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Court of Appeal, Third District, California.

Lawrence FEIN, Plaintiff, Respondent and Cross-Appellant, v. PERMANENTE MEDICAL GROUP, Defendant, Appellant and Cross-Respondent.

Civ. 18349.

Decided: June 30, 1981

Thelen, Marrin, Johnson & Bridges, Terry M. Burt, Michael T. Hornak, Rebecca A. Lewis, Donald A. Newman and Curtis A. Cole, Los Angeles, for defendant, appellant and cross-respondent. Hassard, Bonnington, Rogers & Huber, Howard Hassard, David E. Willett and Charles Bond, San Francisco, Musick, Peeler & Garrett and James E. Ludlam, Los Angeles, Horvitz, Greines & Poster, Marjorie G. Romans, John L. Klein and Ellis J. Horvitz, Encino, amicus curiae for defendant, appellant and cross-respondent. Friedman, Collard, Paswall & Thompson, Morton L. Friedman, Allan J. Owen and Rex-Ann S. Gualco, Sacramento, for plaintiff, respondent and cross-appellant.

The constitutionality of major portions of the Medical Injury Compensation Reform Act (MICRA) is challenged. While we uphold the constitutionality of MICRA we reverse on the basis of a trial court error the court impermissibly excused from jury duty, over objection, all prospective jurors who were members of the Kaiser Health Plan. For guidance of the trial court we deal with additional issues: (1) whether nurse practitioners must meet the standard of care of a physician; (2) whether the amount of recovery for loss of wages is to be decreased due to the lowered life expectancy caused by the negligence; and (3) whether the periodic payment provisions of Code of Civil Procedure section 667.7 are mandatory or directory.

The factual setting must be set forth in some detail as background for the various issues with which we deal.

Plaintiff, an attorney employed by the California State Legislature, had worked in the same position for approximately ten years prior to the medical treatment in question, and planned to continue in that capacity until retirement. At 34, he was a young man when the cause arose, and he was two years older at the time of trial.

The medical basis for the law suit evolved on February 21, 1976, a Saturday, when plaintiff was riding his bicycle to work and noticed a pain in his chest. The pain lasted one to two minutes and then stopped. The following day while jogging plaintiff again suffered chest pains also for a brief period of one or two minutes. Three days later, on Wednesday, plaintiff experienced a similar pain while walking after eating lunch. That night, at about 8:00 p. m., when plaintiff was working late, the chest pains returned, this time more severe and lengthy. Plaintiff became concerned for his health and the following day made an appointment with the Kaiser Health Foundation.

On Thursday, February 26, plaintiff was given a brief examination by nurse practitioner Cheryl Welch. After examining plaintiff and taking a history, the nurse practitioner left the room and then returned with a prescription for Valium. She told plaintiff that he was suffering from muscle spasms. Plaintiff went home, took the Valium, and went to sleep.

At about 1:00 a. m., the following morning, plaintiff awoke with excruciating chest pains. His wife drove him to the Kaiser emergency room where he was examined by Dr. Lowell G. Redding who ordered that a chest X-ray be taken. The physician gave plaintiff a shot of Demerol and Codeine pills, and concluded plaintiff was experiencing muscle spasms.

Plaintiff returned to the Kaiser emergency room on Friday. He had continued to experience chest pains which would come and go until about noontime when the pain was constant. The examining physician, Dr. Charles Oliver, ordered that an electrocardiogram (EKG) be given to plaintiff. That examination showed that plaintiff was suffering from a heart attack (acute myocardial infarction). Plaintiff was admitted to the hospital thereafter.

One year and two days after suffering the initial pain, plaintiff filed a complaint in court alleging that his condition should have been diagnosed earlier and treatment given in order to prevent his heart attack or at least to lessen the residual effects. The case went to judgment only against Permanente.

At trial the parties agreed as to the times and dates that plaintiff was examined by staff at the Kaiser clinic and that plaintiff suffered a severe heart attack. All other aspects of the case were controverted. Dr. Harold Swan, the head of cardiology at Cedars-Sinai Medical Center in Los Angeles, and a Fein family acquaintance, testified on plaintiff's behalf. He explained that an important signal that a heart attack may be imminent is chest pain which can radiate to other parts of the body. Such pain is not relieved by rest or medicine. If the condition is properly diagnosed the patient can be given propranolol or inderol to stabilize his condition. Continued medication or surgery may relieve the condition.

Any patient who appears with chest pains should be given an EKG in order to rule out the worst possibility, heart disease, in the opinion of Dr. Swan. He further testified that the symptoms described by plaintiff should have indicated to Nurse Practitioner Welch that an EKG was in order. Later that night, when plaintiff returned without relief, Dr. Redding, too, should have ordered an EKG based upon the symptoms and history of the patient. According to Dr. Swan, if an EKG had been ordered at those times it could have shown plaintiff's imminent heart attack and that treatment could have prevented or minimized the attack.

As a result of plaintiff's heart attack a large portion of his heart muscle died. After the heart attack, Dr. Swan testified that plaintiff's life expectancy was reduced by about one-half, to 16 or 17 years. On the other hand, though some of plaintiff's other coronary arteries suffer from disease, if plaintiff had been properly treated his normal life expectancy would have been decreased by only 10 to 15 percent.

Defendant introduced testimony of the nurse practitioner and of the emergency room specialist who saw plaintiff prior to his heart attack. Their testimony tended to show that the symptoms he described at the hospital were not the same symptoms he reported at trial. Defendant also introduced expert testimony which tended to show that based upon the symptoms reported and observed prior to the heart attack it could not be determined that a heart attack was imminent. Other expert testimony introduced by defendant indicated (1) an EKG would not have shown that a heart attack would occur in the future, (2) even if it were known that a heart attack was about to occur it could not have been prevented by treatment, and (3) due to the severe disease in the coronary arteries which caused plaintiff's heart attack and existing disease in other of plaintiff's coronary arteries, plaintiff's life expectancy was not affected by the heart attack to the degree claimed.

The jury found in favor of plaintiff and entered special findings on the amount of damages. Noneconomic damages, to compensate for pain, suffering, inconvenience, physical impairment, loss of enjoyment of life and other intangible damages from the time of injury until plaintiff's death were found to be $500,000. Additional damages included lost wages until the time of trial in the sum of $24,733; present cash value of future lost wages as a result of the reduction of plaintiff's life expectancy totalling $700,000; and present value of future medical expenses, amounting to $63,000.

Pursuant to Civil Code section 3333.2, the trial court ordered that the award of damages for noneconomic losses be reduced from $500,000 to $250,000. And following Civil Code section 3333.1, the trial court ordered that the award for lost wages to the time of trial be reduced by collateral source disability payments of $19,302.83, leaving an award of $5,430.40. The court further ordered that defendant pay future medical expenses which are not covered by medical insurance provided by plaintiff's employer up to $63,000. The court declined, however, to order that future lost wages and general damages awarded by the jury be paid periodically pursuant to Code of Civil Procedure section 667.7; it ruled that the section is directory and should not be applied to the case at bench. Both parties appeal.


We are called upon to determine the constitutionality of several provisions of MICRA. These sections deal with periodic payment of the judgment (Code of Civ. Procedure, s 667.7),1 applicability of collateral benefits to offset damages (Civ.Code, s 3333.1),2 and the $250,000 maximum recovery for noneconomic damages (Civ.Code, s 3333.2) in personal injury actions against health providers.3 The attack is focused on the asserted unconstitutionality of classifications created by the Act. It is incumbent on us, therefore, to be respectful of the role courts play in such a review.

The power to legislate, needless to say, is in the Legislature, not the courts. Courts do not substitute their social and economic beliefs for the judgment of the legislative bodies. (Ferguson v. Skrupa (1963) 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93, 97.) “Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, ․ ” (Berman v. Parker (1954) 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27, 37.) The California Supreme Court has enunciated the same concept: “Courts have nothing to do with the wisdom of laws or regulations, and the legislative power must be upheld unless manifestly abused so as to infringe on constitutional guaranties. The duty to uphold the legislative power is as much the duty of appellate courts as it is of trial courts, and under the doctrine of separation of powers neither the trial nor appellate courts are authorized to ‘review’ legislative determinations. The only function of the courts is to determine whether the exercise of legislative power has exceeded constitutional limitations.” (Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 461-462, 202 P.2d 38.)

With the above principles in mind, we turn to the constitutional attack on the legislation.

Plaintiff assails the constitutionality of selected provisions of MICRA on the following grounds: (1) MICRA violates the equal protection clause of the United States and California Constitutions; (2) MICRA deprives plaintiff of due process of law; (3) MICRA violates the right to trial by jury and (4) the Act is unconstitutionally vague and uncertain.

The provisions of MICRA which plaintiff attacks involve three changes affecting plaintiffs who prevail in medical malpractice suits against health care providers. Civil Code section 3333.1 abrogates the “collateral source rule” in such suits. (See Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 13, 84 Cal.Rptr. 173, 465 P.2d 61, for a statement of the rule.) Civil Code section 3333.2 limits awards for noneconomic or nonpecuniary damages to $250,000. Finally, under Code of Civil Procedure section 667.7, awards for future losses may be ordered to be paid in periodic installments rather than a lump-sum. Plaintiff argues that these sections cannot be shown to be a rational method of dealing with the purported “crisis” which spawned their enactment.

A. The Equal Protection Argument

We first address the assertion by plaintiff that the above provisions of the Act violate the equal protection clauses of both the federal and state Constitutions. In making this argument, plaintiff asserts that the Act unlawfully discriminates against plaintiffs who are victims of medical malpractice, by setting up arbitrary and unreasonable classifications which bear no substantial relation to the object of the legislation.

As a foundation to his argument that the legislation at issue is arbitrary and unreasonable and thus violative of equal protection, plaintiff seeks to show that the alleged “crisis” pursuant to which the legislation was enacted was largely fabricated. This “crisis,” plaintiff maintains, was brought about, not by increasing medical malpractice suits and verdicts, but by stock market losses incurred by insurance companies. Hence, he contends that there is and was no legitimate state purpose to sustain the Act.

In 1975, a special session of the Legislature was called by the governor to grapple with the problem of increasing medical malpractice insurance premiums. Upon enacting MICRA, the Legislature proclaimed: “The Legislature finds and declares that there is a major health care crisis in the State of California attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system, severe hardships for the medically indigent, a denial of access for the economically marginal, and depletion of physicians such as to substantially worsen the quality of health care available to citizens of this state. The Legislature, acting within the scope of its police powers, finds the statutory remedy herein provided is intended to provide an adequate and reasonable remedy within the limits of what the foregoing public health and safety considerations permit now and into the foreseeable future.” (Stats.1975, Second Ex.Sess., ch. 2, s 12.5, p. 4007.)

Plaintiff urges us to reconsider the Legislature's findings and to declare that there was no health care crisis. In making this argument plaintiff cites various published articles and studies, and has appended certain articles to his brief. Defendant responds that a crisis did exist, and in support of that argument cites published articles to that effect. Amicus curiae have cited additional articles and appended texts to their briefs to support the Legislature's finding.

In making this request, plaintiff asks the court to assume a role which is not ours to assume. “A court cannot declare legislation invalid because it disagrees with its desirability.” (Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 130, 216 P.2d 825.) Rather, our role is limited to a determination of whether the legislation is constitutional. (See Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 461, 202 P.2d 38.)

In assessing the constitutional validity of the Act, our initial inquiry concerns the appropriate standard of review. California courts, together with the U.S. Supreme Court, employ the two-tiered standard of review where statutes are attacked upon equal protection grounds. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10.) In cases involving suspect classifications such as race or sex, or affecting fundamental interests that are explicitly or implicitly guaranteed by the Constitution (i. e., voting rights or education), the “strict scrutiny” test is applied (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 592, 150 Cal.Rptr. 435, 586 P.2d 916). Under this standard, the courts conduct an “active and critical analysis” of the controverted classification. (Serrano v. Priest (1971) 5 Cal.3d 584, 597, 96 Cal.Rptr. 601, 487 P.2d 1241.) The state must sustain its burden of establishing “ ‘not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.’ (Citations.)” (Ibid.) In all other cases, such as those involving economic regulation or social welfare legislation “in which there is a ‘discrimination’ or differentiation of treatment between classes or individuals(,)” the traditional standard of review is employed. (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 16, 112 Cal.Rptr. 786, 520 P.2d 10.) This standard simply requires that “distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose.” (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784, 87 Cal.Rptr. 839, 471 P.2d 487; D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10; Cooper v. Bray (1978) 21 Cal.3d 841, 846, 148 Cal.Rptr. 148, 582 P.2d 604.)

It is the latter “rational relationship” standard we now apply to review the constitutionality of MICRA pursuant to plaintiff's equal protection challenge. Clearly no “suspect classification” or fundamental interest is here involved which would subject the statute to a higher level of judicial scrutiny. (See Brown v. Merlo (1973) 8 Cal.3d 855, 862, 106 Cal.Rptr. 388, 506 P.2d 212: the right to sue for negligently inflicted personal injuries is not a fundamental interest.)

Plaintiff contends that the provisions of MICRA limiting the amount of recovery in an action against a health care provider and authorizing periodic payment of the judgment deny him the right to a jury trial and thus must be considered under the “strict scrutiny” test of equal protection. We reject this contention. Plaintiff's argument fails to consider the distinction between legislative acts and judicial acts. It is the province of the Legislature to make general rules and the province of the courts to apply the general rule to a state of facts. (Smith v. Strother (1885) 68 Cal. 194, 197, 8 P. 852. See also Marin Water etc. Co. v. Railroad Com. (1916) 171 Cal. 706, 712, 154 P. 864.) It is within the power of the Legislature to create and abolish causes of action and to determine a remedy which will be provided in a given set of circumstances. (See Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 723, 192 P.2d 916.) In enacting Civil Code section 3333.2 and Code of Civil Procedure section 667.7, the Legislature has performed a function within the ambit of this authority. In doing so, it has not denied the right to a jury trial to determine the factual issues in the case.

Therefore, we deem the “rational basis” test the correct standard to apply. Plaintiff contends that MICRA fails to satisfy this test. We disagree. Under that standard wide discretion is vested in the Legislature in making a classification. Further, the statute is imbued with a presumption of constitutional validity (Mathews v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 719, 739, 100 Cal.Rptr. 301, 493 P.2d 1165; Cooper v. Bray, supra, 21 Cal.3d 841, 846, 148 Cal.Rptr. 148, 582 P.2d 604), and the party challenging it bears the burden of proving it invalid. (Blumenthal v. Board of Medical Examiners (1962) 57 Cal.2d 228, 233, 18 Cal.Rptr. 501, 368 P.2d 101.) A distinction is not arbitrary if any set of facts may be reasonably conceived in its support.

After applying the proper standard to this case we cannot disturb the Legislature's finding that a health care crisis did exist. The sum total of the articles on the question submitted by the parties to this litigation establish that the question cannot be said to be one where there may be no difference of opinion or which is not debatable. Indeed, the issue appears to be one which is widely debated and subject to substantial divergence of opinion. In such circumstances it is for the Legislature and not the courts to determine whether the exercise of the state police power is warranted.

We likewise decline to hold that the “crisis” is past and that the legislation is therefore of no continued validity. When the Legislature has determined that a need for legislation exists it is also for the Legislature to determine whether the need has passed and the legislation should be repealed. Moreover, everything submitted in support of the need for legislation indicates that the “crisis” was not of a sudden nature, but was built up over an extensive period of time. As the Joint Legislative Audit Committee stated in its report to the Legislature: “It is apparent from a close reading of the report that harbingers of the present ‘malpractice crisis' have been evident for years to the Department of Insurance.” Under such circumstances the Legislature could well conclude that continued application of its reform act is necessary to prevent recurrence of the crisis.

Moreover, we cannot rule, as plaintiff requests, that the means chosen by the Legislature were irrational and arbitrary responses to the perceived crisis. The crisis which MICRA was designed to relieve was in the health care industry. Indicia of the problem included significantly increasing numbers of suits against health care providers and increasing settlements and awards in those suits, projected losses related to malpractice insurance, a decrease in the number of companies willing to provide malpractice insurance, and skyrocketing costs of such insurance. The Legislature could reasonably determine that the elimination of the collateral source rule, limitation of awards for nonpecuniary damages, and the payment of damages by periodic installments over the period during which the damages would be incurred would have the effect of reducing the costs of insuring health care providers without depriving the injured party of provision for his needs. Whether this is the method we would have chosen to deal with the situation is irrelevant so long as it is not a constitutionally defective method.

Under such circumstances, the legislative decision to focus its reform efforts upon lawsuits against health care providers rather than upon tort actions in general bore a rational relationship to the state purpose involved in the legislation and cannot be said to be arbitrary.

Thus, we reject plaintiff's attack on equal protection grounds and uphold the challenged provisions of the Act which limit plaintiff's recovery of noneconomic losses, restrict application of the collateral source rule, and provide for periodic payments of future damages.

B. Due Process

Plaintiff contends that Code of Civil Procedure section 667.7 of MICRA, providing for periodic payment of the judgment, denies him due process in arbitrarily depriving him of a property right. He argues further that the section fails to provide for additional care should plaintiff's condition worsen, and that these burdens are not imposed upon other similarly situated plaintiffs.

We agree with the statement that a personal injury judgment cannot be taken away arbitrarily. However, Code of Civil Procedure section 667.7 does not deprive plaintiff of his judgment; it merely changes the form the award takes. Plaintiff has no constitutional property right or interest in the manner of payment for future damages. Except as constitutionally limited, the Legislature has complete power to determine the rights of individuals. (Modern Barber Col. v. Cal. Emp. Stab. Com., supra, 31 Cal.2d 720, 726, 192 P.2d 916.) It may create new rights or provide that rights which have previously existed shall no longer arise, and it has full power to regulate and circumscribe the methods and means of enjoying those rights. (Ibid.) It has consistently been held that the Legislature has the power to abolish causes of action altogether. (Werner v. Southern Cal. etc. Newspapers, supra, 35 Cal.2d, at p. 126, 216 P.2d 825; Langdon v. Sayre (1946) 74 Cal.App.2d 41, 43-44, 168 P.2d 57.)

Therefore, in view of this authority, the Legislature was justified in imposing the challenged limitations upon plaintiff's right of recovery. Further, in light of the fact we have determined that MICRA satisfies constitutional requisites in creating classifications bearing a rational relation to the state goal, we reject plaintiff's averment that the Act arbitrarily denies him due process of law.

C. Right to Jury Trial

Plaintiff argues that Code of Civil Procedure section 667.7 impermissibly deprives him of the constitutional right to jury trial since it requires the judge to determine the dollar amount of periodic payments. We disagree. Plaintiff's right to jury trial was strictly observed in this instance, and we see no reason to believe other cases will differ in safeguarding this important right. The jury in this case heard evidence as to the facts, made findings on those facts and decided the amount of damages to be awarded. Section 667.7 merely requires that at least a portion of the judgment payments be made on a periodic basis. We do not find this to be an unwarranted compromise or curtailment of the jury trial to which plaintiff was entitled.

The Legislature is fully justified in imposing reasonable regulations or conditions upon the right to jury trial, as long as the essential elements remain intact. (People v. Collins (1976) 17 Cal.3d 687, 692, 131 Cal.Rptr. 782, 552 P.2d 742.) Plaintiff was accorded such a trial and we therefore must reject his challenge.

Plaintiff also argues that Civil Code section 3333.2, which limits the recovery of a plaintiff in a malpractice action against a health care provider to $250,000 deprives him of the right to jury trial on the issue of damages. For reasons stated above, we reject this contention.

D. Vagueness and Uncertainty of Periodic Payment Provision

Plaintiff maintains that Code of Civil Procedure section 667.7 is unconstitutionally vague and uncertain. He points to the absence of provisions for interest and attorney fees, together with possible future inconsistency in the amounts to be paid periodically, as the basis for his contention.

Defendant submits that rather than interpreting the statute in such a way as to subject it to attack on the grounds of unconstitutional vagueness, we should follow the well established rule of interpreting the law so as to uphold its validity. It cites Associated Home Builders v. City of Livermore (1976) 18 Cal.3d 582, 598, 135 Cal.Rptr. 41, 557 P.2d 473, and Hall v. Bureau of Employment Agencies (1976) 64 Cal.App.3d 482, 494, 138 Cal.Rptr. 725, as authority for this view. (See also San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 948, 92 Cal.Rptr. 309, 479 P.2d 669, and Bloom v. Municipal Court (1976) 16 Cal.3d 71, 127 Cal.Rptr. 317, 545 P.2d 229: the courts should construe enactments to give specific content to terms that might otherwise be unconstitutionally vague.) Reasonable certainty is all that is required of a statute, and while Code of Civil Procedure section 667.7 appears to leave the manner of structuring of periodic payments to the discretion of the trial court we do not construe this as a defect rendering the statute unconstitutionally vague. First, as defendant points out, Code of Civil Procedure section 10334 sets forth the mandatory rules governing payment of interest on the judgment. Because some payments on the judgment may be periodically made does not preclude application of interest. Secondly, an award of attorney fees in cases in which periodic payments are awarded plaintiffs is authorized by Business and Professions Code section 6146, subdivision (b).5

Lastly, plaintiff's argument that the section will be applied inconsistently by leaving the amount of the judgment to be paid periodically to the discretion of the court is unconvincing. In authorizing periodic payments the Legislature specifically declared its intent “to provide compensation sufficient to meet the needs of an injured plaintiff for whatever period is necessary․” This determination necessarily requires the trial court be given latitude to adjudge on a case by case basis the amounts which will suffice to meet individual plaintiff's needs. It is therefore as unrealistic to argue there will be inconsistencies in periodic payments as to argue the inconsistencies in verdict amounts.

Thus, very little is actually left to the discretion of the trial judge. In the matter of the amount to be subject to periodic payments, the Legislature has specified that judicial discretion is warranted. As stressed before, this is not the forum to take issue with legislative determinations; our role is limited to a constitutional inquiry. Moreover, the exercise of judicial discretion is nothing more than a reasoned judgment sounding in law. Abuses of discretion are reviewable by the appellate courts.

Hence, we do not find Code of Civil Procedure section 667.7 to be constitutionally void for vagueness.


While we uphold the constitutionality of the legislation (MICRA) we reverse inasmuch as plaintiff was denied the right to a jury panel which was constitutionally selected. We explain our conclusion below.

The error in question occurred at the beginning of jury selection. The clerk called a jury panel of 60 prospective jurors. After the jurors were sworn to answer truthfully the questions asked of them, the court inquired whether any member of the panel would refuse to go to the Kaiser Hospital for treatment under any circumstances. Upon receiving no response the court asked: “Is there anyone here who does not feel that appropriate medical care and treatment is rendered at Kaiser? I am going to leave that for a moment. Let you think about that because the next next question I'm going to ask you is: How many among you and I'm going to excuse these people who are participants in the Kaiser Hospital Plan, receive all of their medical care and treatment at Kaiser?”

Defendant objected to the exclusion since it did not give counsel an opportunity to examine. The court noted the objection for the record, but explained its action, stating: “We have found that let me just state this to you: I am going to excuse you at this time because we've found that we can prolong the jury selection by just such a very long time by going through each and every juror under these circumstances. I'm not suggesting that every everyone who goes to Kaiser could not fairly and with an open mind resolve the issues in the case, but we may be here for four weeks trying to get a jury under the circumstances. (P) I hope you can appreciate that. Probably some of you have sat in on situations where we've tried to get jurors in cases and it just goes on and on and on and on because you'll be questioned in great detail.” The court then dismissed the 24 members of the jury panel that had responded affirmatively to its question, a number which represented 40 percent of the original panel.

The trial court, we note, excluded Kaiser members entirely on the basis of economy. It would take too long to select a jury, 40 percent of whom appeared to be subject to challenges for cause if the voir dire developed such a basis. There is no challenge to the fairness of the panel as it remained. As we explain, while the trial court acted in apparent reasonableness, the right to a jury is too dear to permit such exclusions from the jury panel despite the time savings inherent in the court's action.

Our analysis begins with the state Constitution. The right to a jury trial is fundamental. Article I, section 16 of the California Constitution declares: “Trial by jury is an inviolate right and shall be secured to all, ” The denial of the right to a jury trial to one entitled is a miscarriage of justice and requires a reversal of the judgment. (People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 300, 231 P.2d 832.)

The right to a jury trial may be violated by judicial interference or irregularity in the selection process. Thus, in Dorshkind v. Harry N. Koff Agency, Inc. (1976) 64 Cal.App.3d 302, at page 307, 134 Cal.Rptr. 344, the court reversed a judgment since the trial court appointed a jury foreperson rather than allowing the jury to elect its own. The court explained, citing favorably 47 American Jurisprudence Second (1969) Jury, section 12, page 635: “Any seeming curtailment of this right should be scrutinized with the utmost care. It is even said that an infringement of the laws in connection with juries requires a reversal without reference to whether the defendant is able to show any injury.” (Fns. omitted.)

An essential prerequisite to an impartial jury is that it be drawn from a representative cross-section of the community. (People v. Wheeler (1978) 22 Cal.3d 258, 266, 148 Cal.Rptr. 890, 583 P.2d 748.) “The rationale of (this prerequisite), often unstated, is that in our heterogeneous society jurors will inevitably belong to diverse and often overlapping groups defined by race, religion, ethnic or national origin, sex, age, education, occupation, economic condition, place of residence, and political affiliation; that it is unrealistic to expect jurors to be devoid of opinions, preconceptions, or even deep-rooted biases derived from their life experiences in such groups; and hence that the only practical way to achieve an overall impartiality is to encourage the representation of a variety of such groups on the jury so that the respective biases of their members, to the extent they are antagonistic, will tend to cancel each other out.” (Id., at pp. 266-267, 148 Cal.Rptr. 890, 583 P.2d 748.)

In Taylor v. Louisiana (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, the Supreme Court struck down a state requirement that women (constituting 53 percent of all eligible for jury service), be excluded from jury service unless they file a form indicating their desire to serve. It ruled that the requirement a jury be drawn from a fair cross-section of the community “ ‘and not the organ of any special group or class' ” applied to the states in criminal cases through the Fourteenth Amendment. (Id., at p. 527, 95 S.Ct. at 696, 42 L.Ed.2d at p. 696.) However, this rule had been adopted in California long before. (See People v. White (1954) 43 Cal.2d 740, 749, 278 P.2d 9.)

Ensuring that a cross-section of the community is represented in jury service serves to “guard against the exercise of arbitrary power to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. (Citation.)” Further, “(t)his prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool ” Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial ‘(T)he broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.’ (Citations.)“ (Taylor v. Louisiana, supra, 419 U.S. at pp. 530-531, 95 S.Ct. at pp. 697-698, 42 L.Ed.2d at p. 698; emphasis added.)

Thus, although the California Constitution speaks only in terms of the inviolability of the right to jury trial, the requirement of a representative jury has been consistently implied.

We must then ask whether composition of the jury in the instant case comports with this settled rule. We hold that it does not. The trial judge's systematic exclusion of 40 percent of the potential jurors merely on the basis of their participation in the Kaiser group health plan is no less violative of the right to jury trial than the exclusive selection of jurors based upon their membership in private clubs seen in People v. White, supra, 43 Cal.2d 740, 278 P.2d 9, and in Glasser v. United States (1941) 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, or the exclusion of 53 percent of potential jurors on the basis of sex as in Taylor and Duren. The 40 percent which which were participants in the Kaiser Plan, we conclude, constitute a group whose representation was essential for the constitutionally mandated diversity. They are as essential as the daily wage earners whose exclusion has been proscribed. (Thiel v. Southern P. Co. (1945) 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (90 L.Ed. 1181).)

The trial judge's good motives in this regard (i. e., avoidance of a prolonged jury selection) are irrelevant. As noted in Glasser v. United States, supra, 315 U.S. at page 86, 62 S.Ct. at 472, 86 L.Ed. at p. 707: “Tendencies, no matter how slight, toward the selection of jurors by any method of a process which will insure a trial by a representative group are undermining processes weakening the institution of jury trial, and should be sturdily resisted. That the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right.”

A violation of the “fair-cross-section” requirement is demonstrated where: (1) the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury-selection process.“ (Duren v. Missouri (1979) 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 587.)

These conditions are met: the Kaiser group is distinctive; its representation in the venire in relation to its number in the community not only was unfair, it was nonexistent. Lack of representation is attributable to the trial judge's systematic exclusion, albeit well-intentioned. Indeed, the case at bench is novel for the exclusion of a class in the last of three stages of jury selection. Generally, the issue arises during the first or second stages. The first stage is the initial compilation of the “roll of eligible juror candidates” (Code of Civ.Proc., s 204e, subd. (a)), or master list from which the venires are drawn. (Id., at ss 203-220.) The second step is the disqualification or excusal of prospective jurors by judges or court personnel on grounds of competency (Code Civ.Proc., ss 198, 199), suitability (id., at ss 204d, 205, subd. (a)), or undue hardship (id., at s 200). The third step, with which we deal, occurs when the names of the veniremen are called at random from the “trial jury box” (id., s 600), during which time the parties may exercise their statutory challenges.

The first two stages of jury selection which were identified in Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, relate to the individual's qualifications to serve as a juror in any case. (See Code of Civ.Proc., ss 198-205.) The third stage relates to an individual's qualifications to serve as a juror in a particular case. When prospective jurors have passed through the first two stages and are considered to be qualified potential jurors there are established procedures for disqualification of such persons from service in a particular case. Among those procedures is the traditional right of counsel to examine potential jurors. “To select a fair and impartial jury in criminal and civil jury trials, the trial judge shall examine the prospective jurors and upon completion of his initial examination the trial judge shall permit counsel for each party who so requests to submit additional questions which he shall put to the jurors. Upon request of counsel, the trial judge shall permit such counsel to supplement the judge's examination by oral and direct questioning of any of the prospective jurors. The scope of such additional questions or supplemental examination shall be within reasonable limits prescribed by the trial judge in his sound discretion.” (Cal.Rules of Court, rule 228.) The dismissed potential jurors herein had passed through the first two stages of jury selection and were deemed qualified to serve as jurors in Sacramento County.

The trial court precluded the excused panelists from reaching the third stage of jury selection, however, by disqualifying them from service on a jury in this particular case without examination. Indeed, the court explained that the express purpose was to avoid the time-consuming requirement that jurors be examined to determine their qualification to serve on the jury in this particular case.

The judge, we conclude, was without authority to dismiss the 24 potential jurors without examination.

The error was more serious than the mere denial of an examination of potential jurors for it interfered with the fundamental prerequisite of a representative cross-section of the community. The courts have consistently insisted that the first two steps in jury selection be such that, insofar as random selection permits, a representative cross-section of the community be passed to the third stage for examination of qualifications for jury service in a particular case. (See People v. Wheeler, supra, 22 Cal.3d at pp. 272-273, 148 Cal.Rptr. 890, 583 P.2d 748.) The trial court's dismissal of the potential jurors without examination frustrated the requirements of representation and resulted in the selection in the third stage of a venire depleted by a significant portion of the community. Such a result, based on group disqualification, cannot be accepted on the grounds of judicial convenience and economy of time. Similar claims of “administrative convenience” have been resoundingly rejected in the past by the United States Supreme Court. (Duren v. Missouri (1979) 439 U.S. 357, 369, 99 S.Ct. 664, 671, 58 L.Ed.2d 590: “the administrative convenience in dealing with women as a class is insufficient justification for diluting the quality of community judgment ” and see Taylor v. Louisiana (1975) 419 U.S. 522, 534, 95 S.Ct. 692, 699, 42 L.Ed.2d 690.) Further, the mere possibility that later questioning of the group members might have uncovered bias favorable to the defendant is irrelevant for “(t)he right to a proper jury cannot be overcome on merely rational grounds.” (Id., at p. 534, 95 S.Ct. at 699, 42 L.Ed.2d at p. 700.) Third, in a civil case challenges are to individual jurors, and not an entire panel or group. (Code Civ.Proc., s 601. See 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, s 104, p. 2934.) Finally, the relationship of the dismissed members of the venire to defendant is not such as would, on its face, give rise to a challenge for implied bias, and the failure to hear evidence relating to actual bias resulted in a failure of proof on the issue. (See Code Civ.Proc., s 602, the grounds on challenges for cause.)

The error cannot be considered harmless. In People v. Wheeler, supra, 22 Cal.3d at page 283, 148 Cal.Rptr. 890, 583 P.2d 748, the Supreme Court held that the infringement of the right to an impartial jury by the use of peremptory challenges to defeat that ideal of a representative cross-section of the community is prejudicial per se. And Dorshkind v. Harry N. Koff Agency, Inc., supra, 64 Cal.App.3d at page 309, 134 Cal.Rptr. 344, ruled that the trial court's appointment of a jury foreman was reversible error without reference to proof of actual prejudice. Thus, the error requires reversal without an inquiry as to an actual miscarriage of justice.

We cannot hold that no prejudice is shown merely because the jurors ultimately chosen exhibited no overt bias, for that is not the harm which occurs following the denial of a jury drawn from a cross-section of the community. The danger of a homogeneous jury is not that overt bias will exist, but rather that the inert opinions, preconceptions or deep-rooted biases gained from varying life experiences will not be diverse so that they may cancel each other out and thus contribute to overall impartiality. (People v. Wheeler, supra, 22 Cal.3d at p. 266, 148 Cal.Rptr. 890, 583 P.2d 748.) The exclusion of 40 percent of the jury venire without cause and prior to examination on the basis of identification in a group denied defendant the right to overall impartiality and compels reversal of the judgment.

We further reject the argument that the potential jurors could be or were excused for cause. First, the court specifically stated that it was not dismissing the potential jurors for cause, but was doing so merely for judicial convenience, a practice disapproved of in Thiel v. Southern P. Co., supra, 328 U.S. at pages 222-223, 66 S.Ct. at 986-987, 90 L.Ed. at pp. 1185-1186 relied on in People v. Wheeler, supra, 22 Cal.3d at page 268, 148 Cal.Rptr. 890, 583 P.2d 748. Second, a challenge for cause must be tried by the court with an examination of the juror challenged as a witness on the trial of the challenge, a trial which was not conducted herein due to the stage at which the court acted. (Code Civ.Proc., s 603.) A unilateral decision made without giving a party an opportunity to present argument and evidence in support of his contention lacks all the attributes of a careful judicial determination. (People v. Marsden (1970) 2 Cal.3d 118, 124, 84 Cal.Rptr. 156, 465 P.2d 44.)


The trial court instructed the jury that the standard of care required of a nurse practitioner is that of a physician.6 Defendant argues that the instruction given by the trial court ignores the expanding role of nurses in medical treatment and defeats express legislative endorsement of that expanding role.

We agree with defendant that the role of nurse practitioner and physician differ. Thus, the instruction given was erroneous. Nonetheless, in the context of the facts which we discuss, the error was harmless.

The Legislature has chosen to encourage the participation of nurse practitioners in the provision of medical care. Business and Professions Code section 2725 provides, inter alia: “In amending this section at the 1973-74 session, the Legislature recognizes that nursing is a dynamic field, the practice of which is continually evolving to include more sophisticated patient care activities. It is the intent of the Legislature in amending this section at the 1973-74 session to provide clear legal authority for functions and procedures which have common acceptance and usage. It is the legislative intent also to recognize the existence of overlapping functions between physicians and registered nurses and to permit additional sharing of functions within organized health care systems which provide for collaboration between physicians and registered nurses.” The Legislature, however, did not expand the role to include the practice of medicine or surgery. (Bus. & Prof.Code, s 2726).

Plaintiff did not bring his suit against the nurse practitioner. He sued the Permanente Medical Group. When plaintiff went to the Kaiser clinic with his complaint he was entitled to the standard of care of a physician. Whether defendant chose to provide that care through the services of a physician or through the services of a nurse practitioner whom the facts show worked under the supervision and direction of a physician, the standard of care to which plaintiff was entitled was the same. While the instruction could have been better framed to explain the respective duties between a nurse practitioner and a supervising physician, it was not erroneous insofar as it informed the jury that plaintiff was entitled to the standard of care of a physician at the time of the alleged negligence. We discern no legislative intent that the standard of medical care to which patients are entitled be diminished. We do not believe that the instruction misled the jury into applying a different standard to the evidence before it. Thus, defendant appears not to have been prejudiced.

We are persuaded, at any rate, that under the state of the evidence a finding of negligence in the transaction involving Nurse Welch would of necessity require a finding of negligence in the later transaction involving Dr. Redding. Several hours after Nurse Welch told plaintiff that he was suffering from muscle spasms, gave him a prescription for Valium, and sent him home, plaintiff returned to the clinic complaining of chest pain of greater severity. The medical experts agreed that the fact that the Valium failed to provide relief and the pain intensified would tend to render a diagnosis of muscle spasm less likely and a heart condition more likely. Dr. Redding had more information tending to show the necessity for an EKG than did Nurse Welch, yet he failed to order that plaintiff be given such a test. It would thus be anomalous for the jury to have found Nurse Welch and Dr. Frantz, her supervising physician, negligent but to have found Dr. Redding free from negligence. The evidence of negligence on the part of Dr. Redding fully supports the judgment. Accordingly, we can find no prejudice to defendant from the instruction to which it objects.7


Defendant argues that plaintiff should not have been permitted to recover damages for loss of wages during his “lost years,” that is, during the period by which his life expectancy was deceased through the negligence of defendant. Saved costs of maintenance, we are told, should be offset from such an award. Further, the possibility of a future wrongful death action by plaintiff's heirs may result in double payment of the damages incurred. We reject each argument.

First, defendant did not request such an instruction, nor did it introduce factual evidence or expert testimony which would enable the jury to determine the amount of such an offset. It is fundamental that a trial court need not give an instruction which lacks support in the evidence. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875, 148 Cal.Rptr. 355, 582 P.2d 946.)

Second, we reject the argument that double payment of damages may result. California law does not permit such double recovery. In Blackwell v. American Film Co. (1922) 189 Cal. 689, 209 P. 999, an injured person recovered a judgment for personal injuries and later died from those injuries. The judgment was paid to the decedent's estate and his wife brought an action for wrongful death. On appeal from the judgment in the wrongful death action, the Supreme Court held that the fact that the decedent had recovered a judgment for personal injuries does not in itself bar a wrongful death action, since the damages to his wife were personal to her. (Id., at pp. 693-694, 209 P. 999.) The Court noted, however, that the portion of the verdict in the personal injury action which represented lost earnings was properly considered by the jury in determining the extent of the loss sustained by the decedent's heirs through his death. (Id., at pp. 696-697, 209 P. 999.) The Court further approved a jury instruction which informed the jury that it should not award damages for loss of support if the decedent's personal injury judgment fully compensated for the loss of income, but that it could still consider an award of damages for loss of comfort, society, protection, nurture and education. (Id., at pp. 700-701, 209 P. 999.)

We believe that defendant will have adequate remedies to avoid double payment of damages when, if ever, plaintiff's heirs bring a wrongful death action. We further take note of provisions of Code of Civil Procedure section 667.7. Pursuant to that section a trial court may provide for periodic payments of future damages upon the request of either party when the damages awarded exceed $50,000. By enacting that section the Legislature intended to provide for payments to meet the needs of the injured party and those dependent upon the injured party while in appropriate cases, eliminating the windfall inheritance of lump-sum damages upon the plaintiff's death to persons and for purposes for which the award was not intended. (See Code Civ.Proc., s 667.7, subd. (f).) The Legislature provided, however, that damages for loss of future earnings shall not be reduced or payments terminated by reason of the injured person's death, but shall be paid to those to whom the injured person owes a duty of support. (Code Civ.Proc., s 667.7, subd. (c).) The Legislature has thus impliedly recognized a right to recovery of future loss of earnings after a plaintiff's death and has declined to limit such recovery, choosing instead to provide for the support of the plaintiff's dependents after his death.


After the verdict defendant moved the court to enter a judgment providing for the payment of future damages by periodic payments rather than in a lump sum, pursuant to Code of Civil Procedure section 667.7. The trial court indicated its belief that section 667.7 is directory only, and not mandatory, and declined to order periodic payments of future damages other than future medical expenses. Defendant contends that the court erred in failing to order periodic payments of all future damages.

We are persuaded that the legislative use of the word “shall” rather than “may” in that section was intentional and places a mandatory duty upon the trial court to provide for periodic payment of future damages when the specified conditions are met. The word “shall” normally connotes mandatory action. (County of Sacramento v. Superior Court (1971) 20 Cal.App.3d 469, 472, 97 Cal.Rptr. 771.) Moreover, the legislative history convinces us that the Legislature considered the issue and chose to place a mandatory duty upon the trial court.8 We proceed to consider the nature of that duty.

Code of Civil Procedure section 667.7 requires the trial court to specify whether the judgment should be paid “in whole or in part” by periodic payments, who the recipient or recipients of the payments are, the dollar amount of the payments, the interval between payments, the number of the payments, and the period over which the payments should be made. To assist the courts in making such determinations the Legislature chose not to provide a detailed and specific formula but rather to make a broad general statement of the intended purpose of such legislation.9 (Code Civ.Proc., s 667.7, subd. (f).) By failing to provide specific rules for courts to follow the Legislature necessarily left the application of the statute to the discretion of the trial courts. (See Elder v. Anderson (1962) 205 Cal.App.2d 326, 331, 23 Cal.Rptr. 48; People v. Surplice (1962) 203 Cal.App.2d 784, 791, 21 Cal.Rptr. 826.)

In the exercise of discretion a trial court must consider all the material facts in evidence together with the purpose for which a damage award has been made and the expressed legislative purpose behind section 667.7. (See People v. Surplice, supra, at p. 791, 21 Cal.Rptr. 826; Estate of Howard (1955) 133 Cal.App.2d 535, 539, 284 P.2d 966.) In appropriate circumstances, therefore, it may be within a trial court's discretion to provide that the major portion of a damage award be paid in a lump sum. So long as such a determination is not an abuse of discretion it will not be reversed on appeal.

Defendant argues that the determination in this case that the award for future damages be paid in a lump sum is an abuse of discretion. This argument overlooks the fact, however, that the trial court did order periodic payment of plaintiff's future medical expenses. Code of Civil Procedure section 667.7, subdivision (e)(1), defines future damages to include “damages for future medical treatment, care or custody,” as well as “loss of future earnings, loss of bodily function, or future pain and suffering of the judgment creditor.”

Defendant maintains that this action by the trial court does not constitute compliance with section 667.7 since the order for payment of the future medical expenses was made after denial of request for periodic payments under section 667.7. Defendant further argues that the lower court abused its discretion, even assuming the ruling with respect to future medical expenses complied with the statute, “in limiting the periodic payment provisions of section 667.7 to the relatively small sum corresponding to the medical expenses without also including the other, far more substantial future economic damages.”

Both contentions lack merit. A trial court's ruling will be upheld on appeal where a correct determination was made, regardless of the reasoning employed. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329, 48 P. 117.) Further, the court did not abuse its discretion by virtue of its failure to provide that all future damages be paid plaintiff on a periodic basis. As noted above, the statute requires only that the court “enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments ” (Code Civ.Proc., s 667.7, subd. (a); emphasis added.) The trial court did exactly this and we find no abuse of discretion.

Thus, although the trial court erred in stating the opinion that the section is directory rather than mandatory, the action taken was correct, and accorded with the requirements of the statute.


Plaintiff finally contends that the trial court erred in providing for the payment of future medical expenses only to the extent that they are not covered by his employer's insurance. This was an application of Civil Code section 3333.1, limiting the collateral source rule. In view of the fact that the challenged provisions of MICRA has been upheld as bearing a reasonable relation to the legislative purpose, it is unnecessary to reach this determination. It is noteworthy, however, that no evidence of a collateral source for future medical needs was introduced at trial by agreement of the parties and the court. The parties agreed that the court would deduct collateral source payments from the verdict so as to preserve the constitutional issues for appeal. On retrial if plaintiff wishes to stipulate to the reduction of the verdict by collateral source payments he may do so, otherwise defendant should be allowed to introduce evidence to establish the availability of those sums so that the jury verdict may reflect them.

In light of the disposition, we refrain from a discussion of other matters raised by the parties.

The judgment is reversed. Each party is to bear its own costs on appeal.


1.  Code of Civil Procedure section 667.7 provides in relevant part:“(a) In any action for injury or damages against a provider of health care services, a superior court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds fifty thousand dollars ($50,000) in future damages. In entering a judgment ordering the payment of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments which will compensate the judgment creditor for such future damages.”

2.  Civil Code section 3333.1 states:“(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.”

3.  Civil Code section 3333.2 provides:“(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).”

4.  Code of Civil Procedure section 1033 states in part:“The clerk or judge shall include in the judgment, or any part of a judgment, entered up by him based upon a cause of action in contract where the claim was unliquidated, interest on the verdict or decision of the court from the date prior to the entry of judgment as may have been fixed by the court pursuant to subdivision (b) of Section 3287 of the Civil Code, and the costs, if the same have been taxed or ascertained. In any other case, and where the court determines that interest should not be recovered from a date prior to the entry of judgment under subdivision (b) of Section 3287 of the Civil Code, the clerk or judge shall include in the judgment entered up by him, any interest on the verdict or decision of the court, from the time it was rendered or made, and the costs, if the same have been taxed or ascertained. The clerk or judge shall, within two days after the costs are tried or ascertained, if not included in the judgment insert the same in a blank left in the judgment for that purpose, and shall make a similar insertion of the costs in the copies.”

5.  Business and Professions Code section 6146, subdivision (b) provides: “if periodic payments are awarded to the plaintiff pursuant to section 667.7 of the Code of Civil Procedure, the court shall place a total value on these payments based upon the projected life expectancy of the plaintiff and include this amount in computing the total award from which attorneys' fees are calculated under this section.”

6.  “I instruct you that the standard of care required of a nurse practitioner is that of a physician and surgeon duly licensed to practice medicine in the State of California when the nurse practitioner is examining a patient or making a diagnosis.” It also read BAJI No. 6.25 which states as follows: “It is the duty of one who undertakes to perform the service of a trained or graduate nurse to have the knowledge and skill ordinarily possessed, and to exercise the care and skill ordinarily used in like cases, by trained and skilled members of the nursing profession practicing their profession in the same or a similar locality and under similar circumstances. Failure to fulfill either of those duties is negligence.”

7.  Two other instructional issues, unrelated to the above text, merit discussion for guidance of the trial court.First, defendant argues that in this case giving the standard BAJI instruction (BAJI No. 3.77) on concurring causes was irrelevant and confusing. Inasmuch as no evidence of negligence was presented against any person not an employee of defendant, no element of confusion, if any, could have been prejudicial to defendant.Second, we agree with defendant that prejudicial error occurred when the court instructed the jury that: “If the conduct of the defendant is a substantial factor in bringing about injuries or damages to the plaintiff, the fact that the defendant neither foresaw nor should have foreseen the extent or nature of the injuries or damages, or the manner in which they occurred, does not prevent its conduct from being a proximate cause of such injuries or damages.” This instruction was a special instruction requested by plaintiff. In a proper case the instruction is an accurate statement of the law. (See Bigbee v. Superior Court (1979) 93 Cal.App.3d 451, 455, 155 Cal.Rptr. 545.) In the case at bench, however, there is no asserted intervening negligence of a third party (which could arguably be considered superseding) and thus this rule of law is inapplicable under the evidence presented.The prejudicial impact of the instruction, however, was not in its inapplicability to the evidence but rather that the jury could consider it applicable in an incorrect manner. There were two major issues on the liability of defendant for plaintiff's damages. First was the question whether, based upon plaintiff's symptoms, defendant's employees should have diagnosed a heart problem. Second was whether the injuries could have been prevented or diminished by a diagnosis of a heart problem. The first issue, that of diagnosis, hinged entirely upon the question: “Should defendant's employees have foreseen plaintiff's heart attack?” The quoted instruction, however, could have stripped the case of this issue by informing the jury that if proper diagnosis could have prevented or diminished the injuries then it would not matter that defendant could not have foreseen (i. e. diagnosed) the extent or nature of the injury or damages or the manner in which they occurred. The instruction thus could have had the effect of rendering defendant strictly liable for an incorrect diagnosis, a result which has never been accepted in the law of medical negligence. The proper standard to be applied to an allegation of negligent diagnosis is whether a physician in good standing practicing in the locality would have been able to make a correct diagnosis. (See Huffman v. Lindquist (1951) 37 Cal.2d 465, 473, 234 P.2d 34.)We cannot find the erroneous instruction to have been harmless. The evidence was sharply conflicting on the issue whether it is possible to foresee an imminent heart attack and whether, under the circumstances of this case, defendant's employees should have done so. In light of such evidence the instruction could have been at best confusing to the jury, and at worst it removed this issue entirely from the case.

8.  Prior to its enactment by the Legislature the bill introducing section 667.7 was amended at various times. The first version of the bill provided that a trial court “may,” and at the request of either party “shall” provide for periodic payments. (Assem. Bill No. 1 (1975-1976 Second Ex. Sess.) June 6, 1975, s 26.) The bill was amended to provide only that a court “may” make provision for periodic payments of a judgment. (Assem. Amend. to Assem. Bill No. 1 (1975-1976 Second Ex. Sess.) June 12, 1975, s 26.) The proposed law was amended once again before enactment to delete the permissive “may” provision and to insert the mandatory “shall” language. (Sen. Amend. to Assem. Bill No. 1 (1975-1976 Second Ex. Sess.) June 25, 1975, s 26.)

9.  Code of Civil Procedure section 667.7, subdivision (f) provides: “It is the intent of the Legislature in enacting this section to authorize the entry of judgments in malpractice actions against health care providers which provide for the payment of future damages through periodic payments rather than lump-sum payments. By authorizing periodic payment judgments, it is the future intent of the Legislature that the courts will utilize such judgments to provide compensation sufficient to meet the needs of an injured plaintiff and those persons who are dependent on the plaintiff for whatever period is necessary while eliminating the potential windfall from a lump-sum recovery which was intended to provide for the care of an injured plaintiff over an extended period who then dies shortly after the judgment is paid, leaving the balance of the judgment award to persons and purposes for which it was not intended. It is also the intent of the Legislature that all elements of the periodic payment program be specified with certainty in the judgment ordering such payments and that the judgment not be subject to modification at some future time which might alter the specifications of the original judgment.”

REYNOSO, Associate Justice.

EVANS, Acting P. J., and BLEASE, J., concur.