TREND: PLAINTIFF’S BAR TAKING STABS AT MULTIPLE CAPS ON GENERAL DAMAGES AFTER AB 35 AMENDMENTS TO MICRA: Summer 2024

As we continue to adjust to the changes made by AB35 to the MICRA cap on damages, a somewhat predictable trend has emerged – plaintiffs seeking to double dip into the general damages categories described in the amended Civil Code §3333.2. The statute provides that no health care provider or health care institution shall be liable in more than one of the three categories, but until a court addresses the ambiguities in the new statute regarding the definitions of “health care provider” and “health care institution,” we can expect significant debate about this expanded arena of recovery. Questions that are seemingly unanswered right now include:

(1) Can a health care provider employee of a health care institution be held liable for general damages separately from its employer?

(2) Can a health care institution that is exempt from the bar on the corporate practice of medicine (academic institutions) be held liable for general damages in categories as both an institution and the employer of the health care provider?

(3) Can a hospital argue that it cannot be liable for the general damages where the only liability claim is for ostensible agency and the ostensible agent doctor has been found separately liable?

(4) Can plaintiffs demonstrate separate categories of liability for academic institutions by arguing that the bar on the corporate practice of medicine mandates hospitals and doctors (even employee doctors) be held liable under separate categories of negligence arising from the same act of negligence? These questions currently remain unanswered and are the subject of ongoing debates throughout the state. Until the courts take up this issue, the responses to these questions will be varied and the impact on litigation significant.

~ J. Julia Hansen-Arenas

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