In October of this past year, a California Court of Appeals upheld a jury award of $9.25 Million in Burchell v. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine, 2020 WL 5422950. The Court of Appeals concluded that though the award “… is, no doubt, a sizeable award, but Burchell’s (Plaintiff) injuries were devastating. Although the lump sum award of future damages is larger than the award of past damages, it represents compensation for injuries for a longer period and thus appropriately reflects that, although Burchell’s condition has improved, he will continue to suffer some of the effects of Barker’s (the Doctor) tortious actions for the remainder of his life.” (Id. at 17).
Facts of the Case
In 2014, Plaintiff Burchell (Plaintiff) went for a simple outpatient procedure to remove a small mass in his scrotum for testing. Dr. Barker (“the surgeon”), discovering a more extensive mass involving both the scrotum and the penis, and believing it was malignant (though it turned out to be benign), removed the mass from both areas, a different and more invasive procedure. The surgeon did not consult the Plaintiff, who was under anesthesia, or his designated medical proxy who was at the hospital at the time, for permission to remove the mass from both the scrotum and the penis. As a result, Plaintiff suffered and still suffers serious side effects, some of which are “permanent and irreversible.” (Id. at 2).
Plaintiff sued the surgeon and Loma Linda University Health Care (LLUHC) for professional negligence and medical battery. Plaintiff also served defendants with a section 998 offer of $1.5 million, which defendants did not accept (Id. at 7). A year later, after discovering the surgeon was employed by Faculty Physicians & Surgeons of the Loma Linda University (FPS), and not LLUHC, Plaintiff amended his complaint, with a stipulation that FPS will pay any final verdict in exchange for the surgeon to be dismissed as a defendant. (Id. at 8).
The trial court returned a verdict for both causes of action, awarding Plaintiff $4 million in past non-economic damages and $5.25 million for future non-economic damages (Id. at 2). Economic damages of $22,346.11 were awarded, which was agreed to by the parties before trial. The trial court entered a judgment of $9,272,246.11 for Plaintiff against FPS. In addition, Plaintiff was awarded expert witness fees and prejudgment interest under section 998. (Id.).
Issues on Appeal
FPS brought three issues on appeal: 1) the non-economic damages award should fall within the Medical Injury Compensation Reform Act of 1975 (MICRA), which sets a $250,000 cap on non-economic damages in medical malpractice cases and be subject to that $250,000 limit; 2) the award of the non-economic damages is excessive and the product of improper argument by Plaintiff’s counsel – it should be reversed and remanded for a new trial; 3) Plaintiff’s section 998 offer is invalid, and the award of expert witness fees and prejudgment interest should be reversed. (Id. at 3).
Reduction of non-economic damages due to MICRA
The Court of Appeals did not concur with FPS that the limit on non-economic damages set by MICRA applies in this case, holding instead that “[B]urchell’s medical battery claim falls squarely into the first category of medical battery, not subject to MICRA’s limitation on non-economic damages.” (Id. at 12). Plaintiff consented to have the mass removed from his scrotum but did not consent to any surgery involving his penis; the surgery was a “substantially different treatment” than the one Plaintiff agreed to. (Id.). There was also no life-or-death emergency in this case to warrant the surgery.
The Court of Appeals distinguished two types of medical battery. The first is an intentional tort where the Doctor performs a different type of treatment than the one patient consented to. MICRA’s limitation on non-economic damages does not apply to this type of medical battery. The second is where the Doctor performs the treatment agreed to, but an infrequent complication occurs that the Doctor failed to disclose when obtaining consent. MICRA’s limitation applies to this type of professional negligence (Id. at 10-11). Plaintiff’s claim, in this case, is one of medical battery not subject to the limitations of MICRA.
The $9.25 million in non-economic award is excessive
FPS argued that the $9.25 million in the non-economic award is excessive as a matter of law, should be reversed and remanded for a new trial unless Plaintiff agrees to a reduced award. (Id. at 15). The Court of Appeals disagreed, noting that the amount of non-economic damages is a question of fact left to the discretion of the jury and the judge. (Id. at 16). The role of an appellate court is to uphold the trial court whenever possible and can only interfere if the verdict is so excessive that it “shocks the conscience.” (Id). The Court of Appeals disagreed with FPS, stating, “…the jury’s award of non-economic losses does not, “at first blush,” shock our collective conscience…” (Id. at 17). The award reflects the suffering Plaintiff will have to experience for the rest of his life and was appropriate given the evidence presented at trial. (Id. at 17 and 20).
Regarding FPS’s argument that the non-economic award is a product of improper argument by Plaintiff’s counsel, the Court of Appeals held that though the comments were improper, it does not warrant a reversal. (Id. at 22).
Section 998 Offer was Invalid
The Court of Appeals agreed with FPS’s argument and ordered the reversal of the trial court’s award of expert witness fees and prejudgment interest based on the invalid section 998 offer. Since Plaintiff made the section 998 offer to the surgeon and original defendant as one offer, rather than separate offers, the offer was invalid and is invalid to appellant FPS. (Id. at 27-28).
Calculation of Pain and Suffering Is Subjective
Jurors are generally given little guidance by a judge in determining a dollar amount for an injured party’s pain and suffering. Thus, awards can vastly differ for plaintiffs even where injuries are similar.
In the case at hand, the Court of Appeals, citing various cases, notes that determining non-economic damages is a “difficult task,” “inherently subjective,” and one which may have a “wide difference of opinion.” (Id. at 16). In this case, Plaintiff continues to have long-lasting physical injuries from the surgery, in constant pain, with no feeling in the penis. (Id. at 5). In addition, Plaintiff has suffered mentally, becoming “depressed and withdrawn.” (Id. at 7).
Choosing The Right Medical Expert Can Help Jurors Calculate Non-Economic Damages
In medical malpractice cases, medical experts are needed to explain the physical and mental harm caused by medical negligence and present complex medical issues understandably to help jurors calculate a monetary amount for pain and suffering.
Juries need to understand the cause of the pain to calculate damages. The right medical expert will testify to Plaintiff’s present pain and how long the pain will last. Pain management experts can explain to jurors what the Plaintiff will need to manage their pain, such as medication or physical therapy, and if the pain and management will be life-long.
Psychology experts help jurors better understand the Plaintiff’s mental pain and suffering. Mental illness is often a misunderstood, unperceived pain that is very difficult to quantify. A psychologist or psychiatrist can be extremely helpful in explaining depression, anxiety, PTSD, and any other mental suffering the Plaintiff endured and may endure for the rest of their lives due to medical negligence.
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Sources
https://law.justia.com/cases/california/court-of-appeal/2020/e071146.html
Burchell v. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine, 2020 WL 5422950
https://legalnewsline.com/stories/555394731-court-affirms-9-3m-verdict-for-unauthorized-penis-surgeryhttps://www.mathenysears.com/wp-content/uploads/2020/10/10-29-2020-Burchell-v.-Faculty-Physicians.pdf
