Daily Blast October 28, 2016

Today, the Court of Appeal, Fourth Appellate District, Division One (San Diego), issued a very lengthy opinion in Bigler-Engler v. Breg, Inc. (Oct. 28, 2016, D063556) __ Cal.App.5th ___, analyzing, among other issues, MICRA’s noneconomic damages cap and its intersection with apportionment of fault pursuant to Proposition 51.

The case arose from an injury sustained by a patient who was prescribed to use a medical device by her doctor. (Slip opn., p. 2.) The plaintiff sued her doctor, his medical group and the manufacturer of the medical device. (Ibid.) The jury awarded the plaintiff both economic and noneconomic damages and apportioned fault as follows: 50 percent to the doctor, 10 percent to the medical group, and 40 percent to the manufacturer of the medical device. (Ibid.)

On appeal, the court determined that the causes of action against the medical group—medical malpractice, negligent failure to warn, and breach of fiduciary duty—were “based on professional negligence” and subject to MICRA’s noneconomic damage cap. (Slip opn., p. 96.) The court explained that the negligent failure to warn cause of action rested on the medical group’s negligence in rendering professional services, i.e., its prescription and dispensation of the medical device to the plaintiff without adequate warnings and thus fell within Civil Code section 3333.2. The breach of fiduciary duty cause of action was equivalent to a cause of action for lack of informed consent, also a form of professional negligence and was subject to MICRA’s noneconomic damage cap. MICRA’s noneconomic damage cap, however, did not apply to the intentional concealment cause of action against the doctor. (Id. at pp. 96-98.)

The court then applied Proposition 51 to further limit the medical group’s liability for noneconomic damages. (Slip opn., p. 103.) The court concluded that “MICRA applies first to limit [the medical group’s] liability for noneconomic damages to a maximum of $250,000, and then Proposition 51 applies to limit [the medical group’s] liability to 10 percent of that maximum.” (Ibid.) In other words, the MICRA reduction must be made before fault is apportioned.