KLEIN, P. J.
Defendant and appellant Coram Healthcare Corporation of Southern California (Coram) appeals a judgment in favor of plaintiff and respondent Carly Ann Pritchard (plaintiff or Pritchard) following a jury trial. Coram also appeals an order denying its motion for judgment notwithstanding the verdict (JNOV) and a postjudgment order awarding costs to Pritchard.
Pritchard cross-appeals from the judgment. Pritchard seeks a "correction" and increase in the judgment on the ground Coram does not meet the Medical Injury Compensation Reform Act of 1975 (MICRA) (Civ. Code, § 3333.1 et seq.) definition of a health care provider, and therefore MICRA's limitations on damages are unavailing to Coram.
Pritchard underwent outpatient surgery following an ankle injury. Pritchard was equipped with a patient-controlled morphine pump and sent home. Later that day, Pritchard suffered a drug overdose and sustained permanent brain damage. In this action, Pritchard sued Coram, a nursing agency, contending Coram was negligent in failing to perform adequate maintenance on the morphine pump and in failing to provide a timely home nursing visit.
The issues presented include whether Coram is entitled to JNOV on the ground Pritchard failed to establish the essential element of causation as against Coram. We also addressed various claims of evidentiary error and the applicability of MICRA to this fact situation.
We conclude, inter alia, Pritchard established by a reasonable medical probability that Coram's failure to provide a timely home nursing visit was a substantial factor in Pritchard's brain injury. We find no reversible error and affirm.
On March 8, 2001, while employed as a tour guide at Disneyland in Anaheim, Pritchard, who was then 24 years old, injured her ankle. As a result of that injury, she developed a pain syndrome known as Reflex Sympathetic Dystrophy (RSD) and underwent outpatient surgery in January 2002 to implant a spinal cord stimulator in her back to relieve pain.
On October 8, 2002, Pritchard underwent another outpatient surgery to reposition the epidural lead (a small plastic catheter) to achieve better pain relief.
In connection with plaintiff's surgery on October 8, her physician, Dr. Paicius, prescribed post-surgical morphine to be supplied by a patient-controlled anesthesia pump at home. Pritchard previously had used a morphine pump following a surgery earlier that year. In discharging Pritchard on October 8, Dr. Paicius ordered home health visits for 7 days post-procedure, with two visits per day. The order also required the visiting nurse to "[a]mbulate patient at each visit" and to check the patient's vital signs twice per visit, at a 30-minute interval. Vital signs include temperature, blood pressure, pulse rate and respiration rate.
The morphine pump, a Baxter 6060 pump, was set up at the surgery center by a Coram nurse, Monte Lewis, R.N., in a process that began at approximately 12:35 p.m. Lewis explained the operation of the pump to Pritchard and her mother. Lewis also checked Pritchard for any adverse reaction to morphine. Pritchard had already received 10 mg of morphine post-operatively at the surgery center. She was alert. Lewis walked Pritchard to her car, and her mother drove her home. Pritchard arrived home at approximately 3:00 p.m.
Between the hook-up of the pump and about 4 p.m., Pritchard hit the pump for a bolus (i.e., intravenous dose) six times. The pump twice "locked out" Pritchard and denied her extra morphine when she pressed the button seeking a bolus.
Pritchard watched TV, had a snack and talked on the phone. She took oral prescription medication from two different bottles.
Sometime after 4 p.m., Pritchard took a nap. While she slept, her mother checked on her multiple times. At 6:48 p.m., Pritchard's mother telephoned the Coram answering service, and an administrative nurse called her back immediately. Prichard's mother asked when the nurse would be there.
During the 6:48 p.m. phone conversation, which lasted 10 to 15 minutes, the Coram administrative nurse performed a telephonic assessment of Pritchard. Because the mother had requested a nurse, the Coram administrative nurse contacted Tindell, the Coram evening on-call nurse, to visit plaintiff later that night.
The Coram administrative nurse called Pritchard's mother back at 7:08 p.m., to tell her that Nurse Tindell would be arriving at approximately 10 p.m. and that he would call when he was en route. Pritchard's mother did not raise any concern about plaintiff's condition. The administrative nurse instructed plaintiff's mother to try to rouse or wake her, and the phone call ended. By that time, Pritchard had been asleep for three hours.
At 7:54 p.m., Pritchard's mother called 911 to report that she could not waken her daughter. Paramedics arrived at 7:58 p.m. and found Pritchard unconscious. They administered Narcan and her respiratory rate picked up. They transported Pritchard to the hospital, where she was diagnosed with hypoxic encephalopathy, a brain injury, secondary to morphine drip.
Pritchard filed an action for product liability, negligence, and medical malpractice against multiple defendants, including Coram, Baxter Healthcare Corporation (Baxter), Dr. Paicius and Newport Beach Headache and Pain Institute (the Institute).
Prior to trial, in March 2008, Pritchard settled her workers' compensation claim against Disneyland for a $3 million lump sum payment, including $450,000 in attorney fees, resulting in a net payment to Pritchard of $2,550,000. Under the terms of the settlement, Pritchard received immediate cash disbursements totaling $839,213, plus a set of annuities purchased for her benefit with a guaranteed benefit of $2,888,021 and an expected benefit of $10,814,474.
Prior to trial, Pritchard settled with Baxter for approximately $2 million, and with Dr. Paicius for $800,000. Pritchard also settled with the Institute. This appeal solely concerns plaintiff's claim of negligence against Coram.
On October 14, 2008, a jury trial commenced against the sole remaining defendant, Coram.
Pritchard's theory was that her overdose was the result of an overinfusion of morphine as the result of a defect in the pump, and/or the prescription of an excessive amount of morphine by Dr. Paicius, the defect would have been noted and corrected if Coram had properly maintained the pump, that Coram failed to provide the home nursing visit ordered by Dr. Paicius, and that a timely home nursing visit would have prevented some or all of her permanent brain damage.
Thus, as against Coram, Pritchard's theories of liability were that Coram was negligent (1) in failing to provide a timely nurse visit on October 8, 2002, which would have prevented or minimized Pritchard's brain damage, and (2) in failing to maintain the morphine pump, causing an overinfusion of morphine.
Pritchard presented the testimony of Edson O. Parker, M.D., an expert on anesthesiology and pain management. Dr. Parker opined Dr. Paicius prescribed an excessive rate of 2 mg per hour basal rate and 2 mg every 15 minutes for her allowable bolus dose. The basal rate, which supplied morphine continuously, was unnecessary and the starting rate should have 0.5 to 1 mg every 15 minutes. He explained: "In the hospital, patients are under specific professional medical monitoring. And if they have an abnormal response, they can be treated quickly. For an emergency. So they might be started on a slightly higher dose than one might start if a patient was at home. Because when a patient is at home, they do not have professional monitoring, . . . And they, in general, do not have the ability to be responded to quickly if they have an emergency. So at home, the doses must be smaller."
Dr. Parker testified that because Dr. Paicius ordered two visits per day, the first visit by a Coram nurse should have occurred at around 6:00 p.m., followed by another visit at around 10 p.m. Dr. Parker opined "to a reasonable medical probability" the inadequate breathing which caused Pritchard's brain injury was due primarily to "the intravenous morphine, which is known to depress the main drive to breathe, . . . . And also added to by the CNS depressants, the central nervous system depressants she was on, which are the Klonopin, Neurontin, and Trazodone."
Dr. Parker then was asked: "If the nurses had followed Dr. Paicius's order regarding the visitation to Ms. Pritchard on October 8, 2002, do you have an opinion with reasonable medical probability as to how that would have affected Ms. Pritchard's outcome?" (Italics added.) Dr. Parker responded: "I believe that if a nursing visit was conducted between that first four-hour period of time, I'll say 6:00 p.m., give or take an hour, somewhere in there, the nurse would have found that Carly Pritchard was sedated, difficult to arouse — arousable, at least in the earlier period, maybe in the 5:00 to 6:00 period." (Italics added.)
Dr. Parker further testified that if the Coram nurses had followed Dr. Paicius's orders, Pritchard's outcome would have changed as follows: "I believe that she would have — her deep sedation, her difficult arousal would have been detected, . . . the intravenous infusion could have been stopped . . . . [T]hey could have aroused her, and arousal would have start[ed] her breathing more strongly again. If they saw that her pupils were pinpoints, which is a physiologic response to opioids; the pupils get small or pinpoint or miotic. They could have given her Narcan, which is an antidote to opioids, to reverse the effects; would have reversed the effect of morphine; would have allowed her to: breathe stronger again. Gotten her up and walked around, just aroused her." (Italics added.) The ultimate outcome, "depending on the time it was done, she would have had either no brain damage or less brain damage than she has now." Dr. Parker opined "the latest point in time where, more likely than not, compliance with Dr. Paicius's order would have resulted in Ms. Pritchard's functionally being normal," was that "after 7:00, 7:15, 7:30 area, that was probably as late as you could have gone. Gotten her before that time, sometime, 7:15, 7:00, or before, I think it would have been a good chance of having her minimal brain damage, to maybe none at all, the earlier you got her. But once you hit 7:15, 7:30, I think it was probably — she was starting to have brain damage." (Italics added.) Intervention, such as stopping the morphine, administering Narcan, giving oxygen, if done by 7:30 p.m., would have "lessened the amount of brain injury, . . . no doubt."
Prichard also offered the testimony of Vina Spiehler, Ph.D., a pharmacologist who is board certified in forensic toxicology. Dr. Spiehler testified that as of the time Pritchard underwent surgery in October 2002, she was on four medications: Klonopin (a Valium-like drug), Neurontin, Trazodone (an antidepressant), and a Cox inhibitor (an aspirin-like pain pill). The Klonopin, Neurontin and Trazodone all had the potential to depress the central nervous system (CNS), and when someone is on CNS depressants, "morphine or any opiate will have a greater effect than it would by itself. In fact, effect will be synergistic; it will be nonlinear." Dr. Spiehler attributed the brain injury to Pritchard's having "more morphine than she could handle at that time." Dr. Spiehler opined, "The sooner the intervention, the better. . . . In this case, the paramedics did the right thing. . . . The most important is giving the morphine antagonist, the Naloxone or Narcan, and to keep giving it until enough time has elapsed that all of the morphine is out of the body."
At the close of plaintiff's case, Coram unsuccessfully moved for nonsuit on the issues of liability and causation.
On November 7, 2008, the jury returned a verdict finding Coram was negligent in its care and treatment of Pritchard and that the negligence was a cause of her injury. The jury awarded past noneconomic damages of $3,650,000 and future noneconomic damages of $3,500,000. As for economic damages, it awarded Pritchard past lost earnings of $41,804, future lost earnings of $2,770,572 (which the jury discounted to $1,568,032 present value), and $21,729,309 in future costs of care (which the jury discounted to $7,571,188 present value). The jury allocated 95 percent of fault to Coram and the remaining 5 percent to Pritchard. The jury also handwrote on the verdict form, in the section dealing with economic damages, "we have deducted the workers comp amounts [received]."
Following trial, Coram moved for judgment notwithstanding the verdict, or alternatively for a new trial. The motions were denied.
Coram successfully moved for reduction of noneconomic damages to $250,000 pursuant to MICRA (Civ. Code, § 3333.2) and for entry of a periodic payment judgment pursuant to Code of Civil Procedure section 667.7.
On January 7, 2009, the trial court entered judgment awarding Pritchard $1,823,045 in damages payable upon entry of judgment, prejudgment and postjudgment interest, and established a periodic-payment schedule running through the year 2053 with a total future value of $20,559,428. The trial court subsequently awarded costs to Pritchard in the sum of $158,038.
Coram filed notice of appeal from the final judgment entered on January 7, 2009, from the February 24, 2009 order denying Coram's motion for JNOV, and from the March 26, 2009 order awarding costs to Pritchard.
Pritchard cross-appealed the judgment.
Coram contends: (1) there is no substantial evidence of causation; (2) the trial court committed prejudicial error (a) in excluding evidence of the workers compensation settlement, (b) in admitting Dr. Paicius's testimony regarding his expectations as to home health visits; (c) in admitting Dr. Vespa's hearsay deposition testimony on cross-examination of Dr. Fisk, and (d) in admitting the Baxter recall letter; and (3) the award of prejudgment interest and costs should be vacated.
On cross-appeal, Pritchard contends Coram failed to establish it is a health care provider, and because Coram is not entitled to the benefits of MICRA, the judgment requires correction.
Coram seeks reversal and entry of judgment in its favor on the ground Pritchard failed to prove within a reasonable medical probability that negligence by Coram caused the injury.
The trial court duly instructed the jury as follows: "Plaintiff Carly Pritchard must prove causation by a reasonable medical probability based upon competent expert testimony. Mere possibility that defendant Coram Healthcare's negligence was a cause of injury to plaintiff Carly Pritchard is not enough."
The given instruction is consistent with California law. "In a medical malpractice action, a plaintiff must prove the defendant's negligence was a cause-in-fact of injury. [Citation.] `The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based [on] competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical "probability" and a medical "possibility" needs little discussion. There can be many possible "causes," indeed, an infinite number of circumstances [that] can produce an injury or disease. A possible cause only becomes "probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citation.]' [Citations.]" (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118, italics added (Jennings).)
Thus, "proffering an expert opinion that there is some theoretical possibility the negligent act could have been a cause-in-fact of a particular injury is insufficient to establish causation. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775-776, [expert testimony positing a `"mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant"']; accord, Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487, 50 Cal.Rptr.2d 785.) Instead, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff's injury." (Jennings, supra, 114 Cal.App.4th at p. 1118, italics omitted.)
Thus, in order to prevail against Coram, Pritchard was required to prove, by a reasonable medical probability based upon competent expert testimony, that negligence by Coram was a cause of her injury.
Guided by this standard, we review the testimony adduced at trial.
Dr. Parker testified that because Dr. Paicius ordered two visits per day, the first visit by a Coram nurse should have occurred at around 6:00 p.m. on the day of the surgery, "give or take an hour," followed by another visit at 10 p.m., "give or take an hour."
Dr. Parker further opined, "the latest point in time where, more likely than not, compliance with Dr. Paicius's order would have resulted in Ms. Pritchard's functionally being normal," was that "after 7:00, 7:15, 7:30 area, that was probably as late as you could have gone. Gotten her before that time, sometime, 7:15, 7:00, or before, I think it would have been a good chance of having her minimal brain damage, to maybe none at all, the earlier you got her. But once you hit 7:15, 7:30, I think it was probably — she was starting to have brain damage." (Italics added.) Intervention, such as stopping the morphine, administering Narcan, giving oxygen, if done by 7:30 p.m., would have "lessened the amount of brain injury, . . . no doubt."
The above testimony is sufficient to support the jury's determination Coram was negligent in failing to provide a timely home visit on October 8, 2002, and that Coram's negligence was a cause of Pritchard's injury.
Coram contends it is entitled to JNOV because the cause of the injury was Pritchard's unauthorized use of drugs. The evidence showed, inter alia, that earlier in 2002 Pritchard has suffered an accidental overdose and was taken to the hospital by paramedics. The evidence also showed she had stockpiled Vicodin. However, irrespective of the evidence that Pritchard may have had a problem with substance abuse, the conclusion does not ineluctably follow that Pritchard took unauthorized medication on October 8, 2002. On this record, the jury reasonably could conclude that on the day of the incident, Pritchard's overdose was due to drugs that had been prescribed to her, including an excessive amount of morphine prescribed by Dr. Paicius.
Moreover, irrespective of whether Pritchard took any unauthorized medication on the day in question, the testimony of Dr. Parker established she could have been awakened and the brain injury prevented, had there been a timely visit by a Coram nurse. This case does not turn on whether Pritchard took unauthorized medication. The issue is whether Pritchard showed, by a reasonable medical probability, that Coram's inaction was a substantial factor in her injury. The jury properly resolved that issue in Pritchard's favor.
Further, although Coram seeks to attribute the injury to unauthorized drug use, there was abundant evidence to show the injury was due to an overdose of prescribed medication. As noted, Dr. Parker opined "to a reasonable medical probability" that the inadequate breathing which caused Pritchard's brain injury was due primarily to "the intravenous morphine, which is known to depress the main drive to breathe . . . . And also added to by the CNS depressants, the central nervous system depressants she was on, which are the Klonopin, Neurontin, and Trazodone."
Although Coram seeks to attribute Pritchard's injury to her taking unauthorized drugs, the trier of fact heard and weighed the evidence and attributed Pritchard's fault at 5 percent, with the remaining 95 percent allocated to Coram. It is not the role of this court to reweigh the evidence but simply to determine whether there is substantial evidence to support the jury's determination. Because the evidence showed a timely visit by a Coram nurse could have averted Pritchard's brain damage, there is ample support for the verdict.
Coram also contends Pritchard was "unable to identify a Coram custom or practice requiring a home nursing visit on the same day when a patient was discharged at 1:15 p.m." Coram asserts that because Pritchard was discharged on the afternoon of October 8, 2002, "no nursing visit was due until the next morning." Coram maintains Dr. Paicius's expectations were never communicated to Coram, and therefore Coram could not have been expected to follow Dr. Paicius's subjective intent as to what he meant by his order for twice daily home health care. Coram also maintains that "Coram policy permitted visits to be conducted telephonically, and Coram had telephonic contacts with plaintiff's mother on the evening of October 8." All these arguments by Coram are without merit.
Dr. Paicius's order specifically required the visiting nurse to "ambulate" the patient on each visit and to take the patient's vital signs, such as her blood pressure. Therefore, telephonic communications with the patient's mother were no substitute for a home visit.
Further, the timing of home nursing visits was controlled by Dr. Paicius's order (twice daily for seven days), not by Coram policies or procedures. Dr. Paicius testified the order for home visits for seven days post-procedure meant that the visits by Coram were to commence on the day Pritchard was discharged, i.e., on October 8, 2002, the date of the surgery, and to continue for the following six days. Dr. Paicius further testified the initial hookup by Nurse Lewis at the surgery center did not count as a home health visit; rather, it was a surgery center visit. Coram received Dr. Paicius's discharge instructions. If there were any ambiguity in Dr. Paicius's order with respect to when the visits were to begin, Coram could have clarified the visitation schedule with Dr. Paicius.
Coram argues that even assuming "the Coram nurse had arrived at 7:15 p.m., the same sequence of events—the call to 911, the arrival of paramedics, the emergency room visit—would have played out approximately 40 minutes earlier than actually transpired." Coram contends there is no substantial evidence "that any additional harm occurred in that 40-minute time span." This contention by Coram ignores Dr. Parker's testimony. To reiterate, Dr. Parker testified the first visit should have occurred at 6:00 p.m., give or take an hour. Dr. Parker further testified it was probable that, as late as 7:15 p.m., compliance with Dr. Paicius's visitation order "would have resulted in Ms. Pritchard's functionally being normal." This testimony by Dr. Parker constitutes substantial evidence that medical intervention 40 minutes earlier would have led to a better patient outcome.
Coram also emphasizes that its nurses do not carry Narcan, and if Nurse Tindell had arrived at 7:15 p.m., he simply would have placed an emergency call to 911 about 40 minutes before Pritchard's mother did. The fact Coram nurses are not equipped with Narcan does not support Coram's theory that a timely visit by Nurse Tindell would not have achieved a better outcome. The record reflects the paramedics arrived a mere four minutes after Pritchard's mother called 911 to report she could not waken her daughter. Therefore, the jury reasonably could conclude a timely visit by a Coram nurse would have resulted in an immediate call to 911 and the swift arrival of paramedics bearing Narcan.
In sum, we reject Coram's challenge to the sufficiency of the evidence to support the jury's determination negligence by Coram caused injury to Pritchard.
Plaintiff's second of theory of liability was that Coram was negligent in failing to perform adequate maintenance on the morphine pump, resulting in a malfunction and an overinfusion of morphine. The negligent maintenance theory lacks substantial support in the record. Baxter serviced the pump in August 2001 and it had passed all testing. Baxter's manufacturer specifications called for preventive maintenance once a year. However, Coram did preventive maintenance and testing between each patient use, using an independent contractor, Medical Specialties Distributor (MSD). MSD performed maintenance on the instant pump shortly before Pritchard used it, and she was the first patient to use the pump after it had been serviced.
Pritchard's expert, Jerome Anderson, opined that if maintenance were to be performed by an outside vendor, Coram had a duty to review the procedures used by that vendor to ensure those procedures met the recommendations of the manufacturer for maintenance on the pump and complied with "any standards from the state or any national accreditation agencies that might relate to maintenance of this kind of equipment." However, Anderson admitted he did not know whether Coram had taken those steps.
In sum, the evidence showed Coram had regularly maintained the pump by sending it to Baxter and MSD for periodic servicing. Further, there was no showing Coram was negligent in its selection of MSD to service the pump. For these reasons, Pritchard failed to show negligence by Coram in its maintenance of the pump was a cause of her injury.
Nonetheless, as discussed ante, Pritchard made an ample showing on her alternative theory. She established Coram's negligence in failing to provide a timely home nurse visit on October 8, 2002 was a substantial factor in her injury. Therefore, the jury's determination with respect to causation is supported by substantial evidence and must be upheld.
Because Pritchard's initial ankle injury was work-related, Disneyland and its insurance carrier (Liberty Mutual) were responsible under the workers' compensation scheme for her future medical care and costs and attendant care, even after the October 8, 2002 incident. Pursuant to a stipulated award in 2005 for 100 percent permanent disability, Pritchard received an award of lifetime medical care. In 2007, the award was modified to grant 24-hour care going forward and retroactively.
Prior to trial, in March 2008, Pritchard entered into a compromise and release with Disneyland, settling her workers' compensation claim for a lump sum payment instead of future benefits. The Order Approving Compromise and Release signed by the Workers' Compensation Administrative Law Judge stated that: "AWARD IS MADE in favor of [Pritchard] against [Disneyland], PAYABLE AS FOLLOWS: In the above sum [$3,000,000], less permanent disability advances, if applicable, less $450,000 as attorney's fees payable to applicant's attorney, BALANCE TO APPLICANT." Under the terms of the settlement, Pritchard received immediate cash disbursements plus a set of annuities purchased for her benefit with a guaranteed benefit of $2,888,021 and an expected benefit of $10,814,474.
The settlement also eliminated Disneyland's workers' compensation lien for past benefits and its right to take credit against Pritchard's settlement with Baxter.
Pritchard filed a motion in limine (motion in limine No. 15), asserting "The defendants are expected to argue that evidence of the gross amount of Plaintiff's Worker's Compensation recovery is admissible pursuant to Civil Code section 3333.1, subsection (a) which provides, in pertinent part, that in a medical negligence action, the defendants may introduce evidence of `any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to . . . any state . . . worker's compensation act.'" The motion requested an order prohibiting Coram "from testifying about, commenting on, referring to or discussing the gross amount of Plaintiff s worker's compensation settlement amount." Pritchard argued, "the only portion of the Worker's Compensation recovery evidence . . . which is admissible is the portion which will actually be `payable as a benefit to the plaintiff,' for damages also sought in the present action, i.e., Plaintiffs future care costs."
In opposition, Coram argued the "obligations of Disneyland/Liberty Mutual covered virtually dollar for dollar the medical and cost of attendant care items as projected by the expert witnesses for Ms. Pritchard for the rest of her life if the workers' compensation case was not `settled'. On the eve of the scheduled trial date of this case, Ms. Pritchard did in fact settle her workers' compensation claim with Disneyland/Liberty Mutual for $3,000,000. This decision by Ms. Pritchard was made by her, her parents and her attorneys. The only reasonable conclusion to be drawn from this settlement being reached on the eve of trial was that plaintiff would have had no claim for future medical care and costs of attendant care to present to the jury in this case if the settlement were not reached. Obviously, under Civil Code section 3333.1, the defense would have shown that all or virtually all of the items of economic damage with the exception of some loss of earnings claimed, were already fully covered for Carly Pritchard's lifetime by Disneyland/Liberty Mutual. Therefore, for tactical reasons, the plaintiffs chose to net out a lump sum rather than utilizing a lifetime of insurance coverage that was indisputably payable. They now want to present to the jury a `cost of care' package that would exceed, by several million dollars, the amount that was taken `in pocket' by way of the settlement with workers' compensation."
Coram's opposition papers included the following offer of proof: "The entire presentation of the workers' compensation evidence in this case should not take more than approximately a two-hour examination and cross-examination of a representative from the workers' compensation carrier. During this testimony, the defense will elicit which of plaintiff's claimed future medical and cost of care items would have been covered by workers' compensation and further establish that those items would have been covered for the rest of Ms. Pritchard's life. This would be true whether the cost of those items went up with the rate of inflation or well above the rate of inflation. Furthermore, the defense will then elicit from the workers' compensation carrier representative that the plaintiff elected, on the eve of trial, to settle all of her future economic claims for $3,000,000 rather than to use these benefits as they were needed."
Coram's opposition papers concluded, "the only fair way to present this to the jury is to lay out the entire situation both by way of past payments made by Disneyland/Liberty Mutual, the lifetime future obligations by Disneyland/Liberty Mutual and the pre-trial compromise of those future obligations, temporary disability and permanent disability reached on the eve of trial. This will not be time consuming, particularly when compared to the extremely lengthy trial estimate given by the plaintiff's attorneys."
The trial court granted Pritchard's motion in limine no. 15. On the motion by Pritchard to preclude "Defendants from Commenting Regarding The Gross Amount of Plaintiff's Worker's Compensation Settlement Which Exceeds the Net Amount Recovered by Plaintiff Allocable to Future Care Costs," the trial court ruled: "The Court will allow counsel to mention to the jury, the actual payments that have been made to plaintiff . . . .Counsel are to work out a stipulation that will be read to the jury." (Italics added.)
Thereafter, pursuant to the order of the court and stipulation of the parties, the following was read to the jury: "The plaintiff, Carly Pritchard, received a net cash payment of $2,550,000 on March 26, 2008 from her workers compensation carrier in full settlement of her claim to future workers compensation benefits."
Coram contends the information given to the jury was legally deficient in at least three respects.
First, it did not accurately describe the settlement. Pritchard did not receive a mere payment of $2.55 million; rather, she received immediate cash disbursements totaling $839,213, plus a set of annuities purchased for her benefit with a guaranteed benefit of $2,888,021 and an expected benefit of $10,814,474. The jury should have been given the full picture of the settlement, especially because plaintiff herself made it directly relevant to the case. She described the costs of her life plan to the prospective jury as "more than $10 million." Yet the jury was never informed that the $10 million figure cited by plaintiff matched the more than $10 million in expected benefits that she was already receiving.
Second, the jury was not informed the workers compensation settlement represented the monetization of plaintiff's entitlement to a lifetime stream of benefits for exactly the same future medical care for which she was seeking compensation from Coram. Pritchard's employer (Disneyland) and its insurer (Liberty Mutual) were already 100% responsible for plaintiff's medical care and costs of attendant care. Their obligations covered virtually dollar for dollar the medical and attendant care items identified by plaintiff's expert witnesses. The workers' compensation settlement occurred on the eve of one of the trial settings in the case, evidently as part of a gambit to manufacture future medical damages where none would otherwise exist. The jury should have been informed plaintiff was already entitled to lifetime, 24-hour attendant care under workers' compensation, and that she freely elected to monetize her workers' compensation benefits in a lump-sum settlement rather than receiving them over time as continuing care.
Third, even if the settlement could have been described as a $3 million deal (and it should not have been), it was error to subtract attorney's fees and inform the jury only of the lesser sum of $2.55 million. The entire settlement was "payable as a benefit to the plaintiff" pursuant to a "workers' compensation act," within the meaning of Civil Code section 3333.1, subdivision (a). This code section is written in the broadest possible language, and there is no carve-out or deduction for attorney's fees.
As a preliminary matter, Coram does not dispute it was Pritchard's prerogative to "monetize" her workers compensation settlement, i.e., to obtain a lump sum in lieu of future benefit payments. The issue is the extent of the evidence the trial court permitted with respect to the nature and amount of the workers' compensation settlement.
MICRA, at Civil Code section 3333.1, establishes a limited exception to the collateral source rule. It permits a health care provider defendant in a medical negligence case to introduce "evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to . . . any . . . worker's compensation act." (Ibid.) Here, the trial court properly determined what evidence is admissible pursuant to the statutory scheme. It ruled: "The court will allow the actual [workers compensation] payments made. There will be no speculative evidence. There will be no discussion of the benefits that might have been paid by any witnesses." (Italics added.)
We agree with the trial court's resolution of the issue. The trial court reasonably concluded that under Coram's approach, its witnesses would have had to engage in speculation to opine as to the amount of workers' compensation payments Pritchard would have received in the coming decades had she not taken the lump sum settlement. Therefore, the trial court acted within its discretion in limiting the testimony in this regard to the amount actually received by Pritchard by way of workers compensation payments.
Contrary to Coram's contention, the trial court's ruling did not result in a double recovery by Pritchard. Plaintiff presented expert testimony that her future care costs through the end of her life expectancy would amount to $31,564,890, and that the present cash value of plaintiff's life care plan was $11,005,815. The verdict is consistent with plaintiff's expert testimony in this regard. The jury determined Pritchard required $21,729,309 for her future care, which it discounted to $7,571,188 present value. The jury also specified in making the award that it had deducted the $2,550,000 Pritchard had received from workers compensation. Adding together the amount awarded by the jury for Pritchard's care and the amount she received in the workers' compensation settlement, the jury determined the present value of Pritchard's life care needs was $10,121,188, substantially similar to the $11,005,815 figure cited in plaintiff's expert testimony.
Coram also complains Pritchard described the costs of her life plan to the prospective jury as "more than $10 million," but the jury was never informed that the $10 million figure cited by plaintiff matched the more than $10 million in expected benefits she would receive from the workers' compensation settlement. Coram's argument mixes apples and oranges. The evidence showed Pritchard would require about $31 million for her future care, reduced to present value of about $11 million. Thus, Pritchard would require about $11 million in present value to cover her future care, and the present value of the workers compensation settlement was only $2,550,000. Clearly, the cost of Pritchard's life care plan was not "matched" by the workers compensation settlement. There was no double recovery.
Finally, Coram contends that even assuming the workers compensation settlement could have been described as a $3 million deal (rather than a $10.8 million deal), it was error to subtract attorney's fees of $450,000 and inform the jury only of the lesser sum of $2,550,000. However, as Pritchard points out, the order approving compromise and release, signed by the workers' compensation administrative law judge, specified the $450,000 in attorney fees were directly "payable to applicant's attorney, BALANCE TO APPLICANT." (Italics added.) Under the terms of the order approving the compromise and release, the attorney fees were not part of the "amount payable as a benefit to the plaintiff." (Civ. Code, § 3333.1, subd. (a).) Therefore, consistent with the order approving the compromise and release, and with the trial court's ruling allowing counsel to mention to the jury the actual payments that had been made to Pritchard, the parties properly entered into the following stipulation: "The plaintiff, Carly Pritchard, received a net cash payment of $2,550,000 on March 26, 2008 from her workers compensation carrier in full settlement of her claim to future workers compensation benefits."
For these reasons, we reject Coram's contention the jury was inadequately advised of the workers' compensation settlement between Pritchard and her former employer.
Coram contends the trial court committed prejudicial error in allowing Dr. Paicius to testify regarding his expectations as to home visits.
As discussed, Pritchard's essential theory of liability was that a Coram nurse should have arrived sooner at her home under the order for post-surgical home health visits written by Dr. Paicius. Dr. Paicius's home health order specified: "1. Home Health visits for 7 days post-procedure. [¶] 2. Schedule 2 visits for each day."
Dr. Paicius testified in his deposition that based on his order, he expected, in addition to setting Pritchard up with the pump on the day of surgery at the surgery center, there would be two more visits to Pritchard's home on that first day. Coram moved in limine to preclude Dr. Paicius from testifying regarding his subjective expectations for home health visits, on the ground "[w]hat Dr. Paicius wrote and what he intended are two different things." The trial court denied said motion in limine. Coram contends the trial court's ruling was erroneous and prejudicial.
We perceive no error in the trial court's ruling. Dr. Paicius's testimony his order required two home health visits, beginning with the day Pritchard was discharged from the surgery center, is consistent with the language of the order, which called for two home visits per day. Further, Dr. Paicius's interpretation of his order is in accord with the expert testimony of Dr. Parker. Dr. Parker testified that because Dr. Paicius ordered two home visits per day, the first home visit by a Coram nurse should have occurred on the day of the surgery, at around 6:00 p.m., give or take an hour, followed by another visit at 10 p.m., give or take an hour.
Moreover, nothing precluded Coram from questioning its own experts regarding the meaning of Dr. Paicius's order. Ultimately, the interpretation of Dr. Paicius's order was a matter for the jury to decide.
Further, even assuming any ambiguity in Dr. Paicius's order as to whether home visits should have commenced on the date Pritchard was discharged, Coram could have clarified the matter with Dr. Paicius, rather than invoking its policy that telephone contact with Pritchard's home was sufficient and that no visits were required until the following morning.
In sum, we perceive no error in the trial court's admission of Dr. Paicius's testimony his order required two home visits on the date Pritchard was discharged.
Dr. Paul Vespa was plaintiff's treating neuro-internist at UCLA. At his deposition, he testified the CT scan of plaintiff's brain taken between 10:08 and 10:14 p.m. on October 8 showed her injury occurred two hours earlier. Plaintiff called Dr. Vespa as a witness at trial but never asked him any questions about the timing of the injury.
After plaintiff rested, Coram called Dr. Fisk as a witness. Dr. Fisk opined, based on the same CT scan of Pritchard's brain taken at 10 p.m. on October 8, 2002, that her injury occurred at least six hours earlier, or roughly at 4 p.m. Coram relied on Dr. Fisk's testimony to show Pritchard's injury occurred well before a Coram nurse was due at plaintiff's residence, and therefore plaintiff could not show causation.
During plaintiff's cross-examination of Dr. Fisk, plaintiff's counsel questioned Dr. Fisk regarding Dr. Vespa's opinion as to the timing of Pritchard's brain injury.
On appeal, Coram contends the trial court erred in permitting plaintiff, over Coram's objection, to cross-examine Dr. Fisk on the basis of Dr. Vespa's hearsay deposition testimony, which was never given at trial. Coram asserts plaintiff succeeded in "smuggling" Dr. Vespa's deposition testimony into the trial and enabled plaintiff to cross-examine Dr. Fisk on hypothetical testimony by Dr. Vespa that was not in evidence. Coram maintains Dr. Vespa's deposition testimony was hearsay, he was available to testify at trial and did in fact testify at trial. He was not an unavailable witness. Coram argues that although Pritchard could have cross-examined Dr. Vespa at trial on the basis of his hearsay deposition testimony (Code Civ. Proc., § 2025.620), there is no provision of California law allowing plaintiff to cross-examine Dr. Fisk on the basis of Dr. Vespa's hearsay deposition testimony.
The cross-examination of Dr. Fisk by plaintiff's counsel includes the following colloquy:
Thus, the only objection by Coram that was overruled was to the question: "You recall his deposition testimony?" This clearly was a legitimate question.
Further, the sole objection Coram asserted to the question — relevance — properly was overruled. Whether Dr. Fisk could recall the material he reviewed in formulating his opinions was clearly relevant.
The contention Coram now is arguing on appeal, namely, that the trial court erred in admitting the hearsay deposition testimony of Dr. Vespa during the cross-examination of Dr. Fisk, was not raised below. Because Coram did not preserve its hearsay objection for appeal, the issue is not properly before this court. (Evid. Code, § 353.)
Coram contends the trial court committed prejudicial error in admitting a 2005 letter in which Baxter recalled the Baxter 6060 pump, arguing the recall letter was inadmissible pursuant to Evidence Code section 1151.
Pritchard argues the recall letter was not offered to show Baxter was negligent; whether Baxter was negligent was not an issue at trial. Further, the recall letter "had no tendency to show that Coram was negligent, and was not offered for that purpose." Pritchard argues the purpose of the recall letter was simply to show that her overdose was the result of a pump malfunction, rather than due to a voluntary ingestion of opiates, which was Coram's theory of causation.
On this record, any error in admitting the recall letter, even if it occurred, was harmless. As discussed ante, Pritchard established, by a reasonable medical probability, that Pritchard's brain damage would have been avoided or minimized had Coram complied with Dr. Paicius's order and provided a timely nurse visit on the evening of October 8, 2002. Therefore, it is not reasonably probable that exclusion of the Baxter recall letter would have led to a more favorable verdict for Coram. (Evid. Code, § 353.)
The trial court awarded Pritchard prejudgment interest pursuant to Civil Code section 3291.
Section 998 provides in pertinent part at subdivision (b): "The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party." (Italics added.)
Prior to a 2005 amendment to the statute, there was no requirement a section 998 offer be accepted in writing. (Bias v. Wright (2002) 103 Cal.App.4th 811, 817-819 (Bias).) Bias called on the Legislature to amend the statute in that regard, stating: "In view of the importance of section 998 procedures and judgments in the practice of law and the problems posed by the present statute, we urge the Legislature to revise the statute to expressly require that acceptance and proof of acceptance of a section 998 offer must be in writing." (Id. at p. 819.)
In 2005, the Legislature amended section 998 to its present form, requiring acceptance of a section 998 offer to be in writing. (Stats. 2005 (Assem. Bill No. 1742) ch. 706, § 13.) The legislative history explains the bill "[r]equires that acceptance of an offer to compromise a claim, whether made on the document containing the offer or on a separate document of acceptance, be in writing and signed." (Assem. Bill No. 1742 (2005-2006 Reg. Sess.) Concurrence in Senate Amendments, as amended September 2, 2005, p. 2.)
Although section 998 now requires a statutory offer to compromise to include "a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted," the statute is silent as to the consequence of failing to include such a provision. In view of the Bias decision and the legislative response thereto, it appears the purpose of the 2005 amendment was simply to require acceptance of a section 998 offer be in written form.
Here, although Pritchard's section 998 offer did not contain a provision advising Coram that it could accept the offer by signing a statement that the offer was accepted, there was nothing to indicate Coram was misled in any way. Irrespective of the omitted language, there was nothing to preclude Coram from accepting the offer, either by indicating its acceptance on the offer, or by a separate document of acceptance. (§ 998, subd. (b).) Further, Coram does not assert it made an oral attempt to accept the section 998 offer, nor does it assert it would have accepted the section 998 offer if only the omitted language had been included.
Coram does not cite any authority for the proposition Pritchard's omission of "a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted" renders the section 998 offer a nullity, and we see no reason for such a draconian interpretation of the 2005 amendment to the statute. We conclude on this record, the trial court properly awarded prejudgment interest to Pritchard. Notwithstanding the offer's omission of a provision advising Coram it could accept by signing a statement accepting the offer, there was no miscarriage of justice.
Coram contends the trial court erred in awarding any costs to plaintiff because her memorandum of costs was untimely under California Rules of Court, rule 3.1700(a)(1).
This rule provides a prevailing party seeking costs must serve and file a memorandum of costs "within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first." (Rule 3.1700(a)(1).)
Pritchard served and filed her memorandum of costs on January 27, 2009. Coram contends Pritchard failed to comply with the 15-day requirement because January 7, 2009, was the date of service of written notice of entry of judgment, and therefore Pritchard had until January 22, 2009, to serve and file her memorandum of costs, making the memorandum of costs five days late.
Coram's contention fails. Coram misconstrues the five-day extension of time resulting from the mailing of notice of entry of judgment. Code of Civil Procedure section 1013 provides in relevant part at subdivision (a): "Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California, . . . but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court." (Italics added.)
Thus, Code of Civil Procedure section 1013, subdivision (a), enumerates the items to which the extension of time does not apply. A memorandum of costs is not among those exceptions. Further, rule 3.1700 does not specifically exempt a memorandum of costs from the extension of time provided by Code of Civil Procedure section 1013, subdivision (a).
Accordingly, because the clerk served notice of entry of judgment by mail, Pritchard had 15 days pursuant to rule 3.1700 (a)(1), plus 5 additional days pursuant to Code of Civil Procedure section 1013, to serve and file the memorandum of costs. Therefore, the instant memorandum of costs, filed and served within 20 days of notice of entry of judgment, was timely.
On cross-appeal, Pritchard contends Coram failed to establish it is a duly licensed health care provider and therefore Coram is not entitled to the protections afforded by MICRA.
By way of background, the MICRA statutes specify they apply only to an action for personal injury against a health care provider based upon professional negligence. (Civ. Code, § 3333.1, subd. (a), § 3333.2, subd. (a); Code Civ. Proc., § 667.7, subd. (f).) Each of these statutes contains the same definition of health care provider. The term "`Health care provider' means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. `Health care provider' includes the legal representatives of a health care provider." (Civ. Code, § 3333.1, subd. (c)(1); § 3333.2, subd. (c)(1); Code Civ. Proc., § 667.7, subd. (e)(3).)
Pritchard contends that at no time before or during trial did Coram offer any evidence it held any of the requisite licenses or certifications, and therefore, Coram is not entitled to the protections afforded by the MICRA statutes. Pritchard asserts that because MICRA is inapplicable, the trial court erred in (1) permitting the introduction of evidence of the collateral source payment of $2,550,000 made to her by her former employer's worker's compensation carrier, pursuant to Civil Code section 3333.1; (2) reducing the jury's award of past and future non-economic damages from a total of $7,150,000 to $250,000, pursuant to Civil Code section 3333.2; (3) entering a judgment which provides for periodic payments of most of Pritchard's future economic damages pursuant to Code of Civil Procedure section 667.7; and (4) calculating the awards of pre-and post-judgment interest based on the other erroneous figures.
In the trial court, Coram took the position its licensing information was not required to be introduced into evidence at trial because it related to a purely legal question to be decided by the court.
After Coram rested its case, Pritchard made an oral motion to strike the affirmative defenses asserted by Coram that were based on Civil Code sections 3333.1 and 3333.2 and Code of Civil Procedure section 667.7, on the ground Coram had presented no evidence it is a licensed health care provider.
Coram's counsel responded: "Your Honor, this isn't something that's introduced in front of the jury. It's an absolute fact. There is no requirement that we introduce this evidence as evidence for the jury to see. [¶] And also, at page 0046 [of exhibit 1129], we have our Department of Health Services license effective dated 5/29/2002 running through 5/28/2003." The trial court then denied Pritchard's motion.
During post-trial motions pertaining to MICRA, the Coram licenses were formally submitted to the court, together with an authenticating declaration from Marcia Miller, R.N., the nurse manager of Coram's Los Angeles and Tustin branches. Coram's submission stated: "Defendant's licenses have been marked as exhibit 1129. An authenticating declaration accompanies this memorandum. Defendant is, and was in October 2002, licensed both as a pharmacy and a home health agency. [¶] . . . [¶] A home health agency provides registered nurses and licensed vocational nurses to patients at their place of residence. (Health & Saf. Code, § 1727, subds. (a), (b).) The licensing provision for a home health agency is Health and Safety Code section 1728.7, found in Division 2 of that code. MICRA applies to `any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.' (Civ. Code, § 3333.2, subd. (c)(1).) This includes a home health agency."
Further, Miller, the nurse manager, declared under oath: "I have personal knowledge of the facts set forth in this Declaration and, if called as a witness, could and would testify competently to such facts under oath. . . . In October of 2002, I was employed by Coram as the nursing supervisor. As part and parcel of that position, I am familiar with the licensure of Coram. Defendant Coram's trial Exhibits 1129-0001 through Exhibit 1129-0047 attached hereto are true and correct copies of the licensure and accreditation held by Coram Healthcare Corporation of Southern California for the time periods indicated on the exhibits."
The trial court rejected Pritchard's argument MICRA did not apply and entered judgment in conformity with MICRA.
Notwithstanding Pritchard's extensive arguments that Coram is not a health care provider within the meaning of MICRA, the record fully supports the trial court's resolution of the issue.
As a preliminary matter, the trial court properly addressed the applicability of MICRA after the jury returned its verdict. (See, e.g. Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1417-1418 [question whether a medical group consisting of a partnership of physicians was a "health care provider" under MICRA was decided based on evidence submitted to the court post-verdict, at which time defendant moved to reduce the jury's award of noneconomic damages to $250,000].)
Here, the essential question is whether, following the verdict, Coram established it was a duly licensed health care provider within the meaning of the statutory scheme.
With respect to the pertinent licenses, there is no dispute as to which Coram locations were involved in Pritchard's care. In opening statement, Pritchard's counsel advised the jury: "Coram had a branch office in Glendale to handle the patients all over Los Angeles County. And Coram had another office in Tustin to handle patients in Orange County. That's relevant in this case because the patient lived in Covina but the surgery was going to happen in Newport Beach. So both Coram offices were going to be involved in this; the Tustin office, which was for Orange County, would be involved in sending a nurse to hook up the pump to the patient and to program it, and then Glendale takes over for the home visits. Two visits a day for seven days." (Italics added.)
Exhibit 1129, which was authenticated by Miller, a nurse manager for Coram, includes the following documents: (1) a license from the State of California Department of Health Services to Coram to operate a home health agency in Glendale, California, for the period December 19, 2001 through December 18, 2002; and (2) a license from the State of California Department of Health Services to Coram to operate a home health agency in Tustin, California, for the period May 29, 2002, through May 28, 2003. The subject incident occurred on October 8, 2002. Thus, on the relevant date, both Coram branches involved in Pritchard's care were duly licensed as a home health agency.
Pritchard then contends licensure as a pharmacy or a home health agency is neither necessary nor sufficient to establish that Coram meets the statutory definition of a "health care provider," and if Coram wished to claim the benefits of MICRA, it was obligated to demonstrate it possessed the type of licensure that fits the statutory criteria. The argument lacks merit. MICRA applies to "any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code." (Civ. Code, § 3333.1, subd. (c)(1), § 3333.2, subd. (c)(1), italics added; Code Civ. Proc., § 667.7, subd. (e)(3), italics added.) The home health agency licenses produced by Coram specify that Coram was licensed "[i]n accordance with applicable provisions of the Health and Safety Code of California." Health and Safety Code section 1725 et seq., which sets forth the licensing provisions governing home health agencies such as Coram, is located within Division 2 of said code. As noted, MICRA applies to entities "licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code." (Civ. Code, § 3333.1, subd. (c)(1), § 3333.2, subd. (c)(1); Code Civ. Proc., § 667.7, subd. (e)(3).) Therefore, Coram, which showed it was licensed pursuant to Health and Safety Code section 1725 et seq., established it was duly licensed as a health care provider within the meaning of MICRA.
In sum, the evidentiary showing made by Coram in its post-trial papers supports the trial court's rejection of Pritchard's argument MICRA did not apply. We conclude the trial court properly entered judgment in conformity with the provisions of MICRA.
The judgment is affirmed in its entirety. The parties shall bear their respective costs on appeal.
We concur:
KITCHING, J.
ALDRICH, J.
