Business Law

Burchell v. Faculty Physicians & Surgeons of Loma Linda School of Medicine (Sept. 10, 2020, E071146) __Cal.App.5th__ [2020 WL 5422950]

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MICRA damages cap does not apply to certain medical battery claims.

Keith Burchell consented to undergo a  surgical procedure to remove a mass in his scrotum for testing. During the surgery, Dr. Gary Barker discovered the mass was much larger than expected. Believing the mass was malignant, Dr. Barker decided to remove it entirely. Dr. Barker did not first consult Burchell (who was under general anesthesia) or Burchell’s medical proxy (who was present but unknown to Dr. Barker) before performing the more extensive surgery. Burchell suffered serious side effects from this surgery. 

Burchell sued Dr. Barker and the Faculty Physicians & Surgeons of Loma Linda School of Medicine (FPS), alleging professional negligence and medical battery. The jury found for Burchell on both claims and awarded him $4 million in past noneconomic damages and $5.25 million in future noneconomic damages (the parties had stipulated to about $22,000 in economic damages). FPS appealed, arguing 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.” FPS argued, in the alternative, the award of noneconomic damages was excessive due to improper argument by Burchell’s counsel.

The Court of Appeal affirmed the damages awards. The court explained that the MICRA limitation on noneconomic damages applies to actions based on professional negligence, but 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 that Dr. Barker committed the first type of medical battery. Accordingly, the MICRA limitation did not apply. (The court separately rejected an excessive damages argument, but agreed that the trial court had improperly awarded costs under an invalid Code of Civil Procedure section 998 settlement offer.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or

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