14-year-old Jake Drost—who was under the care of a cardiologist for a pre-existing heart condition—died from cardiac arrest after participating in a 100-yard dash for his school’s Junior Reserve Officers’ Training Corps program.  Before Jake began participating, he visited a chiropractor who reviewed Jake’s medical history and cleared him for the program and its strenuous physical activities.  Jake’s parents sued the chiropractor and his practice for negligence and obtained a jury verdict awarding plaintiffs $7 million in past noneconomic damages and $22.5 million in future noneconomic damages.

The chiropractor retained Horvitz & Levy to work with his trial counsel during the posttrial phase and draft arguments that the award should be reduced to $250,000 under MICRA.  MICRA imposes a cap on noneconomic damages in actions based on a chiropractor’s or other healthcare provider’s “professional negligence,” which means the services provided were within the scope of services for which the provider was licensed.  The trial court agreed that MICRA applied and entered a judgment for noneconomic damages in the reduced amount.  Because the reduced judgment was less than defendants’ Code of Civil Procedure section 998 settlement offer, the trial court also reduced plaintiffs’ costs award by $116,000.

Horvitz & Levy then successfully defended the reduced judgment against plaintiffs’ appeal.  Plaintiffs argued that MICRA did not apply because clearing Jake for JROTC—while knowing Jake’s cardiac history—constituted the illegal practice of medicine, specifically pediatric cardiology.  The Court of Appeal agreed with Horvitz & Levy that the chiropractor’s clearance decision was not the illegal practice of medicine because the chiropractor was not attempting to medically diagnose a condition outside the musculoskeletal system which was not already disclosed to him.