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December 8, 2020

Burchell v. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine (2020) 54 Cal.App.5th 515

A physician performed a surgical procedure on plaintiff to remove a 1cm mass. During surgery, the physician saw the mass was much larger than 1cm and believed it was malignant. He removed the entire mass without first consulting plaintiff or his medical proxy.

Plaintiff sued, alleging professional negligence and medical battery. The jury awarded him over $9 million in noneconomic damages. On appeal, the defense argued the noneconomic damage award should be reduced to the $250,000 MICRA limit under Civil Code section 3333.2, subdivision (a), which applies to “any action for injury against a health care provider based on professional negligence.”

The Court of Appeal affirmed the damage award. The court found that the MICRA limitation on noneconomic damages does not apply to certain types of medical battery. The court distinguished two types of medical battery. First, a battery is an intentional tort outside the scope of MICRA “ ‘when a physician obtains the patient’s consent to perform one type of treatment, but performs a substantially different treatment for which the plaintiff gave no consent.’ ” Second, a battery is rooted in negligence within the scope of MICRA “ ‘when a physician performs the treatment for which consent was obtained and an infrequent complication occurs that the physician failed to disclose when obtaining the patient’s consent.’ ” Here, the court held the physician committed the first type of medical battery. Accordingly, the MICRA limitation did not apply.

Horvitz & Levy represented the defense on appeal in this case.