New decision on exception to strict liability for providers dispensing products, the learned intermediary defense, and the interplay between MICRA and Proposition 51

Bigler-Engler v. Breg, Inc. (Jan. 6, 2017, D063556) __ Cal.App.5th __ [2017 WL 65411], opinion on rehearing.

A doctor prescribed the use of a Polar Care 500 cold therapy medical device (akin to an ice water pump and icepack) without disclosing the risks to his patient, who suffered a nonfreezing cold injury. The injuries required surgery to remove dead tissues, nine additional procedures, and scar reduction surgeries. The patient sued the doctor, his medical group, and the device manufacturer for various tort claims, including medical malpractice, products liability, breach of fiduciary duty, and intentional concealment. A jury returned a verdict for the patient against each defendant, though some defendants prevailed on some claims. The jury awarded roughly $70,000 in economic damages and $5 million in noneconomic damages, as well as punitive damages against the doctor and the device manufacturer.

The Court of Appeal affirmed in part and reversed in part—and remitted the compensatory and punitive damages—in a lengthy opinion. We address only the issues most pertinent to healthcare law.

1. The jury had returned a verdict against the medical group on design defect and failure-to-warn claims (sounding both in strict liability and negligence). The Court of Appeal reversed as to the strict liability theory, applying an exception to strict liability for medical providers that dispense products as part of their treatment of patients. But the court affirmed as to the negligence theory because the exception for strict liability claims does not apply to negligence claims.

2. The trial court had refused to give the manufacturer’s requested jury instruction on the learned intermediary doctrine, under which a strict liability duty to warn is discharged by providing adequate warnings to a prescribing physician rather than to a patient. The Court of Appeal affirmed, holding that the learned intermediary doctrine can immunize manufacturers of prescription drugs and implantable medical devices, but not products like the Polar Care 500, which must be applied by patients themselves.

3. In the event the patient accepted the remitted awards, the compensatory damages would still exceed $250,000, so the Court of Appeal went on to discuss whether and how MICRA and Proposition 51 should apply. The court held that the verdicts against the doctor and medical group for medical malpractice, negligent failure to warn, and breach of fiduciary duty sounded in professional negligence and were therefore subject to MICRA. But the intentional concealment verdict against the doctor did not sound in negligence, thus the MICRA cap did not apply to that verdict. Next, as between the doctor and medical group, the Court of Appeal held that Proposition 51 applied, so that each tortfeasor was responsible only for its proportionate share of noneconomic damages. The court clarified that Proposition 51 would apply first to limit the patient’s aggregate recovery of noneconomic damages, then the MICRA cap could be applied to each tortfeasor’s share.

Peder K. Batalden
Horvitz & Levy LLP
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