Raj and Sam are drivers involved in a minor accident that results in a minor injury to Susie.  But, Jo, an incompetent doctor, causes the minor injury to become a major medical problem. Is it fair for Raj and Sam to pay the bills caused by Jo’s incompetence?  The answer used to be yes.  Now, the rule has changed.

Proposition 51 (CA Civ. Code § 1431.2), states that both Raj and Sam are jointly liable for economic damages (i.e., out of pocket expenses for medical treatment, property repair, loss of earnings, etc.) but are only severally liable for non-economic damages (i.e., pain and suffering, emotional distress, embarrassment, etc.).  Thus, if both Raj and Sam are found at least partially at fault for Susie’s injuries, and Sam declares bankruptcy, Raj must pay for Susie’s economic damages, but only pays the portion of non-economic damages deemed to be his fault.

Where medical malpractice makes the situation worse, in the past, all damages associated with subsequent treatment related to the accident were  Raj and Sam’s responsibility, even if Jo caused new injuries as the result of glaring incompetence.  Sam and Raj were not permitted to allocate damages to Jo for malpractice, as the courts reasoned that absent the Sam and Raj’s bad driving, Jo would not have committed malpractice. 

On February 25, 2008, the Court of Appeal in Henry et al. v. Superior Court (Reinink) 160 Cal.App.4th 440 (2008) revised this rule.  Raj and Sam are now entitled to introduce evidence of Jo’s fault in aggravating Susie’s injuries, and to seek a fault allocation against Jo for purposes of limiting liability for non-economic damages.

In Henry, a husband and wife sued homeowners for personal injuries that resulted from a trip and fall.  After the fall, the husband suffered a dislocated shoulder and minor fracture.  During subsequent medical treatment, physicians broke his shoulder in four places, requiring several surgeries.

The homeowners sought to introduce evidence of medical malpractice. The homeowners argued that through such evidence, their liability for any non-economic damages should be limited in accordance with their proportionate fault under Proposition 51, which provides that liability for non-economic damages must be several, not joint. The trial court excluded the evidence of medical negligence.

The Court of Appeal reversed and held that where there is a subsequent independent injury caused by medical malpractice, the original tortfeasor is entitled to reduce its liability for non-economic damages by introducing evidence of a nonparty medical provider’s share of fault for the aggravated injuries. Good news for Sam and Raj.

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Dawn Ceizler specializes in personal injury and products liability defense.  She can be contacted directly at (925) 932-8225.

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