when nurse Engle had just finished speaking to Dr. Millman on the phone, she heard Mr. Gavellos monitor beeping and "jumped up." 9 RT 859:14-23. When she came into the room Mr. Gavello looked "pale." 9 RT 860:6-8. nurse Engle shook Mr. Gavello, called out to him but there was no response and the pulse oximeter monitor showed two blank lines. 9 RT 860:13-20. Mr. Gavellos treating cardiologist, Dr. Francoz, examined Mr. Gavello right after the event and said Mr. Gavello's first event was a "respiratory arrest" ("not a heart attack") that was caused by the drugs. 6 RT 331:19, 333:22-25, 336:21. San Francisco Medical Examiner, Dr. Judy Melinek 1 , opined that the combination of medications surrounding [Mr. Gavellos] surgery [made] him stop breathing. 8 RT 733:11-12. And this opinion was "exactly the same opinion [as Dr. Halperin's] with different words." 11 RT 1124:8-14. Dr. Halperin opined that Mr. Gavello died from a "respiratory arrest caused by a polypharmacy overdose""multiple drugs working in concert with each other, depressing the central nervous system, leading to a respiratory arrest." 11 RT 1123:6-11. Dr. Halperin explained the cumulative depressing effect of all the drugs: It's a large dose of Valium early on that remained in his system in recovery. It's the dose of Versed that continued to be effective and cause further depression of the central nervous system. It's the continued level of isoflurane that is in his system. And then, of course, afterwards or towards the end of the case we get droperidol, yet another central nervous system depressant. And then we add to

Though Dr. Millman repeatedly refers to Dr. Melinek as plaintiffs expert(AOB 17, 24, 36, 44), Dr. Benowitz admitted that, as the San Francisco Medical Examiner, Dr. Melinek was a public servant paid by the City and County of San Francisco, and comes to court to testify not as a retained expert, but as someone who has worked for the City and is called in by a subpoena to testify. 14 RT 1488:5-12 (emphasis added). 12

that the Thorazine which has not only its own depressant effects, but it potentiates the effects of all the other CNS depressants. And then on top of that we have narcotics [(Demerol)] which are being administered. And of course the Thorazine potentiates again the effects of the narcotics which are well-known to decrease respirations. 11 RT 1123:20-1124:4. Dr. Benowitz admitted that Mr. Gavellos respiratory arrest was caused by the drugs he received. 14 RT 1488:23-25. Specifically Dr. Benowitz admitted Mr. Gavellos respiratory arrest was caused by Versed, Demerol, Thorazine and general anesthesia consisting of isoflurane. 14 RT 1498:5-7. Defense expert Dr. Luce admitted that the most likely cause of the respiratory arrest was a nine-hour anesthesia and all the drugs during the surgery. 14 RT 1573:15-19. Dr. Spina agreed that a number of the medications [Mr. Gavello] received in the pre-op, intra-op and post-up treatment led to a respiratory arrest and that all the medications had an additive effect. 15 RT 1660:10-14, 1676:17-18. Moreover, as Dr. Spina admitted, the best thing to do as an anesthesiologist is to do everything in your power to prevent the respiratory arrest from happening in the first place. 15 RT 1706:24-27. One way an anesthesiologist can prevent a respiratory arrest is by being extremely careful with your choice of the drugs that the patient is going to get, and if you give a drug that's going to last a long time and you know it has the potential to cause respiratory arrest, you can stay and watch the patient and intervene if you need to before an arrest. 15 RT 1688:19-1689:1 (emphasis added).

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D.

Dr. Millmans premature departure, failure to give any post-operative orders, and delegation of his post-operative duties to nurse Engle (whom he knew lacked resuscitation skills) made Mr. Gavellos death from lack of resuscitation foreseeable.

1.

When Dr. Millman left, the standard of care required that Mr. Gavello be awake, alert, and cooperative, with stable and appropriate vital signs and good pain control.

As Dr. Halperin explained, the standard of care mandates that the physician must be immediately available to take care of the patient and medically manage the patient until the patient has met discharge criteria from the recovery room or the acute phase of recovery. 11 RT 1085:10-13, 1088:4-5. Dr. Benowitz admitted that he "expect[s] someone with the knowledge, skills and expertise [on how] to handle a respiratory arrest" to be the person who makes "the decisions about when it's safe to leave the patient based on the drugs they have given." 14 RT 1521:21-26. Dr. Millman also admitted that anesthesiologists are "always monitoring the patient's breathing" because "if a patient is headed towards a respiratory arrest, [he would] step in first and [] prevent it." 6 RT 384:25-384:3. Dr. Halperin opined, and defense expert Dr. Spina agreed that the anesthesiologist is obligated to stay with the patient during the acute recovery period, which equals the period of time for the patient to be awake, alert, cooperative, with stable and appropriate vital signs, and good pain control. 15 RT 1689:27-1690:5 (Spina); accord 11 RT 1085:14-16, 1087:11-14 (Halperin). These five discharge criteria require the following: (1) Being awake means a patient can respond to a request such as open your eyes, squeeze my fingers, wiggle your toes. 11 RT 1086: 6-10.

14

(2) Being alert means the patient is able to essentially think for themselves and communicate, show a higher level of brain function. 11 RT 1086:11-13. (3) Being cooperative is slightly different because the patient can be awake and alert and for whatever reason not be cooperating with [the] caregiverfor example, if you are in a great deal of pain, you may not be cooperative. 11 RT 1086:14-19. (4) Stable and appropriate vital signs means the vital signs are not changing and they are appropriate for that patient. 11 RT 1086:20-27. (5) [G]ood pain control may require titration of medications and evaluating what medications are going to work best for that patientand not leaving a patient who is having a great deal of discomfort. 11 RT 1087:4-7. Until the patient has met [these] five criteria, under the standard of care the anesthesiologist cant go home, because then they are not immediately available and there are situations that need to be dealt with on a rapid basis. 11 RT 1089:1-6. Plaintiffs' expert Dr. Halperin opined it "takes all 3 aspects"pre-op, intra-op, and post-op "to safely accomplish [the] surgical procedure." 11 RT 1042:13-16. Dr. Spina admitted the "anesthesiologist is responsible to shepherd the patient safely through 3 phases: "putting them under, keeping them under, bringing them back out from under." 15 RT 1653:7-21. Dr. Spina also admitted that an anesthesiologists responsibility has three parts: "the pre-op, intraop and post-op phase[s]." 15 RT 1657:9-14. Dr. Spina admitted that anesthetized patients are particularly vulnerable because they cannot speak up and say what's bothering them, can't [p]rotect themselves because they can't even control what's happening with their arms, their legs, their eyelids, and they can't [p]rotect their airway. 15 RT 1653:26-1654:7. Dr. Spina admitted that for these reasons, the patient has to trust that the anesthesiologist is going to fulfill the responsibilities and keep them safe. 15 RT 1654:8-11.

15

2.

But Dr. Millman left prematurely while Mr. Gavello was still unconscious and only 20 minutes after giving Thorazinea drug he gives to less than 1% of his patientsthat would reach peak effect after he left.

Dr. Spina explained that when an anesthesiologist gives a long-lasting drug that has the potential to cause respiratory arrest, [the anesthesiologist] can stay and watch the patient and intervene before an arrest. 15 RT 1688:19-1689:1 (emphasis added). But Dr. Millman didnt stay and watch Mr. Gavello. Though the Dr. Millmans brief claimed he left after Mr. Gavello, emerged from anesthesia (AOB at 8), the evidence shows otherwise. First, Dr. Millman admitted that at 6:30 PM he was beginning part 3 of [his] job which is to bring Gary out from under the general anesthetic. 6 RT 414:7-10. But when Dr. Millman left at 7:35 p.m., he had not completed his job because Mr. Gavello did not meet the five-part test. Despite Dr. Millmans expectation that Mr. Gavello would become alert and verbal by 7:15 or 7:25 (6 RT 419:5, 420:17-19), at 7:35 Mr. Gavello wasnt awake and he wasnt alert. 11 RT 1091:25-26. And despite having time to make a late entry in [the] chart describing what Garys condition was in light of the fact that he had that arrest, neither Dr. Millmans chart nor Dr. Browns chart showed that Mr. Gavello ever woke up from the anesthesia. 11 RT 1093:22-24,1096:14-19 (Halperin); 8 RT 636:19-22. Dr. Halperin explained this was important because particularly after an event like this, an anesthesiologist would write a note somewhere in the medical record that indicated that Mr. Gavello had emerged from anestheticif Mr. Gavello had. 11 RT 1093:14-18. Dr. Millman admitted that at no time before he left was Mr. Gavello able to talk. 6 RT 434:17-19. And Dr. Spina admitted there was no indication any place"

16

"in the records" "that Gary Gavello ever became awake, alert and cooperative" before Dr. Millman left. 15 RT 1669:24-1670:3 (emphasis added). Moreover, the two nurses who were present said Mr. Gavello was asleep and snoring or unconscious when Dr. Millman left. 7 RT 504:18-22 (nurse assistant Carina Flores; emphasis added); 9 RT 822:12-14 (nurse Engle). Moreover, Dr. Brown admitted that even when he left at 8:00 p.m. (25 minutes after Dr. Millmans departure) Mr. Gavello couldnt carry on a conversation and hadnt completely emerged from anesthesia. 8 RT 693:14, 694:14. And, though Dr. Brown claimed he requested during his assessment that Mr. Gavello squeeze [his] finger, he never testified whether Mr. Gavello complied. 8 RT 636:7-11.2 Finally, though Dr. Brown claimed at trial that Mr. Gavello was responding verbally to questions to identif[y] the correct number of fingers, and could spontaneously open his eyes, right after Mr. Gavellos death he told Kristina Gavello the oppositethat Mr. Gavello was snoring when he left. 7 RT 580:28581:1. As Dr. Halperin explained, when Dr. Millman left at 7:35 p.m. (and when Dr. Brown left at 8:00 p.m.), the Valium, the isoflurane, the droperidol, and the Thorazine are all central nervous system depressants that are still on board in Mr. Gavellos body. 11 RT 1083:5-9. Contrary to Dr. Spinas statement that an anesthesiologist should stay and watch the patient and intervene if you need to before an arrest, Dr. Millman left Mr. Gavello before he had recovered from anesthesia, thereby violating the standard of care. 15 RT 1688:19-1689:1.

Dr. Halperin explained that even if Mr. Gavello had squeezed Dr. Millmans hand, Dr. Millmans departure still would have violated the standard of care because Mr. Gavello still had not spokenand had not opened his eyes and the standard of care requires all of these 5 criteria, not just a portion [] of one of the criteria. 11 RT 1094:23-1095:5. 17

Thus, by leaving prematurely, Dr. Millman failed to do his "job, which he admitted was to bring Mr. Gavello "up and out from under." 6 RT 358:1-4.

3.

Mr. Gavello never consented to Dr. Millmans early departure.

Dr. Millman admitted that the consent form Mr. Gavello signed said Dr. Millman was a physician specialist, the anesthesiologist, who is an independent contractor fully responsible for [Mr. Gavellos] anesthetic care during surgery. 6 RT 378:16-20; RA 42. The consent form promised that Dr. Millman would be with Mr. Gavello throughout [his] procedure. 6 RT 380:10-13. And the consent form said that Dr. Millmans role was distinct from the surgeons responsibilities. 6 RT 380:14-16. And Mr. Gavello was not told anywhere on the form that a nurse would be responsible for recovering him from anesthesia. 6 RT 381:23-26.

4.

As Dr. Millman admitted, he left without giving any postoperative ordersviolating the standard of care.

As Dr. Halperin explained, the standard of care required Dr. Millman to write down what the orders are and what the priorities are for taking care of Mr. Gavello to make sure the drug doses are appropriate and that they reflect the fact that hes already received Thorazine. 11 RT 1109:14-28 6. For example, Dr. Millman admitted he did not give nurse Engle or nurse assistant Flores any oral instructions on Mr. Gavello, nor did he have any discussion about Gary Gavello with Dr. Brown. 6 RT 435:5-436:27 Nurse Engle claimed Dr. Millman gave orders that she could repeat the Thorazine if Mr. Gavello continued [to be] restless and could give Demerol for pain. 9 RT 826:13-827:3. If Dr. Millman had done so, this still violated the standard of care, which required written orders. And such orders would also be negligent for failure to account for Mr. Gavellos earlier dose of Thorazine, in light of

18

Dr. Millmans admitted knowledge that Thorazine "prolongs and intensifies the action of the central nervous system depressants" and "prolongs and intensifies the action of anesthetics." 6 RT 432:20-433:11, 433:14-19 (emphasis added). Specifically, Dr. Spina admitted that the manufacturer of Thorazine warns that the drug potentiates anesthetics and narcotics and also warns that if Thorazine has been given, the dose of narcotic should be decreased to one half or one fourth. 15 RT 1700:4-14 (emphasis added). Dr. Millman admitted he did not write any orders and that there was only a formulated set of post-op orders that allowed a nurse to give all of [the medications] at the same time and that gave nurse Engle discretion to choose amongst the medications listed. 6 RT 436:10-16, 437:20-22, 440:6-9 (emphasis added); RA 39. But, as defense expert Dr. Benowitz admitted, this formulated menu posed a safety problem because it was vague with respect to how they are supposed to be ordered, and whether the nurse selects it or the physician. 14 RT 1497:3-13. Accordingly, after Dr. Millman left nurse Engle administered an IV dose of Thorazine at approximately 8:10 p.m. because Mr. Gavello appeared to be restless. 9 RT 835:14-19. And about 10 minutes later she gave him 50 mg shot of Demerol for pain and restlessness. 9 RT 837:1-21; RA 41. Dr. Halperin explained that Mr. Gavello never had a set of postoperative orders that complied with the standard of care. 12 RT 1261:19-24. Dr. Halperin opined that Dr. Millmans failure to give [nurse Engle] any instructions as to what combinations of drugs she should avoid was a substantial deviation from the standard of care because [c]ommunication between the anesthesiologist and the recovery room nurses is absolutely a fundamental of the practice of medicine and anesthesia and is absolutely mandatory for the safety of the patient. 11 RT 1098:19-1099:15 (emphasis added).

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Defense expert anesthesiologist Dr. Spina agreed. He admitted that while Dr. Millman "may have had a mental plan of care, it was not written down in the medical record." 15 RT 1668:1-2. And Dr. Spina admitted that the standard of care requires the anesthesiologist to "give clear orders to the nurse. 15 RT 1657:2-8. Accordingly, he explained that "when it comes to the post-anesthesia care unit," very clear lines of communication between the members of the team" is absolutely critical for patient safety. 15 RT 1656:15-18, 1657:2-8 (emphasis added).

Dr. Halperin also explained that the post-op order sheet was an improper format for a set of orders. 11 RT 1103:21-22. Moreover, Dr. Halperin explained that Dr. Millmans post-op order sheet could not be a post-op order until [it is] filled out by the physician because otherwise it is just a menu of medications that can possibly be given. 11 RT 1100:3-8. This sheet doesnt prioritize the medications that are going to be administered to the patient, its unclear from this sheet whether the nurse should give one of these medications are all of these medications in a given category, and there is no limit to the amount of the medication that in fact can be given to the patient. 11 RT 1103:15-21. For example, if you have a patient with pain, the order sheet does not say whether the nurse should give one of those medications or all of those medications. 11 RT 1102:6-8. Though postoperative templates exist in a number of medical institutions and are commonly used, you d[o] not hand over the entire template and let someone else choose. 11 RT 1107:17-22 (emphasis added). Thus, Dr. Millman violated the standard of care by leaving without giving any post-operative orders. And, if he gave oral instructions they were incomplete and did not limit the options found in the formulated templatenor did they advise her to lower the dose of any narcotics in light of the earlier and future doses of Thorazine given to Mr. Gavello.

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5.

Dr. Millmans premature departure (before Mr. Gavello emerged from anesthesia) without proper orders violated the standard of care and caused Mr. Gavellos death.

Dr. Millman also admitted that an anesthesiologist must be "ready to step in before a problem happens." 6 RT 363:2-4. For example, Dr. Millman admitted that "if a patient isn't breathing properly under anesthesia" he has special training as an anesthesiologist in performing intubation and bag mask ventilation. 6 RT 364:1-23. Dr. Millman explained that as an anesthesiologist he was "trained to individualize his care based upon how the patient response to the drugs," because patients dont respond in exactly the same way. 6 RT 374:22-375:11 (emphasis added). And he admitted that "when a patient is in this post-anesthesia [stage], how the patient recovers from the anesthetic depends upon what drugs are on board" how they "interact with each other" and "[h]ow long those drugs are on board." 6 RT 374:14-21 (emphasis added). Dr. Millman admitted this requires looking at how the patient responds" and making observations and evaluations." 6 RT 374:22-375:11 (emphasis added). Accordingly, Dr. Millman testified that to provide good post-anesthesia care, you need to know how the drugs you gave for the anesthesia are going to be affecting the patient as they wear off. 6 RT 368:14-17. And he admitted it was necessary to continue to watch whether the patient is able to breathe properly, whether the patients heart rate and rhythm are normal, and whether their blood pressure is normal. 6 RT 368:24-369:4. Defense expert Dr. Spina admitted that because anesthesia drugs are "all potentially dangerous," "the training of an anesthesiologist takes years," and "includes learning how to use the right drugs for the right indications," learning "how long those drugs act" and how they "interact with each other." 15 RT 1654:12-24. Dr. Spina admitted it was "crucial" and "critical for patient safety" that "if the patient is going to be given additional central nervous system depressants after an 8-1/2 hour

21

general anesthetic that the doctor who is the right person for the job coordinates that care." 15 RT 1664:5-11. Dr. Spina also admitted that because an "8-1/2 hour general anesthetic is really long" it was "all the more important that the anesthesiologist give their expertise in training and input before any other central nervous system depressant drugs are given, such as Thorazine. 15 RT 1664:12-1665:5 (emphasis added). And Dr. Benowitz agreed, admitting that when it comes to patient safety, physicians are expected to select what CNS depressant drugs the patient gets postoperatively. 14 RT 1497:28-1498:3 (emphasis added). Dr. Benowitz explained this was so that the anesthesiologist could individualize the drug dosages that their patients are going to receive based on the drugs that they have already given and that he expect[s] that decision to come from a physician with full knowledge about how these drugs interact with each other and how they should be dosed. 14 RT 1521:27-1522:6. Dr. Halperin explained that this was because the anesthesiologist is "selecting medications" and "those medications can have interactions that are going to affect the conduct" "of the anesthesia," "and you need to be familiar with how those medications at every step are going to affect the patient's physiology." 11 RT 1042: 24-1043:3. The "medications that are commonly used in the practice of anesthesia have profound effects on a person's body. It affects heart rate, it affects breathing, it affects blood pressure. So there are many interactions that are taking place." 11 RT 1043:6-14. And Dr. Spina agreed that the reason the standard of care requires clear orders is to avoid the potential [for] the wrong drugs [to be] given." 15 RT 1656:23-1657:1 (emphasis added). As the defense experts admitted, Dr. Millman could not delegate these duties to anyoneneither a nurse nor a surgeon. For example, Dr. Spina admitted that nurses are not interchangeable with an anesthesiologist." 15 RT 1665:16-19 (emphasis added). Thus, Dr. Spina admitted that "as an anesthesiologist, you cannot get up and move away from the bedside of your general anesthetic patient and turn over your job

22

to an RN," "[n]ot even for 5 minutes." 15 RT 1655:13-18 (emphasis added). The physician cannot delegate the practice of medicine to a nurse." 11 RT 1089:10-11. Neither could Dr. Millmans duties be delegated to surgeon Dr. Brown. Dr. Spina explained that a surgeon could not take over an anesthesiologist's responsibilities because it is only the anesthesiologist who knows all about the drugs" because (1) the surgeon is "doing the cutting in the stitching and moving tissues around," and not "picking the drugs" and (2) the surgeon has only had a "surgery residency" and not an "anesthesiology residency." 15 RT 1657:17-1658:11; accord 11 RT 1090:8-1091:1 (Dr. Benowitz). And Dr. Brown testified it was Dr. Millmans responsibility to supervise the giving of medications in the immediate postoperative period. 8 RT 631:24-27. Thus, Dr. Millmans early departure meant he did not select the drugs for Mr. Gavello, and was not there to either prevent a respiratory arrest or properly resuscitate Mr. Gavello.

6.

Though Dr. Millman had reason to believe nurse Engle had trouble resuscitating patients, he left her in charge of Mr. Gavellos resuscitation.

Dr. Millman "knew of previous episodes where [nurse Engle] did have problems with dealing with respiratory arrest and the failure to properly respond to that arrest," and knew nurse Engle was unable to use an Ambu Bag in real life. 11 RT 1114:5-13, 12 RT 1260:15-22. Yet he entrusted the care of Mr. Gavello to her, violating the standard of care. Dr. Millman admitted it was "important" to leave Mr. Gavello with "somebody who can respond to a respiratory arrest." and that he would "not go home and leave Gary Gavello with [nurse Engle]" unless he thought she had that skill. 7 RT 461:22-462:1. And Dr. Spina admitted that, if he knew that a nurse "had a problem"

23

"dealing with respiratory arrest," he would "try to help her" and "try to make sure she gets those skills." 15 RT 1708:19-25. Yet Dr. Millman left nurse Engle completely in charge of Mr. Gavellos resuscitation, "never ask[ing]" whether she knew "how to perform bag mask ventilation" and "never train[ing] her [on] how to perform bag mask ventilation." 11 RT 1115:4-11, 1115:24-1116:2. Plaintiffs' expert Dr. Halperin explained that "the standard of care require[d] Dr. Millman to know that nurse Engle can respond to a respiratory arrest before he can entrust Gary's post-anesthesia care to nurse Engle." 11 RT 1113:6-9. Once Dr. Millman knew nurse Engle "may not be capable in dealing with the fundamental responsibilities of a recovery room nurse," "before [Dr. Millman] could entrust care of a patient" to nurse Engle, Dr. Millman had to "ensure that [nurse Engle] in fact have the proper skills." 11 RT 1114:17-24. And Dr. Spina admitted it was always "important that [the anesthesiologist is] leaving Mr. Gavello with somebody who can respond to a respiratory arrest" because that's "a critical skill." 15 RT 1703:20-27. For example, because a respiratory arrest is "a situation that may never come up for the nurse," Dr. Spina "make[s] sure that the nurses know how to use the emergency equipment" and "the proper steps to take in [the] event of a respiratory arrest," because he want[s] to be sure that [his] nurses really know how to deal with it if it comes up." 15 RT 1706:5-23. Dr. Spina agreed that where a patient has had "8 hours of general anesthesia," there was a duty to "make sure" "that the nurse is capable of handling any emergency that a recovery room nurse would be able to handle in the surgery center." 15 RT 1700:15-23.

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7.

Dr. Millmans delegation to nurse Engle caused Mr. Gavellos death because nurse Engle was unable to resuscitate Mr. Gavello as Dr. Millman would have done.

Because Dr. Millman left Mr. Gavello with nurse Engle (whose resuscitation skills he knew were deficient), Mr. Gavello died due to lack of resuscitation. 18 RT 2087:14-15 (Dr. Millmans counsels closing argument). Though nurse Engle tried an Ambu Bag to assist with the rescue breathing, she could not get the bag to "provide a good seal" and was never able to resuscitate him. 9 RT 873:23-876:25. The paramedics arrived and Mr. Gavello was intubated and taken to the intensive care unit. 9 RT 882:25-883:7. Mr. Gavellos death was preventable. As Dr. Millman admitted, a "respiratory arrest""should be treatable" and "should not be deadly." 6 RT 385:7-12 (emphasis added). Defense experts agreed. Dr. Benowitz admitted that [n]o one should ever die from respiratory arrest under medical supervision. 14 RT 1459:2-3 (emphasis added). And, as Dr. Luce explained, if the respiratory arrest had been properly managed, it is more likely than not that the patient would not have gone into a cardiac arrest that caused Mr. Gavellos brain injury. 14 RT 1566:3-8.

E.

No substantial evidence showed that (1) nurse Engle gave Versed post-operatively (2) Versed caused Mr. Gavellos death, or (3) that nurse Engle had any intent to harm.

1.

No substantial evidence showed nurse Engle gave Versed.

The only evidence was Dr. Benowitzs opinion that he believe[d] Nurse Engle gave a dose of Versed within 20 or 30 minutes of Mr. Gavellos respiratory arrest even though he had no specific information that she did. 14 RT 1512:24-25, 1459:21-1460:1.

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Accordingly, Dr. Benowitzs opinion that Versed was given post-operatively was based solely on the level of Versed in Mr. Gavellos blood. Yet Dr. Benowitz admitted his opinion was based not on his own research but on a couple of articles where younger volunteers had received only Versed and none of the other drugs Mr. Gavello receivedValium, Isoflurane, Demerol, Thorazine, Droperidol. 14 RT 1514:7-28, 1515:3-17. But Dr. Benowitzs was controverted in two ways. First, his opinion was refuted by defense anesthesiologist Dr. Spina, who opined that the clinical effect of intravenous Versed is going to be in about three or four minutes not the 20 or 30 minutes Dr. Benowitz opined. 15 RT 1715:5-7 (emphasis added).3 As Dr. Halperin explained, Dr. Benowitzs theory about the mythical dose of Versed doesnt fit clinically because if Mr. Gavello had an additional dose of Versed, the respiratory arrest would have been most likely to occur minutes after its given and thus would have made him impossible to resuscitate when the Code team arrived . 11 RT 1129:22-1130:12. Second, San Francisco Medical Examiner Dr. Melinek 4 explained that nobody can say within reasonable medical probability that someone gave Mr. Gavello Versed half an hour before his respiratory arrest. 8 RT 740:3-741:9. Mr. Gavellos blood levels of Versed at the code and two hours later were basically the same level and show that hes not metabolizing the drug,making it more probable than not that the Versed in his system was there from the surgery. 8 RT 751:11-16;

Notably, though Dr. Luce claimed he had opinions about the implications of finding Versed in [Mr. Gavellos] blood, (14 RT 1570:8-12), and though Dr. Spina was the only defense expert anesthesiologist with expertise in the interaction and effect of the anesthetic drugs at issue here, the defense offered only Dr. Benowitzs opinion on whether a postoperative dose of Versed contributed to the respiratory arrest. 16 RT 1604:21-24. Though Dr. Millmans brief refers to Dr. Melinek as plaintiffs expert Dr. Melinek was not retained by plaintiff and testified to the opinions formed while performing her duties as a public servant. 26
4

accord 8 RT 757:20-758:7. And Dr. Halperin agreed that the most likely explanation[] of Mr. Gavellos Versed levels was that he was a slow metabolizer of Versed. 11 RT 1131:18-24. Dr. Benowitz further diluted his own opinion by admitting that (1) the metabolism of Versed varies between individuals (14 RT 1507:2-4); and that (2) unlike Dr. Melinek, determining causes of patients death[s] on a daily basis was not part of [his] scope of medical practice. 14 RT 1487:15-18. Moreover, other evidence supported the conclusion that no Versed was given: Dr. Brown testified that taking an inventory of the drugs in his office right after the incident, all of the [Versed] was accounted for. 8 RT 645:12-647:4. In reporting to San Francisco Medical Examiner Dr. Melinek during the Coroners investigation, Dr. Millman never claimed he did not authorize the drugs that Tina Engle gave to Gary Gavello. 8 RT 773:19-22. Dr. Millman testified that nurse Engle told him on the phone that she had given Demerol and Thorazine. 14 RT 1513:15-18. No evidence showed that she would have had any reason not to report Versed if she had given it. Nurse Engle charted the Demerol and Thorazine that she gave, but never charted anything about Versed. 9 RT 834:7-28; RA 41. Dr. Millman could have provided stronger evidence but failed tohis counsel never asked nurse Engle whether she gave Versed post-operatively. Thus, no substantial evidence showed that nurse Engle gave Versed.

2.

Even if nurse Engle gave Versed, it was not the cause of deathMr. Gavello died of lack of resuscitation.

Even if nurse Engle had administered Versed post-operatively, it did not cause Mr. Gavellos death for two reasons. First, as defense expert Dr. Benowitz admitted. Versed (if it was administered post-operatively) combined with other drugs to cause the respiratory arrest: he

27

agree[d] that Mr. Gavellos respiratory arrest was caused by Versed, Demerol, Thorazine and general anesthesia consisting of isoflurane. 14 RT 1498:4-7. Defense counsel made the same admissionthat Millman gave [Mr. Gavello] a lot of medication and that Mr. Gavellos death was caused by the whole thing and not one shot of Versed in the post [operative] period. 15 RT 1775:5-15. Second, Mr. Gavellos death was caused by nurse Engles failure to competently handle the respiratory arresta failure that was foreseeable to Dr. Millman based on his past knowledge of nurse Engle). As Dr. Benowitz admitted, Mr. Gavello wasnt being monitored and wasnt resuscitated properly. 14 RT 1460:1-2.

3.

Even if nurse Engle gave Versed, she had no intent to harm.

No evidence showed nurse Engle had any intent to harm Mr. Gavello. As the AOB admits, though nurse Engle was given Fifth Amendment protection for the disappearance of the monitor, this privilege was limited and that she answered all questions about the drugs she gave Mr. Gavello. 9 RT 851:7-23; AOB at 24. The data in the monitor would have documented vital signs but would not have shed any light on whether Versed had been given. 8 RT 652:19-653:3; 9 RT 851:22. Moreover, any claim that nurse Engle had a criminal intent to harm Mr. Gavello would be inconsistent with the evidence for four reasons: (1) Dr. Spina admitted (and Dr. Millmans brief acknowledges) that Versed was an appropriate drug to give for postoperative restlessness and that he used Versed for that purpose as well. 15 RT 1694:1-4; accord 14 RT 1459:21-1460:1 (Benowitz); AOB at 11. (2) If nurse Engle gave any Versed, her intent was to help not to hurtDr. Millman never challenged nurse Engles testimony that Mr. Gavello continue[d] to have the same restless uncomfortable behavior and that her duty was to help [Mr. Gavello] be comfortable . . . I tried my best to keep him comfortable or to help him to

28

become comfortable. 9 RT 838:9-25. Moreover, when Dr. Brown spoke to nurse Engle on the phone after he left, he said Keep [Mr. Gavello] down. Keep him quiet. 9 RT 850:7. (3) If nurse Engle wanted to harm Mr. Gavello, she could have given many drugs simultaneously because, as Dr. Millman admitted, that menu allowed a nurse to give all of [the medications] at the same time. 6 RT 436:10-16, 440:6-9 RA 39; accord 11 RT 1103:15-21 (Dr. Halperin). (4) If it was criminal for nurse Engle to give the Versed without a specific order from Dr. Millman, then Dr. Millmans claim that he gave her no orders for any drugs would also make her administration of Thorazine and Demerol criminalyet Dr. Millman admitted he had no criticism of nurse Engle when she reported to him over the phone that she had given Thorazine and Demerol.5 6 RT 444.:23-445:14. And nurse Engle testified that when she told Dr. Millman that she had given Thorazine and Demerol, he responded Fine, fine and [a]bsolutely did not say anything to the effect that she wasnt supposed to be giving Thorazine or Demerol, nor did he criticize [her] in any way during that telephone call. 9 RT 848:20-849:5 (emphasis added).

Dr. Benowitz admitted he doesnt use Demerol for pain because it is a dangerous drug that causes seizures. 14 RT 1505:6-8. 29

PROCEDURAL HISTORY A. The judge excluded additional evidence that Dr. Millman had reason to foresee nurse Engle would not be able to resuscitate Mr. Gavello. Plaintiffs offered evidence that Dr. Millman had reason to know of nurse Engles incompetence from a prior respiratory arrest that resulted in the death of the patient. In excluding that evidence, the judge ruled that the defense would not be allowed unfairly to take advantage of evidence thats been excluded to achieve a victory on instruction. 10 RT 1023:9-12 (emphasis added). In arguing for admission of the evidence, plaintiffs counsel said the defense was certainly getting the chance in the evidence to make [nurse Engle] out to be some highly qualified nurse that would represent a total surprise to Dr. Millman if she couldnt handle a respiratory arrest. 10 RT 1023:13-16. But the judge explained that a superseding cause instruction requires an evidentiary basis and is not just given in every tort. 10 RT 1023:22-24. So if we decide that the defense is taking unfair advantage of the exclusion of evidence that would assist the jury, they may not get the instruction. If they want the instruction, they may have to deal with the evidence. 10 RT 1023:25-28 (emphasis added). Ultimately, the judge excluded the evidence, saying that it would be a "trial within a trial" to determine whether nurse Engle was at fault or not in the prior situation of respiratory arrest that resulted in death. 10 RT 1022:14-20.

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B.

The judge declined to give Dr. Millmans Intentional Tort/Criminal Act instruction. The judge declined to give both of Dr. Millmans superseding cause instructions

(CACI 432 and 433).6 In refusing these instructions, the judge agreed it was a big issue and that therefore these two instructions [on] intervening superseding causation has been something that he continued to analyze and pay a lot of attention to. 17 RT 1935:4, 1937:1-10. Though Dr. Millmans counsel conceded that the information [plaintiffs] tried to get in so hard throughout the trial went to resuscitation, his counsel argued the instruction was nonetheless warranted because it still was not foreseeable that neither one of these nurses would be in the room when Mr. Gavello had his arrest or that she would g[i]ve medications that were unauthorized. 17 RT 1936:17-26, 1938:4-6. But the judge rejected these arguments, ruling that almost anything was foreseeable in light of that standard order that she marked up, combined with all of the other testimony about how it was employed and what may or may not have been done. 17 RT 1937:20-23. Moreover, the judge ruled that a reasonable person would not consider Tina Engles response to the restless patient to be highly unusual or extraordinary under these circumstances. 17 RT 1938:20-23. On the foreseeability of the absence of both nurses at the time of the arrest, the judge said, I am literally biting my tongue to curb any cynical comments, but . . . the idea that someone paid to get sit close to a patient all night, keep an eye on them, will not get out of the room, walk around the block, take 10 minutes off for personal business is completely foreseeable. 17 RT 1938:11-19.

The defense here appeals only the instruction that requires an intent to criminally or intentionally harm the patientdespite the absence of any circumstantial or direct evidence of intent to harm. 31

Finally, the judge ruled that Dr. Millman had reason to expect that almost anything could happen postoperative if he wasnt there or immediately there to give advice. 17 RT 1938:24-26 (emphasis added). Accordingly, the judge refus[ed] both of the superseding cause instructions. 17 RT 1939:1-2.

C.

The jury returned a plaintiffs verdict, voting 11-1 that Dr. Millman was negligent and 9-3 that his negligence caused Mr. Gavellos death. The jury voted 11-1 that Dr. Millman was negligent and 9-3 that Dr. Millmans

negligence caused Mr. Gavellos death. 23 RT 2170:26-2171:14.

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DISCUSSION I.

Refusing the Intentional Tort/Criminal Act instruction was proper.

Dr. Millman requested at trial that CACI 433 be given, entitled, Causation: Intentional Tort/Criminal Act as Superseding Cause. CACI 433 (emphasis added); AOB 26; 17 RT 1934:9-17. Dr. Millman claims that nurse Engle gave Mr. Gavello Versed during this postoperative recovery, and that this supposed illegal act (not authorized by a specific doctors order) raised a question of fact as to superseding cause that should have been submitted to the jury by Dr. Millmans proferred instruction, based on CACI 433.7 AA 66; AOB 26. But the trial courts rejection of Dr. Millmans Intentional Tort/Criminal Act instruction was proper for four reasons: 1. CACI 433 applies only to intentional conduct where a third party intended

to harm the plaintiff. But nurse Engle had no intent to harm. 2. CACI 433 applies only to conduct that is different in kind and degree

from the foreseeable risk. But a mistaken drug dose is a foreseeable risk of putting a nurse in charge of medications without orders. 3. Though CACI 433 requires nurse Engles conduct to happen[] after Dr.

Millmans negligent conduct, here Dr. Millmans negligent conduct was ongoing Dr. Millmans negligent absence was a simultaneous cause of Mr. Gavellos respiratory arrest. 4. The parties agreed Versed alone did not cause Mr. Gavellos death for two

reasons: (a) Versed alone (without the drugs Dr. Millman ordered) was insufficient to

Though the judge refused both CACI 432 and 433 instructions (17 RT 1939:1-2), Dr. Millman here challenges only the refusal of CACI 433, the IntentionalTort/Criminal Act as Superseding Cause instruction. 33

cause respiratory arrest; and (b) Mr. Gavello died not die from the respiratory arrest but from lack of resuscitation.

A.

Nurse Engles giving of Versed could not be an Intentional Tort nor a Criminal Act (as required by the title of the instruction) because she had no intent to harm. Under CACI 433, the conduct must be done with an intent to harmbut no

evidence showed that nurse Engle intended to harm Mr. Gavello and thus her administration of Versed (if it occurred) could not be an intentional tort or criminal act, as required by the title of the instruction.

1.

Even unlawful conduct cannot be a superseding cause if (as here) the third party did not intend to harm the plaintiff.

Where a third partys conduct is intentional and illegal or even criminal, that conduct is not a superseding cause unless the third party intended to harm the plaintiff. As stated in Restatement (Second) Torts, section 448, comment a, thirdparty criminal conduct constitutes a superseding cause only when the actor's conduct creates a situation which is utilized by a third person to inflict intentional harm upon another. Id. (emphasis added). In Kane v. Hartford Accident & Indemnity Co. (1979) 98 Cal.App.3d 350, where the third party raped the plaintiff, the rape was a superseding cause because the rapist intended to harm the plaintiff. Even if the defendant had researched the rapists background to learn of his property-related crimes, that information would not have made an intentional sexual assault foreseeable: It would not have indicated that a violent criminal act directed against the person of an unforeseeable plaintiff was either contemplated or impending. Id. at 361 (emphasis added). In sum, unlawful and even criminal conduct is not a superseding cause unless the third party intended to harm the plaintiff. Accordingly, Dr. Millman may not rely

34

on [t]he common law rule that an intervening criminal act is, by its very nature, a superseding cause [because that rule] has lost its universal application and its dogmatic rigidity. Kane v. Hartford Accident & Indemnity Co. (1979) 98 Cal.App.3d 350, 360 (emphasis added; citing Restatement 2d Torts, 448).

2.

Dr. Millmans counsel admitted nurse Engle had no intent to harm Mr. Gavello.

Dr. Millmans counsel admitted to the jury in closing that nurse Engle had no intent to harm Dr. Gavellothat she gave Thorazine to calm him down,gave Demerol after she assesses pain, and gave Versed because Mr. Gavello was starting to get restless again and she thought I have got to give something. 18 RT 2084:16-17, 2085:8-10, 2086:17-21 (emphasis added). And nurse Engle testified that, in light of Mr. Gavellos continue[d] . . . restless uncomfortable behavior, her duty was to help [Mr. Gavello] be comfortable . . . I tried my best to keep him comfortable or to help him to become comfortable. 9 RT 838:9-25 (emphasis added). Thus, the evidence showed only that if nurse Engle had given Versed, it was to help (not hurt) Mr. Gavello.

B.

Refusing CACI 433 was proper because nurse Engles giving of Versed was not conduct of a kind and degree so far beyond the risk [Dr. Millman] should have foreseen. 1. CACI 433 is only warranted where the third partys conduct is of a kind and degree so far beyond the risk [the tortfeasor] should have foreseen. Even an intentional tort or crime is not a superseding cause if the actor at

the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the

35

opportunity to commit such a tort or crime. CACI 433 Sources and Authority (citing Rest. 2d Torts, 448). Moreover, "[i]f the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby." (Rest.2d Torts, 449, quoted in Vesely v. Sager (1971) 5 Cal.3d 153, 164; see also Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 69.) Thus, a negligent actor "is not relieved of liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct." (Vesely v. Sager (1971) 5 Cal.3d 153, 163 [95 Cal.Rptr. 623, 486 P.2d 151], and cases cited)(emphasis added.) For example, stray vehicles that illegally leave the roadway are not deemed a superseding cause of the injury and so do not exonerate from liability the defendant whose negligence exposed the plaintiff to the risk of being struck by an errant driver. Specifically, the Supreme Court has said that drivers who leave the roadway unlawfully are not uncommon, and so are foreseeable: Moreover, it is not uncommon for speeding and/or intoxicated drivers to lose control of their cars and crash into poles, buildings or whatever else may be standing alongside the road they travel-no matter how straight and level that road may be. Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58. Similarly, injuries caused by drunk drivers striking individuals off the roadway were held foreseeable in Bloomberg v. Interinsurance Exchange (1984) 162 Cal.App.3d 571, 576-577. In Bloomberg, a vehicle developed engine trouble after midnight and pulled to the side of the freeway. A call was placed to the Auto Club, which failed to respond for almost an hour. Meanwhile, a drunk driver struck the stranded vehicle, killing plaintiffs decedent. Judgment on demurrer was reversed because the drunk driver was foreseeable:

36

Among the possible dangers awaiting stranded motorists is injury or death caused by other drivers. In particular, intoxicated drivers are to be expected late at night. (See Coulter v. Superior Court (1978) 21 Cal.3d 144, 154; Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58.) It is 'not uncommon' and therefore foreseeable for intoxicated or speeding drivers to lose control 'and crash into poles, buildings or whatever else may be standing alongside the road they travel ....' (Bigbee, supra, at p. 58.) Bloomberg, supra, 162 Cal.App.3d at pp. 576-577 (emphasis added). Similarly, in Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, injuries inflicted by an errant driver were held foreseeable. Plaintiffs decedent was driving a truck whose electrical system died, leaving plaintiff stranded on the side of the roadway, where he was struck by a wayward vehicle. The defendant truck servicing company obtained summary judgment, which the appellate court reversed, rejecting the notion that the errant driver was a superseding cause, citing Bloomberg. Id. at 1849. In an analogous case, the likelihood of third party misconduct created by the defendant barred the superseding cause doctrine. Richardson v. Ham (1955) 44 Cal.2d 772, 776. In Richardson, the defendant failed to lock a bulldozer, leading to harm caused by third parties who operated the bulldozer. The Supreme Court held the possibility of the intentional, wrongful misconduct that occurred in this case was not so remote as not to constitute one of the hazards that would justify the conclusion that defendants' failure to lock the bulldozer was negligent and so defendants' duty to protect plaintiffs from injuries caused by the uncontrolled and unauthorized operation of their bulldozer included a duty to protect plaintiffs from the intentional misconduct of the young men, and such misconduct did not therefore constitute a superseding cause of plaintiffs' harm) (emphasis added); see also Lugtu v.California

37

Highway Patrol (2001) 26 Cal.App.4th 703, 716 (CHP officer could be liable where he directed driver to stop on median strip, who was then hit by another vehicle). If the criminal misconduct of third parties who recklessly seized control of the bulldozer (Richardson v. Ham) or who unlawfully left the highway (Lugtu v. California Highway Patrol), was foreseeable, a fortiori nurse Engles administration of Versed in the absence of specific post-op medication orders was also foreseeable.

2.

Nurse Engles conduct was exactly what one could expect even Dr. Millmans counsel admitted it makes some sense.

As the judge observed when he refused the instruction, Dr. Millman had reason to expect that almost anything could happen postoperative if he wasnt there or immediately there to give advice. 17 RT 1938:24-26. The judge ruled the harm was not only foreseeable, but exactly what one could expect. 17 RT 1938:24-1939:2 (emphasis added). As the judge ruled when he refused the instruction, a reasonable person would not consider Tina Engles response to the restless patient to be highly unusual or extraordinary under these circumstances. 17 RT 21-23. And Dr. Millmans counsel admitted in closing that if you kind of look at Tina Engles situation . . . it sort of makes some sense. 18 RT 2083:28-2084:2. But the dose of Versed that appellant claims nurse Engle gave could not be reasonably found to be harm of a kind and degree so far beyond the risk that an anesthesiologist should foresee when leaving a sedated patient in a nurses care. Drug errors are not uncommon in medicine. Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124 (pharmacist directed five times the proper dose); Duarte v. Zachariah (1994) 22 Cal.App.4th 1652 (overprescription of anticancer drug damaged plaintiffs bone marrow).

38

a.

Dr. Millmans failure to give specific orders required nurse Engle to exercise her own discretion.

Dr. Millman admitted he did not give nurse Engle or nurse assistant Carina Flores any orders on Mr. Gavello nor did he "have any discussion about Gary Gavello with Dr. Brown. 6 RT 435:5-436:27. Dr. Millman admitted he "did not write any orders" and that there was only a "formulated set of post-op orders" that allowed a nurse to "give all of [the medications] at the same time." 6 RT 436:10-16, 440:6-9 RA 39 (emphasis added). Dr. Halperin explained that Mr. Gavello never had a "set of postoperative orders that complied with the standard of care." 12 RT 1261:19-24. Dr. Halperin explained that Dr. Millman's failure to "give [nurse Engle] any instructions as to what combinations of drugs she should avoid" was "a substantial deviation from the standard of care" because "[c]ommunication between the anesthesiologist and the recovery room nurse is mandatory"and is "absolutely a fundamental of the practice of medicine in anesthesia" and is "absolutely mandatory for the safety of the patient." 11 RT 1098:19-1099:15 (emphasis added). Defense expert Dr. Benowitz admitted, Dr. Millmans non-specific formulated "orders" presented a "safety problem" because they were "vague with respect to how they are supposed to be ordered," and "whether the nurse selects it or the physician." 14 RT 1497:3-13. And defense expert anesthesiologist Dr. Spina admitted that the standard of care requires the anesthesiologist to "give clear orders to the nurse." 15 RT 1657:2-8. Accordingly, he explained that "when it comes to the post-anesthesia care unit," "very clear lines of communication between the members of the team" is "absolutely critical for patient safety." added). 15 RT 1656:15-18, 1657:2-8 (emphasis

39

b.

Versed would have been appropriate for Mr. Gavellos post-operative restlessness.

Mr. Gavellos restlessness made the administration of Versed foreseeable because, as defense expert anesthesiologist Dr. Spina admitted, he would titrate small doses of Versed to treat restlessness (or emergence delirium). 15 RT 1694:1-4. Thus, if nurse Engle had given Versed, it was a reasonable medication to treat Mr. Gavellos post-operative restlessness, and not a means to harm the patient, which would have been the last thing she had in mind.

c.

Nurse Engle had given Versed before.

Versed had been given to Mr. Gavello earlier that day. And nurse Engle had previous experience giving Versed for sedation: she testified she had administer[ed] Versed for sedation purposes before. 10 RT 994:18-20. Dr. Millmans failure to give any post-operative orders made it foreseeable that almost anything could happenand certainly that Versed might be given, which was a foreseeable treatment for post-operative restlessness. 17 RT 1938:24-26. The post-op order form gave nurse Engle wide discretion to select drugs for a whole host of post-op conditions. Thus, any Versed given by nurse Engle was not of a kind and degree so far beyond the risk Dr. Millman should have foreseen that the law would deem it unfair to hold him responsible.

40

C.

Any giving of Versed did not happen[] after Dr. Millmans negligent conduct as required under CACI 433indeed, Dr. Millmans negligent absence was a simultaneous cause. CACI 433 (the instruction proposed here) requires that the

[intentional/criminal] conduct of [nurse Engle] happened after the conduct of defendant. AA 63. But this requirement was not metDr. Millmans negligent failure to supervise Mr. Gavellos recovery was continuing and occurring simultaneously with nurse Engles supposed administration of Versed.

1.

Dr. Millman had a duty to monitor Mr. Gavello for an oncoming respiratory arrestor successfully resuscitate him.

An unwarranted lack of diligence in attending to the patient after surgery constitutes malpractice. Lewis v. Johnson (1939) 12 Cal.2d 558, 560. Postoperative care is part of a doctors undertaking. Taylor v. DeVaughn (1928) 91 Cal.App. 318, 321. And, as expert testimony showed, Dr. Millman had a duty to remain with Mr. Gavello to personally supervise his recovery until he had emerged from anesthesia. For example, Dr. Halperin explained, the standard of care mandates that the physician must be immediately available to take care of the patient and medically manage the patient until the patient has met discharge criteria from the recovery room or the acute phase of recovery. 11 RT 1085:10-13, 1088:4-5. Moreover, defense expert Dr. Spina admitted that the acute recovery period, equals the period of time until the patient is (1) awake; (2) alert; (3) cooperative; (4) with [s]table and appropriate vital signs; and (5) good pain control.11 RT 1086:6-1087:7 (Halperin); 15 RT 1689:27-1690:5; accord 11 RT 1085:14-16, 1087:11-14 (Dr. Benowitz). He admitted that anesthetized patients are

41

particularly vulnerable because they cannot [p]rotect their airway. 15 RT 1653:26-1654:7. Accordingly, until the patient has met [these] five criteria, the anesthesiologist cant go home, because then they are not immediately available and there are situations that need to be dealt with on a rapid basis. 11 RT 1089:1-6 (emphasis added). Thus, Dr. Millman had a duty to stay with Mr. Gavello and monitor him until the acute recovery period was over.

2.

Because Dr. Millman breached his duty to stay with Mr. Gavello, any Versed given by nurse Engle and Dr. Millmans negligent absence were simultaneous causes of Mr. Gavellos arrest.

Dr. Millmans premature departure breached his duty of postoperative care of Mr. Gavello, thus rendering Dr. Millmans negligent absence a simultaneous cause (along with any giving of Versed by nurse Engle) of Mr. Gavellos respiratory arrest. Accordingly, nurse Engles drug dose (if she gave it) was not administered after the conduct of Dr. Millman, rendering Dr. Millmans proferred instruction inapplicable. The superseding cause defense in CACI 433 applies only when an independent event [subsequently] intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible." Soule v. General Motors Corp., 8 Cal.4th 548, 573, fn. 9.)(emphasis added). But where (as here) the causes are concurrent each concurrent tortfeasor [is] fully liable. Ibid. But nurse Engles failure to resuscitate Mr. Gavello was not an independent event. It fell to her to resuscitate Mr. Gavello only because Dr. Millman breached the standard of care by failing to remain presenteither to prevent the respiratory arrest or resuscitate Mr. Gavello himself.

42

Thus, by failing to remain, Dr. Millman put nurse Engle in the position where she had to resuscitate Mr. Gavelloa task she could not competently discharge. Accordingly, Dr. Millman was not entitled to CACI 433 because his departure before Mr. Gavello got up and out from under the anesthesia was concurrent negligence that harmed Mr. Gavello when he foreseeably arrested and needed resuscitationwhich Dr. Millman could competently prevent or treat but which nurse Engle could not.

D.

The instruction would have been improper because any Versed did not solely cause the respiratory arrestand Mr. Gavello died fromlack of resuscitation (not respiratory arrest). To constitute a superseding cause under CACI 433, the third party must have

inflicted the harm for which the plaintiff sues. For example, CACI 433's use notes cite Kane v. Hartford Accident and Indemnity Co. (1979) 98 Cal.App.3d 350, 360, in which the third party alone raped the plaintifffor which the plaintiff sued. Similarly, in Koepke v. Loo (1993) 18 Cal.App.4th 1444, plaintiff was shot and sued the shooter's ex-girlfriend for assuring plaintiff that she had taken possession of the shooter's gun and ammunition but later failing to warn plaintiff that the shooter had regained possession of the gun and ammunition. Even in Koepke, where the shooter had caused the injury (wholly apart from the third partys failure to warn), summary judgment was affirmed for lack of a duty on defendant to warn the plaintiff ("[t]herefore, having no duty, Loo's failure to warn Koepke was not negligence, even though Loo might reasonably be found to have anticipated possible peril to Koepke when Logan retook possession of his gun)." Id. at 1458. And in Richardson v. Ham (1955) 44 Cal.2d 772, 776, where the third parties unauthorized operation of the bulldozers wholly caused plaintiffs injuries, the

43

conduct was still insufficient to relieve defendants' of their negligent failure to lock the bulldozer. Here, by contrast, nurse Engles alleged administration of Versed could not by itself have caused Mr. Gavellos respiratory arrest. Put another way, the drugs Dr. Millman ordered for Mr. Gavello were necessary for the respiratory arrest to occur. For example, even Dr. Benowitz (the sole expert who opined that nurse Engle gave Versed) admitted Mr. Gavellos respiratory arrest was caused not just by Versed but also Demerol, Thorazine and general anesthesia consisting of isoflurane. 14 RT 1498:4-7 (emphasis added). Dr. Benowitz further admitted that Mr. Gavellowasnt being monitored and that once he arrested he wasnt resuscitated properly. 14 RT 1460:1-2 (emphasis added). Thus, CACI 433 was correctly refused because any giving of Versed by nurse Engle could not by itself have caused Mr. Gavellos respiratory arrest (let alone the failure to resuscitatethe ultimate cause of death). For all of these reasons, Dr. Millmans proposed superseding cause instruction was correctly refused.

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II. Refusing the criminal conduct instruction was not prejudicial.

A. The standards for determining prejudice. The Supreme Court has ruled that prejudice from an instructional ruling is determined according to the following criteria: 1. 2. 3. 4. 5. The degree of conflict in the evidence. See Part C, below. The effect of counsels closing argument. See Part D, below. Any indication that the jury might have been confused. See Part E, below. The closeness of the jurys vote. See Part F, below The curative effect of other instructions. See Part G, below.

Soule v. General Motors (1994) 8 Cal.4th 548, 580-581. As shown below, each of these factors shows that refusing the requested instruction was not prejudicial.

B.

Refusing the instruction was not prejudicial because, as the defense admitted, Mr. Gavello died from a lack of resuscitation (not Versed). Refusing the instruction could not have been prejudicial because the instruction

focused only on the alleged administration of Versed and not on the failure to resuscitate, which was the cause of Mr. Gavellos death. The jury was instructed that if Dr. Millmans negligence was a substantial factor in causing the death [(not just the respiratory arrest)] of Gary Gavello, then Dr. Millman is responsible for the harm. 19 RT 2125:20-22. And the jury found Dr. Millmans negligence was a substantial factor in causing the death of Gary Gavello. XAA 27:9-10. Dr. Millman admitted that a "respiratory arrest" "should be treatable" and "should not be deadly." 6 RT 385:7-12 (emphasis added). And no one ever 45

suggested that any administration of Versed caused Mr. Gavello to be beyond resuscitation. As Dr. Benowitz admitted, Mr. Gavello "wasn't resuscitated properly, and [n]o one should ever die from respiratory arrest under medical supervision. 14 RT 1459:2-3, 1460:1-2 (emphasis added). And defense expert Dr. Luce admitted that if the respiratory arrest had been properly managed, it is more likely than not that Mr. Gavello would not have died. 14 RT 1566:3-8 (emphasis added). Thus, it was nurse Engle's failure to handle the respiratory arrest (the danger of which Dr. Millman should have foreseen and stayed to prevent) that caused Mr. Gavello's death. And it was also Dr. Millmans failure to be there to handle the respiratory arrest that caused Mr. Gavellos death (because he left prematurely before Mr. Gavello ever emerged from anesthesia, violating his admitted duty to shepherd Mr. Gavello through all three stagesput him under, keep him under, and bring him out). In sum, because Dr. Millman was not there to resuscitate Mr. Gavello, and because he left Mr. Gavello with nurse Engle (whose resuscitation skills he knew were deficient), Mr. Gavello died due to lack of resuscitation. 18 RT 2087:12-19 (Dr. Millmans counsels closing argument). Accordingly, because Mr. Gavello died due to lack of resuscitation, the superseding cause instruction would not have changed the jurys verdict.

C.

The great weight of the evidence is that nurse Engle did not give Versedonly Dr. Benowitz believe[d] she did, even though he had no specific information that she did. For three reasons, the speculation by Dr. Benowitz that nurse Engle gave

Versed does not constitute a conflict in the evidence. First, Dr. Benowitzs belie[f] that nurse Engle gave Versed was either refuted or rendered irrelevant by other evidence, including:

46

(1) His own opinion that Mr. Gavello's respiratory arrest was caused not just by the Versed found in his blood but also Demerol, Thorazine and general anesthesia consisting of isoflurane." 14 RT 1498:4-7. (2) Both anesthesia experts said that the clinical effect of intravenous Versed is going to be in about three or four minutes. 15 RT 1715:5-7 (Spina) (emphasis added); accord 11 RT 11 RT 1129:22-1131:3 (Halperin). (3) San Francisco Medical Examiners opinion that no reasonable scientific data can support [the] contention" that "someone gave Mr. Gavello Versed half an hour before his respiratory arrest" and that instead Mr. Gavello was not metabolizing Versed and that it is more probable than not that the Versed in his system was there from the surgery. 8 RT 74-:7-741:9, 751:11-16; accord 8 RT 757:20-758:7. (4) Dr. Halperins opinion that the most likely explanation for the Versed in Mr. Gavellos blood was that he was a slow metabolizer of Versed (11 RT 1131:18-24) and that any additional dose of Versed, would have triggered a respiratory arrest minutes after it's given, and if Mr. Gavello had received this mythical Versed dose an hour or half-hour beforehand or he would have been down way too long and the code team could not have resuscitated him in any way, shape or form. 11 RT 1129:22-1131:17.8 Second, Dr. Benowitzs belie[f] was weak. Though Dr. Benowitz's opinion was based solely on the level of Versed in Mr. Gavello's blood, he admitted that: (1) The "metabolism of Versed varies between individuals." 14 RT 1507:2-4.

At deposition, Dr. Benowitz opined that somebody gave Mr. Gavello a dose of Versed within an hour and half-hour before the respiratory arrest (11 RT 1129:21-26, 1131:6-10), but at trial (and after plaintiffs expert testified), he altered his opinion to the Versed being administered within 20 or 30 minutes of the time he stopped breathing. 14 RT 1459:25-27 (emphasis added). At 20 minutes, the Versed would still have triggered the arrest to early to have fit within the timing of Mr. Gavellos resuscitation. 47

(2) Though he believe[d] nurse Engle gave Versed, he had no specific information that she did." 14 RT 1459:21-1460:1. (3) "[D]etermining causes of patients' death on a daily basis" was "not part of [his] scope of medical practice." 14 RT 1487:15-18. (4) His opinion was based not on his "own research" but instead was "from a couple of articles that [he] found in the medical literature" where the volunteers had received only Versed and none of the other drugs that Mr. Gavello received "Valium, Isoflurane, Demerol, Thorazine, Droperidol." 14 RT 1514:7-28, 1515:6-17. Finally, the weight of the evidence showed the oppositethat nurse Engle did not give Versed: Dr. Brown testified that taking an inventory of the drugs in his office right after the incident, "all of the [Versed] was accounted for." 8 RT 645:12-647:4. Moreover, Dr. Millman admitted that nurse Engle said on the phone that she had given Demerol and Thorazine. 14 RT 1513:15-18. If she had given Versed, there would have been no reason for her not to mention that gave it to control his persistent restlessness. When talking to the San Francisco Medical Examiner, Dr. Millman never claimed he did not authorize the drugs that Tina Engle gave to Gary Gavello." 8 RT 773:19-22. Though Dr. Millman's counsel was free to ask nurse Engle at trial whether she had administered the Versed post-operatively (as the AOB concedes at p. 24), he chose not to.

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D.

Plaintiffs closing argument would have applied even under the requested instruction. Dr. Millman claims that plaintiffs counsels closing argument contributed to

[the] misleading effect of the refused instruction. AOB at 47. But plaintiffs counsels arguments would have applied equally under the requested instructionand so did not take advantage of the courts refusal to give it. Specifically, plaintiffs counsels arguments that even if nurse Engle was either negligent or didnt do everything right, it didnt absolve Dr. Millman would have applied whether the requested instruction was given or not. 18 RT 1996:11-28 ; AOB 47-48. Similarly, plaintiffs counsels argument that nurse Engles theft of the monitor, while totally unacceptable, didnt cause anything and was not a causative factor in [Mr. Gavellos] death would have been unchanged by the issuance of the requested instructionno evidence showed that the theft of the monitor was related to or triggered by her giving Versed (assuming arguendo that she did). 18 RT 2106:1-8; AOB at 48. Finally, the causation instructions would have been highly relevant in this case regardless of whether the requested instruction was issued or not. Thus, plaintiffs closing argument was not prejudicial nor did it take advantage of the courts refusal of Dr. Millmans superseding cause instruction.

E.

The Jurys readback request does not show prejudice. Dr. Millman claims the jurys readback request shows that refusal of the

requested instruction was prejudicial because it showed the jury was focused on whether Nurse Engle reported to Nurse Landdeck that she had administered a dose of Versed to Mr. Gavello and what Nurse Engle reported to [Dr. Brown] about [Mr. Gavellos] vital signs and drugs she had administered. AOB at 49-50.

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To the contrary. Nurse Landdecks cross-examination showed nurse Engle never said whether she had administered Demerol, Versed, or Thorazinejust remember[ed] that [nurse Engle] had treated [Mr. Gavello] for pain. 6 RT 401:22-28 (emphasis added); accord AOB at 50. But nurse Engle said Dr. Millman told her to give Demerol (not Versed) for pain. 9 RT 826:13-827:3. And, as the defense expert anesthesiologist admitted, Versed is a drug thats used for sedationnot for pain. Moreover, the jury also requested a passage from Dr. Browns testimony about phone call made on the way home, (while on bike) to Tina Engle. 20 RT 2144:8-11. The jury instead was read the testimony concerning his later call before the arrest. 20 RT 2146:8-9; AOB at 49. Accordingly, not only did the readback of Nurse Landdecks testimony fail to show that refusal of the instruction was prejudicial, it reinforced evidence that nurse Engle never gave Versed, contrary to Dr. Millmans claim.

F.

In light of the jurys near-unanimous (11-1) negligence verdict and the defense admissions that Versed alone could not cause respiratory arrest, the jurys 9-3 causation verdict does not suggest prejudice. Dr. Millman is wrong to claim that the jurys 9-3 verdict on causation shows

prejudice. AOB at 50. First, Dr. Millman ignores the nearly-unanimous (11-1) verdict on negligence. 23 RT 2170:26-2171:4. Second, Dr. Millman ignores the admissions of his own expert and counsel (out of the presence of the jury) that Versed alone could not have killed Dr. Millman and that all the drugs Dr. Millman ordered contributed to the respiratory arrest. As Dr. Millmans counsel admitted, Millman gave [Mr. Gavello] a lot of medication" and Mr. Gavello's death was caused by "the whole thing" and not "one shot" of Versed in the "post [operative] period" (15 RT 1775:5-15). And, as Dr. Millmans expert (Dr.

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Benowitz) admitted, "Mr. Gavello's respiratory arrest was caused" not just by Versed but also "Demerol, Thorazine and general anesthesia consisting of isoflurane. 14 RT 1498:4-7. Third, Dr. Millmans claim that, because the jury clearly believed that nurse Engle acted improperly, there was a reasonable probability that they would have concluded she acted criminally/intentionally is illogical. First, a jurys conclusion that one person acted improperly, does not make it reasonably probable that the jury would also conclude the person acted criminally/intentionally. Second, a conclusion that nurse Engle administered Versed intentionally (but without intent to harm) would be insufficientonly a conclusion that Nurse Engle acted with criminal intent could trigger a superseding cause defense. Thus, the jurys 9-3 verdict on causation is irrelevant and does not show that, had the refused instruction been given, there is a reasonable probability that the jury would have found nurse Engles administration of Versed to be criminaland thus a superseding cause.

G.

Effect of other instructions: Other instructions embraced the issue and would have compelled the same result. 1. Another instruction (which Dr. Millman does not assert was erroneous) required the jury to hold Dr. Millman liable for nurse Engles negligent resuscitation if he negligently left early. The jury was instructed that any negligence by Dr. Millman made him liable for

nurse Engles later negligent resuscitation of Mr. Gavello: If you decide that Doctor Bernard Millmans medical negligence was a substantial factor in causing Gary Gavellos respiratory arrest, hes also responsible for any additional harm resulting from the acts of others in providing medical treatment or other aid that Gary Gavellos respiratory arrest reasonably required, even if those acts were negligently performed.

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19 RT 2125:26-2126:4 (emphasis added). Notably, Dr. Millmans counsel admitted in closing to the jury that, if the jury were to find that Dr. Millman breached the standard of care it would be for leaving too early. 18 RT 2081:9-12 (emphasis added). Thus, even if the superseding cause instruction were given and the jury believed that nurse Engles administration of Versed relieved Dr. Millman for his negligent administration of multiple central nervous system depressants, his negligent and premature departure would have required the jury to hold him liable for nurse Engles negligent failure to resuscitate Mr. Gavello.

2.

The substantial factor instruction embraced Dr. Millmans superseding cause defenseas shown in his closing argument.

As the California Supreme Court held in Soule, the omission of [defendants] proposed language did not cause an entire absence of instructional support for [the] defense. Soule v. General Motors, 8 Cal.4th 548, 581. Here, too, the substantial factor instruction was sufficient to embrace Dr. Millmans superseding cause theory. The jury was instructed that a substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm and that it must be more than a remote or trivial factor. 19 RT 2125:13-15 (emphasis added). And Dr. Millmans counsel argued his superseding intervening defense theory to the jury by claiming that any negligence by Dr. Millman was only remote or trivial: The Versed in the blood answered the question of causation. But the problem is, for the Plaintiffs anyway, the problem is Doctor Millman didnt give the Versed that was in his blood. 18 RT 2083:12-14 (emphasis added). Dr. Millmans counsel argued that if the Versed caused this, then there can be no causal relationship for Doctor Millman. 18 RT 2087:3-4. Accordingly, he argued, [a]nything Doctor Millman did or didnt do could not be the reason for the

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Versed. And therefore you can find no causation in this case. And no toxicologist has disputed that. 18 RT 2087:4-7. Dr. Millman argued that, other than Versed, any other cause could be only remote and trivial because the Versed was the all-important issue: The versed would be the answer to the dilemma that all of these doctors have been looking for for all this period of time until they got the blood and the blood finally answers the question. 18 RT 2086:27-2087:2. Indeed, Dr. Millmans brief admits that even under the instructions given, Versed was accorded primacy during the parties closing argument. AOB at 29 (Defendants counsel then emphasized . . . that the patients respiratory arrest was caused by an administration of Versed shortly prior and [p]laintiffs accorded primacy to the Versed issue).

III. Any retrial should be limited to Dr. Millmans superseding cause defense.
If this court holds the refusal of CACI 433 to be reversible error, only the superseding cause defense should be triedthe jurys liability and damage findings are not at issue in this appeal and were not affected by the refusal of the instruction. Because the superseding cause defense is not intertwined with Dr. Millmans liability as a substantial factor or with damages, Dr. Millmans AOB is wrong to claim that any retrial should be on all issues. AOB at 53. As the Supreme Court has held, [i]t is a firmly established principle of law that the appellate courts have power to order a retrial on a limited issue, if that issue can be separately tried without such confusion or uncertainty as would amount to a denial of a fair trial. Torres v. Automobile Club of So. Calif. (1997) 15 Cal.4th 771, 776. Torres limited the issue on retrial to whether and when one of the defendants sold a truck (that determined whether that defendant would be relieved of liability). 53

Here, as in Torres, the issue of whether Versed (if the jury finds she gave it) constituted an intervening superseding cause can be separately tried without such confusion or uncertainty as would amount to a denial of a fair trial. The AOB cites In re Marriage of Martinez (1984) 156 Cal.App.3d 20, 34 as support for this argument. But that case is inapplicablethere, the reversal of the community property award rendered retrial of the spousal support issue necessary because the issues were intertwined: the trial court determined the amount of spousal support in light of the community property appellant was to receive. Id. at 35. Here, by contrast, the issues are not intertwined. Indeed, Dr. Millmans success on any superseding cause would relieve him of all liability despite the jurys determinations on liability and damages. Thus, a retrial on all issues is not warranted and would consume judicial resources unnecessarily. CONCLUSION For the foregoing reasons, plaintiffs and respondents respectfully request that the judges posttrial order reducing non-economic damages to comply with the MICRA cap be reversed on the ground that the cap is unconstitutional and that the trial court be directed to enter judgment on the jurys verdict. Dated: June 25, 2012. Respectfully submitted, WALKUP, MELODIA, KELLY & SCHOENBERGER PAUL MELODIA MELINDA DERISH SMITH & MCGINTY By:____________________________ Daniel U. Smith Attorney for Appellants

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CROSS-APPELLANTS OPENING BRIEF INTRODUCTION Based on Mr. Gavellos death, the trial court awarded Mrs. Gavello and the avellos three children noneconomic damages of $1,000,000. (Cross-Appellants Appendix [XAA] p. 27:22. But the judgment awards the plaintiffs just $50,000 in noneconomic damages. 24 RT 2202:3-7. This drastic reduction in noneconomic damages was based, not on the evidence of plaintiffs noneconomic injuries, but on two statutes: (1) Civil Code section 3333.2, which, as part of the Medical Injury Compensation Reform Act of 1975 (MICRA), caps noneconomic damages at $250,000, regardless of the evidence of noneconomic injury and regardless of the number of wrongful death plaintiffs; and (2) Proposition 51, which requires apportionment of fault, so that Dr. Millman, who was found 20% responsible for Mr. Gavellos death, would pay only 20% of plaintiffs noneconomic damages. The trial courts drastic reduction in noneconomic damages raises four issues, each of which requires reversal of the judgment and this Courts entry of a corrected judgment based on the analysis set forth below. These rulings were error because section 3333.2 denies severely injured medical malpractice plaintiffs: (1) their constitutional right to trial by jury (see Part I, below); (2) their constitutional right to equal protection of the law (see Part II, below). Moreover, the trial court, in determining the amount of the judgment, made two erroneous calculations: (3) Reducing $1,000,000 in noneconomic damages to $250,000, and then applying Proposition 51 to further reduce noneconomic damages to just 20 percent of $250,000, or $50,000 (See Part III.B; and

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(4) In determining the size of the credit that Dr. Millman received from Dr. Browns settlement, the trial court lowered the noneconomic damages component of Dr. Browns settlement by using $250,000 (based on MICRAs cap) rather than the actual award of $1,000,000, thereby increasing the credit for economic damages that Dr. Millman received from Dr. Browns $1,000,000 settlement from $748,600 to $922,500, thereby costing plaintiffs approximately $173,900. See Part III.C, below.

A.

Denial of the inviolate right to jury trial. The $250,000 damages cap in section 3333.2 violates the plaintiffs

constitutional right to trial by jury. California Const., Art. I, section 16, provides in part: "Trial by jury is an inviolate right and shall be secured to all . . . ." Accordingly, plaintiffs had a constitutional right to have their noneconomic damages determined by a jury, subject only to the common law power of the trial judge or of this court to remit an excessive award. When the Legislature imposed a flat $250,000 ceiling on noneconomic damages, without regard to the evidence showing the nature and extent of the plaintiffs noneconomic damages and without regard to the number of plaintiffs injured by the defendants medical malpractice, the Legislature violated each plaintiffs constitutional right to have noneconomic damages determined by the jury. This issue, arising from the constitutional guarantee of trial by jury, has never been addressed by the California Supreme Court, and other state courts have struck down damages caps as violative of the right to trial by jury. See Part I, below.

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B.

Discrimination: Unconstitutional denial of equal protection. No person may be denied equal protection of the laws. Cal. Const., art. I.,

7(a). But the $250,000 noneconomic damages cap in Civil Code section 3333.2 violates this constitutional requirement because the damages cap discriminates without having a rational basis. In 1975, the Legislature found that the "rational basis" for the damages cap was to prevent skyrocketing medical malpractice insurance rates that jeopardized health care. Cal. Stats. 1975, Second Ex. Sess., ch. 2, 12.5, p. 4007. That rational basislimiting noneconomic damages in order to limit medical malpractice insurance ratesevaporated in 1988 when the enactment of Proposition 103 required the Insurance Commissioner to disapprove excessive medical malpractice insurance rates. Ins. Code 1861.05.9 The Department of Insurance has exercised this power to reduce excessive malpractice rates several times since 1988, most recently in 2012 when the Department of Insurance reduced the rates of six medical malpractice insurers by as much as 19%. (See Part II.E.4.a, below, and Request for Judicial Notice.) Thus, Proposition 103 constitutes changed circumstances, compelling this Court's ruling that MICRAs discriminatory damages cap no longer has a rational

Section 1861.05 provides: Approval of Insurance Rates. (a) No rate shall be approved or remain in effect which is excessive, inadequate, unfairly discriminatory or otherwise in violation of this chapter. (Emphasis added). 57

basis and so is unconstitutional. As the Supreme Court held in Brown v. Merlo (1973) 8 Cal.3d 855: a classification which once was rational because of a given set of circumstances may lose its rationality if the relevant factual premise is totally altered. Id. 869 (emphasis added). As shown below, the "factual premise" of section 3333.2the need in 1975 to prevent "skyrocketing" medical malpractice insurance ratesis now "totally altered" because the Department of Insurance has the power (and has exercised that power) to prevent skyrocketing insurance rates. Thus, in light of Proposition 103's protection from excessive rates, MICRAs damages cap that discriminates against the most severely injured plaintiffs no longer has a rational basis and so is unconstitutional. See Part II, below.

C.

Erroneous reduction of noneconomic damages to $250,000 before apportioning fault. Finally, two errors in determining noneconomic damages erroneously reduced

the amount of the judgment. First, in determining the judgments award of noneconomic damages, the trial court applied section 3333.2's damages cap to reduce the jurys $1,000,000 award to $250,000 for all plaintiffs and then applied the proportionate formula in Proposition 51 to further reduce plaintiffs noneconomic damages to 20% of $250,000, or $50,000. To award a widow and three children noneconomic damages of $50,000 for the wrongful death of their husband and father is an insupportable miscarriage of justice. If the trial court had reversed the order of its calculation by applying first Proposition 51 and then section 3333.2, the result would have increased the noneconomic damages award by $150,000 but still would have complied with both

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statutes: 20% of $1,000,000 = $200,000 under Proposition 51, which is less than MICRAs cap of $250,000. See Part III.A, below. Second, in determining the size of the credit that Dr. Millman would receive based on Dr. Browns $1,000,000 settlement, the trial court determined the ratio between the economic damages and the noneconomic damages portion of Dr. Browns settlement by using $250,000 (based on MICRAs cap) rather than the actual noneconomic damages award of $1,000,000. By using the smaller amount for noneconomic damages, the trial judge increased the credit for economic damages that Dr. Millman received from $748,600 to $922,500, thereby costing plaintiffs approximately $173,900. See Part III.B, below. The foregoing analysis presents the following issues.

D.

Issues presented. 1. Does section 3333.2, by reducing noneconomic damages to $250,000, without regard to the jurys evidence-based award of damages, violate the constitutional guarantee that the right to trial by jury shall be inviolate? 2. In light of the Insurance Commissioners power to bar excessive insurance rates under Proposition 103, does MICRAs discrimination against severely injured plaintiffs under Civil Code section 3333.2 still have a rational basis, or does section 3333.2 violate the constitutional guarantee to equal protection of the laws? 3. If section 3333.2 is constitutional, then two issues arise: (A) In a case involving multiple tortfeasors and an award of noneconomic damages over $250,000, should the trial court first apportion damages under Proposition 51 and then apply section 3333.2's damages cap (if needed), or reduce damages to

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the $250,000 cap and then apportion the cap among all tortfeasors (as the trial court did)? (B) In determining the credit to which a medical malpractice defendant is entitled from another tortfeasorss settlement, should the trial court determine the ratio of economic to noneconomic damages in the settlement by using the jurys award of noneconomic damages or $250,000 based on the MICRA cap (as the trial court did)?

PROCEDURAL HISTORY After the death of Gary Gavello, suit was filed by his wife, Kristina Gavello, and his three children, Aubrey, Garret, and Bryant, by and through their guardian ad litem.

A.

The instructions allowed a fully compensatory award, without arbitrary limit. The plaintiffs were entitled to noneconomic damages, according to the

following instructions: The Plaintiffs also claim the following non-economic damages: The loss of Gary Gavello's love, companionship, comfort, care, assistance, protection, affections, society, moral support; and with respect to Kristina Gavello, the loss of the enjoyment of sexual relations. With respect to Aubrey Gavello, Garrett Gavello and Bryant Gavello, the loss of Gary Gavello's training and guidance. No fixed standard exist for deciding the amount of noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense. For non-economic damages, determine the amount in current dollars paid at the time of judgment that will

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compensate Plaintiffs for these damages. The amount of non-economic damages should not be further reduced to present cash value because that reduction should only be performed with respect to economic damages. In determining Plaintiffs' loss, do not consider the Plaintiffs' grief, sorrow, or mental anguish, Gary Gavello's pain and suffering, or the poverty or wealth of the Plaintiffs. RT 2127:3-22.

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B.

The jury awarded the four plaintiffs $1,000,000. The jury awarded the plaintiffs noneconomic damages of $1,000,000.

Respondents Appendix (RA) p. 27:22. The jury apportioned 20% fault to Dr. Millman. RA 29:2.

C.

The judgment reduced $1,000,000 in noneconomic damages to $50,000$12,500 per plaintiff. After posttrial briefing and a hearing, first reduced the award of noneconomic

damages by applying the $250,000 damages cap in section 3333.2, then reduced the award further by limiting the award to Dr. Millmans proportionate share of fault (20%) under Proposition 51 (Civil Code section 1431.2) and then apportioning plaintiffs a total of $2,105,330.50. The judge refused to find MICRAs cap on noneconomic damages to be unconstitutional, but said: For what its worth, I think its unfair, comparing it to some of the applications of the three-strikes law in the criminal setting. 24 RT 2191:16-20. Regarding the sequence of applying MICRAs $250,000 cap and Proposition 51's apportionment of fault, the judge said: I am going to apply [MICRAs] 250 reduction before I do the ratio for apportionment of fault required by Proposition 51. 24 RT 2202:2-7. Under this sequence, the judge reduced noneconomic damages first to $250,000 and then to 20% of $250,000$50,000.

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I. Denial of right to jury trial: MICRAs $250,000 cap abrogates the jurys noneconomic damages award.
Californias Constitution guarantees that the right to trial by jury shall remain inviolate: Trial by jury is an inviolate right and shall be secured to all . . . . Cal. Const., Art. I, 16 (emphasis added.) But here, the Legislature violated plaintiffs' right to trial by jury by imposing an absolute $250,000 cap that abrogates the jury's award, regardless of the evidence and without plaintiffs consent. The Supreme Court has never addressed whether the $250,000 damages cap in section 3333.2 violates a plaintiffs constitutional right to jury trial. Hence, the issue is open for this Court to consider afresh.

A.

The caps arbitrary $250,000 limit on a jurys compensatory award regardless of the evidence and without plaintiffs consentviolates the right to trial by jury. 1. The Constitution guarantees that the judgment reflect the jurys award of damages.

The jury has unabridged authority to calculate damages for pain and suffering. See Scally v. W.T. Garratt & Co. (1909) 11 Cal.App. 138, 146-47; Langdon v. Superior Court (1923) 65 Cal.App.41, 43-44; Farrell v. City of Ontario (1919) 39 Cal.App. 351, 353-357. "Any act of the Legislature attempting to abridge the constitutional right [to a jury trial] is void." People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 287 (citations omitted). The plaintiffs noneconomic damages comprise a "genuine [detriment] that requires compensation, and the issue generally must be resolved by the `impartial conscience and judgment of jurors who may be expected to act reasonably, 63

intelligently and in harmony with the evidence.'" Capelouto v. Kaiser Found. Hosp. (1972) 7 Cal.3d 889, 893 (citations omitted) (emphasis added). "[I]n light of contemporary knowledge we conclude that emotional injury may be fully as severe and debilitating as physical harm, and is no less deserving of redress." Molien v. Kaiser Found. Hosp. (1980) 27 Cal.3d 916, 918.

2.

The right to jury trial bars judicial reductions of a damage award without plaintiff's consent.

The jury trial right requires that any change to the jury's damages award (by remittitur or additur) be conditioned on the affected party's consent or, in absent consent, a new trial. In the event of remittitur or additur, the party against whom the reduction or increase is ordered may object and either accept a new trial or reject it and seek to sustain the jury's award on an appeal from the order granting a new trial." Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821, 833 (emphasis added). Jehl explained that the affected partys consent is required in order not to violate the constitutional right to jury trial. Specifically, Jehl ruled that additur did not "detract[] from the substance of the common law trial by jury" because additur protects the defendant's right to a jury trial by allowing "the court in its discretion [to] issue an order granting the motion for new trial unless the defendant consents to an additur as determined by the court. . . . If the defendant fails to consent within the prescribed time, the order granting the new trial becomes final." Id. at p. 832. In short, the alteration of the jury's damage award is constitutional only because the affected party preserves its right to jury trial by having the power to withhold consent, and so obtain a new trial. Before Jehl, both the U.S. Supreme Court and the California Supreme Court regarded jury findings of fact so sacred under the right to jury trial that damage awards could not be modified even by the judge, except with the consent of both parties. Dimick v. Schiedt (1935) 293 U.S. 474; Dorsey v. Barba (1952) 38 Cal.2d

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350. For example, Dorsey recognized that an additur might fall short of the damages that a jury in a new trial would provide: An essential element of [a jury] trial, however, is that issues of fact shall be decided by a jury, and the assessment of damages is ordinarily a question of fact. The jury as a fact-finding body occupies so firm and important a place in our system of jurisprudence that any interference with its function in this respect must be examined with the utmost care. * * * * The assessment of damages by a court . . . constitutes more than a technical invasion of the plaintiff's right to a jury determination of the issue. * * * * [I]t is not the mere form of a jury trial to which one is entitled under the Constitution, but the fundamental right to have a jury determination of a question of fact. Dorsey, supra, 38 Cal.2d at p. 356, 358. Though Jehl overruled Dorsey, it did so to accommodate "the demands of fair and efficient administration of justice" in disposing of a "tremendous increase in filings in civil cases including contested matters." Jehl, supra, 66 Cal.2d at pp. 828829. Section 3333.2, by contrast, in denying the jury's finding on damages without the plaintiff's consent or the alternative of a new trial, does not promote "the demands of fair and efficient administration of justice." Neither the Legislature nor the Supreme Court in Fein rested their approval of the damages cap on that basis. Indeed, section 3333.2 destroys the "fair administration of justice" by requiring a few seriously-injured medical malpractice plaintiffs to bear the entire burden of a systemic imbalance in the medical malpractice insurance industry, even though the plaintiffs receive no offsetting benefit and the systemic imbalance that section 3333.2

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addressed is now fully remedied by the Insurance Commissioner's rate-setting authority under Proposition 103. In sum, section 3333.2's damages cap violates plaintiffs constitutional right to a jury trial because it mandates an absolute reduction of the jury's award without affording plaintiffs either the judge's determination based upon a review of the evidence or a new trial, as required by Jehl (and as provided by Code Civ. Proc. section 662.5). It follows that section 3333.2 violates plaintiffs right to jury trial because the arbitrary reduction to $250,000 does not require plaintiffs consent or offer the alternative of a new trial.

3.

Other state courts hold that damages caps violate the right to jury trial.

Courts in other states adopt the analysis advanced herein to rule that damages caps in medical malpractice cases violate the state constitution's right to jury trial. For example, in a wrongful death case, the Washington Supreme Court ruled that a cap on noneconomic damages was unconstitutional under that state's "inviolate" right of jury trial. Sofie v. Fibreboard Corp. (Wash. 1989) 771 P.2d 711, 716, amended, 780 P.2d 260. Sofie ruled that "inviolate" means the jury trial right is "deserving of the highest protection." Id. at p. 721. Sofie found "that the statute's damages limit interferes with the jury's traditional function to determine damages." Id. at p. 712. "[T]he legislature may not preempt a jury's findings on a factual issue which has properly been submitted to the jury." Id. at p. 722 (citation and quotation omitted). Sofie distinguished the statutory cap from judicial remittitur because (1) judicial remittitur evaluates "the evidence," whereas the "Legislature cannot make such case-by-case determinations"; (2) judges exercise remittitur "under well developed constitutional guidelines"; and (3) the alteration of the verdict does not violate the jury trial right because the party opposed to remittitur may accept the reduction or "seek[] a new trial." Id. at pp. 720-721.

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Similarly, in Lakin v. Senco Products, Inc. (Or. 1999) 987 P.2d 463, the Oregon Supreme Court struck down a damages cap as violating the jury's authority to determine "[t]he amount of damages." Id. at pp. 468-472. Lakin deemed the statutory cap to be violative of the jury trial right based on the following differences from judicial remittitur: (1) the legislative cap is mandatory, not discretionary; (2) remittitur requires judicial review of "the facts in a specific case"; (3) remittitur allows a new trial if a party does not consent; (4) remittitur may not alter a verdict that is supported by substantial evidence and free from error; (5) remittitur allows a plaintiff to obtain a verdict that exceeds the statutory cap. Id. at p. 472.10 Other out-of-state cases holding damages caps on noneconomic damages violate the constitutional right to jury trial include Moore v. Mobile Infirmity Ass'n (Ala. 1991) 592 So.2d 156 ($400,000 cap), and Smith v. Department of Insurance (Fla. 1987) 507 So.2d 1080 (per curiam)($450,000 cap). In sum, California's "inviolate" right to jury trial entitles parties to findings of fact (including awards of damages) that are rendered by the jury. The only constitutional exception to this right is the judge's power of additur and remittitur. But that power is conditioned on the consent of the party against whom the judgment was raised or lowered, and the availability of a new trial if consent is not given. Because the statutory damages cap is mandatory)without requiring consent or a new trial)it violates the constitutional right to trial by jury. Accordingly, the statutory damages cap must be declared unconstitutional.

Lakin's acceptance of caps in wrongful death cases is inapposite under California's test for applying the jury trial right to actions whose "gist" is similar to the gist of common law actions in 1850. See Discussion, Part III.B, below.
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10

4.

Yates and Stinnett are inapposite.

The two appellate decisions that have ruled on the jury trial issue are not controlling. Though Yates v. Pollock (1987) 194 Cal.App.3d 195, held that section 3333.2 did not violate the right to a jury trial, Yates is not controlling here for two reasons. First, Yates relied entirely on Feins rationalethat section 3333.2 was justified by the 1975 crisis in insurance and healthcarebut Fein did not address the constitutional right to jury trial. Moreover, as shown in Part I, Feins rationale is no longer valid because starting in 1988 Proposition 103 gave to the Insurance Commissioner authority to prevent excessive rates. But because Yates was decided in 1987, Yates could not consider the effect of Proposition 103 in preventing excessive rates and thus eliminating any rational basis for section 3333.2. Under stare decisis, the force of Yates is limited to the "facts and issue then before the court . . . ." People v. Banks (1993) 6 Cal.4th 926, 945. The interpretation of Yates must "reflect[] the circumstances under which it was rendered and its statements should be considered in context." Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908, 919, fn. 6 (citations and quotations omitted). Second, Stinnett v. Tam (2011) 198 Cal.App.4th 1412, followed Yates, but failed to consider Proposition 103 (not yet enacted when Yates was decided) in comprehensively regulating insurance rates and protecting healthcare providers from the 1975 problem of skyrocketing ratesthereby eliminating any rational basis for the MICRA caps denial of the right to jury trial. Finally, nothing prevents this Court, of equal dignity with the courts that decided Yates and Stinnett, from reaching a contrary conclusion. Garza v. Asbestos Corp. LTD (2008) 161 Cal.App.4th 651, 659, fn. 5.

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II. Denial of equal protection: No rational basis justifies MICRAs discriminatory damages cap.
A. The constitutions equal protection guarantee requires that statutory classifications have a rational basis. Californias Constitution guarantees to every person equal protection of the laws: "A person may not be . . . denied equal protection of the laws . . . ." Cal. Const., art. I., 7(a). Also, Article I, sections 11 and 21 of the California Constitution guarantee to every person that [a]ll laws of a general nature shall have a uniform operation and that [no] citizen, or class of citizens, [shall] be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens. These provisions require, at a minimum, that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. Brown v. Merlo (1973) 8 Cal.3d 855, 861. The statutory classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Ibid. (Citations omitted.) The constitution requires some rationality in the nature of the class singled out. Ibid. (Citations omitted.) The equal protection guarantee of Californias constitution assures that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578.

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B.

Standard of review: Courts conduct a serious and genuine inquiry on whether the statute has a plausible and reasonably conceivable rational basis. A court evaluating a constitutional challenge to MICRA must conduct "a

serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals." Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 163 (emphasis added). Courts must conduct a serious and genuine inquiry into whether the statute is supported by a plausible and reasonably conceivable rational basis. Warden v. State Bar (1999) 21 Cal.4th 628, 644, 648. Fein warned that courts may not uphold a discriminatory statute by "invent[ing] fictitious purposes that could not have been within the contemplation of the Legislature . . . nor ignor[ing] the disparity in treatment which the statute in realistic terms imposes. Fein, supra, 38 Cal.3d at 163.

C.

A statute becomes unconstitutional if the relevant factual premise for the statutes rational basis is totally altered." The Supreme Court has held that a statute loses its constitutionality where the

relevant factual premise for the statutes rational basis is totally altered." Brown v. Merlo (1973) 8 Cal.3d 855. Brown v. Merlo held unconstitutional the guest statute because (as here) the rational basis that originally justified the guest statute no longer existed. The guest statute reviewed in Brown barred recovery by nonpaying passengers against the driver unless the driver was intoxicated or committed willful misconduct. Brown struck the statute down for discriminating among classes of passengers because the statutes two original justifications) (1) to encourage the driver's "hospitality" and (2) to prevent collusive suits)were no longer valid. As for the goal of promoting "hospitality," that justification was no longer valid for many reasons, including the widespread advent of insurance, which shifts

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financial responsibility for the plaintiffs injury from the host to the motoring public. Brown, supra, 8 Cal.3d at 868; see generally, id. at 864-872. And as for the goal of preventing collusive suits, that goal is now achieved by rooting out collusion when it actually arises, rather than by imposing a blanket ban on recovery for an entire class of persons. Id. at pp. 872-878. Hence, the statute's discriminatory classification was no longer "rational" because these changed conditions eliminated the basis for the statute: One of the most basic, and familiar, tenets of the common law is that "[w]hen the reason of a rule ceases, so should the rule itself." (Civ. Code, 3510.) . . . The governing constitutional test, again, is whether a statute's classification bears a rational relation to a legitimate state interest; a classification which once was rational because of a given set of circumstances may lose its rationality if the relevant factual premise is totally altered. Brown v. Merlo, supra, 8 Cal.3d at p. 868-869 (emphasis added). Because the reason for the damages cap has "ceased," the cap has no basis to justify its discrimination. Other Supreme Court decisions hold statutes unconstitutional because (as here) the premise on which the Legislature passed the statute is found not to be valid. For example, in Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, the Court applied the due process clause to strike down the part of Proposition 103 that generally reduced insurance rates to 20 percent of the rates in effect a year before enactment, the Supreme Court relied on evidence that the circumstances leading to passage of Proposition 103 were not a "temporary" "emergency" of "such enormity" that "all individuals might reasonably be required to make sacrifices for the common weal." Id. at pp. 820-821 (citation and quotations omitted). The evidence showed instead "a long term, chronic situation which will not be solved by compelling insurers to sell at less than a fair return for a year. . . . [W]e do not perceive any short

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term conditions that would require depriving [insurers] of a fair return. Id. at p. 821. Based on this evidence, the Court ruled the 20% roll-back provision violated due process. Id. at pp. 821-822. In short, because the Legislatures asserted rational basis was found by the Court not to exist, a portion of the initiative was declared unconstitutional. Similarly, in Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, where the Court held unconstitutional a salary cap statute, the Court found that the supposed fiscal crisis asserted by the Legislature to justify the salary cap did not exist. In Sonoma County the Legislature sought to offset Proposition 13's limits on local tax revenues by distributing surplus funds from the state treasury to local agencies. The challenged statute imposed a salary cap on local public employees by providing that the states surplus funds would be withheld from any local agency that abrogated a preexisting labor agreement requiring a cost-of-living salary increase greater than the increase received by state employees. Id. at p. 302-303. This Court struck down the salary cap on local public employee wages based on evidence that the fiscal crisis cited by the Legislature to justify the ban on salary increases did not exist. Specifically, the Court noted that, because five-sevenths of the projected loss had already been transferred from the state surplus to local agencies, the actual loss was much less than projected by the Legislatureinsufficient to justify invalidating the wage increases. Id. at p. 311. Based on this evidence, this Court ruled the statutory salary cap unconstitutional for impairing contracts and violating the rights of charter cities and counties. Id. at pp. 303-318. The foregoing three Supreme Court decisions show that it is a courts obligation to investigate the validity of the asserted rational basis for an initiative or statute challenged as unconstitutional. Where that investigation shows that the basis asserted

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for the initiative or statute does not exist, a courts duty is to declare the statute (or a portion of it) unconstitutional. That is what should occur here because (as shown below), the rational basis upon which section 3333.2's damages cap was enacted and upheld by the Supreme Court no longer exists. Accordingly, though section 3333.2 was held constitutional by the Supreme Court in Fein in 1985, that decision is not controlling here because that decision based the constitutionality of section 3333.2 entirely on a factual basis that has since been totally altered by Proposition 103. Enacted in 1988 (three years after Fein), Proposition 103 gave the Insurance Commissioner rate- regulation powers that comprehensively prevent excessive rates, rendering section 3333.2 superfluous.

D.

Section 3333.2's damages cap was enacted to resolve a medical malpractice insurance crisis that threatened health care. 1. In 1975, "skyrocketing" medical malpractice insurance rates threatened California's health care system. In 1975, medical malpractice insurance rates "skyrocketed" in California,

threatening the delivery of health care services. For example, in 1975, two of California's largest insurers, Travelers and Argonaut Insurance, increased medical malpractice insurance rates over 300%. Lee v. Gaufin (Utah 1993) 867 P.2d 572, 586, fn. 22; Note, Medical Malpractice NonEconomic Damages Caps, 2006 Harvard J. on Legis. 213, 216. During that same period CNA Insurance announced a 190% increase in rates. 2006 Harv. J. on Legis. at p. 217. In Southern California, Travelers warned Los Angeles physicians of a proposed five-fold increase in insurance rates. Id. at 217. These threatened rate increases by California medical malpractice insurers led to a "doctors' strike that placed many California hospitals near the brink of bankruptcy." Lee, supra, 867 P.2d at p. 586, fn. 22. For example, because Argonaut refused to provide group coverage to Northern California doctors) thereby quadrupling insurance costs by forcing

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doctors to buy individual policies) on May 1, 1975, nearly half the doctors in Northern California protested by refusing to show up to work. Id. at 216.

2.

The Governor and the Legislature found that skyrocketing insurance rates threatened California health care.

In response to these rate increases and the effect on health care, in May 1975, the Governor convened a special session of the Legislature to address insurance-related health care problems, stating: The inability of doctors to obtain such insurance at reasonable rates is endangering the health of the people of this State, and threatens the closing of many hospitals. The longer term consequences of such closings could seriously limit the health care provided to hundreds of thousands of our citizens. Governor's Proclamation to Leg. (May 16, 1975) Stats. 1975 (Second Ex. Sess. 1976-1976 (p. 3947)(quoted in American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 363, fn. 1 (emphasis added). The Legislature responded by enacting MICRA because the Legislature found that the medical malpractice insurance "crisis" was "threatening the quality of health care" in California: The Legislature finds and declares that there is a major health care crisis in the State of California attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system, severe hardships for the medical indigent, a denial of access for the economically marginal, and depletion of physicians such as to substantially worsen the quality of health care available to citizens of this state. The Legislature, acting within the scope of its police powers, finds the statutory remedy herein provided is intended to provide an adequate and reasonable remedy within the limits of what the foregoing public health safety considerations permit now and into the foreseeable future. Stats. 1975, Second Ex. Sess., ch. 2, 12.5, p. 4007 (emphasis added).

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3.

The Supreme Court in Fein upheld the damages cap on the basis that it sought to resolve the insurance crisis that threatened health care.

The Supreme Court has explained that MICRA's damages cap had a "rational basis" because "the Legislature enacted MICRA in response to a medical malpractice insurance `crisis' which it perceived threatened the quality of the state's health care." Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 111 (emphasis added). "The continuing availability of adequate medical care depends directly on the availability of adequate insurance coverage, which in turn operates as a function of costs associated with medical malpractice litigation." Ibid. This justification was applied to section 3333.2's damages cap in the Fein decision in 1985. Fein upheld the damages cap in section 3333.2 against due process and equal protection challenges because the cap addressed the medical malpractice insurance "crisis." Fein's test for constitutionality was whether the cap was "rationally related to a legitimate state interest . . . ." Fein, supra, 38 Cal.3d at p. 158 (quoting American Bank, supra, 36 Cal.3d at pp. 368-369) (emphasis added). Fein ruled that the damages cap was "rationally related to legitimate state interests" because the medical malpractice insurance crisis "threaten[ed] to curtail the availability of medical care": [T]he rising cost of medical malpractice insurance was posing serious problems for the health care system in California, threatening to curtail the availability of medical care in some parts of the state and creating the very real possibility that many doctors would practice without insurance, leaving patients who might be injured by such doctors with the prospect of uncollectible judgments. Fein, supra, 38 Cal.3d at p. 158. Fein explained section 3333.2 sought "to reduce the cost of medical malpractice litigation, and thereby restrain the increase in medical malpractice insurance premiums." Fein, supra, 38 Cal.3d at p. 159.

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Fein viewed the detriment of "a lower judgment" due to the damages cap as justified by the preservation of "a viable medical malpractice insurance industry" to ensure that malpractice judgments would be collectible: Faced with the prospect that, in the absence of some cost reduction, medical malpractice plaintiffs might as a realistic matter have difficulty collecting judgment for any of their damages)pecuniary as well as nonpecuniary)the Legislature concluded that it was in the public interest to attempt to obtain some cost savings by limiting noneconomic damages. Id. at p. 160 (emphasis in original). [I]t would be difficult to say that the preservation of a viable medical malpractice insurance industry in this state was not an adequate benefit for the detriment the legislation imposes on malpractice plaintiffs. Id. at p. 160, fn. 18. Accordingly, Fein's serious and genuine judicial inquiry into conditions facing the Legislature in 1975 revealed that "discrimination was justified by the "insurance `crisis' in [medical malpractice] and that the statute is rationally related to the legislative purpose." Fein, supra, 36 Cal.3d at p. 162. "[U]nder these circumstances, plaintiff's initial equal protection claim [treating medical malpractice plaintiffs differently from other tort plaintiffs] has no merit." Ibid. (emphasis added).

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E.

MICRAs damages cap, which discriminates against severely injured plaintiffs, no longer has a rational basis, and inflation has made the discrimination even worse. 1. The damages cap discriminates on its face against severely injured plaintiffs. Section 3333.2 provides in part: (b) In no action [for injury against a health care provider based on professional negligence] shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000). The Supreme Court has acknowledged the discrimination inflicted on severely

injured plaintiffs, stating that section 3333.2 may be regarded as: discriminat[ing] between medical malpractice victims and other tort victims, imposing its limits only in medical malpractice cases, and . . . [as] improperly discriminat[ing] within the class of medical malpractice victims, denying a `complete' recovery of damages only to those malpractice plaintiffs with noneconomic damages exceeding $250,000." Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 161-162. Feins candid acknowledgment of the statutes discriminatory effect raises the constitutional issue: In light of the comprehensive power over insurance rates given by Proposition 103 to the Insurance Commissioner, does the discrimination imposed on severely injured plaintiffs still have a rational basis?

2.

Inflation has increased the discrimination by a factor of four.

Finally, the discrimination imposed on severely injured plaintiffs has become even more harmful due to inflation since 1975. The effect of inflation is that for the $250,000 cap to have the same economic effect that it had in 1975, the cap would have to be $1,067,913.57four times as great as the statute allows. http://www.bls.gov/data/inflation_calculator.htm (as of June 17, 2012). In other

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words, the cap has reduced noneconomic awards to one-fourth of what the Legislature intended in 1975. Inflation's erosion of purchasing power is a matter of judicial notice. Kircher v. Atchison, T. & S.F. Ry. Co. (1948) 32 Cal.2d 178, 187. A Louisiana court has ruled that, due to inflation, the increased severity of a statutory damages cap rendered the cap unconstitutional. Arrington v. ER Physicians Group, APMC (La.App. 2006) 940 So.2d 777 (medical malpractice cap of $500,000 depreciated to $160,000), rev'd on grounds the constitutional challenge was waived at trial, Arrington v. Galen-Med, Inc. (La. 2007) 947 So.2d 727. Accordingly, the effect of inflation to reduce the permitted noneconomic damage award to one-fourth of what the Legislature intended in 1975, has aggravated the discriminatory impact of section 3333.2's damages cap, rendering it a fortiori unconstitutional.

3.

Since 1988, Proposition 103 has protected healthcare providers by requiring the Commissioner to reject excessive rateseliminating any rational basis for the damages cap.

Proposition 103, enacted November 1988, rendered the damages cap in section 3333.2 unnecessary to protect healthcare providers from excessive insurance rates because Proposition 103 gave the power to regulate insurance rates to the Insurance Commissioner. Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805. Proposition 103 and section 3333.2 have the same purpose)to protect consumers from excessive insurance rates. Proposition 103's stated purpose is: to protect consumers from arbitrary insurance rates and practices . . . and to ensure that insurance is fair, available, and affordable for all Californians. Stats 1988, p. A-276, 2 (emphasis added).

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But the voters, in enacting Proposition 103, determined that prior laws (including section 3333.2) were ineffective. Proposition 103 was enacted because prior laws were inadequate to protect consumers (including healthcare providers) from "excessive, unjustified and arbitrary rates." Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 813. The initiative stated that "`[e]normous increases in the cost of insurance have made it both unaffordable and unavailable to millions of Californians, and that `the existing laws inadequately protect consumers and allow insurance companies to charge excessive, unjustified and arbitrary rates.' The initiative's stated purpose is to ensure that `insurance is fair, available, and affordable for all Californians.'" Calfarm, supra, 48 Cal.3d at pp. 812-813 (citing Stats. 1988, p. A-276, 1). It follows that Proposition 103 supplants the need for section 3333.2's damages cap because Proposition 103 gives the Insurance Commissioner the power to prevent "excessive" rates: All rate increases require the approval of the Insurance Commissioner, who may not approve rates which are excessive, inadequate, unfairly discriminatory or otherwise in violation of [the initiative]. Ins. Code 1861.05 (emphasis added). In addition, under Proposition 103 "[n]o rate shall . . . remain in effect which is excessive, inadequate, unfairly discriminatory or otherwise in violation of this chapter." Section 1861.05, subd. (a)(emphasis added). It follows that, because Proposition 103 comprehensively protects healthcare providers from excessive rates, section 3333.2 is no longer needed to curb the abuses that occurred in 1975, and so no longer has a rational basis. Indeed, courts agree that Proposition 103 was enacted because of the public's "dissatisfaction" with "ineffective" former laws (which necessarily includes section 3333.2)::

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The public's dissatisfaction with former law regulating insurance rates provided the primary impetus for Proposition 103. The former laws were widely viewed as ineffective. Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 852.

4.

The Insurance Commissioners reductions in malpractice rates removes any rational basis for section 3333.2's discriminatory cap.

The Insurance Commissioner has used Proposition 103's authority to impose rate reductions on medical malpractice insurers, thus removing any rational basis for the damages cap.

a.

In 2012, the Commissioner caused six malpractice insurers to reduce their rates by seven to nineteen percent.

Exercising the powers conferred by Proposition 103, the Insurance Commissioner instituted proceedings in 2011 that resulted in 2012 in six medical malpractice insurers reducing their rates by seven to nineteen percent. The documents reflecting these reductions are presented in respondents' accompanying Request for Judicial Notice (RJN). The rate reductions were initiated by letters to six medical malpractice insurers stating the Commissioners belief that their rates were excessive and requesting a new rate filing: The Department of Insurance regularly conducts reviews of insurer loss and expense data in order to identify existing rates that may be excessive. From our review of [name of insurer], the indications are that the rates currently in effect are excessive. Accordingly, and under the authority of California Insurance Code 1861.05(a) [Proposition 103], the Department hereby requests that the company submit a rate filing no later than June 1, 2011. This filing is to include results through December 31, 2010. 80

Please respond within 21 days with your agreement to make such a filing or stating your specific reasons and support for an alternative. If necessary, the Department will issue an Order to Show cause if this matter cannot be resolved informally. Request for Judicial Notice (RJN), pp. 51-52. Based on the insurers response to this letter or on a showing by a petitioner in intervention, the Commissioner obtained the following rate decrease from the six insurers: Company The Dentists Insurance Company NCMIC Insurance Company Medical Insurance Exchange Medical Protective Company NORCAL Mutual Insurance Company The Doctors Company Rate Decrease 13.4% (RJN at 53) 7.25% (RJN at 55) 19.0% (RJN at 54) 11.9% (RJN at 70:14-16) 7.07% (RJN at 63:14-15) 10.0% (RJN at 57:17)

For the latter three insurers, the rate decreases obtained by the Commissioner were greater than the rate decreases originally proposed by the insurer. Specifically, Medical Protective Company first proposed a rate decrease of 2.63 percent, but after a petition for intervention was filed challenging that rate as still excessive under Ins. Code section 1861.05 and 10 CCR sections 2644.1 et seq., the parties stipulated to a rate decrease of 11.9 percent. The Doctors Company proposed a rate decrease of 7.31 percent, but after a petition for intervention was filed challenging that rate as still excessive under Ins. Code section 1861.05 and 10 CCR sections 2644.1 et seq., the parties stipulated to a rate decrease of 10.0 percent. NORCAL Mutual Insurance Company proposed a rate decrease of 5 percent, but after a petition for intervention was filed challenging that rate as still excessive

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under Ins. Code section 1861.05 and 10 CCR sections 2644.1 et seq., the parties stipulated to a rate decrease of 7.07 percent.

b.

In 2003, the Commissioner reduced one insurer's rate increase from 15.6 percent to 9.9 percent.

An earlier example of Proposition 103's effectiveness in keeping medical malpractice insurance rates at affordable levels is the order of the Insurance Commissioner in In the Matter of the Rate Application of American Healthcare Indemnity Co. and SCPIE Indemnity Co., File No. PA-02025379, Adopted Proposed Decision, Effective September 22, 2003.11 SCPIE had applied for a rate increase of 15.6%. After a hearing under section 1861.05(c), the Administrative Law Judge allowed a rate increase of 9.9 percent, a decision adopted by the Commissioner. This reduction by more than 5.5 percent from SCPIE's requested rate shows that Proposition 103 adequately protects doctors and hospitals from "skyrocketing" malpractice insurance rates, rendering section 3333.2 unnecessary.

c.

Under MICRA, premiums at first still increased 20-40 percent per year, but after Proposition 103 premiums decreased.

Further evidence that section 3333.2 has no rational basis is found in reports that from 1975, when section 3333.2 was enacted, to 1988, when Proposition 103 was enacted, the damages cap failed to stop the "skyrocketing" increase in medical malpractice insurance rates. For example, in November 1975, only a few months after the MICRA cap was enacted, California's malpractice insurers levied huge premium increases of more

The precedential portion of this decision is found at: http://www.insurance.ca.gov/0250-insurers/0500-legal-info/0600-decision-ruli ng/0100-precedential/upload/AmHealthandSCPIE.pdf (as of June 21, 2012) (See Request for Judicial Notice). 82

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than 400%. Note, Todd M. Kossow, Fein v. Permanente Medical Group: Future Trends in Damage Limitation Adjudication (1986) 80 Nw. U. L. Rev. 1643, 1649. Throughout the next decade, premiums continued to rise sharply. U.S. General Accounting Office, Medical Malpractice: Six State Case Studies Show Claims and Insurance Costs Still Rise Despite Reforms, "Case Study on California" (Dec. 1986) 12, 22; Note, M. Finkelstein, California Civil Section 3333.2 Revisited: Has It Done Its Job? (1994) 67 S. Cal. L. Rev. 1609, 1617-18. According to data compiled by the National Association of Insurance Commissioners (NAIC), after MICRA's enactment, malpractice insurance premiums still increased 20-40% per year: 36% in 1983; 30% in 1984; 20% in 1985; 49.96% in 1986. "How Insurance Reform [Proposition 103] Lowered Doctors' Medical Malpractice Rates in California," (March 7, 2003) The Foundation for Taxpayer and Consumer Rights, p. 3 (www.consumerwatchdog.org, as of Dec. 28, 2009). But after Proposition 103 was enacted in 1988, medical malpractice insurance premiums decreased in 1989, 1990, and 1991 to a level 20% below their level in 1988. Ibid. Further evidence that the damages cap failed to curb excessive premiumsand that Proposition 103 has resulted in the rate reductions that section 3333.2 was intended to produceis found in California Department of Insurance statistics that Proposition 103's mandatory rate rollback caused medical malpractice insurers from 1991 to 1995 to refund to insureds $135,210,585. Id. at p. 4. Statistics compiled by the NAIC also show that under MICRA (1983 to 1988) medical malpractice premiums rose from $200 million to almost $700 million, whereas after Proposition 103 was enacted in 1988, medical malpractice premiums decreased to just over $500 million in 1992, and thereafter increased at the rate of inflation. Id. at p. 6.

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5.

No appellate decision has addressed Proposition 103's impact in preventing excessive insurance rates and thereby eliminating any rational basis for MICRAs cap.

No appellate decision has considered the constitutionality of MICRAs damages cap in light of the Insurance Commissioners power under Proposition 103 to protect healthcare providers from excessive rates. In Stinnett v. Tam (2011) 198 Cal.App.4th 1412, though plaintiff asserted that Proposition 103 eliminated the rational basis for MICRAs damages cap, the appellate court refused to consider that claim. Instead Stinnett erroneously relied exclusively on Fein, decided in 1985 (three years before Proposition 103). Stinnett reasoned that in Fein the Supreme Court has already determined the constitutionality of section 3333.2, and that the Stinnett court was bound by Fein under the rule of stare decisis, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. What Stinnett ignored is that the reach of precedent is limited to the "facts and issue then before the court. . . . People v. Banks (1993) 6 Cal.4th 926, 945. Accordingly, in giving blind obedience to Fein, without considering the impact of Proposition 103, Stinnett erred and so should not be followed.

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III. The trial court made two calculation errors: (1) Apportioning the $250,000 cap among tortfeasors who were not in the action; (2) Using the capped amount of $250,000 (rather than the jurys award of noneconomic damages ) to calculate economic damages from Dr. Browns settlement.
A. Procedural history. The jury awarded noneconomic damages of $1,000,000 and assigned to Dr. Millman 20 percent of the fault. . XAA at 27:22; 29:2. Under Proposition 51, Dr. Millmans several liability for noneconomic damages was $200,000. But the judge did not enter the judgment for $200,000. Instead, the judge first reduced the jurys noneconomic damages award of $1,000,000 to $250,000 under MICRA and then applied Proposition 51's apportionment of fault (20% of $250,000) to award noneconomic damages of just $50,000. 24 RT 2202:2-7. In addition, the judge determined the ratio of economic to noneconomic damages in Dr. Browns settlement by using MICRAs $250,000 cap for noneconomic damages rather than the jurys $1,000,000 award. This erroneous calculation increased the credit to Dr. Millman from the economic damages estimated to be in Dr. Browns settlement and so erroneously reduced the judgment against Dr. Millman. Finally, if MICRAs damages cap is unconstitutional, the foregoing calculations are erroneous for that reason also.

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B.

The trial court erroneously reduced noneconomic damages to $250,000 and then applied Proposition 51 to apportion the $250,000 cap among other healthcare providers who were not in the action. Plaintiffs recovered only $50,000 in noneconomic damages, rather than

$200,000, because the trial judge concluded wrongly that section 3333.2 required apportionment of the $250,000 statutory amount for noneconomic damages among healthcare providers who were not in the action when judgment was entered. Such a result suffers from two errors: 1. The ruling violated the plain language of section 3333.2, whereby the

$250,000 limit applies to the action, not to other healthcare providers who, for whatever reason, are not in the action. Under the statutes plain meaning, the existence of other tortfeasors outside the action is irrelevant to limiting noneconomic damages recovered by the judgment in the action to $250,000. 2. The ruling violated Californias policy that when a court applies various

statutes affecting the amount of a judgment, the courts primary goal is maximization of the plaintiffs recovery. As shown below, the cases cited by Dr. Millman below to mislead the trial court into error are themselves erroneous (1) for failing to comply with the plain meaning of section 3333.2which limits noneconomic damages in the action, and (2) for failing to apply Californias primary policy of maximizing plaintiffs recovery.

1.

MICRAs $250,000 limit on noneconomic damages applies to damages awarded in any action, and so should not be apportioned among other healthcare providers who are not in the action.

The relevant language in section 3333.2 limiting noneconomic damages recovered in an action to $250,000 is presented below:

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(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 two hundred fifty thousand dollars ($250,000). Civil Code 3333.2 (emphasis added). Because section 3333.2 expressly applies the $250,000 limit to an action, there is no basis for including in the $250,000 limit other healthcare providers who are not in the action. Hence, the trial courts choice to reduce the $250,000 cap by apportioning that amount among all the other tortfeasors so that Dr. Millman had to pay only 20 percent of $250,000 (or $50,000) violated section 3333.2 and so was prejudicial error.

2.

Apportioning the $250,000 cap among absent healthcare providers violated Californias policy of maximization of plaintiffs recovery.

The goal of California tort law is that wrongful-death plaintiffs receive adequate compensation for all the detriment caused by the decedents death. Clemente v. State of California (1985) 40 Cal.3d 202, 219; Civ. Code 3333. Here, the jury awarded respondents $1,000,000 in noneconomic damages for the death of their husband and father. This award was intended to compensate Mrs. Gavello for her loss of consortium, to compensate all family members for the loss of Mr. Gavellos love and companionship, and to compensate the children for their loss of Mr. Gavellos training and guidance. 19 RT 2127:5-13.12

The Plaintiffs also claim the following non-economic damages: The loss of Gary Gavello's love, companionship, comfort, care, assistance, protection, affections, society, moral support; and with respect to Kristina Gavello, the loss of the enjoyment of sexual relations. With respect to Aubrey 87

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Appellants do not claim the $1,000,000 award was excessive, nor could they. By way of comparison, in Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, the only plaintiff, the decedents widow, was awarded noneconomic damages of $4.33 million, reduced only by the decedents comparative fault. And 25 years ago, where the patient, a husband and father, died due to medical malpractice, the jury awarded an even greater amount of noneconomic damages to the wife and children$1,500,000. Yates v. Pollock (1987) 194 Cal.App.3d 195 (reduced under section 3333.2 to $250,000). When multiple statutes affect the amount of a judgment, California courts are guided by a series of goals, the first of which is maximization of plaintiffs recovery. Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290. In interpreting a statute affecting defendants contribution rights, the Supreme Court said there are: three interests at work in section 877: First ... is maximization of recovery to the injured party for the amount of his injury to the extent fault of others has contributed to it. ... Second is encouragement of settlement of the injured party's claim. ... Third is the equitable apportionment of liability among the tortfeasors. The statute [Code Civ. Proc. 877] must be interpreted to allow the plaintiff full recovery to the extent that others are responsible for his injuries. Id. at p. 304 (emphasis added). Mesler cited Sears, Roebuck & Co. v. International Harvester Co. (1978) 82 Cal.App.3d 492, which stated: We analyze the Supreme Court decisions as creating a hierarchy of interests. First in the hierarchy is maximization of recovery to the injured

Gavello, Garrett Gavello and Bryant Gavello, the loss of Gary Gavello's training and guidance. . . . You must use your judgment to decide a reasonable amount based on the evidence and your common sense. 88

party for the amount of his injury to the extent fault of others has contributed to it. Id. at 496. The Supreme Court decisions that Sears, Roebuck reviewed to identify this policy included: Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, which eliminated the contributory negligence bar to full recovery, and American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, which retained the rule of joint liability of concurrent tortfeasors and held named defendants liable for damage assessable against unnamed persons. Many courts have applied this policy giving primacy to the maximization of recovery to the injured party. Mullin Lumber Co. v. Chandler (1986) 185 Cal.App.3d 1127, citing People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744, 748; American Bankers Ins. Co. v. Avco-Lycoming Division (1979) 97 Cal.App.3d 732, 736; Bolamperti v. Larco Manufacturing (1985) 164 Cal.App.3d 249, 255.) And many courts have rejected procedures which would undermine these policies. (See, e.g., Teachers Insurance Co. v. Smith (1982) 128 Cal.App.3d 862, 865; Turcon Construction, Inc. v. Norton-Villiers, Ltd. (1983) 139 Cal.App.3d 280, 283.) In sum, the calculation below, apportioning the $250,000 damages cap among healthcare providers who were not in the action, was error both for violating the action requirement of section 3333.2 and for violating Californias policy of maximization of the plaintiffs recovery. The proper result for maximization of the plaintiffs recovery would be to satisfy Proposition 51 by apportioning the $1,000,000 among all the tortfeasors, leaving plaintiffs with a noneconomic recovery of $200,000and to recognize that $200,000 is well below the $250,000 MICRA cap, thus rendering any further reduction not required by and contrary to section 3333.2.

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3.

Cases are in conflict. a. Cases involving only comparative fault first reduce the award by plaintiffs fault, then apply the $250,000 capif necessary.

Three cases involving a plaintiffs comparative negligence calculate noneconomic damages by first reducing the jurys award by the plaintiffs percentage of fault, then, if the amount still exceeds $250,000, applying MICRA to render judgment for $250,000. For example, in Francies v. Kapla (2005) 127 Cal.App.4th 1381, fault was apportioned two-thirds to the defendant and one-third to plaintiffs employer. The trial court applied Proposition 51 to award Francies only two-thirds of the $250,000 in noneconomic damages recoverable under MICRA. The appellate court reversed. Similarly, in McAdory v. Rogers (1989) 215 Cal.App.3d 1273, the court held that the amount of the plaintiff's recoverable damages, should be reduced to reflect the plaintiff's comparative fault before application of the MICRA cap. If applying comparative fault left the defendant responsible for more than $250,000 of noneconomic damages, only then did the cap apply. McAdory found no justification for reducing the recovery below the $250,000 limit, as the trial court here did. McAdory reasoned that subtracting the amount of damages attributable to the plaintiff's comparative fault before applying the MICRA cap was consistent with the primary goal of the comparative fault system, [which] is to [maximize ...] recovery to the injured party for the amount of his injury to the extent fault of others has contributed to it.' (Id. at p. 1279.) The plaintiffs total noneconomic damages were $370,000 and the plaintiff was 22 percent at fault. McAdory said [t]here is no legitimate or logical reason for reducing that award to the $250,000 cap prescribed by section 3333.2 before reducing it further due to [plaintiffs] 22 percent comparative fault. (McAdory v. Rogers, supra, at p. 1281.)

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Finally, In Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 13911393, the court came to the same conclusion based upon the same reasoning. And similar reasoning was adopted in Salgado v. County of Los Angeles (1998) 19 Cal.4th 629, 640641, holding that damages should be reduced to present value before rather than after applying the MICRA cap on noneconomic damages.

b.

Cases involving multiple healthcare providers unjustifiably do the oppositefirst applying the $250,000 cap, then reducing $250,000 to the defendants share of fault.

In cases involving nonparty healthcare providers, courts reduce noneconomic damages to MICRAs cap first, then apply Proposition 51 to reduce $250,000 to the defendants share of faulton the erroneous premise that the $250,000 cap is to be shared among the healthcare providers who are not defendants in the action. Under this method, where one or more healthcare providers are not in the action, the plaintiff will never recover the $250,000 allowed by MICRA. For example, in Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 121, 126130, the plaintiff incurred noneconomic damages in excess of $250,000 as the result of the negligence of two health care providers. The court rejected the argument that in cases implicating both statutory schemes [MICRA and Proposition 51], the court should first deduct from the jurys verdict the percentage of fault attributable to the other joint or concurrent tortfeasors and then, if the result is still in excess of $250,000, reduce it to the MICRA cap. (Gilman, supra, at p. 128) The court reasoned that because a plaintiff cannot recover more than $250,000 in noneconomic damages from all health care providers for one injury, that amount should be apportioned based on the relative fault of the health care providers. For this conclusion, Gilman asserted that [u]nder MICRA, where more than one health care provider jointly contributes to a single injury, the maximum a plaintiff may recover

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for noneconomic damages is $250,000, citing Yates v. Pollock (1987) 194 Cal.App.3d 195, 200201. But Yates v. Pollock does not involve multiple healthcare tortfeasors and does not hold or suggest that when other healthcare tortfeasors are not defendants in the action, the $250,000 cap should be apportioned among those absent entities. Rather, Yates, relying on the express language of section 3333.2, stands only for the proposition that in any action for medical malpractice, the judgments maximum noneconomic damages award in the action is $250,000a holding that allows plaintiffs here to recover $200,000, based on Dr. Millmans 20 percent share of fault for plaintiffs $1,000,000 noneconomic loss. The relevant language in section 3333.2 limiting noneconomic damages recovered in an action to $250,000 is presented below: (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 two hundred fifty thousand dollars ($250,000). Civil Code 3333.2 (emphasis added). Yates relied on the language in section 3333.2 referring specifically to damages recoverable in an action, stating: [I]t is evident from the terms of the statute that. . . the maximum recovery permitted in any single medical malpractice action is $250,000 . . . . [W]e can but conclude that [the Legislatures] use of the word action in section 3333.2 represents its conscious decision

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to limit the total recovery for noneconomic loss in such suits to $250,000. Id. at 200-201 (emphasis added). Accordingly, Gilman was wrong to cite Yates for the illogical conclusion that the $250,000 must be apportioned in the medical malpractice action among healthcare providers who were at fault but who are not defendants in the action. The most recent decision, Mayes v. Bryan (2006) 139 Cal.App.4th 1075, relies on Gilmans flawed rationale, ruling that after reducing noneconomic damages to $250,000, that the $250,000 must be reduced further by a fictitious apportionment among all the healthcare tortfeasors, even those who are not defendants in the action (as section 3333.2 requires). Mayes made many statements that make no sense in light of the plain language of section 3333.2 and Californias primary policy of maximization of the plaintiffs recovery. For example, Mayes said: The $250,000 MICRA maximum for noneconomic damages must be apportioned according to proposition 51. Mayes, supra, 139 Cal.App.3d at 1102. This makes no sense. Proposition 51 would be satisfied here simply by apportioning the $1,000,000 to $200,000. No further apportionment is required, and no further reduction of the $200,000 would be required by section 3333.2. Mayes also said: Defendants are not responsible for making up the amount the settling parties did not pay. Mayes, supra, 139 Cal.App.3d at 1102. But this too makes no sense. Under Proposition 51's several liability for noneconomic damages, the apportionment of fault (here to $200,000), would suffice to relieve Dr. Millman of any obligation of making up the amount the settling parties did not pay. Moreover, whether settling defendants overpaid or underpaid their share of noneconomic damages is irrelevant to Dr. Mailmans several liability for noneconomic damages. Whatever the settling defendants

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paid applied only to their several liability for noneconomic damages, and had no effect to increase or diminish Dr. Millmans liability for noneconomic damages. In sum, the rationale of Gilman and Mayes is flawed and must be rejected. The proper result was to apportion $1,000,000 to $200,000 and then enter judgment against Dr. Millman for that amount of noneconomic damages.

C.

The trial court erred by using the capped amount of $250,000 (not the jurys award of $1,000,000 noneconomic damages ) to calculate the credit from Dr. Browns settlement. The trial court also erroneously reduced Dr. Millmans liability for

economic damages by using the $250,000 cap to erroneously exaggerate the credit that Dr. Millman would receive, based on the economic damages portion of Dr. Browns $1,000,000 settlement. According to the formula in Espinoza v. Machonga (1992) 9 Cal.App.4th 268, 273 (approving the formula used by the trial court and urged by plaintiff), a prior settlement is apportioned between economic and noneconomic damages in the same ratio as the ratio of economic and noneconomic damages awarded by the jury. This analysis is authorized in medical malpractice cases. Deocampo v. Ahn (2002) 101 Cal.App.4th 758, 773. Specifically, the trial court erroneously used the capped amount of $250,000 in noneconomic damages to determine the amount of economic damages in Dr. Browns settlement of $1,000,000 that would be credited to reduce Dr. Millmans liability for economic damages. The effect of this error was to reduce Dr. Millmans liability for economic damages by $173,900. As will be seen, in the formula for determining the amount of the credit, a lower amount of noneconomic damages used in the formulate leads to a higher

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amount of economic damages that will be credited to Dr. Millman from the settlement, thus reducing Dr. Millmans liability for economic damages.

Plaintiffs applied the Espinoza formula as follows (XAA 13): Total economic damages: $2,977,830.50 Total noneconomic damages: $1,000,000 Ratio between economic damages & total award: 74.86% Economic portion of settlement: 74.86% x $1,000,000 = $748,600 Dr. Millmans share of economic damages: $2,977,830 Total economic damages award -$ 748,600 Economic portion of settlement $2,229,230.50 Dr. Millmans share of economic damages But the trial court entered a lower judgment of $2,105,330.50 by erroneously using in the ratio determination the capped amount of noneconomic damages under MICRA ($250,000) rather than the jurys actual award of $1,000,000 in noneconomic damages. This error increased the credit to Dr. Millman and reduced the judgment by $173,900, as shown below (XAA 14): Total economic damages: $2,977,830.50 Total noneconomic damages under MICRA: $ 250,000 Ratio between economic damages & total award: 92.25% Economic portion of settlement: 92.25% x $1,000,000 = $922,500 Dr. Millmans share of economic damages: $2,977,830 Total economic damages award -$ 922,500 Economic portion of settlement $2,055,330.50 Dr. Millmans share of economic damages + $50,000 Dr. Millmans 20% share of MICRA cap $2,105,330.50 Dr. Millmans liability The noteworthy contrast for purposes of this issue is that when $1,000,000 is used for the noneconomic damages factor in the ratio calculation, the resulting number for Dr. Millmans share of economic damages is $2,229,230.50, whereas when $250,000 is used for the noneconomic damages factor in the ratio calculation, the resulting number for Dr. Millmans share of economic damages is less by $173,900: $2,055,330.50

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The trial court erred in using $250,000 as the noneconomic damage factor in the ratio formula to determine what portion of the settlement was economic damages because Dr. Browns settlement was not affected by the $250,000 cap for noneconomic damages and because, to make the ratio formula accurate for determining the economic damages portion of the settlement, the ratio formula must use the jurys actual award of economic damages, as Espinoza heldnot the arbitrary $250,000 amount of noneconomic damages that MICRA applies as the arbitrary ceiling for the judgments award of noneconomic damages.

CONCLUSION MICRAs arbitrary $250,000 damages cap deprives plaintiffs of the evidence-based award determined by the jury, thereby violating plaintiffs constitutional right to trial by jury. The Supreme Court has never considered this constitutional violation. Moreover, since the damages cap was enacted in 1975, conditions regarding medical malpractice insurance have changed significantly. The most important change is that medical malpractice insurance rates are no longer "skyrocketing") not because of damages caps, but because of rate regulation imposed by the Insurance Commissioner under Proposition 103. This single change has rendered MICRAs cap on noneconomic damages that discriminates against severely injured plaintiffs utterly needless, and lacking in any rational basis. Because of Proposition 103's rate regulation, under the test applied in Fein)requiring a "serious and genuine judicial inquiry" for a "rational basis")the damages cap is now unconstitutional for lack of a rational basis. Simply put, there is no justification for making the most seriously injured medical malpractice plaintiffs bear the entire burden of a former imbalance in the medical malpractice insurance industry when that imbalance has been fully

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remedied (without dispute) by improved market conditions and by rate regulation. Finally, the trial court erroneously miscalculated the judgment in the two ways described above. The proper result is to declare section 3333.2 unconstitutional and to order the trial court to modify the judgment accordingly.

Dated: June 22, 2012.

Respectfully submitted, WALKUP, MELODIA, KELLY & SCHOENBERGER PAUL MELODIA MELINDA DERISH SMITH & MCGINTY

By: Daniel U. Smith Attorneys for Respondents and Cross-Appellants

CERTIFICATION I hereby certify that this brief, excluding tables, consists of 26,518 words.

By: Daniel U. Smith Attorneys for Respondents and Cross-Appellants

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PROOF OF SERVICE BY MAIL (C.C.P. 1013(a), 2015.5)

I, the undersigned, hereby declare under penalty of perjury as follows: I am a citizen of the United States, and over the age of eighteen years, and not a party to the within action; my business address is 220 16th Ave., San Francisco, CA 94118. On this date I served the interested parties in this action the within documents: RESPONDENT'S BRIEF AND CROSS-APPELLANT'S OPENING BRIEF by causing a true copy thereof to be enclosed in a sealed envelope, postage prepaid, and placed in the United States Mail at San Francisco, California, addressed as follows: California Supreme Court 350 McAllister St. San Francisco, CA 94102-3600 (electronic filing) Clerk, Superior Court of San Francisco 400 McAllister St. San Francisco, CA 94102-3600 Appellant's Counsel Kenneth R. Pedroza Ron Chowdhury Cole Pedroza LLP 200 S. Los Robles Ave., Suite 300 Pasadena, CA 91101 Manning & Kass Ellrod, Ramirez, Trester LLP Thomas A. Trapani, Michele M. Tuman One California St., Suite 1100 San Francisco, CA 94111 Executed at San Francisco, CA on June 25, 2012.

Daniel U. Smith

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