Ng v. Superior Court

Ng v. Superior Court (Jan. 29, 2025, G064257) ___ Cal.App.5th ___, 2025 WL 323098

Separate MICRA caps are available for survivor and wrongful death claims stemming from the same medical malpractice.

Joely Ng’s husband died from sepsis after doctors at Los Alamitos Medical Center improperly placed his feeding tube.  Ng sued the doctors and the Medical Center for (1) wrongful death in her individual capacity, and (2) medical malpractice as her husband’s successor-in-interest (a survival claim).  She sought economic damages and noneconomic damages up to the relevant statutory caps. (See Civ. Code, § 3333.2, subd. (b) & (c) [capping noneconomic damages in medical malpractice actions]; see also Code Civ. Proc., § 377.34, subd. (b) [allowing recovery of noneconomic damages in survival actions].) The Medical Center conceded that Ng could recover noneconomic damages for both wrongful death and survival claims, but moved to strike portions of her complaint alleging that a separate MICRA cap applied to each claim.  The trial court granted the motion, reasoning that “ ‘the wrongful death claim is not separate and distinct from a medical negligence claim, it cannot be . . . subject to a separate MICRA cap.’ ”  Ng sought writ relief.

The Court of Appeal granted Ng’s writ petition, holding that plaintiffs who bring both wrongful death and survival claims may recover non-economic damages up to the MICRA cap for each claim.  The court explained that recent amendments to Code of Civil Procedure section 377.34, subdivision (b), now “allow for the recovery of damages for a decedent’s ‘pain, suffering, or disfigurement’ in survival actions ‘filed on or after January 1, 2022, and before January 1, 2026.’ ”  The court further explained that separate MICRA caps are allowed for separate injuries, and the survival and wrongful death claims seek compensation for separate injuries.  The survival claim seeks compensation for damages to the decedent, while the wrongful death claim seeks compensation for damages to the heirs of the decedent “ ‘ “based upon their own independent pecuniary injury suffered by loss of a relative.” ’ ” Since the survival and wrongful death claims remedy distinct injuries suffered by distinct persons separate MICRA damages caps apply, and Ng was therefore entitled to writ relief.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson, Peder K. Batalden, and Lacey Estudillo at the appellate firm 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.

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