S214430

In the

Supreme Court of California _______________________________________________________

HAMID RASHIDI, Plaintiff, Respondent, and Cross-Appellant,

v.

FRANKLIN MOSER, M.D., Defendant, Appellant, and Cross-Respondent

________________________________________________________

After a Decision by the Court of Appeal, Second Appellate District, Division Four, Case No. B237476

Application for Leave to File Amici Curiae Brief in

Support of Franklin Moser, M.D.;

Brief of Amici Curiae California Medical Association,

California Dental Association, and

California Hospital Association

TUCKER ELLIS LLP

*Rebecca A. Lefler, SBN 225414 Lauren H. Bragin, SBN 286414

515 South Flower Street, Forty-Second Floor Los Angeles, CA 90071-2223

Telephone: 213.430.3400; Facsimile: 213.430.3409 rebecca.lefler@tuckerellis.com lauren.bragin@tuckerellis.com

Counsel for Amici Curiae California Medical Association, California Dental Association, and California Hospital Association

ii

TABLE OF CONTENTS

Page

APPLICATION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE ... 1

I. INTERESTS OF AMICI CURIAE ............................................... 1

II. NEED FOR FURTHER BRIEFING ............................................. 2

BRIEF OF AMICI CURIAE ..................................................................... 4

I. INTRODUCTION ......................................................................... 4

II. LEGAL ARGUMENT ................................................................... 5

A. The ongoing importance of MICRA. .............................. 5

B. Other cases interpreting Section 3333.2 have held that it limits all liability relating to an injury from professional negligence. .................... 7

C. To preserve the purposes of MICRA, Section 3333.2 should apply consistently to any malpractice “action.” ............................................... 12

III. CONCLUSION ........................................................................... 16

iii

TABLE OF AUTHORITIES

Page

CASES

American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359 .......................................................................... 5, 15

Barme v. Wood (1984) 37 Cal.3d 174 ................................................................................ 8

Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788 ............................................................................. 13

Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181 ................................................................................. 2

Crowley v. Katleman (1994) 8 Cal.4th 666 ............................................................................... 13

DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593 ............................................................................... 14

Delaney v. Baker (1999) 20 Cal.4th 23 ................................................................................. 2

Fein v. Permanente Medical Group (1985) 38 Cal.3d 137 ........................................................................ 3, 5, 7

Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 121 .............................................................. 9, 10

Hayes v. County of San Diego (2013) 57 Cal.4th 622 ............................................................................. 13

Hrimnak v. Watkins (1995) 38 Cal.App.4th 964 ...................................................................... 3

Leung v. Verdugo Hills Hosp. (2008) 168 Cal.App.4th 205 .................................................................... 2

Mayes v. Bryan (2006) 139 Cal.App.4th 1075 .......................................................... 10, 11

Palmer v. Superior Court (2002) 103 Cal.App.4th 953 .................................................................... 2

Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208 ....................................................................... 15, 16

iv

Ruiz v. Podolsky (2010) 50 Cal.4th 838 ......................................................................... 2, 16

Salgado v. County of Los Angeles (1998) 19 Cal.4th 629 ............................................................................... 2

Slater v. Blackwood (1975) 15 Cal.3d 791 .............................................................................. 14

Stinnett v. Tam (2011) 198 Cal.App.4th 1412 .................................................................. 2

Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 .............................................................................. 16

Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100 ................................................................. 7, 8, 12, 14

Yates v. Pollock (1987) 194 Cal.App.3d 195 ............................................................... 9, 13

STATUTES

Bus. & Prof. Code, § 6146 .......................................................................... 6

Civ. Code, § 1431.1 ................................................................................... 10

Civ. Code, § 1431.2 ......................................................................... 4, 12, 14

Civ. Code, § 3333.1 ..................................................................................... 6

Civ. Code, § 3333.2 .......................................................................... passim

Code Civ. Proc., § 1295 ........................................................................ 6, 16

Code Civ. Proc., § 340.5 ............................................................................. 6

Code Civ. Proc., § 364 .......................................................................... 6, 16

Code Civ. Proc., § 877 ................................................................................ 4

Code Civ. Proc., § 877.6 ........................................................................... 16

RULES

California Rules of Court, Rule 8.520(f) .................................................. 1

OTHER AUTHORITIES

Richard E. Anderson, M.D., Effective Legal Reform and the Malpractice Insurance Crisis (2005) 5 Yale J. Health Pol’y, L. & Ethics 341, 35 .... 6

v

William G. Hamm, Ph.D., et al., MICRA and Access to Health Care (Jan. 2014), <http://www.cmanet.org/files/pdf/micra/final-2014-micra-report-012114-web.pdf> .................................................... 6

1

APPLICATION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

Pursuant to California Rules of Court, rule 8.520(f), the

California Medical Association (CMA), California Hospital

Association (CHA), and California Dental Association (CDA) request

permission to file the attached Amici Curiae Brief in support of

Defendant, Appellant, and Cross-Respondent Franklin Moser, M.D.

I. INTERESTS OF AMICI CURIAE

CMA is a nonprofit, incorporated, professional association of

more than 39,000 physicians practicing in California, in all specialties.

CDA represents almost 24,000 California dentists, over 70 percent of

the dentists engaged in the private practice of dentistry in California.

CMA and CDA are the largest organizations representing physicians

and dentists engaged in private practice in California. CHA is the

statewide leader representing the interests of nearly 400 hospitals and

health systems in California. CMA, CDA, and CHA are active in

California’s courts in cases involving issues of concern to the healthcare

community.

Some funding for this brief was provided by organizations and

entities that share Amici’s interests, including physician-owned and

other medical and dental professional liability organizations and

nonprofit and governmental entities engaging physicians for the

provision of medical services, specifically: Cooperative of American

Physicians, Inc.; Kaiser Foundation Health Plan, Inc.; The Mutual Risk

Retention Group, Inc.; Medical Insurance Exchange of California; The

Dentists Insurance Company; Norcal Mutual Insurance Company; and

The Regents of the University of California.

No party or counsel for a party authored the proposed Amici

Curiae Brief in whole or in part, nor has any party or counsel for a

2

party made a monetary contribution intended to fund the preparation or

submission of the proposed Amici Curiae Brief.

II. NEED FOR FURTHER BRIEFING

This appeal involves the limitation on the recovery of

noneconomic damages in the Medical Injury Compensation Reform

Act of 1975 (MICRA), codified at Civil Code section 3333.2. This

statute, its effect on noneconomic damages awards in medical

malpractice cases, and its effect on the practice of medicine and access

to care for patients is of great interest to Amici.

Counsel for CMA, CHA, and CDA have reviewed the parties’

briefs in this case. The Opening Brief on the Merits, Answer Brief on

the Merits, and Reply Brief on the Merits discuss issues directly

affecting Amici and their involvement in the provision of medical care

in California.

Amici believe this Court will benefit from additional briefing.

This brief supplements, but does not duplicate, the parties’ briefs.

Rather, it discusses case law and aspects of other authorities not directly

addressed by the parties.

The limit on the recovery of noneconomic damages is an

important part of MICRA, which Amici have endeavored to protect

since the Legislature enacted MICRA in 1975. (See, e.g., Ruiz v. Podolsky

(2010) 50 Cal.4th 838, 851 fn. 4; Stinnett v. Tam (2011) 198 Cal.App.4th

1412; Leung v. Verdugo Hills Hosp. (2008) 168 Cal.App.4th 205, 212;

Palmer v. Superior Court (2002) 103 Cal.App.4th 953, 961; Delaney v.

Baker (1999) 20 Cal.4th 23, 31 fn. 4; Central Pathology Service Medical

Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 188 fn. 3; Salgado v.

County of Los Angeles (1998) 19 Cal.4th 629, 640 fn. 2, 643 fn. 3, 649 fn.

3

7; Hrimnak v. Watkins (1995) 38 Cal.App.4th 964, 979; Fein v. Permanente

Medical Group (1985) 38 Cal.3d 137, 171.)

Dated: June 10, 2014

Respectfully submitted, TUCKER ELLIS LLP Rebecca A. Lefler

By: /s/ Rebecca A. Lefler Rebecca A. Lefler Counsel for Amici Curiae California Medical Association, California Dental Association, and California Hospital Association

4

BRIEF OF AMICI CURIAE

I. INTRODUCTION

Civil Code section 3333.2 (“Section 3333.2”) limits the recovery

of noneconomic damages in cases involving professional negligence

against health care providers: “In no action shall the amount of

damages for noneconomic losses exceed two hundred fifty thousand

dollars ($250,000).” (Civ. Code, § 333.2, subd. (b).) This case presents a

question of statutory interpretation: In a case alleging professional

negligence, does the limitation in Section 3333.2 encompass solely the

noneconomic damages assessed by a jury, or does it include all

noneconomic damages, including settlements, compensating the alleged

injury? Amici assert that the Court of Appeal was correct in finding that

Section 3333.2 “sets an absolute limit on the total amount of damages a

plaintiff can recover from health care providers for noneconomic

losses” (Slip Opn., p. 8) regardless of the application of Code of Civil

Procedure section 877 or Civil Code section 1431.2.

A jury found in favor of plaintiff Hamid Rashidi on his medical

negligence claim against defendant Franklin Moser, M.D., and awarded

Plaintiff a total of $1,450,000 in damages, including $1,325,000 in

noneconomic damages. However, by the time of trial Plaintiff had

settled with a product liability defendant for $2 million and with Cedars

Sinai Hospital for $350,000, so he had already recovered more than the

jury held he had been damaged. Nevertheless, Plaintiff claims the jury’s

damages award should not be reduced to account for the monies he

received in settlement.

According to Plaintiff, the “damages” limited by Civil Code

section 3333.2 only include those damages awarded by a jury. In other

words, Plaintiff argues that any jury award is limited to $250,000 in

noneconomic damages, but a plaintiff can recover more than $250,000

5

in noneconomic damages if some of that recovery comes from

settlements with professional negligence defendants. Section 3333.2,

however, does not distinguish between settlements and verdicts; rather,

the statutory limitation applies to each “action.” Based on the language

of Civil Code section 3333.2, authority interpreting that statute, and the

policies behind the Medical Injury Compensation Reform Act of 1975

(MICRA), Section 3333.2 establishes a limitation on the total amount

that a plaintiff may recover for noneconomic damages from all health

care provider defendants as compensation for injury caused by

professional negligence. To hold otherwise would obliterate MICRA’s

purpose of reducing the costs of healthcare litigation; Plaintiff ’s

interpretation would result in health care providers’ liability and

plaintiffs’ noneconomic recovery being dependent on whether particular

defendants settle or proceed to trial, introducing volatility into a

statutory limitation intended to stabilize such awards.

II. LEGAL ARGUMENT

A. The ongoing importance of MICRA.

MICRA was enacted to address the malpractice insurance crisis

that threatened access to health care in California. In the 1970s, medical

malpractice insurance rates were so high they became impossible for

doctors to reasonably afford. “One of the problems…was the

unpredictability of the size of large noneconomic damage awards,

resulting from the inherent difficulties in valuing such damages and the

great disparity in the price tag which different juries placed on such

losses.” (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 163.) As

a result, “many doctors decided either to stop providing medical care

with respect to certain high risk procedures or treatment [or] to

terminate their practice in this state altogether.” (American Bank & Trust

Co. v. Community Hospital (1984) 36 Cal.3d 359, 371.) In other cases,

6

physicians decided to “‘go bare,’ i.e., to practice without malpractice

insurance. The result was that in parts of the state medical care was not

fully available, and patients who were treated by uninsured doctors

faced the prospect of obtaining only unenforceable judgments if they

should suffer serious injury as a result of malpractice.” (Ibid.)

In response, a special session of the California Legislature passed

MICRA, which includes statutes relating to arbitration agreements

(Code Civ. Proc., § 1295), contingency fees (Bus. & Prof. Code, § 6146),

notice before bringing suit (Code Civ. Proc., § 364), the applicable

statute of limitations (Code Civ. Proc., § 340.5), the collateral source

rule (Civ. Code, § 3333.1), the recoverability of noneconomic damages

(Civ. Code, § 3333.2), and periodic payments on certain judgments

(Code Civ. Proc., § 667.7).

MICRA has been extremely successful in keeping professional

liability insurance for health care providers affordable. A comparison of

liability insurance premiums in a variety of states with higher damages

limitations or no limitation at all shows that California’s insurance

premiums are significantly lower. (William G. Hamm, Ph.D., et al.,

MICRA and Access to Health Care (Jan. 2014), pp. 21-24

<http://www.cmanet.org/files/pdf/micra/final-2014-micra-report-

012114-web.pdf> [as of June 5, 2014].) MICRA has resulted in

“increases in insurance premiums of less than three percent per year,

less than one-third the rate at which premiums have risen nationally.”

(Richard E. Anderson, M.D., Effective Legal Reform and the Malpractice

Insurance Crisis (2005) 5 Yale J. Health Pol’y, L. & Ethics 341, 351

(footnotes omitted).) The continuing problems with medical liability

premiums in other states show how important it is that MICRA reforms

remain in place.

7

The MICRA provision at issue in this case is the limitation on

the recovery of noneconomic damages in Civil Code section 3333.2,

subdivision (b): “In no action shall the amount of damages for

noneconomic losses exceed two hundred fifty thousand dollars

($250,000).” As recognized by this Court decades ago, “[B]y placing a

ceiling of $250,000 on the recovery of noneconomic damages,” Section

3333.2 serves the purposes of MICRA by reducing costs and stabilizing

the inherent unpredictability of noneconomic damages awards. (Fein v.

Permanente Medical Group, supra, 38 Cal.3d at p. 159.) This Court has

held that a broad application of Section 3333.2 is “necessary to

effectuate the intent and policies prompting the MICRA legislation.”

(Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8

Cal.4th 100, 112.)

B. Other cases interpreting Section 3333.2 have held that it limits

all liability relating to an injury from professional negligence.

Plaintiff ’s inquiry—whether Section 3333.2 limits jury awards

only, or whether it limits recovery for noneconomic damages as a

whole—is a question of first impression. However, several cases

addressing Section 3333.2 provide guidance.

In Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital,

supra, 8 Cal.4th 100 (“Western Steamship”), Western Steamship Lines

was held strictly liable under maritime law for the medical injuries

suffered by one of its employees; it settled on appeal. Then Western

Steamship Lines brought an indemnity action against one of the

physicians alleged to have contributed to the employee’s harm, and the

question before this Court was whether Section 3333.2 should limit a

health care provider’s liability in an action for partial equitable

indemnification by a concurrent tortfeasor. (See 8 Cal.4th at 104.)

8

This Court held that the limitation in Section 3333.2 applied. The

Court discussed the purposes of MICRA, stating that it “reflects a

strong public policy to contain the costs of malpractice insurance by

controlling or redistributing liability for damages, thereby maximizing

the availability of medical services to meet the state’s health care

needs.” (8 Cal.4th at p. 112, citing Barme v. Wood (1984) 37 Cal.3d 174,

181.) The Court said, “Exempting indemnity actions from the $250,000

limit would threaten not only this goal but, the broader purpose of

MICRA by resurrecting the pre-MICRA instability associated with

unlimited noneconomic damages and increasing the overall cost of

malpractice insurance to account for these larger recoveries.” (Western

Steamship, 8 Cal.4th at p. 112.) A broad reading of Section 3333.2 was

therefore appropriate.

The Western Steamship Court noted that Section 3333.2 “operates

as a limitation on liability.” (Western Steamship, supra, 8 Cal.4th at p.

116.) To hold otherwise, the Court said, would be to “preclud[e] a

defense to liability in a separate proceeding for indemnification that the

health care provider would otherwise have available if joined in the

original litigation by complaint or cross-complaint.” (Id., at p. 116 n.

12.) The Court went on to say, “A non-MICRA tortfeasor should not be

entitled to greater indemnity simply because the health care defendant

was not a party to the underlying negligence action in which it could

have asserted the limitation of section 3333.2 simultaneously against

the injured plaintiff and the indemnitee.” (Ibid.)

Western Steamship is instructive in two ways. First, Plaintiff argues

that settlements are exempt from Section 3333.2, because the statute

only limits verdicts. But in Western Steamship it did not matter that the

plaintiff was attempting to recoup money paid in settlement; the

limitation in Section 3333.2 applied nonetheless. As Section 3333.2

9

operates as a limitation on liability, the form of the damages (jury

verdict or settlement) is irrelevant. Second, Plaintiff argues that the

noneconomic damages cap would apply to both Dr. Moser and Cedars

Sinai Hospital had they both been trial defendants, but because Cedars

settled and only Dr. Moser went to trial, Dr. Moser is liable for the full

amount. In Western Steamship the Court rejected the argument that the

limitation in Section 3333.2 can vary depending on whether certain

parties are before the court or named within the same lawsuit. Rather,

the purposes of MICRA are best served when the limitation applies

consistently.

California Courts of Appeal have similarly held that Section

3333.2 is best read to limit the total noneconomic damages in a

professional negligence action. For example, Yates v. Pollock (1987) 194

Cal.App.3d 195 (“Yates”) was a case in the Second Appellate District in

which several plaintiffs alleged professional negligence and wrongful

death. The plaintiffs, the decedent’s heirs, asserted that Section 3333.2

should be read to allow for $250,000 in noneconomic damages per

plaintiff. The Court of Appeal rejected that argument, holding instead

that “it is evident from the terms of the statute that while each injured

plaintiff is entitled to seek noneconomic damages, the maximum

recovery permitted in any single medical malpractice action is $250,000,

regardless of the number of plaintiffs involved.” (Yates, 194 Cal.App.3d

at p. 200 (emphasis in original).) Since all claims for wrongful death

must necessarily be consolidated under the one action rule, the court

concluded that the Legislature’s “use of the word ‘action’ in section

3333.2 represents its conscious decision to limit the total recovery for

noneconomic loss in such suits to $250,000.” (Id. at 200-201.)

The Sixth Appellate District expanded on the reasoning in Yates

in Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 121

10

(“Gilman”). In Gilman, the trial court reduced the jury’s $400,000

noneconomic damage award to Section 3333.2’s limit of $250,000, and

then reduced the damages an additional ten percent for the liability

attributable to another defendant not present at trial, Dr. Schulkin. The

question in the Court of Appeal was “whether in a medical malpractice

action noneconomic damages should be reduced pursuant to Civil Code

section 3333.2 (the MICRA cap) before or after noneconomic damages

are reduced pursuant to Civil Code section 1431.1 et seq. (Proposition

51) to reflect a defendant’s several, rather than joint, liability.” (Gilman,

supra, 231 Cal.App.3d at p. 126.) The court noted, citing Yates, that

“[u]nder MICRA, where more than one health care provider jointly

contributes to a single injury, the maximum a plaintiff may recover for

noneconomic damages is $250,000.” (Id., at p. 128.)

The Gilman court, considering different hypothetical situations,

rejected the plaintiff ’s argument that the plaintiff could simply collect

the entire $250,000 from the trial defendant, Beverly, despite the

percentage attributable to Dr. Schulkin, either because Dr. Schulkin was

insolvent or because he was not present before the court. “To apply

plaintiffs’ analysis would result in Beverly owing an additional $40,000

simply because a concurrent tortfeasor, whose act of medical

malpractice contributed to the plaintiffs’ injury, was insolvent or not

named in the lawsuit.” (Gilman, supra, 231 Cal.App.3d 128-129.) Here,

Plaintiff essentially asserts the same position the Gilman court

rejected—that one defendant’s liability may be increased simply because

a concurrent tortfeasor is not currently before the court.

In Mayes v. Bryan (2006) 139 Cal.App.4th 1075, a professional

negligence case, the jury found the trial defendants twenty percent

responsible and the settling doctors eighty percent responsible for the

plaintiff ’s total damages. After reducing the damages to reflect the

11

limitation in Section 3333.2, the allocation of fault, and prior

settlements, the trial court entered judgment against the trial defendant.

The Second Appellate District examined whether it was proper for the

trial court to limit noneconomic damages before apportioning the

damages among defendants.

The court held that in a case where more than one defendant

shares responsibility for the plaintiff ’s injury and the plaintiff is not at

fault, “each defendant is only responsible for the percentage of non-

economic damages in proportion to his or her proportionate fault. The

$250,000 MICRA maximum for non-economic damages”—not the

damages as awarded by the jury—“must be apportioned according to

Proposition 51.” (Mayes, supra, 139 Cal.App.4th 1075, 1102.) The Mayes

court therefore concluded that the co-tortfeasors’ settlements applied

toward the maximum noneconomic damages limitation of $250,000,

and that the plaintiff could not collect more than $250,000 in

noneconomic damages due to the limitation in Section 3333.2.

Thus Gilman and Mayes both held the $250,000 limit in Section

3333.2 was the maximum allowable amount that a plaintiff may collect

from all professional negligence defendants—without regard to whether

those defendants were present at trial. Plaintiff argues that Gilman and

Mayes are not applicable because in those cases “the compensation

recovered by the plaintiff for noneconomic damages from both the

settlement and the judgment were less than $250,000.” (Opening Brief,

p. 14.) But the amount is irrelevant; both cases show that other courts

interpreting Section 3333.2 read the limitation on noneconomic

damages to include a plaintiff ’s entire recovery, not just the liability

assessed against a single remaining trial defendant, and not just the

damages assessed at trial. Indeed, Plaintiff ’s argument that the amount

12

of damages in Gilman and Mayes affects how the statute should be

applied reveals the capriciousness of the argument.

Plaintiff ’s position—that the $250,000 limitation applies only to

jury verdicts and not settlements—contradicts the many cases that have

held otherwise. No case has held, as Plaintiff asserts here, that a

plaintiff may collect more than $250,000 simply because some

defendants have settled or are not present at trial, or that trial

defendants’ liability is increased because co-tortfeasors have settled.

This Court in Western Steamship rejected a narrow reading of Section

3333.2 that would have applied only to defendants present at trial, and

the Court should reject Plaintiff ’s narrow interpretation in this case.

C. To preserve the purposes of MICRA, Section 3333.2 should

apply consistently to any malpractice “action.”

Following the reasoning of the cases discussed above, this Court

should hold that Section 3333.2 limits all compensation for the

noneconomic damages allegedly suffered by Plaintiff as a result of

professional negligence. Such an interpretation of Section 3333.2

comports with the language and policies of Section 3333.2 and MICRA

as a whole. The limitation in Section 3333.2 should not shift or change

based on whether alleged co-tortfeasors have settled or are not before

the court, as Plaintiff asserts.

The analysis in the Court of Appeal below was correct. The court

held that Section 3333.2 limits Plaintiff ’s total recovery for

noneconomic damages resulting from professional negligence,

regardless of which defendants were present before the court at trial.

The court did not rely on offsets under Civil Code section 1431.2, since

there was no apportionment of fault by the jury. (Slip Opn., pp. 7-8.)

Instead, the court held that “MICRA…sets an absolute limit on the

total amount of damages a plaintiff can recover from health care

13

providers from noneconomic losses.” (Id., p. 8.) The court noted that

the focus of Section 3333.2 is “the total amount of damages for

noneconomic loss an injured plaintiff may recover from all defendant

health care providers in a single action.” (Ibid., emphasis in original.) In

rejecting Plaintiff ’s position, the court observed that “MICRA does not

distinguish between settlement dollars and judgments; it addresses a

plaintiff ’s total recovery for noneconomic damages.” (Id., p. 9.) The

Court of Appeal was correct to focus on Plaintiff ’s recovery, rather than

allowing Section 3333.2 to apply differently depending on which

defendants were present at trial.

This is a common-sense application of Section 3333.2 that

comports with the language and intent of the statute. Section 3333.2,

subdivision (b) limits noneconomic damages in any “action.” The

subdivision should be interpreted as encompassing all noneconomic

recovery for an injury arising from professional negligence.

As the Court of Appeal held in Yates, “action” encompasses all

claims for wrongful death based on the one action rule, which requires

all plaintiffs to join in a single action. (See Yates, supra, 194 Cal.App.3d

at 200-201, discussed supra at section (B).) Similarly, under California’s

primary right approach, a single injury gives rise to only a single claim

for relief. “[A] primary right is…indivisible: the violation of a single

primary right gives rise to but a single cause of action.” (Hayes v. County of

San Diego (2013) 57 Cal.4th 622, 630-631, quoting Crowley v. Katleman

(1994) 8 Cal.4th 666, 681 (emphasis in Hayes).) A “cause of action” in

this sense does not mean the various counts listed in a complaint, but

instead “the right to obtain redress for a harm suffered.” (Hayes v. County

of San Diego, supra, 57 Cal.4th at p. 631, citing Boeken v. Philip Morris

USA, Inc. (2010) 48 Cal.4th 788, 798.) “[O]ne injury gives rise to only

14

one claim for relief.” (Boeken v. Philip Morris, supra, 48 Cal.4th at p. 798,

quoting Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) An “action,” as

stated in Section 3333.2, encompasses that primary right to obtain relief

from harm suffered as a result of professional negligence.

Plaintiff does not disagree with this interpretation of the term

“action,” but he argues that settlements are not “damages” and

therefore they are not limited by Section 3333.2. (Reply Brief, p. 10.)

The two, however, cannot be divorced. Section 3333.2 does not apply

separately to each individual defendant in an action, or each non-

settling defendant in an action. And Section 3333.2 is “a limitation on

liability” (Western Steamship, supra, 8 Cal.4th at p. 116), not a limitation

on jury verdicts or a limitation on liability of only those defendants who

go to trial. It is a limitation on defendants’ liability for an alleged

violation of a plaintiff ’s primary right—regardless of the trial status of

any particular defendant or co-tortfeasor. (See id., at p. 116 n. 12

(liability for health care providers does not vary depending on whether

they are present at trial).)

In other circumstances, this Court has rejected the position that a

defendant should be liable for damages caused by other defendants who

are not before the court at the time a verdict is rendered: “A defendant’s

liability for noneconomic damages cannot exceed his or her

proportionate share of fault as compared with all fault responsible for

the plaintiff ’s injuries, not merely that of defendants present in the

lawsuit.” (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 603 (internal

alterations omitted) (interpreting Civil Code, section 1431.2).) Just as

liability for economic damages does not shift and change depending on

whether co-tortfeasors have settled, liability for the limited

noneconomic damages in a professional negligence lawsuit should not

change simply because co-tortfeasors have settled.

15

Furthermore, Plaintiff ’s interpretation of Section 3333.2

undermines important policies inherent in MICRA, including the

incentive to resolve cases before trial. “MICRA provisions should be

construed liberally in order to promote the legislative interest in

negotiated resolution of medical malpractice disputes and to reduce

malpractice insurance premiums.” (Preferred Risk Mutual Ins. Co. v.

Reiswig (1999) 21 Cal.4th 208, 215, citing Russell, supra, 15 Cal.4th at p.

790 and American Bank & Trust Co. v. Community Hospital (1984) 36

Cal.3d 359, 363–364 (emphasis added).)

Plaintiff agrees that if a jury’s verdict were against multiple

healthcare providers, “section 3333.2 [would limit] the total recovery of

noneconomic damages as to these multiple defendants.” (Reply Brief,

7.) But if some alleged co-tortfeasors settle, according to Plaintiff, a

plaintiff would be entitled to more than $250,000 in noneconomic

damages. Plaintiff argues that this interpretation would not inhibit

settlement. (Reply Brief, p. 13.) To the contrary, Plaintiff ’s position

would allow for an end-run around the statutory limitation in Section

3333.2, incentivizing plaintiffs to name as many defendants as possible

in a lawsuit in hopes of getting more money in settlements. And in high

noneconomic damages cases involving multiple defendants, defendants

would be incentivized to stay in a case and not settle, as their liability

would be reduced as a result. Creating a system in which settlements are

not subject to MICRA’s limit on noneconomic damages but trial verdicts

are does not encourage settlement.

Furthermore, a pronouncement from this Court that the

limitation on noneconomic damages does not apply to settlements

would make settlement negotiations wildly unpredictable. Under this

approach, determining whether a settlement is in good faith would

become difficult, as the noneconomic damages cap would apply in

16

varying amounts depending on which defendants proceed to trial, and

no damages cap would apply at all to settlements. (See Code Civ. Proc.,

§ 877.6; Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d

488, 499 (a determination of good faith should take into account a

settlor’s expected liability at trial).)

The alternative resolution of claims is central to MICRA’s

purpose of reducing the costs inherent in professional negligence

litigation. (See, e.g., MICRA’s Code Civ. Proc., § 364 (requiring pre-

lawsuit notice in professional negligence cases); Preferred Risk Mutual Ins.

Co. v. Reiswig (1999) 21 Cal.4th 208, 215 (“the clear policy behind

section 364 [is] to encourage settlements and lower insurance

premiums”); MICRA’s Code Civ. Proc., § 1295 (providing for

arbitration in professional negligence cases); Ruiz v. Podolsky (2010) 50

Cal.4th 838, 849 (“section 1295 was part of MICRA’s efforts to control

the runaway costs of medical malpractice, and that statute does so by

promoting arbitration of malpractice disputes”). Any interpretation of

Section 3333.2 that discourages settlement and makes resolution of

professional negligence cases more difficult contradicts the overall goals

and policies of MICRA and should be avoided.

III. CONCLUSION

Civil Code section 3333.2, subdivision (b) limits noneconomic

damages in an “action” for professional negligence. It does not allow a

plaintiff to collect more than the statutory maximum if co-tortfeasors

settle, and it does not allow for health care defendants’ liability to

change depending on which defendants are currently before the court.

Plaintiff ’s preferred interpretation would re-introduce the volatility and

lack of predictability that MICRA was intended to prevent. The Court

of Appeal’s common-sense approach should be affirmed.

17

Dated: June 10, 2014 Respectfully submitted, TUCKER ELLIS LLP Rebecca A. Lefler

By: /s/ Rebecca A. Lefler Rebecca A. Lefler Counsel for Amici Curiae California Medical Association, California Dental Association, and California Hospital Association

18

CERTIFICATE OF COMPLIANCE

Pursuant to rule 8.520 of the California Rules of Court, I hereby

certify that this brief contains 3,734 words, including footnotes. In

making this certification, I have relied on the word count of the

computer program used to prepare the brief.

By /s/ Rebecca A. Lefler Rebecca A. Lefler

996235

1001162.1

PROOF OF SERVICE

Hamid Rashidi Plaintiff, Respondent and Cross-Appellant

v. Franklin Moser, M.D.

Defendant, Appellant and Cross-Respondent

In the Supreme Court of the State of California, Case No. S214430 Court of Appeal, Second Appellate District, Division Four

Case No. B237476

I, Estella Licon, declare as follows:

On June 10, 2014, I served the following: Application for Leave to File Amici Curiae Brief in Support of Franklin Moser, M.D.; Brief of Amici Curiae California Medical Association, California Dental Association, and California Hospital Association on the interested parties in this action by:

X U. S. MAIL: By placing a true copy thereof enclosed in a sealed envelope(s) addressed as above, and placing each for collection and mailing on that date following ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service in Los Angeles, California, in a sealed envelope with postage fully prepaid.

PLEASE SEE ATTACHED SERVICE LIST

X (STATE): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed at Los Angeles, California on June 10, 2014.

/s/ Estella Licon

ESTELLA LICON

2 1001162.1

SERVICE LIST

Hamid Rashidi Plaintiff, Respondent and Cross-Appellant

v. Franklin Moser, M.D.

Defendant, Appellant and Cross-Respondent

In the Supreme Court of the State of California, Case No. S214430 Court of Appeal, Second Appellate District, Division Four

Case No. B237476

Curtis A. Cole, Esq. Kenneth R. Pedroza, Esq. Cole Pedroza LLP 2670 Mission Street Suite 200 San Marino, CA 91108 Tel: (626) 431-2787 Fax: (626) 431-2788 (Attorneys for Defendant, Appellant and Cross-Respondent Franklin Moser, M.D.)

Robert C. Reback, Esq. Reback, McAndrews, Kjar, Warford & Stockalper, LLP 1230 Rosecrans Ave., Suite 450 Manhattan Beach, CA 90266 Tel: (310) 297-9900 Fax: (310) 297-9800 (Attorneys for Defendant, Appellant and Cross-Respondent Franklin Moser, M.D.)

Daniel K. Balaban, Esq. Andrew J. Spielberger, Esq. Balaban & Spielberger, LLP 11999 San Vicente Blvd., Suite 345 Los Angeles, CA 90049 Tel: (424) 832-7677 (Attorneys for Plaintiff, Respondent, and Cross-Appellant Hamid Rashidi)

Stuart B. Esner, Esq. Holly N. Boyer, Esq. Esner, Chang & Boyer 234 East Colorado Blvd. Suite 750 Pasadena, CA 91101 Tel: (626) 535-9860 Fax: (626) 535-9859 (Attorneys for Plaintiff, Respondent, and Cross-Appellant Hamid Rashidi)

Clerk California Court of Appeal Second Appellate District, Division 4 300 South Spring Street Second Floor, North Tower Los Angeles, CA 90013-1213

Court of Appeal Case No. B237476

Hon. Richard L. Fruin, Jr. Los Angeles Superior Court 111 North Hill Street, Dept. 15 Los Angeles, CA 90012

Superior Court Case No. BC392082