COURT OF APPEAL HOLDS PROPOSITION 51 PERMITS EVIDENCE OF NONPARTY MEDICAL PROFESSIONAL'S FAULT IN AGGRAVATING PLAINTIFF'S INJURIES

In Henry et al. v. Superior Court (Reinink) (February 25, 2008, Case No. B200690) ___ Cal.App.4th ___, the Court of Appeal held that defendants are entitled to introduce evidence of a nonparty medical professional's fault in aggravating a plaintiff's injuries, and to seek a fault allocation against that professional, for purposes of limiting their liability for any noneconomic damages in accordance with Proposition 51 (Civil Code section 1431.2). (Click here to read the Court of Appeal's opinion.)

A husband and wife sued defendant homeowners for premises liability after the husband suffered a shoulder injury when he fell on the homeowners' property. The homeowners sought to introduce evidence of medical malpractice by the husband's emergency room doctors at Kaiser Permanente which aggravated his injury. The homeowners argued they were entitled to introduce such evidence even though Kaiser was not a party for purposes of seeking a fault allocation against Kaiser. Through introduction of this evidence, the homeowners' liability for any noneconomic damages could be limited in accordance with their proportionate fault under Proposition 51, which provides that liability for noneconomic damages must be several, not joint. The trial court excluded the evidence of Kaiser's negligence, holding that evidence of subsequent medical malpractice may be introduced only where the original tort is also medical malpractice.

The Court of Appeal reversed and issued a writ. The Court of Appeal held that when an injured plaintiff sues an original tortfeasor alone, the defendant is entitled to reduce any liability for noneconomic damages by introducing evidence of a nonparty medical professional's share of fault for the plaintiff's aggravated injuries. The court held this rule was dictated by Proposition 51 and is not limited to circumstances involving successive acts of medical malpractice.

Horvitz & Levy LLP represented the successful petitioners, Joe and Judy Henry.

For more information about this case, contact Karen Bray at (818) 995-0800, or kbray@horvitzlevy.com.

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