Gavello

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 FRANCISCOCASE 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 Supplemental Certificate:

Interested

Entity/Person

Nature of Interest Party/Non-Party

Kristina Gavello

Aubrey Gavello

Garrett Gavello

Bryant Gavello

Respondents and Cross

- Appellants

Party

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 Avenue, Suite 3th

San Francisco, CA 94118

415.742.4385

[email protected]

ii

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Plaintiffs’ anesthesiology expert Dr. Bruce Halperin was highly qualified... . . 3

B. Where (as here) a patient is heavily sedated, the anesthesiologist’s 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 anesthesiologist’s 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

C. Dr. Millman negligently administered overdoses of central-nervous-system

depressants, foreseeably causing Mr. Gavello’s arrest.. . . . . . . . . . . . . . . . . . . 7

1. Before surgery: Dr Millman gave an excessive Valium dose, causing Mr.

Gavello’s 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 post-

operative restlessness was negligent and highly unusual.. . . . . . . . . . . . . 8

4. Dr. Millman’s administration of Thorazine via a slow-acting injection was

the wrong method—reaching peak effect after Dr. Millman was already

gone.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

5. Dr. Millman’s multidrug overdose caused Mr. Gavello’s respiratory arrest

and death.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

D. Dr. Millman’s 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. Gavello’s 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

iii

2. But Dr. Millman left prematurely while Mr. Gavello was still

“unconscious” and only 20 minutes after giving Thorazine—a drug he

gives to less than 1% of his patients—that would reach peak effect after he

left.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3. Mr. Gavello never consented to Dr. Millman’s early departure.. . . . . . . 18

4. As Dr. Millman admitted, he left without giving any post-operative

orders—violating the standard of care. . . . . . . . . . . . . . . . . . . . . . . . . . . 18

5. Dr. Millman’s premature departure (before Mr. Gavello emerged from

anesthesia) without proper orders violated the standard of care and caused

Mr. Gavello’s death. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

6. Though Dr. Millman had reason to believe nurse Engle had trouble

resuscitating patients, he left her in charge of Mr. Gavello’s resuscitation.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

7. Dr. Millman’s delegation to nurse Engle caused Mr. Gavello’s 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 post-

operatively (2) Versed caused Mr. Gavello’s 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 death—Mr.

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

B. The judge declined to give Dr. Millman’s Intentional Tort/Criminal Act

instruction... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

C. The jury returned a plaintiffs’ verdict, voting 11-1 that Dr. Millman was

negligent and 9-3 that his negligence caused Mr. Gavello’s death.. . . . . . . . . 32

iv

DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

I.

Refusing the “Intentional Tort/Criminal Act” instruction was proper. . . 33

A. Nurse Engle’s 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. Millman’s counsel admitted nurse Engle had no intent to harm Mr.

Gavello.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

B. Refusing CACI 433 was proper because nurse Engle’s 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 party’s conduct is “of a kind

and degree so far beyond the risk [the tortfeasor] should have foreseen.”

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

2. Nurse Engle’s conduct was “exactly what one could expect”— even Dr.

Millman’s counsel admitted it “makes some sense.”. . . . . . . . . . . . . . . 38

a. Dr. Millman’s failure to give specific orders required nurse Engle to

exercise her own discretion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

b. Versed would have been appropriate for Mr. Gavello’s post-

operative restlessness.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

c. Nurse Engle had given Versed before.. . . . . . . . . . . . . . . . . . . . . . 40

C. Any giving of Versed did not “happen[] after” Dr. Millman’s negligent conduct

as required under CACI 433—indeed, Dr. Millman’s negligent absence was a

simultaneous cause... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

1. Dr. Millman had a duty to monitor Mr. Gavello for an oncoming

respiratory arrest—or successfully resuscitate him... . . . . . . . . . . . . . . . 41

2. Because Dr. Millman breached his duty to stay with Mr. Gavello, any

Versed given by nurse Engle and Dr. Millman’s negligent absence were

simultaneous causes of Mr. Gavello’s arrest.. . . . . . . . . . . . . . . . . . . . . 42

D. The instruction would have been improper because any Versed did not solely

cause the respiratory arrest—and Mr. Gavello died from“lack of resuscitation”

(not respiratory arrest). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

v

II.

Refusing the criminal conduct instruction was not prejudicial. . . . . . . . . 45

A. The standards for determining prejudice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

B. Refusing the instruction was not prejudicial because, as the defense admitted,

Mr. Gavello died from a lack of resuscitation (not Versed). . . . . . . . . . . . . . . 45

C. The great weight of the evidence is that nurse Engle did not give Versed—only

Dr. Benowitz “believe[d]” she did, even though he had “no specific information

that she did.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

D. Plaintiffs’ closing argument would have applied even under the requested

instruction... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

E. The Jury’s readback request does not show prejudice. . . . . . . . . . . . . . . . . . . 49

F. In light of the jury’s near-unanimous (11-1) negligence verdict and the defense

admissions that Versed alone could not cause respiratory arrest, the jury’s 9-3

causation verdict does not suggest prejudice.. . . . . . . . . . . . . . . . . . . . . . . . . . 50

G. 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 Engle’s negligent

resuscitation if he negligently left early. . . . . . . . . . . . . . . . . . . . . . . . . 51

2. The substantial factor instruction embraced Dr. Millman’s superseding

cause defense—as shown in his closing argument. . . . . . . . . . . . . . . . . 52

III.

Any retrial should be limited to Dr. Millman’s superseding cause

defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

vi

CROSS-APPELLANT’S OPENING BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

A. Denial of the “inviolate” right to jury trial... . . . . . . . . . . . . . . . . . . . . . . . . . . 56

B. Discrimination: Unconstitutional denial of equal protection.. . . . . . . . . . . . . . 57

C. Erroneous reduction of noneconomic damages to $250,000 before apportioning

fault.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

D. Issues presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

1. Does section 3333.2, by reducing noneconomic damages to

$250,000, without regard to the jury’s 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 Commissioner’s power to bar

“excessive” insurance rates under Proposition 103, does

MICRA’s 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

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 tortfeasors’s settlement,

should the trial court determine the ratio of economic to

noneconomic damages in the settlement by using the jury’s

award of noneconomic damages or $250,000 based on the

MICRA cap (as the trial court did)?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

vii

PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

A. The instructions allowed a fully compensatory award, without

arbitrary limit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

B. The jury awarded the four plaintiffs $1,000,000.. . . . . . . . . . . . . . . . . . . . . . . 62

C. The judgment reduced $1,000,000 in noneconomic damages to

$50,000—$12,500 per plaintiff.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

I.

Denial of right to jury trial: MICRA’s $250,000 cap abrogates the

jury’s noneconomic damages award.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

A. The cap’s arbitrary $250,000 limit on a jury’s compensatory award— regardless

of the evidence and without plaintiff’s consent—violates the right to trial by

jury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

1. The Constitution guarantees that the judgment reflect the jury’s 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 MICRA’s

discriminatory damages cap.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

A. The constitution’s equal protection guarantee requires that statutory

classifications have a rational basis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

B. Standard of review: Courts conduct a “serious and genuine” inquiry on whether

the statute has a “plausible” and “reasonably conceivable” “rational basis.”.. 70

C. A statute becomes unconstitutional if “the relevant factual premise” for the

statute’s rational basis is “totally altered.". . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

viii

D. Section 3333.2's damages cap was enacted to resolve a medical

malpractice insurance “crisis” that threatened health care... . . . . . . . . . . . . . . 73

1. In 1975, "skyrocketing" medical malpractice insurance rates threatened

California's health care system.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

2. The Governor and the Legislature found that “skyrocketing” insurance

rates threatened California health care.. . . . . . . . . . . . . . . . . . . . . . . . . . 74

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. . . . . . 75

E. MICRA’s 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” rates—eliminating any

rational basis for the damages cap.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

4. The Insurance Commissioner’s 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 MICRA’s cap.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

ix

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 jury’s award of

noneconomic damages ) to calculate economic damages from Dr.

Brown’s settlement... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

A. Procedural history.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

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.. . . . . . . . . . . . . . . . . . 86

1. MICRA’s $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 California’s policy of “maximization” of

plaintiff’s recovery.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

3. Cases are in conflict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

a. Cases involving only comparative fault first reduce the award by

plaintiff’s fault, then apply the $250,000 cap—if necessary.. . . . . 90

b. Cases involving multiple healthcare providers unjustifiably do the

opposite—first applying the $250,000 cap, then reducing $250,000

to the defendant’s share of fault.. . . . . . . . . . . . . . . . . . . . . . . . . . . 91

C. The trial court erred by using the capped amount of $250,000 (not the jury’s

award of $1,000,000 noneconomic damages ) to calculate the credit from Dr.

Brown’s settlement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

x

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

STATUTESCal. 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 Gavello’s surgery.

Before and during surgery, Dr Millman gave Mr. Gavello excessive doses of

CNS depressants that—according to both plaintiffs’ and defense experts—

substantially contributed to Mr. Gavello’s 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.

Millman’s 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, 2086:17-

21 (emphasis added).

Finally, after trial the jury’s $1,000,000 award was reduced to $250,000 to

conform to the MICRA damages cap.

1

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 cap’s reduction without regard to the jury’s finding or the evidence

supporting it— thus usurping the jury’s determination of plaintiffs’ damages.

(2) The cap’s 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 basis—under

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 cap’s enactment and judicial approval).

Finally, the trial court made two calculation errors using the cap’s 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.

2

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. Gavello’s 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. Gavello’s cause of

death—lack 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 1586:15-

16.

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 doesn’t “work in the surgery center at [his] hospital or [in] outpatient

3

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 anesthesiologist’s

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 ½ 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).

4

As Dr. Halperin explained all anesthesia “medications” “have profound effects

on a person’s 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. Gavello’s

“respiratory arrest”—“[m]ultiple drugs working in concert with each other” to

“depress[] the central nervous system.” 11 RT 1123:7-11.

2. The anesthesiologist’s 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.

5

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 can’t go home”:

The anesthesiologist can’t 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).

6

C. Dr. Millman negligently administered overdoses of central-nervous-

system depressants, foreseeably causing Mr. Gavello’s arrest.

1. Before surgery: Dr Millman gave an excessive Valium dose,

causing Mr. Gavello’s 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. Gavello’s 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.

Gavello’s oversedation—causing 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 ½ 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.

7

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. Gavello’s] 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. Millman’s 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 didn’t

know “anybody in the outpatient surgery arena that’s 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. Gavello’s]

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

8

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

Thorazine—a 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 “that’s 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 patient’s 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

9

"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 “[doesn’t] use Thorazine” and “certainly [doesn’t] 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. Gavello’s “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 to“treat 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. Millman’s administration of Thorazine via a slow-acting

injection was the wrong method—reaching 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 10:15”—over 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. Millman’s multidrug overdose caused Mr. Gavello’s

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. Gavello’s 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. Gavello’s 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 , opined that the1

“combination of medications surrounding [Mr. Gavello’s] 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’1

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. Gavello’s respiratory arrest was caused by “the

drugs he received.” 14 RT 1488:23-25. Specifically Dr. Benowitz admitted “Mr.

Gavello’s 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).

13

D. Dr. Millman’s 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. Gavello’s 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]

caregiver”—for 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 patient”and 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 can’t 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

anesthesiologist’s responsibility has three parts: "the pre-op, intra–op 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 Thorazine—a

drug he gives to less than 1% of his patients—that 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 didn’t “stay and watch” Mr. Gavello. Though the Dr.

Millman’s 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. Millman’s 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 “wasn’t awake” and he “wasn’t alert.” 11 RT 1091:25-26.

And despite having time to make a “late entry in [the] chart describing what

Gary’s condition was” “in light of the fact that he had that arrest,” neither Dr.

Millman’s chart nor Dr. Brown’s 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 anesthetic”—if 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. Millman’s departure) Mr. Gavello “couldn’t carry on a conversation” and

“hadn’t 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. Gavello’s death he told Kristina

Gavello the opposite—that Mr. Gavello “was snoring” when he left. 7 RT 580:28-

581:1.

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.

Gavello’s body. 11 RT 1083:5-9.

Contrary to Dr. Spina’s 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.2

Millman’s hand,” Dr. Millman’s departure still would have violated the

standard of care because Mr. Gavello still “had not spoken”and “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. Millman’s 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. Gavello’s] 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.

Millman’s 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 post-

operative orders—violating 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 he’s

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. Gavello’s earlier dose of Thorazine, in light of

18

Dr. Millman’s 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. 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 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).

19

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. Millman’s “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 “doesn’t prioritize the

medications that are going to be administered to the patient,” it’s “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” “template”—nor 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.

20

5. Dr. Millman’s premature departure (before Mr. Gavello

emerged from anesthesia) without proper orders violated the

standard of care and caused Mr. Gavello’s 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 don’t

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

patient’s 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

anyone—neither 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. Millman’s 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.

Millman’s responsibility to supervise the giving of medications in the immediate

postoperative period.” 8 RT 631:24-27.

Thus, Dr. Millman’s 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.

Gavello’s 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. Gavello’s

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.

24

7. Dr. Millman’s delegation to nurse Engle caused Mr. Gavello’s

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. Millman’s counsel’s 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. Gavello’s 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. Gavello’s “brain injury.” 14 RT 1566:3-8.

E. No substantial evidence showed that (1) nurse Engle gave Versed

post-operatively (2) Versed caused Mr. Gavello’s 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. Benowitz’s opinion that he “believe[d]” “Nurse

Engle gave a dose of Versed” “within 20 or 30 minutes” of Mr. Gavello’s respiratory

arrest even though he had “no specific information that she did.” 14 RT 1512:24-25,

1459:21-1460:1.

25

Accordingly, Dr. Benowitz’s opinion that Versed was given post-operatively

was based solely on the level of Versed in Mr. Gavello’s 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 received—“Valium, Isoflurane, Demerol, Thorazine, Droperidol.”

14 RT 1514:7-28, 1515:3-17.

But Dr. Benowitz’s 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). As Dr. Halperin explained, Dr. Benowitz’s theory about the “mythical dose”3

of Versed “doesn’t fit clinically” because if Mr. Gavello had an “additional dose of

Versed,” the respiratory arrest would have been most likely to occur “minutes after

it’s 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 explained that “nobody4

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. Gavello’s

blood levels of Versed at the code and two hours later” “were basically the same

level” and “show that he’s 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” “the3

implications of finding Versed in [Mr. Gavello’s] 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. Benowitz’s opinion on whether a postoperative dose

of Versed contributed to the respiratory arrest. 16 RT 1604:21-24.

Though Dr. Millman’s brief refers to Dr. Melinek as “plaintiffs’4

expert” Dr. Melinek was not retained by plaintiff and testified to the opinions

formed while performing her duties as a public servant.

26

accord 8 RT 757:20-758:7. And Dr. Halperin agreed that “the most likely

explanation[]” of Mr. Gavello’s 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

Coroner’s 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 to—his 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

death—Mr. Gavello died of lack of resuscitation.

Even if nurse Engle had administered Versed post-operatively, it did not cause

Mr. Gavello’s 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. Gavello’s respiratory arrest was caused by Versed, Demerol,

Thorazine and general anesthesia consisting of isoflurane.” 14 RT 1498:4-7.

Defense counsel made the same admission—that “Millman gave [Mr. Gavello] a lot

of medication” and that 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.

Second, Mr. Gavello’s death was caused by nurse Engle’s failure to

competently handle the respiratory arrest—a failure that was foreseeable to Dr.

Millman based on his past knowledge of nurse Engle). As Dr. Benowitz admitted,

Mr. Gavello “wasn’t being monitored” and “wasn’t 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. Millman’s 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 hurt—Dr.

Millman never challenged nurse Engle’s 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. Millman’s claim that he gave her no orders for any drugs

would also make her administration of Thorazine and Demerol “criminal”—yet 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. 6 RT 444.:23-445:14. And5

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 wasn’t “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 doesn’t use Demerol for pain because it is5

“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

Engle’s 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 that’s 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

couldn’t 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.

30

B. The judge declined to give Dr. Millman’s Intentional Tort/Criminal

Act instruction.

The judge declined to give both of Dr. Millman’s 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. Millman’s 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 Engle’s 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 to6

criminally or intentionally harm the patient—despite 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 wasn’t 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. Gavello’s death.

The jury voted 11-1 that Dr. Millman was negligent and 9-3 that Dr. Millman’s

negligence caused Mr. Gavello’s death. 23 RT 2170:26-2171:14.

32

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 post-

operative recovery, and that this supposed “illegal” act (not authorized by a specific

doctor’s order) raised a question of fact as to superseding cause that should have been

submitted to the jury by Dr. Millman’s proferred instruction, based on CACI 433.7

AA 66; AOB 26.

But the trial court’s rejection of Dr. Millman’s “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 Engle’s conduct to “happen[] after” Dr.

Millman’s negligent conduct, here Dr. Millman’s negligent conduct was ongoing—

Dr. Millman’s negligent absence was a simultaneous cause of Mr. Gavello’s

respiratory arrest.

4. The parties agreed Versed alone did not cause Mr. Gavello’s 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 (177

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 Engle’s 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 harm—but 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 party’s 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, third-

party 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

rapist’s 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. Millman’s counsel admitted nurse Engle had no intent to

harm Mr. Gavello.

Dr. Millman’s counsel admitted to the jury in closing that nurse Engle had no

intent to harm Dr. Gavello—that 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. Gavello’s “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 Engle’s 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 party’s 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 plaintiff’s 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. Plaintiff’s 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 Engle’s administration

of Versed in the absence of specific post-op medication orders was also foreseeable.

2. Nurse Engle’s conduct was “exactly what one could expect”—

even Dr. Millman’s 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 wasn’t 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 Engle’s response to the restless patient to be highly unusual or

extraordinary under these circumstances.” 17 RT 21-23.

And Dr. Millman’s counsel admitted in closing that “if you kind of look at Tina

Engle’s 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 nurse’s 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 anti-

cancer drug damaged plaintiff’s bone marrow).

38

a. Dr. Millman’s 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. Millman’s 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." 15 RT 1656:15-18, 1657:2-8 (emphasis

added).

39

b. Versed would have been appropriate for Mr. Gavello’s

post-operative restlessness.

Mr. Gavello’s 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. Gavello’s 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. Millman’s failure to give any post-operative orders made it foreseeable that

“almost anything could happen”—and 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. Millman’s negligent

conduct as required under CACI 433—indeed, Dr. Millman’s

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 met—Dr. Millman’s negligent failure to supervise

Mr. Gavello’s recovery was continuing and occurring simultaneously with nurse

Engle’s supposed administration of Versed.

1. Dr. Millman had a duty to monitor Mr. Gavello for an oncoming

respiratory arrest—or 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 doctor’s 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 can’t 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. Millman’s negligent

absence were simultaneous causes of Mr. Gavello’s arrest.

Dr. Millman’s premature departure breached his duty of postoperative care of

Mr. Gavello, thus rendering Dr. Millman’s negligent absence a simultaneous cause

(along with any giving of Versed by nurse Engle) of Mr. Gavello’s respiratory arrest.

Accordingly, nurse Engle’s drug dose (if she gave it) was not administered

“after the conduct of” Dr. Millman, rendering Dr. Millman’s 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 Engle’s 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 present—either 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. Gavello—a 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

resuscitation—which 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 arrest—and Mr. Gavello died

from“lack 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 plaintiff—for 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 party’s 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 Engle’s alleged administration of Versed could not by

itself have caused Mr. Gavello’s 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. 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 (emphasis added).

Dr. Benowitz further admitted that Mr. Gavello“wasn’t being monitored” and

that once he arrested he “wasn’t 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. Gavello’s respiratory arrest (let alone the

failure to resuscitate—the ultimate cause of death).

For all of these reasons, Dr. Millman’s proposed superseding cause instruction

was correctly refused.

44

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. The degree of conflict in the evidence. See Part C, below.

2. The effect of counsel’s closing argument. See Part D, below.

3. Any indication that the jury might have been confused. See Part E, below.

4. The closeness of the jury’s vote. See Part F, below

5. 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. Gavello’s death.

The jury was instructed that if Dr. Millman’s 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.

Millman’s 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. Millman’s failure to be there to handle the respiratory

arrest that caused Mr. Gavello’s death (because he left prematurely before Mr.

Gavello ever emerged from anesthesia, violating his admitted duty to shepherd Mr.

Gavello through all three stages—put 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. Millman’s counsel’s closing argument).

Accordingly, because Mr. Gavello died due to “lack of resuscitation,” the

superseding cause instruction would not have changed the jury’s verdict.

C. The great weight of the evidence is that nurse Engle did not give

Versed—only 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. Benowitz’s “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 Examiner’s 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. Halperin’s opinion that the most likely explanation for the Versed in Mr.

Gavello’s 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. Benowitz’s “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. Gavello8

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 plaintiff’s 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. Gavello’s resuscitation.

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(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 opposite—that 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’ counsel’s closing argument “contributed to

[the] misleading effect” of the refused instruction. AOB at 47.

But plaintiffs’ counsel’s arguments would have applied equally under the

requested instruction—and so did not take advantage of the court’s refusal to give it.

Specifically, plaintiffs’ counsel’s arguments that “even if” nurse Engle was

either “negligent” or “didn’t do everything right,” it didn’t “absolve Dr. Millman”

would have applied whether the requested instruction was given or not. 18 RT

1996:11-28 ; AOB 47-48.

Similarly, plaintiffs’ counsel’s argument that nurse Engle’s theft of the monitor,

while “totally unacceptable,” “didn’t cause anything” and “was not a causative factor

in [Mr. Gavello’s] death” would have been unchanged by the issuance of the

requested instruction—no 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 court’s refusal of Dr. Millman’s superseding cause instruction.

E. The Jury’s readback request does not show prejudice.

Dr. Millman claims the jury’s 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.

Gavello’s] vital signs and drugs she had administered.” AOB at 49-50.

49

To the contrary. Nurse Landdeck’s cross-examination showed nurse Engle

never said whether she had administered Demerol, Versed, or Thorazine—“just

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 that’s used for

sedation”—not for pain.

Moreover, the jury also requested a passage from Dr. Brown’s 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 Landdeck’s testimony fail to

show that refusal of the instruction was prejudicial, it reinforced evidence that nurse

Engle never gave Versed, contrary to Dr. Millman’s claim.

F. In light of the jury’s near-unanimous (11-1) negligence verdict and the

defense admissions that Versed alone could not cause respiratory

arrest, the jury’s 9-3 causation verdict does not suggest prejudice.

Dr. Millman is wrong to claim that the jury’s 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.

Millman’s 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. Millman’s expert (Dr.

50

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. Millman’s 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 jury’s 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 insufficient—only a conclusion that Nurse Engle acted with criminal

intent could trigger a superseding cause defense.

Thus, the jury’s 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 Engle’s administration of Versed to be criminal—and 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 Engle’s negligent resuscitation if he negligently left early.

The jury was instructed that any negligence by Dr. Millman made him liable for

nurse Engle’s later negligent resuscitation of Mr. Gavello:

If you decide that Doctor Bernard Millman’s medical negligence was a

substantial factor in causing Gary Gavello’s respiratory arrest, he’s also

responsible for any additional harm resulting from the acts of others in

providing medical treatment or other aid that Gary Gavello’s respiratory arrest

reasonably required, even if those acts were negligently performed.

51

19 RT 2125:26-2126:4 (emphasis added).

Notably, Dr. Millman’s 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 Engle’s 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 Engle’s

negligent failure to resuscitate Mr. Gavello.

2. The substantial factor instruction embraced Dr. Millman’s

superseding cause defense—as shown in his closing argument.

As the California Supreme Court held in Soule, “the omission of [defendant’s]

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.

Millman’s 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. Millman’s 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 didn’t give the Versed that was

in his blood.” 18 RT 2083:12-14 (emphasis added).

Dr. Millman’s 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 didn’t do could not be the reason for the

52

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. Millman’s brief admits that even under the instructions given,

Versed was “accorded primacy” during the parties’ closing argument. AOB at 29

(“Defendant’s counsel then emphasized . . . that the patient’s 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. Millman’s

superseding cause defense.

If this court holds the refusal of CACI 433 to be reversible error, only the

superseding cause defense should be tried—the jury’s 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. Millman’s

liability as a substantial factor or with damages, Dr. Millman’s 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 inapplicable—there, 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. Millman’s success

on any superseding cause would relieve him of all liability despite the jury’s

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 judge’s 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 jury’s verdict.

Dated: June 25, 2012. Respectfully submitted,

WALKUP, MELODIA,

KELLY & SCHOENBERGER

PAUL MELODIA

MELINDA DERISH

SMITH & MCGINTY

By:____________________________

Daniel U. Smith

Attorney for Appellants

54

CROSS-APPELLANT’S OPENING BRIEF

INTRODUCTION

Based on Mr. Gavello’s death, the trial court awarded Mrs. Gavello and the

avello’s three children noneconomic damages of $1,000,000. (Cross-Appellant’s

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. Gavello’s death, would pay only 20% of

plaintiffs’ noneconomic damages.

The trial court’s drastic reduction in noneconomic damages raises four issues,

each of which requires reversal of the judgment and this Court’s 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

55

(4) In determining the size of the credit that Dr. Millman received from Dr.

Brown’s settlement, the trial court lowered the noneconomic damages component of

Dr. Brown’s settlement by using $250,000 (based on MICRA’s cap) rather than the

actual award of $1,000,000, thereby increasing the credit for economic damages that

Dr. Millman received from Dr. Brown’s $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 plaintiff’s

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 plaintiff’s noneconomic damages and without

regard to the number of plaintiffs injured by the defendant’s medical malpractice, the

Legislature violated each plaintiff’s 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.

56

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 basis—limiting noneconomic damages in order to limit medical

malpractice insurance rates—evaporated in 1988 when the enactment of Proposition

103 required the Insurance Commissioner to disapprove “excessive” medical

malpractice insurance rates. Ins. Code § 1861.05. The Department of Insurance has9

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 MICRA’s discriminatory damages cap no longer has a rational

Section 1861.05 provides: “Approval of Insurance Rates. (a) No rate9

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 3333.2—the need in 1975 to

prevent "skyrocketing" medical malpractice insurance rates—is 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, MICRA’s 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 judgment’s award of noneconomic damages, the trial

court applied section 3333.2's damages cap to reduce the jury’s $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

58

statutes: 20% of $1,000,000 = $200,000 under Proposition 51, which is less than

MICRA’s 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. Brown’s $1,000,000 settlement, the trial court determined the ratio

between the economic damages and the noneconomic damages portion of Dr.

Brown’s settlement by using $250,000 (based on MICRA’s 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 jury’s 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 Commissioner’s power to bar

“excessive” insurance rates under Proposition 103, does

MICRA’s 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

59

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 tortfeasors’s settlement,

should the trial court determine the ratio of economic to

noneconomic damages in the settlement by using the jury’s

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

60

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.

61

B. The jury awarded the four plaintiffs $1,000,000.

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

Respondent’s 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. Millman’s 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 MICRA’s cap on noneconomic damages to be

unconstitutional, but said: “For what it’s worth, I think it’s 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 MICRA’s $250,000 cap and Proposition

51's apportionment of fault, the judge said: “I am going to apply [MICRA’s] 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.

62

I.

Denial of right to jury trial: MICRA’s $250,000 cap

abrogates the jury’s noneconomic damages award.

California’s 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 plaintiff’s consent. The Supreme Court has never addressed whether the

$250,000 damages cap in section 3333.2 violates a plaintiff’s constitutional right to

jury trial. Hence, the issue is open for this Court to consider afresh.

A. The cap’s arbitrary $250,000 limit on a jury’s compensatory award—

regardless of the evidence and without plaintiff’s consent—violates

the right to trial by jury.

1. The Constitution guarantees that the judgment reflect the

jury’s 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 party’s 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

64

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. 828-

829.

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

65

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 inapposite10

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. SeeDiscussion, Part III.B, below.

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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 Fein’s rationale—that section 3333.2 was justified

by the 1975 crisis in insurance and healthcare—but Fein did not address the

constitutional right to jury trial. Moreover, as shown in Part I, Fein’s 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” rates—thereby eliminating any rational basis for

the MICRA cap’s 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

MICRA’s discriminatory damages cap.

A. The constitution’s equal protection guarantee requires that statutory

classifications have a rational basis.

California’s 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 California’s 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 statute’s rational basis is “totally altered."

The Supreme Court has held that a statute loses its constitutionality where “the

relevant factual premise” for the statute’s 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 statute’s 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 plaintiff’s 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 Legislature’s 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 state’s 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

Legislature—insufficient 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 court’s 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 court’s 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 Non-

Economic 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

73

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.3d359, 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).

74

3. The Supreme Court in Fein upheld the damages cap on the basisthat it sought to resolve the insurance crisis that threatened healthcare.

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. MICRA’s 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.

Fein’s candid acknowledgment of the statute’s 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 $1,067,913.57—four times as great as the statute allows.

http://www.bls.gov/data/inflation_calculator.htm (as of June 17, 2012). In other

77

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” rates—eliminating 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).

78

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)::

79

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 Commissioner’s 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 Commissioner’s 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.

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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 Rate Decrease

The Dentists Insurance Company 13.4% (RJN at 53)

NCMIC Insurance Company 7.25% (RJN at 55)

Medical Insurance Exchange 19.0% (RJN at 54)

Medical Protective Company 11.9% (RJN at 70:14-16)

NORCAL Mutual Insurance Company 7.07% (RJN at 63:14-15)

The Doctors Company 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

81

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:11

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

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 premiums—and

that Proposition 103 has resulted in the rate reductions that section 3333.2 was

intended to produce—is 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 MICRA’s cap.

No appellate decision has considered the constitutionality of MICRA’s damages

cap in light of the Insurance Commissioner’s 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 MICRA’s 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.

84

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 jury’s award of

noneconomic damages ) to calculate economic damages

from Dr. Brown’s 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. Millman’s 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 jury’s 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. Brown’s settlement by using MICRA’s $250,000 cap for

noneconomic damages rather than the jury’s $1,000,000 award. This erroneous

calculation increased the credit to Dr. Millman from the economic damages estimated

to be in Dr. Brown’s settlement and so erroneously reduced the judgment against Dr.

Millman.

Finally, if MICRA’s damages cap is unconstitutional, the foregoing calculations

are erroneous for that reason also.

85

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 statute’s 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 California’s policy that when a court applies various

statutes affecting the amount of a judgment, the court’s primary goal is

“maximization” of the plaintiff’s 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 3333.2—which limits noneconomic damages in the “action,” and (2) for

failing to apply California’s primary policy of maximizing plaintiff’s recovery.

1. MICRA’s $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 court’s 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 California’s policy of “maximization” of

plaintiff’s recovery.

The goal of California tort law is that wrongful-death plaintiffs receive

“adequate compensation” for “all the detriment” caused by the decedent’s 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. Gavello’s love and companionship, and to compensate the children for their loss

of Mr. Gavello’s training and guidance. 19 RT 2127:5-13.12

“The Plaintiffs also claim the following non-economic damages: The12

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

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 decedent’s widow, was awarded noneconomic damages of

$4.33 million, reduced only by the decedent’s 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 plaintiff’s

recovery.” Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290. In interpreting a

statute affecting defendant’s 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 California’s policy of

“maximization” of the plaintiff’s recovery.

The proper result for “maximization” of the plaintiff’s recovery would be to

satisfy Proposition 51 by apportioning the $1,000,000 among all the tortfeasors,

leaving plaintiffs with a noneconomic recovery of $200,000—and 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 plaintiff’s fault, then apply the $250,000 cap—if

necessary.

Three cases involving a plaintiff’s comparative negligence calculate

noneconomic damages by first reducing the jury’s award by the plaintiff’s 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 plaintiff’s 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 plaintiff’s 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, 1391–1393, 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,

640–641, 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 opposite—first applying the $250,000 cap, then

reducing $250,000 to the defendant’s share of fault.

In cases involving nonparty healthcare providers, courts reduce noneconomic

damages to MICRA’s cap first, then apply Proposition 51 to reduce $250,000 to the

defendant’s share of fault—on 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, 126–130, 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 jury’s 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, 200–201.

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

judgment’s maximum noneconomic damages award in the action is

$250,000—a holding that allows plaintiffs here to recover $200,000, based on

Dr. Millman’s 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 Legislature’s] 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 Gilman’s 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 California’s primary policy of maximization of

the plaintiff’s 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. Mailman’s

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. Millman’s 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 jury’s award of $1,000,000 noneconomic damages ) to

calculate the credit from Dr. Brown’s settlement.

The trial court also erroneously reduced Dr. Millman’s 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. Brown’s $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. Brown’s settlement of $1,000,000 that would be credited to

reduce Dr. Millman’s liability for economic damages.

The effect of this error was to reduce Dr. Millman’s 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

94

amount of economic damages that will be credited to Dr. Millman from the

settlement, thus reducing Dr. Millman’s 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. Millman’s share of economic damages:

$2,977,830 Total economic damages award

-$ 748,600 Economic portion of settlement

$2,229,230.50 Dr. Millman’s 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 jury’s 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. Millman’s share of economic damages:

$2,977,830 Total economic damages award

-$ 922,500 Economic portion of settlement

$2,055,330.50 Dr. Millman’s share of economic damages

+ $50,000 Dr. Millman’s 20% share of MICRA cap

$2,105,330.50 Dr. Millman’s 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. Millman’s 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. Millman’s share of

economic damages is less by $173,900: $2,055,330.50

95

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. Brown’s 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 jury’s actual award of economic damages, as Espinoza held—not

the arbitrary $250,000 amount of noneconomic damages that MICRA applies as

the arbitrary ceiling for the judgment’s award of noneconomic damages.

CONCLUSION

MICRA’s 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 MICRA’s 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

96

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

97

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 CounselKenneth 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

98