In Henry v. Superior Court (Reinink) (February 25, 2008) 08 C.D.O.S. 2282, the court of appeal for the Second Appellate District was asked to determine whether Proposition 51 (Civil Code section 1431.2) permits a defendant in a premises liability action to introduce otherwise admissible evidence of the medical malpractice of a non-party subsequent treater in order to attempt to reduce its own liability for non-economic damages of an injured plaintiff. The Henrys owned property on which plaintiff Larry Reinink fell and injured himself. After sustaining his injuries, Reinink went to Kaiser Permanente for treatment of his injuries. The Henrys contended that the emergency room doctors at Kaiser were negligent in their care of Reinink and that their malpractice aggravated or enhanced the injuries he initially sustained on their property. The Henrys argued that under Proposition 51, they were entitled to introduce evidence of the medical malpractice of the subsequent treating non-party health care providers in order to limit their own liability for Reinink’s non-economic damages. The trial court ruled that the Henrys could not introduce such evidence of malpractice, so they petitioned the appellate court for relief. The appellate court agreed with the Henrys, granted their writ and instructed the respondent court to “vacate its order excluding evidence of subsequent negligence by Kaiser physicians treating Reinink’s injuries and to enter a new order permitting such evidence if it is otherwise admissible.”

Reinink had been hired to clean the Henrys’ pool. He tripped and fell on an allegedly “unmarked, unexpected and unlit drop-off on the cement walkway” which he characterized as a dangerous condition the Henrys had neither repaired nor warned visitors (such as Reinink) about. Reinink sued the Henrys for personal injuries (negligence/premises liability) and his wife filed a claim for loss of consortium.

The Henrys contended Reinink’s fall only caused a dislocated shoulder with a minor fracture, and that the physicians at Kaiser exacerbated the plaintiff’s injury when they broke his shoulder in four places while trying to treat the dislocation. The Henrys contended it was this negligent medical care that caused Reinink to require subsequent surgery on the shoulder. The Henrys also filed proposed jury instructions on medical malpractice.

The Reininks objected to the Henrys’ efforts to expand the scope of the trial to include evidence of Kaiser’s alleged negligence because they had not named Kaiser as a defendant and the Henrys had not made any effort to cross-complain against Kaiser. The Henrys argued that because defendant health care providers who are defendants in a professional liability action are permitted to introduce evidence of subsequent negligent medical care so as to reduce liability for non-economic damages in a professional negligence case (Marina Emergency Medical Group v. Superior Court), the Henrys should be entitled to introduce evidence of Kaiser’s alleged malpractice in an effort to reduce their liability in this case, as well.

The trial court said no. It was of the opinion that the ability of a tortfeasor to reduce its liability based on the malpractice of a subsequent health care provider was available only in a medical malpractice case. The court said “the premises liability defendants still can’t give the comparative fault of a malpracticing [sic] physician as a defense or an apportionment of the wrongdoing….It’s a completely different class of negligence. And as plaintiffs’ counsel said, it’s comparing apples versus oranges.” The trial court continued the trial date to allow the Henrys to bring this writ.

The Henrys contended in their petition for relief that under Proposition 51 they were entitled to introduce evidence of Kaiser’s negligent treatment of Reinink’s shoulder injury in order to reduce their own liability for non-economic damages to their percentage of fault. The court of appeal agreed.

The appellate court went through a rather long but interesting analysis and history of Proposition 51. It observed that even prior to the adoption of Proposition 51 in 1986, “the rule a tortfeasor responsible for an accident is also liable for any additional injuries suffered during medical treatment following the accident was one of joint and several liability for the enhanced injuries if the medical care provider was negligent.” The court noted that “subsequent negligent medical treatment is always foreseeable as a matter of law,” and that the “original tortfeasor ‘is always considered to be a proximate cause of the plaintiff’s further injuries.” The fact the underlying tort is not medical negligence is of no consequence. “The joint nature of the liability of the original and subsequent tortfeasors for the enhanced injuries caused by an accident followed by negligent medical treatment is confirmed by section 1431, which prior to adoption of Proposition 51 provided, ‘an obligation imposed upon several persons, or a right created in favor of several persons, is presumed to be joint, and not several….’ Section 1431 still contains the same presumption of joint liability ‘except as provided in Section 1431.2’ that is, except that the liability of each defendant for noneconomic damages in a personal injury action based upon principles of comparative fault is several only.’”

The court then addressed the contention by the Reininks that a finding of joint and several liability requires an “indivisible injury caused by multiple tortfeasors, not two separate and distinct physical injuries,” which they asserted existed in their case. The court disagreed and said that the more “modern (that is, post-American Motorcycle) cases are essentially uniform in holding for purposes of joint and several liability the plaintiff’s injuries need only be causally interrelated, not physically inseparable.” (Emphasis added). That is because the essential concept is “one of legal causation (that is, are multiple tortfeasors responsible for the plaintiff’s injuries), not the precise nature of the resulting damage.” The court stated that if the Henrys are found to be negligent, they are solely responsible for the initial injury. “Liability for the indivisible enhanced or aggravated injury, however, is properly apportioned between the Henrys and the Kaiser physicians in accordance with the rules of comparative fault and section 1431.2.”

According to the court, avenues for relief available to the Henrys if they were found liable to the Reininks include filing an action for equitable indemnification against Kaiser “with respect to those damages for which the Henrys and Kaiser are jointly and severally liable.” If they had followed the proper procedures, they could have cross-complained against Kaiser earlier in the litigation. In addition, “the plain language of 1431.2…also permits the Henrys (assuming all other procedural requirements have been satisfied) to have the jury in the Reininks’ action allocate fault between the Henrys and Kaiser so that liability for noneconomic damages is borne by each in direct proportion to fault….”

The court went on to explain that the Reinink’s arguments that section 1431.2 does not apply to cases involving imputed or vicarious liability (liability imposed by statute or operation of law), or in cases involving strict products liability were correct, but inapposite. The apportionment of liability between Kaiser and the Henrys for their own share of plaintiffs’ non-economic injuries is clearly within the scope of section 1431.2. “[T]he critical question is not whether liability is ‘imputed’ in some manner, but the reason for imposing joint liability in a particular context. And the decisive factor is fault.”

Contrary to the reasoning used by the trial court to deny the Henrys’ efforts to admit evidence of Kaiser’s malpractice, the appellate court said it made no difference that the nature of the claim against the Henrys was for premises liability, while the nature of the claim against Kaiser was for professional negligence. “For purposes of applying the principles of comparative responsibility and apportionment of liability, it is simply not significant that the nature of the Henry’s alleged negligence may be different from that of the Kaiser emergency room doctors. Juries are often confronted with apportioning fault among defendants sued on different theories of liability: ‘Past California cases have made it clear that the “comparative fault” doctrine is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury (whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility) in order to arrive at an “equitable apportionment or allocation of loss.”’”

The Henry decision is long, but it is a good summary of the history, intent and application of Proposition 51, and the result does seem correct. It clearly holds that “[w]hatever class of negligence is involved, under section 1431.2 in personal injury actions in which principles of comparative fault are implicated, the liability of a defendant for non-economic damages is several only.”

In a medical negligence case it is not uncommon to identify non-party healthcare providers (or others) in a special jury verdict form for the allocation of responsibility for non-economic damages. (Footnote 11 of the Henry decision refers to the use notes to CACI 3929, “Subsequent Medical Treatment” which states, in pertinent part, that a physician is “not barred by Proposition 51 from presenting evidence regarding the negligence of” the subsequent treating physicians.) The Henry decision makes it clear that a defendant in a non-medical negligence personal injury action can ask for an apportionment of non-economic damages with a subsequent treating healthcare provider who is not a party but who allegedly rendered negligent care that exacerbated the plaintiff’s original injury.

The challenge for a tortfeasor defendant in such a case will no doubt be “trying” the medical malpractice case as part of its defense of the personal injury action. The Henry court does not go into any detail about the practical effects of its ruling, or how it will play out at the trial of the Reinink case, but footnote 4 says evidentiary issues relating to the claims of medical malpractice will have to be taken up by the trial court. I believe in order to establish the elements of negligence against a subsequent treater like Kaiser and be allowed to include Kaiser on the jury verdict form for the apportionment of damages, the Henrys would have to present expert medical testimony that established Kaiser breached the standard of care owed to Reinink and explained how that that breach played a part in the “chain of causation” leading to Reinink’s ultimate injury. This situation will then put Reinink in the unenviable situation of “defending” the malpractice action during the pursuit of his own personal injury action in the hopes of downplaying any liability by the non-party physicians, keeping the focus on the party defendants, and trying to minimize any potential that his non-economic damages will be reduced by the proportionate liability of non-party physicians who will not be contributing to a final damages award.

As noted above, this case is a bit unusual because many plaintiffs who sustained additional injuries at the hands of physicians during the treatment of their original injury probably would have sued the physicians for professional malpractice along with whoever was responsible for the original injury. Here, it’s unclear whether Kaiser’s arbitration agreement played a part in the Reininks’ decision to just proceed against the Henrys in Superior Court, or whether the Reininks did not believe there was medical negligence. If the Henrys succeed in putting Kaiser on the verdict form, it could reduce the proportional share of non-economic damages against the Henrys and could reduce the likelihood they might later seek equitable indemnification from Kaiser. I guess one could argue, though, that once the defendant has “tried” the med-mal case in the process of defending the personal injury action, if he was able to convince the jury there was malpractice so as to proportionally reduce his liability for non-economic damages he’s done the bulk of the work needed to show negligence by the physician—the jury has established a proportionate share of responsibility for the injury to the physician and it might actually be easier to seek indemnification for a percentage of total economic damages down the line.

 

1 This was likely due to Kaiser’s arbitration clause.

2 Indeed, comments attributed to the trial court in the Henry decision suggest that the court did not want to get into the issue of whether there was medical malpractice because Kaiser was not a party to the case and “it would take up so much time that it’s not worthwhile doing it.”