ADAMS v. MURAKAMI

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Court of Appeal, Second District, Division 5, California.

Myretta ADAMS, as Conservator for Lonnetta Ree Adams, an Individual, Plaintiff and Respondent, v. Clifford MURAKAMI, Defendant and Appellant.

Civ. No. B031380.

Decided: April 12, 1990

Kirtland & Packard, Los Angeles, Horvitz, Levy & Amerian, Horvitz & Levy, Ellis J. Horvitz, S. Thomas Todd and Loren Homer Kraus, Encino, Thelen, Marrin, Johnson & Bridges, Curtis A. Cole and Patricia H. Wirth, Los Angeles, for defendant and appellant. Kaufler & Scott and Philip Kaufler, Lawrence W. Scott and Gary H. Amsterdam, Beverly Hills, for plaintiff and respondent.

In this opinion we find the inadequate medical treatment rendered by Clifford Murakami, M.D., to his patient was outrageous and constituted a conscious disregard for the consequences.   We affirm the jury's verdict based upon an intentional infliction of emotional distress cause of action and we affirm the award of punitive damages.

FACTS

Appellant Clifford Murakami, M.D., was the treating physician to Lonnetta Ree Adams, a thirty-nine year old female who was a chronic schizophrenic of low intelligence (hereinafter Patient).   Patient was shy, reserved, cooperative, loving, sensitive and easily convinced.   For approximately 19 months the care appellant rendered to Patient was inadequate.

In September, 1979, Patient voluntarily went to View Heights Convalescent Hospital.   She was first seen by a psychiatrist, Andre Tweed, M.D., who diagnosed Patient as a chronic schizophrenic and recommended she be placed on four potent psychotropic drugs.   Appellant agreed to be Patient's attending physician and thus assumed the responsibility for her medical needs.

When Patient entered View Heights, appellant obtained from Patient a medical history and performed a physical examination.   Appellant learned that Patient recently had an abortion.   Even though a pelvic examination would have provided important medical information, one was not conducted.   Further, although it was apparent Patient probably had a history of both medical and mental problems and could be providing unreliable information, appellant failed to verify the information provided.

Patient was placed in a locked facility which contained both male and female patients.   The patients had free access to one another.   It was the policy of the hospital to allow consensual sexual relations between the patients.   The staff knew that sexual activity was rampant.   It “was done all time of day, all time of night.”   Appellant knew mental patients can be sexual.   Appellant prescribed birth control for some of his patients at View Heights and he treated some for numerous diseases transmitted by sexual contact.   Information placed in Patient's medical chart indicated she was seen in bed with men.   Patient asked appellant for birth control and one of the nurses advised appellant that Patient needed this protection.   Appellant did not prescribe birth control for Patient.

Appellant continued to prescribe numerous psychotropic drugs for Patient.   Because these drugs can be dangerous and have serious complications, proper use requires that the drugs be monitored and the dosage lowered if appropriate, a practice referred to as “titrating.”   At no time did appellant titrate Patient's medicines.

Appellant was the physician for approximately one-sixth of the patients at View Heights, most of whom were on Medi–Cal.   Appellant made monthly visits to the facility to see each patient.   Additional visits were not usually made because Medi–Cal did not routinely pay for further visits.   Appellant failed to routinely examine his patients and he routinely failed to read their medical charts.   Appellant would simply glance over the patient's medical file while standing at the nurses desk, reading approximately 40–50 percent of the nurses' notes and nurses' weekly reports.

In October 1980, appellant was told that one of Patient's breasts was swollen and painful.   Without examining Patient, appellant ordered she be taken to Martin Luther King Hospital.   Thereafter, appellant failed to inquire as to whether the hospital had discovered a medical problem.   In November, appellant was told Patient was vomiting and experiencing nausea.   Without personally examining Patient, appellant prescribed an antibiotic for her.   In December, appellant conducted an annual medical examination of Patient.   Even though appellant noticed Patient's stomach was distended and the nurses' notes indicated she had missed two menstrual periods, appellant did not conduct a pelvic examination of Patient.

On January 27, 1981, after a nurse informed appellant she believed Patient was pregnant, appellant conducted a pelvic examination of Patient.   In the examination, appellant learned Patient was pregnant.   At the time, Patient was in her 17th week of pregnancy.   Three days later, appellant ordered an abortion be performed.   Appellant did not counsel Patient that her mental condition was genetically linked and could be passed to a child.   Appellant did not discuss with Patient the psychological, emotional, physical, moral, or ethical ramifications of having an abortion.   Appellant did not inform Patient that the stress of having a child frequently exacerbates mental problems of schizophrenics.

Patient's brother-in-law, who was one of the seven men with whom Patient had sexual relations, learned an abortion was scheduled.   Because he called and threatened the hospital, the abortion was not performed.   Patient was taken back to View Heights where she remained until March 2, 1980.   Appellant did not take Patient off the strong psychotropic medications and he did not inform her that these drugs were contraindicated for pregnancy and could seriously harm the fetus.

On July 15, 1981, Patient gave birth to a son, Paul, diagnosed as severely retarded and autistic.   Autism is a genetic disorder.   As autistic children mature, their mental problems develop into schizophrenia, the disease from which Patient suffers.   It is highly probable Paul inherited his mental problems.   Paul needs constant supervision and, while he has a full life expectancy, he will never be able to take care of himself.   Patient is incapable of caring for her son, Paul.   It was subsequently shown that Paul's father was one of appellant's male patients residing at View Heights.

During pregnancy, Patient denied she was pregnant.   After Paul was born, Patient did not accept the fact that she was his mother.

As a result of the stress caused by the birth of Paul, within the first year he was born, Patient experienced two acute psychotic breaks.   She totally lost touch with reality, believed the walls were bleeding, had delusions that the child was from another planet and she screamed.

Had appellant discussed contraceptives with Patient, she would have chosen to utilize a method to prevent conception.   Had appellant timely diagnosed Patient's pregnancy, provided her with proper prenatal counseling, including genetic counseling, she would have chosen to terminate her pregnancy.

Subsequently, Patient became a conservatee.   A lawsuit was filed on behalf of Patient by her conservator against appellant and View Heights.   Before trial, the claims against View Heights were resolved by settlement.   The jury found for Patient on two causes of action:  medical malpractice (negligence) and intentional infliction of emotional distress.   Judgment was subsequently entered in the total sum of $1,024,266, of which $750,000 were punitive damages.   Appellant appeals from the judgment.   Patient's conservator is respondent on appeal.   We affirm.

DISCUSSION

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

While appellant does not challenge the jury's determination that he was negligent, he suggests his actions were not outrageous and thus cannot support the finding that he intentionally inflicted emotional distress.   We find no merit to this suggestion.

“The elements of a prima facie case for the tort of intentional infliction of emotional distress [are]:  ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;  (2) the plaintiff's suffering severe or extreme emotional distress;  and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ ”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209, 185 Cal.Rptr. 252, 649 P.2d 894;  Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300, 253 Cal.Rptr. 97, 763 P.2d 948.)  “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.  [It involves] the case ․ in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ”  (Rest.2d Torts, § 46, com. d, p. 73;  Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, 160 Cal.Rptr. 141, 603 P.2d 58.)

“Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest;  (2) knows the plaintiff is susceptible to injuries through mental distress;  or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.”  (Agarwal v. Johnson, supra, 25 Cal.3d at p. 946, 160 Cal.Rptr. 141, 603 P.2d 58.)

 On appeal, appellant contends his behavior was not outrageous because he did not act unreasonably with the recognition that Patient would be emotionally injured.   Appellant's contention is not persuasive.

Appellant was charged with the responsibility of caring for Patient's physical and mental well-being.1  She was a 39–year–old woman of child-bearing age who had previously had an abortion, and thus had previously been sexually active.   She was vulnerable, mentally deficient, and voluntarily submitted to appellant's medical care.   She was in an environment where sexual relations frequently occurred between patients.   She, as well as one of the nurses, requested contraceptives.   She had a mental disease which was genetically linked and which would be exacerbated by pregnancy.   She was on drugs which were potentially dangerous not only to her, but to a potential fetus.   She had symptoms of pregnancy.   All of these facts would have been known to appellant.

Appellant, a medical practitioner, cannot keep his eyes shut to the obvious and argue his actions were merely “omissions.”   Even his suggestion that others (nurses, the hospital and other doctors) should have taken care of his responsibilities demonstrates an extreme indifference to Patient's condition.   It was appellant's responsibility to care for Patient.   Appellant chose to disregard Patient's mental and physical well-being.   Appellant failed to take even the simplest measures to ascertain her status and to protect this vulnerable patient from the inevitable.

Appellant failed to obtain a complete medical history and he failed to perform adequate medical examinations, including conducting pelvic examinations.   He failed to adequately assess Patient's level of incapacity.   He failed to protect Patient while she was locked in a facility where sexual activity was rampant.   He failed to discuss family planning with Patient and he ignored requests for birth control.   He failed to provide contraceptive counseling to Patient, who would have chosen birth control to prevent pregnancy.   He failed to provide adequate medical treatment which would have prevented conception.   He failed to warn Patient of the dangers associated with the drugs he prescribed.   He failed to inform Patient of the risks of those drugs on fetuses.   He failed to monitor these dangerous medications before and during pregnancy.   He failed to provide genetic counseling and he failed to inform Patient that her mental disease was potentially hereditary.   He failed to diagnose Patient's pregnancy at a time in which an abortion may have been medically safe.   He failed to provide counseling to Patient, who would have chosen to terminate the pregnancy.   He failed to provide proper prenatal care.   He failed to provide pre-abortion counseling.

Appellant, who was in a position of trust, failed to deliver basic medical attention to a susceptible patient.   Had appellant rendered appropriate medical care, Patient would not have been injured.2  The pregnancy could have been prevented or terminated and Patient's severe emotional injuries prevented.   Appellant consciously disregarded his responsibilities as a physician.

 Appellant cites to Spackman v. Good (1966) 245 Cal.App.2d 518, 54 Cal.Rptr. 78, Cortez v. Macias (1980) 110 Cal.App.3d 640, 167 Cal.Rptr. 905 and Ochoa v. Superior Court (1985) 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1 to suggest that mere “inaction” does not constitute outrageous behavior.   These cases are not applicable.   In Spackman the court found no evidence which showed the defendant should have recognized his actions would cause harm and as in Cortez, found no factual evidence to show the defendant's conduct proximately caused the emotional trauma asserted.   Here, it was obvious appellant should have recognized the potential for harm.   Further, there was expert medical testimony which linked appellant's behavior to Patient's emotional injuries.   In Ochoa the court found intentional infliction of emotional distress could not be shown because the defendant's conduct was only negligent and was directed at a third person, and not the plaintiff who witnessed the negligent conduct.  (Id. at p. 165, fn 5, 216 Cal.Rptr. 661, 703 P.2d 1.) 3  In comparison, appellant's actions were more than negligent and were directed at the injured party, Patient.

The jury's determination that appellant intentionally inflicted severe emotional distress was proven by the evidence.

PUNITIVE DAMAGES

 Contrary to appellant's contention, the $750,000 punitive damage award was not excessive.

Whether a defendant has committed an intentional or a nonintentional tort, punitive damages are appropriate when the defendant has been guilty of oppression, fraud, or malice.  (Civ.Code, § 3294.)   At the time this matter was heard, “malice” was defined as “conduct which is intended by the defendant to cause injury to the plaintiff or conduct which is carried on by the defendant with a conscious disregard of the rights or safety of others.”  (Stats.1983, ch. 408, § 1, pp. 1685–1686.) 4  When a defendant is aware of the probable consequences of the defendant's conduct, but willfully and deliberately fails to avoid the consequence (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895–896, 157 Cal.Rptr. 693, 598 P.2d 854;  Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285–288, 157 Cal.Rptr. 32), and consciously disregards the probability that the actor's conduct will result in injuries to others (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32, 122 Cal.Rptr. 218), punitive damages are appropriate.

As demonstrated above, appellant had the responsibility of caring for Patient.   Appellant's actions resemble those of notorious physicians whose care of mental patients is nothing more than warehousing them in locked facilities far from the public eye.   From the moment appellant began treating Patient, appellant disregarded her needs.   The inadequate treatment began with an inept medical exam and ended with the birth of an autistic and mentally retarded child.   The potential risks were known to everyone who worked at View Heights.   The sexual activities of the patients were well-known.   The need for preventative measures was understood.   The potential medical risks to Patient and to any child she might conceive were obvious.   Patient's mental disease was hereditary.   Patient's mental disease could be exacerbated with pregnancy.   The steps which could have been taken (birth control, adequate medical evaluations, counseling, and timely diagnosis of pregnancy) were all measures which could easily have prevented Patient's injuries.5  Appellant's behavior demonstrated a willful and deliberate conscious disregard for Patient's well-being.  (Nolin v. National Convenience Stores, Inc., supra, 95 Cal.App.3d 279, 157 Cal.Rptr. 32 [inattention to danger with harmful potential establishes grounds for punitive damages].)

Appellant contends that the award did not reasonably relate to the compensatory award, that any award was inappropriate because there was no presentation of his wealth, and that such an award cannot stand because it was rendered against an individual defendant.   We are not persuaded by any of these arguments.

 Calculating the amount of punitive damages is a fluid process.   The reprehensibility of the defendant's conduct, the defendant's wealth and the actual damages (Neal v. Farmers Ins. Exchange, supra, 21 Cal.3d at p. 928, 148 Cal.Rptr. 389, 582 P.2d 980) are all considered in light of the objective of punitive damages, i.e., to punish the offender and to deter future similar acts.   Each of these factors takes on different significance, depending on the underlying circumstances.   Thus, if the defendant's actions are sufficiently reprehensible, the relationship between actual damages and punitive damages is less important.  (See, e.g., Moore v. American United Life Ins. Co. (1984) 150 Cal.App.3d 610, 197 Cal.Rptr. 878 [award of $2.5 million in punitives and $30,000 in compensatory damages upheld];  Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal.App.3d 1072, 234 Cal.Rptr. 835 [award of $5 million in punitives and approximately $153,000 in compensatory damages upheld].)  Further, and contrary to appellant's suggestion, evidence of a defendant's wealth is not a requisite to a punitive award.  (Vossler v. Richards Manufacturing Co. (1983) 143 Cal.App.3d 952, 964–965, 192 Cal.Rptr. 219;  Fenlon v. Brock (1989) 216 Cal.App.3d 1174, 1179, 1182, 265 Cal.Rptr. 324;  Castaic Clay Manufacturing Co. v. Dedes (1987) 195 Cal.App.3d 444, 451, 240 Cal.Rptr. 652;  but see Dumas v. Stocker (1989) 213 Cal.App.3d 1262, 1267–1269, 262 Cal.Rptr. 311.)

As shown above, appellant's actions were egregious and even though the award was against an individual, appellant's actions easily justify the award.  (See, e.g., Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 178 Cal.Rptr. 167 [award of $1.5 million against individual physician not excessive].) 6

In light of the harm to Patient, a woman who placed her trust in appellant, we were surprised that the award of punitive damages was not greater.

We are not persuaded by appellant's numerous arguments, unsupported by authority, that punitive damages are unconstitutional.   Courts continue to uphold their constitutional validity.  (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 402 fn. 2, 185 Cal.Rptr. 654, 650 P.2d 1171 and cases cited therein;  Peterson v. Superior Court (1982) 31 Cal.3d 147, 159–161, 181 Cal.Rptr. 784, 642 P.2d 1305;  Fenlon v. Brock, supra, 216 Cal.App.3d at p. 1183, 265 Cal.Rptr. 324;  Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co., supra, 189 Cal.App.3d at pp. 1100–1101, 234 Cal.Rptr. 835.)

COLLATERAL SOURCE

 Patient's son, Paul, received $16,077 in educational services and foster care.   These services were paid for by the South Central Los Angeles Regional Center.   Appellant contends the court erred in refusing to inform the jury that, pursuant to Civil Code section 3333.1, Patient was not allowed to recover these sums.   Appellant's contention is not persuasive.

The collateral source rule “provides that if an injured party received some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.”  (Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729, 94 Cal.Rptr. 623, 484 P.2d 599;  Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6, 13–14, 84 Cal.Rptr. 173, 465 P.2d 61.)   The value of that payment, whether incurred by the plaintiff or an independent source (Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 641, 246 Cal.Rptr. 192) is the reasonable value of the services.  (Id., at p. 640, 246 Cal.Rptr. 192.)

Civil Code section 3333.1 was enacted as part of the “Medical Injury Compensation Reform Act” (MICRA).   This statute abrogates the collateral source rule for certain types of payments and allows tortfeasors to introduce evidence that such payments were made and permits the jury to deduct such payments from a plaintiff's award.

The section reads, in pertinent part:  “(a) In the event the defendant so elects, in an action for personal injury against a health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any state or federal income disability or worker's compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services.   Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any insurance benefits concerning which the defendant has introduced evidence.  [¶] (b) No source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant.”

In enacting this statute the Legislature did not totally abrogate the collateral source rule.   The Legislature was precise in delineating which collateral sources were to be included in this exception to the collateral source rule.   Not all payments made by the state or the federal government were included.  (See, e.g., Brown v. Stewart (1982) 129 Cal.App.3d 331, 181 Cal.Rptr. 112 [Medi–Cal payments not covered by Civil Code § 3333.1].)

Here, the payments made do not fall into any category enumerated by the statute.   The services rendered to Paul were paid for by a Regional Center 7 funded under the comprehensive statutory scheme designed to meet the needs of the developmentally disabled.  (Welf, & Inst.Code, §§ 4500 et seq.;   see discussion in Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384, 211 Cal.Rptr. 758, 696 P.2d 150.)   Thus, although Paul's care may have been paid for by the State of California, Civil Code section 3333.1 was not applicable, the general collateral source rule applied, and Patient was allowed to recover for the costs of the services paid for by the Regional Center.

AMENDMENT TO COMPLAINT

 The pertinent complaint plead allegations for medical malpractice, battery, and intentional infliction of emotional distress.   Appellant, View Heights, and Does I–XX were named as defendants.   All causes of action related to the events as outlined above.   Prior to trial, View Heights entered into a good faith settlement with Patient.   Immediately before trial, the court granted Patient's motion to amend the pleadings to clearly identify appellant as the defendant on two causes of action, intentional infliction of emotional distress as well as medical malpractice.

We are not persuaded by appellant's suggestion that the court erred in amending the complaint to state a cause of action against him for intentional infliction of emotional distress.

Motions to amend pleadings are addressed to the court's discretion.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488, 173 Cal.Rptr. 418.)   If the defendant was alerted by the allegations to the charges and would not be prejudiced by an amendment, amendments are allowed even on the day of trial.   (Id., at pp. 488–489, 173 Cal.Rptr. 418;  Code Civ.Proc., §§ 473, 576;  Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564–566, 176 Cal.Rptr. 704;  cf. Rainer v. Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 254–257, 95 Cal.Rptr. 901.)

Here, all charges related to the same scenario and thus appellant was fully apprised of the charges.   The only difference between the two causes of action was that the intentional claim alleged facts relating to the attempt to coerce Patient into an abortion and included a request for punitive damages.   Appellant knew about both charges.   It was appellant who ordered the abortion.   Further, appellant was on clear notice punitive damages would be sought against him prior to the amendment motion when Patient served appellant with a request for financial information.

Contrary to appellant's suggestion, he was not prejudiced due to a “potential conflict with his own insurer.”   There is no indication he was inadequately represented or that a conflict developed.   Appellant benefitted by carrier's representation throughout the proceedings.   The trial court did not abuse its discretion in allowing the amendment.  (Cf. Nelson v. Gaunt, supra, 125 Cal.App.3d at pp. 636–637, 178 Cal.Rptr. 167.) 8

CLERICAL ERROR

Patient is a conservatee.   The named plaintiff in this action is Patient's conservator, Myretta Adams.   The judgment mistakenly awarded damages to Myretta, rather than to Myretta in her capacity as conservator for Patient.   To correct this clerical error we modify the judgment and in all places in which the name “Myretta Adams” appears, the words “Myretta Adams, as conservator for Lonnetta Ree Adams,” shall be substituted in place thereof.

As modified, the judgment is affirmed.   Costs are awarded to respondent.

FOOTNOTES

1.   Appellant inappropriately asks us to reweigh the evidence and suggests we believe his version of the facts.   We obviously do not accede to his request.

2.   Even the medically uneducated know that if a woman of child-bearing age has tenderness in the breast, experiences vomiting and nausea and misses two menstrual periods, there is a possibility the woman is pregnant.

3.   In supplemental briefing, appellant raises numerous unsupportable arguments.   First, appellant argues it is against public policy for a parent to claim injuries for emotional distress based upon the birth of a genetically defective child.  Foy v. Greenblott (1983) 141 Cal.App.3d 1, 190 Cal.Rptr. 84, summarizing prior case law, directly refuted this contention.  Foy held that ordinary tort principles of compensation apply in such claims and public policy does not limit the types of damages recoverable by a parent asserting medical personnel were negligent in failing to prevent or terminate a pregnancy.  (Id. at p. 8, 190 Cal.Rptr. 84;  see also, Stills v. Gratton (1976) 55 Cal.App.3d 698, 707–709, 127 Cal.Rptr. 652 [mother of child born after negligently performed abortion entitled to full compensation under established tort principles].)Appellant next suggests Patient's injuries are nothing more than claims for parental consortium.   This suggestion is not supportable.   Patient has not alleged an impaired parent-child relationship.   Rather, Patient's claims for injuries are those regularly held to be recoverable.   The claims are based upon appellant's numerous and egregious failures while appellant was Patient's treating physician.   Failing to provide contraceptive counseling and medication to a mentally infirmed individual, failing to make a timely diagnosis of pregnancy and failing to provide adequate prenatal care may provide a basis for the recovery of both general and special damages if causation is shown.  (Foy v. Greenblott, supra, 141 Cal.App.3d at pp. 12–13, 190 Cal.Rptr. 84.)Appellant's factual argument suggesting Patient was incapable of knowing she was being injured is not supported by the record.   While medical experts testified Patient became delusional at times, there was no evidence Patient lacked appreciation of the harm inflicted upon her.Appellant's reliance on Thing v. La Chusa (1989) 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 is also misplaced.  Thing dealt with bystander's recovery based upon negligent infliction of emotional distress and thus is inapplicable to this wrongful birth case.

4.   Effective January 1, 1988, the definition of malice was amended.  “Despicable” was added before the phrase “conduct which is carried on” and “with a willful and conscious disregard” was substituted in place of “with a conscious disregard.”   The statute also elevated the burden of proof and required clear and convincing evidence to support a claim for punitive damages.  (Stats.1987, ch. 1498, § 5, p. _.)

5.   In presenting this argument, appellant inappropriately suggests we reweigh the evidence (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398, 402, 185 Cal.Rptr. 654, 650 P.2d 1171) and accept all of his statements, even though his version of the events was rejected by the jury.   The record is replete with evidence from which evidence of malice is reasonably inferred.  (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 923 fn. 6, 148 Cal.Rptr. 389, 582 P.2d 980.)

6.   On the intentional infliction of emotional distress cause of action for compensatory damages, the jury awarded $250,000 in noneconomic losses and $100,000 for economic damages.   On the medical malpractice cause of action for compensatory damages, the jury awarded $250,000 in noneconomic losses and $100,000 for economic damages.   Thereafter, following the standard procedure, the court reduced these awards by the settlement funds paid by View Heights and the amount received by Social Security, and reduced the noneconomic awards by half, finding they were duplicative.   Citing Palmer v. Ted Stevens Honda, Inc. (1987) 193 Cal.App.3d 530, 541, 238 Cal.Rptr. 363, appellant argues that because the jury's award was reduced, the jury could not possibly have considered if the actual award bore a reasonable relationship to the punitives.   In order to eliminate any possible confusion or prejudice, courts traditionally reduce awards by the amounts of settlements received (Knox v. County of Los Angeles (1980) 109 Cal.App.3d 825, 834–835, 167 Cal.Rptr. 463) and similarly reduce awards if there is any duplication.  (See, e.g., Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 128–129, 135 Cal.Rptr. 802.)   Assuming, without deciding that this process deprived the jury of information which would have assisted the jury in relating the actual damages to the punitive damages, there could not possibly have been any prejudice to appellant.  (Cal. Const., art VI, § 13;  Evid.Code § 354.)   In light of the flagrant nature of appellant's conduct over a lengthy period of time and the severe damages to Patient, it is not reasonably probable that the punitive award would have been smaller.

7.   The services rendered included educational programs and transportation services.   Patient, as Paul's mother, would be responsible for these payments based upon her ability to pay.  (Welf. & Inst.Code, §§ 4782 and 4784.)

8.   Presently, Code of Civil Procedure section 425.13 limits claims for punitive damages against health care professionals by requiring a court order before such claims are allowed.  (Stats.1987, ch. 1498, § 7, p _.)

ASHBY, Acting Presiding Justice.

BOREN and TURNER, JJ., concur.