Calif. Appeals Court Permits Evidence of Nonparty Malpractice

February 28, 2008

A California Court of Appeals in the Second Appellate District has held that defendants are entitled to introduce evidence of a nonparty medical professional’s fault in aggravating a plaintiff’s injuries, and to seek a fault allocation against that professional, for purposes of limiting their liability for any non-economic damages in accordance with Proposition 51 (Civil Code section 1431.2).

The case, Henry et al. v. Superior Court (Reinink), arose when a husband and wife sued under the defendant’s homeowners policy for premises liability after the husband, who had been hired to clean and repair the homeowners’ pool, fell and suffered a shoulder injury. The homeowners sought to introduce evidence that alleged medical malpractice by the emergency room doctors at Kaiser Permanente who reportedly aggravated the plaintiff’s injury by breaking his shoulder in four places while trying to put it back in place, necessitating multiple surgeries. The homeowners argued they were entitled to introduce such evidence, even though Kaiser was not a party, for the purposes of seeking a fault allocation against Kaiser. Through introduction of this evidence, the homeowners’ liability for any non-economic damages could be limited in accordance with their proportionate fault under Proposition 51, which provides that liability for non-economic damages must be several, not joint.

The trial court excluded the evidence of Kaiser’s alleged negligence, holding that evidence of subsequent medical malpractice may be introduced only where the original tort is also medical malpractice.

The Court of Appeals reversed and issued a writ. The court held that when an injured plaintiff sues an original tortfeasor alone, the defendant is entitled to reduce any liability for non-economic damages by introducing evidence of a nonparty medical professional’s share of fault for the plaintiff’s aggravated injuries. The court held this rule was dictated by Proposition 51 and is not limited to circumstances involving successive acts of medical malpractice.

Source: Horvitz & Levy, LLP

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