Reset A A Font size: Print

Court of Appeal, Fourth District, Division 2, California.

Cherry TOLAND, Plaintiff and Respondent, v. Milton VANA, M.D., Defendant and Appellant.

No. E006611.*

Decided: July 18, 1990

Kirtland & Packard and Austin C. Smith, Jr., Los Angeles, for defendant and appellant. Horvitz & Levy, S. Thomas Todd and Lisa Perrochet, Encino, for California Medical Ass'n, California Dental Ass'n, and California Ass'n of Hospitals and Health Systems as amicus curiae on behalf of defendant and appellant. Fred J. Hiestand, Sacramento, for the Ass'n for California Tort Reform as amicus curiae on behalf of defendant and appellant. Law Offices of Phillip W. Neiman, Phillip W. Neiman, Los Angeles, and Raymond Perez, Sacramento, for plaintiff and respondent. Law Offices of Ian Herzog, Santa Monica, Evan D. Marshall, Corona, and Ian Herzog, Santa Monica, for California Trial Lawyers Ass'n as amicus curiae on behalf of plaintiff and respondent.


 In a medical malpractice action filed by Cherry Toland (plaintiff) against Dr. Milton Vana (defendant) and others, defendant has appealed from a $250,000 judgment, entered on a jury verdict against him.   The first impression issue here presented is whether, in a medical malpractice action where only noneconomic damages are at issue, a trial court may instruct a jury on the $250,000 limitation upon noneconomic damages contained in Civil Code section 3333.2.1  We hold that a trial court may give such an instruction, if it also instructs the jury that the award for noneconomic damages must be reasonable in light of the evidence (see, e.g., BAJI No. 14.13, infra ).2  Because the trial court in the case here gave both an instruction based on section 3333.2, along with BAJI No. 14.13, we reject defendant's contention that the court erred in giving the section 3333.2 instruction, and will affirm the judgment.


Defendant performed a left carotid endarterectomy on plaintiff at Circle City Hospital (Circle City) in Riverside County.3  At the time of the operation plaintiff was 61 and had not been employed for 15 years.

To monitor plaintiff's blood pressure during the operation, defendant inserted a one-foot-long guide wire in the radial artery of plaintiff's left wrist, then slid a short catheter over the guide wire.   The catheter was then hooked up to the monitoring equipment.   The purpose of the guide wire was to make an opening in the artery for the catheter.   Once the catheter was in place, the guide wire was no longer necessary and in keeping with accepted practice should have been removed.   It was not removed at the conclusion of the operation.

Immediately after the operation, plaintiff complained of severe pain in her left hand, her left arm, and her left wrist.   Six days later, a nurse noted that plaintiff was crying, and saying “ ‘I can't take this pain anymore.’ ”   One or two days later (the record is not clear), plaintiff was discharged from the hospital, still complaining of pain in her left arm.

Plaintiff returned to the hospital four times in the next five days, complaining of pain in her left arm, wrist, and hand.   On two of the four occasions she was seen by defendant.   On the sixth day after the discharge plaintiff consulted defendant in his office.   Defendant suggested that she squeeze a rubber ball with her left hand and that she “walk [the] hand up the wall.”   Defendant also referred plaintiff to Dr. Connolly, a vascular surgeon at UC Irvine Medical Center.   Neither defendant nor any other physician who saw plaintiff at Circle City suggested that plaintiff have x-rays taken of the arm.

Plaintiff saw Dr. Connolly twice.   He also suggested that she squeeze a rubber ball with her left hand and that she walk the hand up the wall.   He also did not suggest x-rays.   Plaintiff was unable to do the hand exercises because of the pain.

Thereafter, according to plaintiff's testimony at trial, she went to her family physician, and told him that she “couldn't take the pain anymore.”   He began to insert a hypodermic needle into her left arm, then “jerked it out real quick” and told her to have x-rays taken of the arm.   After the x-rays were taken, seven and one-half weeks after the operation at Circle City, plaintiff was operated on by Dr. Broadhead at Parkview Hospital (Parkview).   During that operation, the one-foot-long guide wire earlier inserted by defendant was removed from plaintiff's left arm.

After the wire was removed, plaintiff continued to have trouble with her left arm and hand.   She also had gastrointestinal problems.   She was re-admitted to Parkview, where she was treated with physical therapy and pain medication.   Plaintiff testified that she had pain in her left arm for about a year after the wire was removed, and, at the time of trial about five years later, that her left wrist was tender and that her left hand “goes to sleep.”


About four months after the wire was removed, plaintiff filed the underlying complaint against Circle City, defendant, Dr. Connolly, and two other physicians.   The defendants each filed answers to the complaint.   In his answer, defendant alleged several affirmative defenses, including the defense that plaintiff's right to recover was governed by Civil Code sections 3333.1 and 3333.2.4

Thereafter, plaintiff dismissed all of the physician defendants except defendant here, and served defendant and Circle City with an offer to compromise (Code Civ.Proc., § 998) in the amount of $200,000.   Neither remaining defendant responded to the offer.

Thereupon, the trial court ordered the case to arbitration.   After a hearing, the arbitrator entered a decision which recited, in relevant part that:  (1) Both Circle City and defendant had been negligent, and their negligence was the proximate cause of plaintiff's damages;  (2) plaintiff had incurred medical expenses of between $10,800 and $12,800;  (3) plaintiff's remaining damages were attributable to her pain and suffering from the two operations and to her residual pain and suffering;  (4) plaintiff's total damages were $42,000.

Both plaintiff and Circle City requested a trial de novo, and the action then proceeded to jury trial against Circle City and defendant.

At trial, defendant testified:  (1) he had never told plaintiff that he had inserted a wire in her left arm;  (2) if he had left the wire in plaintiff's arm after the surgery he would have violated the applicable standard of care;  and (3) he did not remember leaving the wire in plaintiff's arm, however, “[i]n retrospect, after looking at all of the evidence so far, all the x-rays and findings, I think I left it in.”

After defendant and plaintiff's expert had testified, plaintiff dismissed Circle City and proceeded against defendant only.

In his closing argument, plaintiff's attorney stated to the jury, over the objection of defendant's attorney, that the damages for pain and suffering in a medical malpractice case were limited to $250,000, and that “you're not allowed to award damages more than that.” 5  The attorney also stated, “And I'm not saying that you should award her that much.   But I'm saying if you want to, you certainly can.   The law allows you to.  [¶] ․ there is no general rule on how to determine damages in any case.   There's no formula.   You have to do it based upon only one thing, and the judge will instruct you as to that, and that's reasonableness.   What you think is fair.   You have to use your own conscience.”

In his closing argument, defendant's attorney suggested that $10,000 “might be a reasonable amount” to award plaintiff for her pain and suffering.

At plaintiff's request, the court instructed the jury that:  “No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for pain and suffering.   Nor is the opinion of any witness required as to the amount of such reasonable compensation.   Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation.   In making an award for pain and suffering you shall exercise your authority with calm and reasonable judgment, and the damages you fix shall be just and reasonable in light of the evidence.”  (BAJI No. 14.13 (7th ed. 1986).)

At defendant's request, the trial court instructed the jury that:  “The amount of damages claimed, either by the written pleadings or in the argument of counsel, must not be considered by you as evidence of reasonable compensation.”  (BAJI No. 14.62 (7th ed. 1986).)

Thereafter, apparently on its own motion, the court instructed the jury:  “the maximum damages which you can assess for pain and suffering in this case are $250,000.”

After approximately two and one-half hours of deliberation, the jury returned a 10–2 general verdict in favor of plaintiff for $250,000.   Judgment was entered on the verdict.   Defendant noticed a motion for a new trial on the grounds:  (1) it was prejudicial error for plaintiff's attorney to refer, in his oral argument, to the $250,000 limitation on damages for pain and suffering;  (2) it was prejudicial error for the trial court to instruct the jury on that limitation, and (3) the $250,000 damage award was excessive.

The motion for a new trial was denied.   At the hearing on the motion, the court reasoned that it found no prejudice either in plaintiff's attorney's references to the $250,000 limitation in his closing argument, or in the instruction as to that limitation, and, although $250,000 was more than it, the court, would have voted for as a juror, that its conscience was not shocked by the award.6

This appeal followed.


Defendant contends:  (1) the trial court erred in instructing the jury on the $250,000 limitation of Civil Code section 3333.2;  and (2) the $250,000 award is excessive.



To our knowledge, this is the first case in California in which a trial court has given an instruction to the jury reflecting the statutory limitation on noneconomic damages in a medical malpractice action.   Previously, trial courts have allowed juries to determine such damages without regard to the limitation and then have reduced any awards which exceeded $250,000.  (See, e.g. Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 157, 211 Cal.Rptr. 368;  McAdory v. Rogers, supra, 215 Cal.App.3d 1273, 1275, 264 Cal.Rptr. 71.)   Defendant contends that such practice should have been followed in the case here.   However, defendant's contention is based principally on treble damages cases, and, as we shall explain, the trebling of damages in those cases is not analogous to the limitation of noneconomic damages in a MICRA case.

Defendant relies on Marshall v. Brown (1983) 141 Cal.App.3d 408, 190 Cal.Rptr. 392, where the court held that juries should not be instructed that any damages they awarded would be trebled, because “ ‘[t]he fact that the awarded amount will be tripled has no relevance in determining the amount a plaintiff was injured by the anti-trust violation.’ ”  (Marshall v. Brown (1983) 141 Cal.App.3d 408, 418, 190 Cal.Rptr. 392;  see also Noble v. McClatchy Newspapers (9th Cir.1975) 533 F.2d 1081, 1091.)

However, in a treble damages cases, a trial judge who triples the awarded amount is not interfering with the jury's determination of the amount a plaintiff has been injured;  whereas, in a MICRA case, a trial judge who reduces an award of noneconomic damages, if it exceeds $250,000, is interceding with the jury's determination of that amount.

Actually, because of such intercession, courts in other states have held that statutory limitations on damages in medical malpractice actions are an unconstitutional infringement on the right to a jury trial.  (See, e.g. Kansas Malpractice Victims v. Bell (1988) 243 Kan. 333, 757 P.2d 251, 258:  “When the trial judge enters judgment for less than the jury verdict ․ he clearly invades the province of the jury.   This is an infringement on the jury's determination of the facts, and, thus, is an infringement on the right to a jury trial.”) 7  Accordingly, in a MICRA case, as opposed to a treble damages case, the fact that an award of noneconomic damages will be reduced if it exceeds $250,000 is relevant to the jury's determination of the amount a plaintiff has been injured.

An additional distinction between the treble damages cases and the MICRA cases is illustrated by the case where an untrebled jury award is not improper, whereas a MICRA award of more than $250,000 for noneconomic damages is improper.   In view of such impropriety, in a MICRA case a jury which has not been instructed on the $250,000 limitation and in which at least four members are convinced that the plaintiff should receive more than $250,000 could spend needless hours in attempting to reach a verdict, or, could even be unable to do so.   Such a waste of court resources would not occur where a jury has not been instructed on treble damages.

Yet a further distinction between the treble damages cases and the MICRA cases is illustrated by those cases where the danger of instructing the jury on treble damages is not present when the jury is instructed on the $250,000 limitation.   That danger, as articulated by the Ninth Circuit Court in Noble v. McClatchy Newspapers, supra, is that the “ ‘probable consequence’ ․ would be ․ ‘an impermissible lowering of the amount of damages' [and] an invitation to the jury to negate Congress' determination that actual damages should be trebled in order to deter antitrust violations and encourage private enforcement of the antitrust laws.”  (Noble v. McClatchy Newspapers, supra, 533 F.2d 1081, 1090–1091.)

Defendant argues that the probable consequence of instructing a jury in a MICRA case on the $250,000 limitation would be an increasing of the amount of damages, and an invitation to the jury to negate the California Legislature's determination to reduce the costs of medical malpractice litigation.   We do not agree.

Such an increase in the amount of damages might result if the jury were instructed that any damages it awarded would be halved.   In that case, the jury might reason that it should double its award, in order to avoid diminishing the plaintiff's recovery.   In the case of the $250,000 limitation, however, there would be no reason for the jury to increase an award under $250,000, because the limitation would not prevent the plaintiff from recovering the entire award.   Nor would there be any reason for the jury to make an award of over $250,000, because the plaintiff could not recover the excess amount.

Impliedly, defendant is arguing that the probable consequences of instructing the jury on the $250,000 limitation would be invariably that it would increase the amount of damages to that amount.   However, although the jury here did award $250,000, it is entirely speculative as to whether that award represented an increase or a decrease of the amount it would have awarded had it not been instructed on the $250,000 limitation.

 Moreover, an inference that the award here represented an increase would require additional inferences:  (1) the jury interpreted the court's instruction that “the maximum damages which you can assess for pain and suffering ․ are $250,000” (emphasis added) as “the damages which you should assess for pain and suffering ․ are $250,000” (emphasis added), and (2) the jury ignored the court's additional instruction, ante, that the jury use its “reasonable judgment” to award “reasonable compensation” for pain and suffering.   However, because we must presume that the jury was composed of intelligent people who understood the instructions given and correctly applied them to the evidence (Trapani v. Holzer (1958) 158 Cal.App.2d 1, 6, 321 P.2d 803), we cannot draw these additional inferences.

At oral argument, counsel for one of the amici appearing on behalf of defendant, made a spirited argument that we should not tamper with a recast system of medical malpractice insurance which had now achieved a measure of equilibrium.   His worst case scenario contemplated that giving the limitation instruction would be an invitation to juries to award excessive economic damages as a device to provide more for pain and suffering than the law allows.   Even assuming such a speculation to have colorable validity, in the case here there was no award of economic damages;  the jury was charged only with deciding the amount of noneconomic damages to award.

For all the foregoing reasons, the treble damages cases are irrelevant to our analysis of the instructional issue presented by the case here.   However, there are other types of cases which are relevant, namely the cases involving the limitation on liability of motor vehicle owners (Veh.Code, § 17151),8 and the cases in which the plaintiff has alleged a particular sum in the complaint, claimed as damages.

More specifically, in a case involving the limitations contained in Vehicle Code section 17151, Pettigrew v. Grand Rent–A–Car (1984) 154 Cal.App.3d 204, 201 Cal.Rptr. 125, plaintiff had sued defendant for damages incurred when a vehicle in which she was the passenger collided with a vehicle owned by defendant.   At trial, the court had not instructed the jury on Vehicle Code section 17151, and the jury had returned a verdict for plaintiff in the amount of $150,000.   Judgment was entered on the verdict.   Thereafter, the defendant noticed a motion, pursuant to Code of Civil Procedure section 473, to vacate the verdict and/or modify the judgment to the $15,000 limitation of section 17151.   The trial court granted the motion and plaintiff appealed.

On appeal, the Pettigrew court affirmed the trial court's order granting the section 473 motion, and noted, in passing, that the failure of the defendant's attorney to request jury instructions on the section 17151 limitation was a mistake of law.   Impliedly, therefore, such instructions would have been proper.  (See also Powers v. Shelton (1946) 74 Cal.App.2d 757, 765–766, 169 P.2d 482.)

Also relevant to the case here is the Pettigrew court's statement that “appellant never had a right to claim more than $15,000 against the respondent vehicle owner, absent proof of agency or employment.”  (Pettigrew v. Grand Rent–A–Car, ante, 154 Cal.App.3d 204, 214, 201 Cal.Rptr. 125.)   Similarly, in a MICRA case, the plaintiff never can claim more than $250,000 in noneconomic damages.   However, if the jury is not informed of the $250,000 limitation and awards more than that amount, then, even when the trial court reduces the award, the plaintiff may yet believe that he or she was entitled to the greater amount.  (At the very least, such a plaintiff may feel cheated by a system which gives with one hand and takes away with the other.   Similarly, a juror in a case where the jury spent hours arguing over damages amounts in excess of $250,000 may, if he or she discovers that the awarded amount was reduced to $250,000 and therefore that the discussion was unnecessary, also has cause to resent the “system.”)

In the second type of cases we have referred to, where the plaintiff has alleged a certain amount of damages in the complaint, the trial court is allowed to instruct the jury that no more than that sum may be awarded.   (Beagle v. Vasold (1966) 65 Cal.2d 166, 172–173, 53 Cal.Rptr. 129, 417 P.2d 673.)   Similarly, in the case here, where the defendant has claimed a certain limitation of damages in the answer, a trial court should also be allowed to instruct the jury that no more than that sum may be awarded.  (See, e.g., Broffman v. Newman (1989) 213 Cal.App.3d 252, 263, 261 Cal.Rptr. 532.)

On the basis of the foregoing analysis, we hold under the circumstances of this case that the trial court did not err, after it instructed the jury on awarding reasonable damages for pain and suffering in the light of the evidence, when it also instructed the jury that the maximum damages which could be awarded for pain and suffering were $250,000.



Defendant contends that the $250,000 award is excessive.   However, our ability to reverse a judgment as excessive is strictly prescribed.   As the California Supreme Court noted in Bertero v. National General Corp. (1974) 13 Cal.3d 43, 118 Cal.Rptr. 184, 529 P.2d 608, “A reviewing court must uphold an award of damages whenever possible [citation] and all presumptions are in favor of the judgment [citations].  (Id., at p. 61, 118 Cal.Rptr. 184, 529 P.2d 608.)  “ ‘ “․  [W]here the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice, the duty is then imposed upon the reviewing court to act.” ’ ”  (Id., at p. 64, 118 Cal.Rptr. 184, 529 P.2d 608.)  “[Where] a claim of excessive damages was raised in connection with a motion for a new trial and was denied ․ the trial court's determination ․ is to be accorded great weight.”  (Id.)

 In the case here, defendant argues that plaintiff's attorney inflamed the jury against defendant by stating in closing argument that defendant had never admitted that he left in the wire or was at fault.   The relevant statements were:  “Dr. Vana to this moment has never admitted that he did anything wrong.   Kind of.  [¶] Well, I don't know how it got there, and I guess I was responsible.   But he never came out and said it was his fault.”   These statements were a fair reflection of defendant's testimony, and they can hardly be characterized as having “inflamed” or prejudiced the jury against him.

Moreover, as we have noted, plaintiff's attorney also told the jurors, in closing argument, that he was not advising them to award plaintiff $250,000, and that the only standard for the award was reasonableness, and “[w]hat you think is fair.”

Finally, the issue of excessive damages was before the trial court when defendant moved for a new trial.   After hearing and considering the motion, the court denied it.

 In sum, on the contention of excessive damages, the record, when viewed most favorably to the judgment, as a matter of law, does not indicate that the jury acted out of passion or prejudice.  (See Bertero v. National General Corp., ante, 13 Cal.3d 43, 64, 65, fn. 12, 118 Cal.Rptr. 184, 529 P.2d 608.)


The judgment is affirmed.



1.   Civil Code section 3333.2, is a portion of the Medical Injury Compensation Reform Act of 1975 (MICRA).  Section 3333.2 recites, in relevant part:  “(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage.  [¶] (b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000).”

2.   We do not hold that a trial judge is required to give a section 3333.2 instruction in every medical malpractice case.   For example, in a medical malpractice case where there is an issue of comparative negligence, such an instruction would be improper.  (See, e.g., McAdory v. Rogers (1989) 215 Cal.App.3d 1273, 1281, 264 Cal.Rptr. 71.)   In other words, our holding contemplates that trial judges will exercise sound discretion in deciding whether to give such an instruction, based on the peculiar circumstances of each case.

3.   An endarterectomy is an operation where plaque is removed from the inside of the carotid (neck) artery, in order to increase the blood flow capacity.

4.   Civil Code section 3333.1 modifies the traditional “collateral source” rule in medical malpractice cases to allow introduction of evidence of collateral source payments.

5.   Plaintiff's medical expenses were not recoverable (Civ.Code, § 3333.1, ante ).

6.   Cf. Daggett v. Atchison, T. & S.F. Ry. Co. (1957) 48 Cal.2d 655, 666, 313 P.2d 557, where the court said, “It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive or grossly inadequate general damages.”

7.   In Fein v. Permanente Medical Group, ante, the California Supreme Court held that Civil Code section 3333.2 was constitutional.   The Fein court did not address the right to jury trial issue;  however, the issue was addressed in Yates v. Pollock (1987) 194 Cal.App.3d 195, 239 Cal.Rptr. 383, where the court held that section 3333.2 did not unconstitutionally abridge that right.  (Id., at p. 200, 239 Cal.Rptr. 383.)

8.   The limitations recited in Vehicle Code section 17151 are, in any one accident:  (1) $15,000 for the death of or injury to one person;  (2) $30,000 for the death of or injury to more than one person;  and (3) $5,000 for damage to property of others.

McDANIEL, Associate Justice.* FN* Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

DABNEY, Acting P.J., and TIMLIN, J., concur.

Copied to clipboard