SZKORLA v. VECCHIONE

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Court of Appeal, Fourth District, Division 1, California.

Helen SZKORLA, Plaintiff and Respondent, v. Thomas VECCHIONE, M.D., Defendant and Appellant.

No. D010412.

Decided: June 17, 1991

Higgs, Fletcher & Mack Escondido, and John Morris, for defendant and appellant. Horvitz & Levy and S. Thomas Todd as amici curiae, Encino, for defendant and appellant. Suuzen Ty Anderson, Spring Valley, and Cynthia Chihak, Solana Beach, for plaintiff and respondent.

Helen Szkorla sued Dr. Thomas Vecchione, a plastic surgeon, after he performed the third of three breast reduction procedures on her.   A jury returned special verdicts against Vecchione on theories of professional negligence, lack of informed consent and battery, and awarded Szkorla $600,000 in general damages for her pain, suffering, inconvenience, physical impairment or disfigurement and $17,430 in special damages for the cost of future medical care.   Vecchione appeals, contending (1) insufficient evidence supports the verdict, (2) a new trial should have been granted on the basis of jury misconduct, (3) his conduct did not constitute battery as a matter of law, and (4) Civil Code 1 section 3333.2 limits the general or noneconomic damages award in this type of case to $250,000.2

FACTS

In 1982, Szkorla was 26 years old and worked as an administrative analyst at the University of California, San Diego.   She enjoyed an active, athletic life style in which she jogged, took dance classes, bicycled, swam and lifted weights.   Szkorla was 5′5″ tall and weighed 125 pounds, with a small frame and slim hips.   Her breasts, however, were large, particularly for her frame;  a friend described them as looking like “two grapefruits stuck on her chest.”   Among the reasons Szkorla wanted smaller breasts were she found it difficult to find clothes that fit, her large breasts caused her discomfort when she jogged and she believed smaller breasts would make her more attractive.   Szkorla began considering breast reduction surgery after reading about it in magazines;  she consulted with a number of plastic surgeons before deciding to proceed with this type of surgery.

In May of 1982, Szkorla met with Vecchione and told him she wanted smaller breasts.   Vecchione told her she could have two procedures:  (1) a reduction, which also involves a mastoplexy in which the nipple is relocated, and (2) a lift.   He also explained various possible complications from the surgery.   Szkorla sought a second opinion from another plastic surgeon, Dr. Jack Fisher.   Szkorla chose to have Vecchione perform the surgery.   On June 24, 1982, Szkorla signed a consent form for a “breast reduction,” and Vecchione performed the first surgery at University Hospital.   Vecchione removed about 80 to 100 grams 3 of tissue from each breast, relocated the nipple and removed several moles.   Following surgery, Szkorla had a small hemotoma or blood clot in her right breast.   Vecchione prescribed an antibiotic and the blood clot resolved quickly.

Szkorla had no complaints about the shape or form of her breasts;  however, she was dissatisfied because her breasts were not noticeably smaller than before the operation.   She complained to Vecchione, who suggested performing a second breast reduction without a mastoplexy.   Again, Szkorla sought a second opinion, this time from Dr. Carson Lewis, also a plastic surgeon.   Lewis thought Szkorla had an excellent result from her first surgery.   He also thought her breasts were not unduly large and they were symmetrical and well-proportioned.   Nonetheless, Szkorla was adamant that she wanted smaller breasts;  therefore, Lewis confirmed that the procedure Vecchione suggested should work.   Lewis also told Szkorla to wait six months to heal before the next procedure and to work for better communication with her surgeon.

Reassured, Szkorla returned to Vecchione and showed him magazine photographs depicting the breast size she hoped for.   Szkorla signed a consent form for a “subtotal subcutaneous mastectomy,” which she understood was a breast reduction.   She testified even though she did not know all of the medical terminology she was not concerned about the medical terms used on the form because she had brought Vecchione photographs and she trusted Vecchione knew what she wanted.   Vecchione performed the second surgery on January 7, 1983, at the San Diego Outpatient Center.   In his operative note, Vecchione described the procedure as a “bilateral reduction mammoplasty using submammary incisions.”

Szkorla was dissatisfied with the second surgery because she was still not noticeably smaller and her breasts were now drooping because Vecchione had removed breast tissue without removing skin.   When Szkorla complained to Vecchione after the second surgery, he offered to do another breast reduction with mastoplexy.   Szkorla brought Vecchione more photographs depicting the size of breasts she wanted.   Vecchione testified that Szkorla told him she “wanted most of the breast tissue removed,” that she “want[ed] them off,” and that she “want[ed] them flat.”   According to Vecchione's office notes Szkorla “still wants more breast removed despite excellent results!” 4  In contrast, Szkorla testified she did not tell Vecchione that she wanted to be flat-chested and Vecchione did not tell her that he intended to make her flat-chested.   Rather, she testified, Vecchione told her he could do a third procedure, similar to the first one in which he would take out additional breast tissue and relocate the nipple.   Szkorla also testified Vecchione told her she would have small but very attractive breasts, similar to those depicted in a magazine photograph she had brought him.

On May 2, 1983, Szkorla went to Vecchione's office for the third surgery.   Before the operation, Szkorla signed a consent form for a “subcutaneous mastectomy bilateral,” which she understood was a breast reduction.   The terminology did not concern her because it appeared to her to be the same used on the consent form for her second surgery.

Szkorla testified that the day after the third surgery she “knew there was something wrong” and Vecchione had taken “it all.”   A few days later during an office visit, Vecchione removed the bandages and Szkorla could see that “there was no breast tissue left, that what was left was totally deformed, that I had a dent across my left side, that there was just a lot of skin left and no tissue at all.”   Szkorla testified that Vecchione “pretended like I looked perfectly fine.”   When she asked him about the “dent,” he said:  “Well, we can put a little silicone in there.”   She testified he told her he had removed 90 percent of her breast tissue.   She never returned to Vecchione's office because “I just couldn't go back․  [I]'m mutilated and he's pretending like there's hardly anything wrong․”  Szkorla testified she did not go to work for two weeks after the third surgery and remained in bed, crying.

One of Szkorla's expert witnesses described the results of the third surgery as follows:  On Szkorla's right breast there is a fold and abnormal crease, with the skin possibly adhering to the chest wall or to the chest muscles.   On her left breast, there are indentations above and below the nipple and the skin appears to be adhering to the muscle below the nipple.   In both breasts there is a shortness of skin below the nipple, as well as extensive scarring and deformity in the breasts.5

Szkorla's experts defined an aggressive subcutaneous mastectomy as the removal of between 85 to 90 percent of the breast tissue.   Szkorla's experts testified that the third procedure was not a breast reduction, but rather a subcutaneous mastectomy in which Vecchione had removed between 80 and 90 percent of the tissue in Szkorla's right breast and 75 percent in her left breast.   This expert testimony was based on the experts' physical examination of Szkorla and Vecchione's operative report, which showed he dissected out Szkorla's breasts from the center of the chest to the clavicle to the armpit.   Szkorla's experts testified that in a breast reduction this type of breast tissue is not normally removed but such removal is expected in a subcutaneous mastectomy.   While a breast reduction is purely a cosmetic surgery, a subcutaneous mastectomy is “a maiming operation” performed only for clear-cut medical indications, such as carcinoma, according to the testimony of one of Szkorla's experts.   Szkorla's medical records showed she did not suffer from any of the conditions which require a subcutaneous mastectomy.

Szkorla's experts also testified that while reconstructive surgery is possible to repair some of the damage to her breasts, such a procedure would require numerous painful operations and would not yield “perfect” results.

With respect to the third surgery, Vecchione testified that notwithstanding the consent form, he anticipated performing a breast reduction and expected to remove approximately 50 to 60 percent of Szkorla's remaining breast tissue.   He also testified there never was any question in his mind that he had Szkorla's consent to perform a subtotal subcutaneous mastectomy.   In his testimony, Vecchione also discussed the various procedures, such as a subcutaneous mastectomy, a reduction mamoplasty, and a subtotal subcutaneous mastectomy,6 and said there are no written standards on what exactly each of the procedures entails.  “It's a gray zone where one quits and the next one takes over,” Vecchione testified.   Experts for each party also testified the major difference between the various procedures was the percentage of tissue removed.

For two years after the third surgery, Szkorla was unable to discuss it without crying.   Szkorla testified she does not attend dance classes any more, does not go to the beach or pool parties and cannot wear certain styles of clothes.   She showers by herself in dim light.   She will not have sexual relations with her boyfriend unless she is wearing a tee-shirt or there is absolutely no light.   She suffers sporadic pain in her left breast.   She has consulted with numerous doctors about reconstructive surgery but has not proceeded with it because the prospect of implants terrifies her.   She continues to be angry and depressed about her condition and cries at least twice a week.

After two days of deliberations, the jury returned the following special verdicts:  (1) Vecchione was negligent in the medical care and treatment of Szkorla;  (2) Such negligence was a proximate cause of damage to Szkorla;  (3) Vecchione did not disclose all relevant informant which would enable Szkorla to make an informed decision regarding the proposed operation;  (4) A reasonable prudent person in Szkorla's position would not have consented to the operation if such person had been adequately informed of all the significant perils involved;  (5) Vecchione performed a substantially different operation than the operation to which Szkorla consented;  (6) Szkorla sustained $600,000 in damages for pain and suffering, and (7) Szkorla sustained $17,430 in special damages.   A polling of the jury showed the verdict was 8 to 4 on the fifth special verdict, namely whether Vecchione had performed a substantially different operation than the one consented to by Szkorla.   The trial court asked the jury foreman whether “further deliberations on that question will resolve the case decisively pursuant to the instructions or whether you feel that any further deliberations on question No. 5 would be fruitful?”   When the foreman responded further deliberations would be fruitful, the court told the jury to resume deliberations.   After thirteen minutes of further deliberations, the jury returned with a new verdict reflecting a 9–to–3 vote that Vecchione did perform a substantially different operation.   A polling of the jury revealed it was the jury foreman who had changed his “no” vote to a “yes” vote.   The jury then considered a special interrogatory concerning malice and fraud and returned a finding Vecchione had not acted with malice or fraud.   Judgment was entered April 18, 1989.   Vecchione's motion for new trial or to vacate the judgment was denied as was his motion to reduce the general damages to $250,000 pursuant to section 3333.2.

DISCUSSION

I

 Vecchione contends the award of $600,000 in general damages was excessive and there was insufficient evidence to justify it.   The contention is without merit.

Our Supreme Court summarized the rules governing appellate review of a claim of excessive damages in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506–507, 15 Cal.Rptr. 161, 364 P.2d 337:

“The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial.   They see and hear the witnesses and frequently, as in this case, see the injury and the impairment that has resulted therefrom.   As a result, all presumptions are in favor of the decision of the trial court [citation].   The power of the appellate court differs materially from that of the trial court in passing on this question.   An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.”

More recently, our high court reiterated the rules restricting an appellate court's ability to reverse a judgment as excessive 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․”  (Ibid.)

Here, the jury saw graphic photographic exhibits depicting the disfigurement of Szkorla's breasts.   The jury heard expert testimony that reconstruction will require numerous operations and the implanting of foreign materials underneath her chest muscles and will not yield perfect results.   The jury also heard Szkorla and her friends testify how she no longer enjoys the active social and athletic lifestyle she pursued before the third operation.   Her mortification over the appearance of her chest prevents her from allowing even the people closest to her to view it when she is not clothed.   To prevent further personal emotional trauma caused by the sight of her chest, she showers in dim light.   In sum, Szkorla's breasts were removed without her consent and she finds herself with two choices:  either live the rest of her life with a disfigured chest, or undergo extensive reconstructive surgery with an unpredictable outcome.   Also, we note the issue of excessive damages was raised in Vecchione's motion for a new trial, which was denied by the trial court, which also had all of the evidence before it.   We find the $600,000 award is adequately supported by the record and reject the argument the jury acted out of passion.

II

 Vecchione contends the trial court abused its discretion by not granting a new trial based on jury misconduct after the jury resumed deliberations and a single juror changed his vote, allowing the jury to return a special verdict on the issue of whether the doctor performed a substantially different operation than the one for which he had obtained consent.7  The contention is without merit.

 The applicable standard of review is abuse of discretion.   A trial court has broad discretion to grant or deny a motion for new trial, and its decision will not be disturbed on appeal unless there clearly was a manifest and unmistakable abuse of discretion.  (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387, 93 Cal.Rptr. 769, 482 P.2d 681.)

Vecchione complains the trial court, which knew the jury originally returned with eight yes votes and four no votes on Question No. 5, sent the jury “a subtle message ․ that one juror should simply change a vote and resolve the issue.”   We disagree.

The following colloquy occurred after the jury was polled:

“THE COURT:  Ladies and gentlemen, with regard to Question No. 5, your numerical vote of eight and four renders the decision on that issue inconclusive and, Mr. Heidig [the foreman], I need to now ask of you whether you think further deliberations on that question will resolve the case decisively pursuant to the instructions or whether you feel that any further deliberations on Question No. 5 would be fruitful?

“Juror Heidig:  I feel that further deliberations would be fruitful.

“THE COURT:  All right.   Then I charge you to return to the deliberation room at this time and engage in further deliberations with regard to Question No. 5.   All right?   You'll find guidance in the instructions, I think, Mr. Heidig.”

The trial court's comments were completely neutral and proper.  (See Code Civ.Proc., § 618.)   Further, contrary to Vecchione's implication, these comments bear no resemblance to those made by the trial court in People v. Walker (1949) 93 Cal.App.2d 818, 825, 209 P.2d 834, or People v. Carter (1968) 68 Cal.2d 810, 817, 69 Cal.Rptr. 297, 442 P.2d 353.   Vecchione also makes much of the fact that the jury was sent back to redeliberate late on a Friday afternoon.   But there was no suggestion of any time deadline in the trial court's comments.   Further, as noted in footnote 7, ante, Vecchione is wrong in asserting the jury redeliberated for only three minutes.   Thus, his assumption that the jury simply retired to the jury room, polled the four jurors who had voted no and returned to the courtroom when one of the four agreed to change his vote is not only pure speculation but based on a faulty premise as well.

 Vecchione also complains that the juror who changed his vote on Question No. 5 had voted in an inconsistent manner on the other special interrogatories.8  In order to review this assignment of error, we must examine the first five special interrogatories 9 in light of Szkorla's first amended complaint, which pled, among other things, separate causes of action for negligence, lack of informed consent and battery, and the peculiar state of the evidence with respect to the consent for the third surgery.

The first two special interrogatories pertained to negligence in the medical care, i.e., in the performance of the third surgery, as a theory of liability.   Questions Nos. 3 and 4 pertained to the lack of informed consent, which is also a negligence theory of liability and which Szkorla pled as a separate cause of action.   Only Question No. 5, pertained to the battery cause of action pled in Szkorla's first amended complaint.

There was conflicting evidence as to Szkorla's consent for the third surgery:  She and Vecchione testified that both had in mind a breast reduction while the consent form itself read “subcutaneous mastectomy bilateral.”

As to juror Heidig, given the state of evidence, it is entirely possible he concluded the surgery was not negligently performed.   We note there was evidence that Vecchione did not fail to meet the standard of care in the way he performed the third operation.   It would have been equally rational for juror Heidig to believe Szkorla was given enough information to make an informed decision about giving consent to a breast reduction and that any reasonable prudent person would have consented to such an operation.   Then, when confronted with the situation that the numerical vote totals on Question No. 5 were inconclusive, and the trial court asked if further deliberations on that special interrogatory would be fruitful, Heidig responded further deliberations would be fruitful.   It is entirely reasonable to infer that when asked to reconsider, Heidig realized the evidence describing a breast reduction did not comport in fact with the evidence Szkorla presented physically and through testimony as to what the result of the third surgery was, and therefore, the third surgery was not a breast reduction, but a different operation than that to which she consented.   Therefore, it is probable his changed vote was not inconsistent with his answers to the four previous special interrogatories.   Rather it could have been consistent with them as well as with the evidence that as much as 90 percent of the breast tissue had been removed, thus meeting the definition of a subcutaneous mastectomy.

Under these circumstances, we simply cannot say Heidig's changed vote was inconsistent with his earlier answers and is legally fatal.   Special interrogatories Nos. 3 and 4 allowed the jury to rely on either the written consent form (subcutaneous mastectomy) or the parties' testimony (breast reduction) as to their understanding of the operation to be performed.   Further, the record discloses Vecchione prepared the special verdict forms.   Since we are unable to go behind the intrinsic reasoning processes of the jury (see Evid.Code, § 1150), the special verdicts must stand.10

Finally, Vecchione has failed to identify misconduct in the redeliberative process by the jury, and we find no support for his characterization of the changed vote as a “sham.”   Thus, the trial court did not commit an abuse of discretion in denying a new trial on this ground.

III

 Vecchione contends his actions with respect to the third surgery were not legally sufficient to constitute the tort of battery.   The contention is without merit.

“It is firmly established as the law that where a person has been subjected to an operation without his consent such an operation constitutes technical assault and battery.”  (Valdez v. Percy (1939) 35 Cal.App.2d 485, 491, 96 P.2d 142.)   In Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, our Supreme Court explained that a doctor's failure to obtain the patient's informed consent can give rise to two different causes of action:  negligence, and battery.   If the patient consents to a procedure without being informed of all the known risks, the doctor's failure to disclose those risks is negligence.  (Id. at pp. 239–241, 104 Cal.Rptr. 505, 502 P.2d 1.)   “[W]hen the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears;  rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information.   In that situation, the action should be pleaded in negligence.”  (Id. at pp. 240–241, 104 Cal.Rptr. 505, 502 P.2d 1.)   However, “[w]here a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.”  (Id. at p. 239, 104 Cal.Rptr. 505, 502 P.2d 1.)  “When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present.”   (Id. at p. 240, 104 Cal.Rptr. 505, 502 P.2d 1.)

Here, since the jury specifically found that Vecchione performed a substantially different operation than the operation to which the plaintiff consented, our task is to determine if this finding is supported by substantial evidence using well-established principles of appellate review.   These principles were set forth in Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183:

“In reviewing the evidence on such an appeal all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible.   It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.   When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.”

Here, Szkorla testified she consented to a breast reduction and her experts testified that Vecchione performed a subcutaneous mastectomy, which they said differs substantially from a breast reduction as to the amount and type of breast tissue removed, the reasons each is performed and the expected results.   Vecchione conceded that Szkorla's consent was for a breast reduction, but he and his experts testified he did not perform a substantially different operation.11  Thus, the parties' expert testimony to a large extent determined the battery issue, and it is obvious the jury found Szkorla's experts more persuasive.   That is the jury's exclusive province;  it is not ours to reweigh the experts' testimony and substitute our resolution of conflicts in expert testimony for that reached by the jury.  (Simonet v. Frank F. Pellissier & Sons (1943) 61 Cal.App.2d 41, 45–46, 141 P.2d 922.)   Since there is substantial evidence to support the special verdict that Vecchione performed a substantially different operation than the one for which he obtained consent, we will not disturb that finding.  (Carrasco v. Bankoff (1963) 220 Cal.App.2d 230, 240, 33 Cal.Rptr. 673.)

 Relying on such cases as Rains v. Superior Court (1984) 150 Cal.App.3d 933, 198 Cal.Rptr. 249 and Freedman v. Superior Court (1989) 214 Cal.App.3d 734, 263 Cal.Rptr. 1, Vecchione also argues the battery finding cannot stand because he did not have any nontherapeutic purpose.12  In Rains, psychiatrists obtained consent for treatment through misrepresentation and the treatment was for nontherapeutic purposes.   The Rains court said:

“․ [T]he therapeutic versus nontherapeutic purpose of touching by a psychiatrist goes to the ‘essential character of the act itself’ and thus vitiates consent obtained by fraud as to that character [¶]․  To prevail on such a [battery] theory plaintiffs must prove at trial that defendants' true purpose in employing violent physical contact upon plaintiffs was to achieve the secret personal purposes alleged rather than the announced purpose of curing the mental disorders․”  (150 Cal.App.3d at p. 941, 198 Cal.Rptr. 249.)

In Freedman, the plaintiff was induced to accept treatment upon false representations;  however, it was not alleged the purpose of the physician was other than therapeutic.   This court held the plaintiff could not sustain a cause of action for battery.   We find Rains and Freedman inapposite because they deal with situations in which consent for the treatment rendered was obtained by misrepresentation, where as here it was established Vecchione performed an operation substantially different from the one for which he obtained Szkorla's consent.13

IV

 Vecchione and amici contend section 3333.2 limits his liability for noneconomic damages to $250,000.   The contention is without merit.

In 1975, in response to a rapid increase in medical malpractice insurance premiums, the Legislature enacted the Medical Injury Compensation Reform Act of 1975 (MICRA).  (Stats.1975, Second Ex.Sess.1975–1976, chs. 1, 2, pp. 3949–4008.) 14  Among the provisions of MICRA is section 3333.2,15 which provides in pertinent 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).

“(c) For the purposes of this section:

“․

“(2) ‘Professional negligence’ means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.”

Vecchione contends section 3333.2 limits noneconomic damages in any case against a health care provider to $250,000.   In effect, this argument is premised on the notion that in enacting MICRA, the Legislature intended to include cases in which professional medical services were rendered and did not intend to distinguish between negligence and intentional torts, such as battery.   Thus, Vecchione argues, since Szkorla's damages were incurred while he was rendering professional medical services, it is immaterial whether we find he committed a battery in deciding whether the damage limit of section 3333.2 applies.

We disagree, and, as we read Waters v. Bourhis (1985) 40 Cal.3d 424, 220 Cal.Rptr. 666, 709 P.2d 469, our Supreme Court does as well.   In Waters, the state high court stated that MICRA statutes apply only to actions “ ‘based upon [the provider's] alleged professional negligence․’ ”  (Id. at p. 431, 220 Cal.Rptr. 666, 709 P.2d 469.)  Section 3333.2 was identified as one of these MICRA statutes.  (Waters, supra, 40 Cal.3d at p. 431, fn. 6, 220 Cal.Rptr. 666, 709 P.2d 469.)   The Waters court went on to state “in a non-MICRA action the plaintiff is not subject to (1) the $250,000 limit on noneconomic damages (Civ.Code, § 3333.2)․”  (Id. at p. 437, 220 Cal.Rptr. 666, 709 P.2d 469.)

Our conclusion is further bolstered by the holding in Waters that the provisions of MICRA do not apply to a recovery based on both professional negligence and an intentional tort.   In Waters, a former client sued the attorney who had represented her in an earlier lawsuit against a psychiatrist, contending the contingency fee collected by the attorney after settlement of the earlier action exceeded the maximum fee permitted by MICRA.16  The prior action against the psychiatrist alleged that the psychiatrist had engaged in sexual misconduct with the plaintiff and was based both on professional negligence and intentional tortious conduct.   The Waters court recognized that “MICRA's reference to actions based on ‘professional negligence’ is not strictly limited to classic sponge-in-the-patient medical malpractice actions․”  (Id. at pp. 432–433, 220 Cal.Rptr. 666, 709 P.2d 469, citing Hedlund v. Superior Court (1983) 34 Cal.3d 695, 194 Cal.Rptr. 805, 669 P.2d 41.)   Nevertheless, the Waters court held that in hybrid actions of this type, where both viable MICRA and non-MICRA theories were pursued and where recovery could have been based on the non-MICRA theory, MICRA limitations would not apply.  (40 Cal.3d at pp. 437–438, 220 Cal.Rptr. 666, 709 P.2d 469.) 17

At least one commentator, who has analyzed the legislative history of MICRA, apparently agrees with our conclusion that the Legislature did not intend the damage cap of section 3333.2 to apply to cases involving battery.

“From the outset, it seems notable that the legislature chose to specifically regulate only those actions brought upon a theory of ‘professional negligence,’ as defined as a negligent act or omission by a health care provider in the rendering of professional services which cause personal injuries or wrongful death.   Hence, a ‘malpractice’ action brought on a theory of an unconsented-to-battery upon the patient, breach of warranty, or other non-negligence theory would apparently be without the ambit of this legislation.”  (Selected 1975 California Legislation (1976) 7 Pacific L.J. 544, 557.)

In Noble v. Superior Court (1987) 191 Cal.App.3d 1189, 237 Cal.Rptr. 38, the Court of Appeal construed Code of Civil Procedure section 364, a provision of MICRA that establishes the requirement of giving the health care provider 90 days' notice as a condition precedent to bringing an action, in the context of a battery cause of action.   The Noble court held the statute's definition of “professional negligence” 18 does not include the intentional tort of battery and therefore the tolling provisions of the statute are not applicable to such causes of action.

“The distinction between negligence and battery was not lost on our Supreme Court, and we do not believe it was lost on the Legislature when it enacted section 364 as a limited exception to the statute of limitations for ‘professional negligence.’   Had the Legislature intended section 364, subdivision (d), to extend to causes of action based upon other theories which the plaintiff might wish to include in the complaint, it could have used language which reflected that intent.   It did not.”  (Id. at p. 1194, 237 Cal.Rptr. 38.) 19

Similarly, in Bommareddy v. Superior Court (1990) 222 Cal.App.3d 1017, 1023, 272 Cal.Rptr. 246, a case involving Code of Civil Procedure 425.13,20 the Court of Appeal observed the term “professional negligence” as used in MICRA “has a specific meaning which does not include unconsented-to battery upon a patient.”

In the face of the above-cited authority, Vecchione contends that the language of section 3333.2 supports his position.   In particular, Vecchione points to subdivision (b) of the statute and argues that because the language is “In no action” rather than “In no action involving professional negligence” the subdivision, which sets the $250,000 cap, must be applied to any action against a health care provider, be it for professional negligence or an intentional tort.   First, we note that while Vecchione refuses to read “professional negligence” into subdivision (b), his construction would have us read “health care provider” into subdivision (b).   More importantly, his construction in effect ignores the context provided by subdivision (a) of the statute.   If we were to read subdivision (b) of the statute by itself (“In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000).”) it would limit noneconomic damages in all tort actions.   Such an absurd construction is to be avoided.  (Interinsurance Exchange v. Ohio Cas. Ins. Co. (1962) 58 Cal.2d 142, 153, 23 Cal.Rptr. 592, 373 P.2d 640.)

Vecchione and amici also advance public policy arguments in favor of applying the damage cap of section 3333.2 to this case.

They argue section 3333.2 should be broadly construed to effectuate its salutary purpose.   MICRA, which was enacted in response to the medical malpractice crisis in California, clearly had as one of its aims to reduce the rising cost of medical malpractice insurance.   In Fein, supra, 38 Cal.3d 137, 159, 211 Cal.Rptr. 368, 695 P.2d 665, the Supreme Court observed:

“Section 3333.2 ․ is, of course, one of the provisions which made changes in existing tort rules in an attempt to reduce the cost of medical malpractice litigation, and thereby restrain the increase in medical malpractice insurance premiums.   It appears obvious that this section—by placing a ceiling of $250,000 on the recovery of noneconomic damages—is rationally related to the objective of reducing the costs of malpractice defendants and their insurers.”

Amici argue this legislative purpose of the statute would be frustrated by a construction that precludes the application of the statute to causes of action based on technical battery because it would subject health care providers and their insurers to liability greater than $250,000 for noneconomic damages in a significant category of medical malpractice cases.   In other words, argue amici, application of the damage cap of section 3333.2 here would further the legislature's purpose of controlling medical malpractice insurance costs.   To effectuate this legislative purpose, amici contend the provisions of MICRA should be broadly construed and therefore applied whenever negligence is the gravamen of the action.

To further the MICRA goal of controlling medical malpractice insurance premiums, Amici also contend that certain tort theories, such as technical battery, should be considered MICRA theories because they are insurable under Insurance Code section 533.   Amici, relying on such cases as Rains, supra, 150 Cal.App.3d 933, 198 Cal.Rptr. 249 and Freedman, supra, 214 Cal.App.3d 734, 263 Cal.Rptr. 1, define a technical battery as a battery committed by a health care provider with a therapeutic motive.   However, as we indicated in part III of this opinion, ante, we find Rains and Freedman, both of which deal with whether a health care provider's nontherapeutic motive can vitiate consent for the treatment provided, inapposite to this case, where the jury found Vecchione performed a substantially different procedure than the one for which he obtained Szkorla's consent.   Amici also quote language from Waters, supra, 40 Cal.3d at page 433, 220 Cal.Rptr. 666, 709 P.2d 469, that they claim implicitly holds a non-MICRA theory requires proof of intentional misconduct engaged in for personal as opposed to professional motives.   However, the quoted language was used by the Waters court merely to frame the defendant's argument on appeal and is, at most, mere dicta, but, in no event, is it a holding of the case.   Significantly, in light of the plain language employed by MICRA to define “professional negligence,” amici has not referred us to—and we are unaware of—any material that demonstrates the Legislature intended to include any intentional torts within the purview of MICRA.

We also note the Waters court explicitly declined to consider a similar theory, namely “that ‘professional negligence’ in [Business and Professions Code] section 6146 and other MICRA provisions should be construed to encompass not only ‘negligent’ acts of a health care provider but also those ‘intentional’ acts of such a provider which are insurable under Insurance Code section 533․”  (Waters, supra, 40 Cal.3d at p. 435, fn. 11, 220 Cal.Rptr. 666, 709 P.2d 469.)   The Waters court noted that the record did not establish whether the physician's conduct fell “into the ‘uninsurable’ as opposed to the ‘insurable’ category, any more than it establishes whether his conduct was ‘intentional’ rather than “negligent.' ”   (Ibid.)  Similarly, nothing in the record here establishes whether Vecchione's battery of Szkorla is covered by insurance.21  As to whether Vecchione committed the battery intentionally rather than, as he suggests, merely in the course of providing medical treatment, the record contains no determination by the fact-finder.   Conceivably, Vecchione could have proposed instructions and/or special verdicts to enable the jury to make findings on the issue, but he failed to do so.

Therefore, we do not find the public policy arguments advanced by Vecchione and amici persuasive.

DISPOSITION

Judgment affirmed.

FOOTNOTES

FN1. All further statutory references are to the Civil Code unless otherwise specified..  FN1. All further statutory references are to the Civil Code unless otherwise specified.

2.   On this last point, Vecchione has been joined in this appeal by the California Medical Association, the California Dental Association and the California Association of Hospitals and Health Systems which have filed an amicus curiae brief in support of Vecchione's position.

3.   The pathology report for this surgery indicated 52 grams of breast tissue were removed from the right breast and 56 grams from the left breast, but Vecchione explained the specimens are weighed after they have been in formaldehyde, which takes the water out of the tissue and reduces its weight.

4.   To support his version, Vecchione offered his office chart, which stated:  “Patient realizes she will be flat-chested.”   He admitted he did not write this phrase during Szkorla's office visit as he had said in his deposition.   At trial, Vecchione testified he had written it later that day, according to his custom of reviewing charts and writing further notes on top of existing notes after a patient has left.   However, his office nurse testified that at the relevant times he had no such custom.   The trial court did not allow Szkorla to present a handwriting expert, explaining that Szkorla had “the evidence upon which to argue that there were self-serving motivations for him making addenda to the chart notes after Miss Szkorla had left his office.   Whether they be that day or after Dr. Lewis sent them and alerted him to Miss Szkorla's dissatisfaction.   So I don't see that the amount of time involved in bringing this expert on is going to generate any probative evidence beyond that which is already in the record.”

5.   Each juror was also presented an exhibit book of photographs showing Szkorla's breasts after the first, second and third surgeries.

6.   One of Szkorla's experts testified the term “subtotal subcutaneous mastectomy” was meaningless and not used in medical literature.   He said a surgeon either performed a subcutaneous mastectomy or a breast reduction.

7.   Vecchione apparently has misread the court minutes for he inaccurately argues that after the jury was polled and the trial court directed it to resume its deliberations, the jury redeliberated for an additional three minutes before returning to the courtroom with its special verdict.   In fact, the court minutes show the jury redeliberated for 13 minutes.

8.   Mr. Heidig, the jury foreman, was the individual who changed his “no” vote on Question No. 5 to a “yes” vote.   He also voted Vecchione was not negligent, there was no proximate cause, Vecchione disclosed all relevant information that would enable Szkorla to make an informed decision regarding the proposed operation and a reasonable, prudent person in Szkorla's position would have consented to the operation if adequately informed of all the significant perils involved.

9.   The first five special interrogatories read:“Question No. 1:  Was the Defendant negligent in the medical care and treatment of Plaintiff?“Answer:  Yes  No “Question No. 2:  Was such negligence a proximate cause of damage or injury to the plaintiff?“Answer:  Yes  No “Question No. 3:  Did the Defendant disclose to the Plaintiff all relevant information which would enable Plaintiff to make an informed decision regarding the proposed operation to be performed by the Defendant?“Answer:  Yes  No “If you answer Question No. 3 “no” as to the Defendant, then answer Question No. 4.   If you answer Question No. 3 “yes” go on to Question No. 5.“Question No. 4:  Would a reasonable, prudent person in the Plaintiff's position have consented to the operation if such person had been adequately informed of all the significant perils attending such operation?“Answer:  Yes  No “Question No. 5:  Do you find that the Defendant performed a substantially different operation than the operation to which the Plaintiff consented?“Answer:  Yes  No “If you answered Questions No. 1 and No. 2 ‘yes', or Questions 3 and 4 ‘no’, or Question No. 5 ‘yes,’ then answer Question Nos. 6 and 7 [dealing with damages].   If not, sign and return this special verdict.”

10.   In connection with Vecchione's motion for a new trial, Heidig and another juror signed declarations that said during deliberations one juror commented that if deliberations extended beyond Friday the juror would miss a family reunion that had been planned for more than a year and this comment influenced the verdict and may have caused the jury deliberation to end prematurely.   These declarations improperly attempt to impeach the intrinsic reasoning processes of the jury.  (Evid.Code, § 1150;  Maple v. Cincinnati, Inc. (1985) 163 Cal.App.3d 387, 393–394, 209 Cal.Rptr. 451.)

11.   Vecchione argues on appeal that at worst he was negligent for taking too much tissue.

12.   Amici also rely on Rains and Freedman to argue Vecchione's lack of any nontherapeutic motive is what makes the battery here a “technical battery,” and states the significance of that phrase is that in such cases the difference between battery and negligence is purely technical.   Amici go on to argue that since liability for technical battery is insurable, the provisions of section 3333.2 should apply to cases, such as this one, that involve it.

13.   Moreover, we note that Vecchione failed to raise the issue of therapeutic versus nontherapeutic motive at the trial level by not presenting any jury instructions that stated a nontherapeutic motive is an element of battery.  (See Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1533–1535, 254 Cal.Rptr. 492.)

14.   In American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 363–364, 204 Cal.Rptr. 671, 683 P.2d 670, the Supreme Court stated MICRA in broad outline (1) attempted to reduce the incidence and severity of medical malpractice injuries by strengthening governmental oversight of the education, (2) sought to curtail unwarranted insurance premium increases by authorizing alternative insurance coverage programs and by establishing new procedures to review substantial rate increases, and (3) attempted to reduce the cost and increase the efficiency of medical malpractice litigation by revising a number of legal rules applicable to such litigation.

15.   The constitutionality of section 3333.2 was affirmed in Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 157–164, 211 Cal.Rptr. 368, 695 P.2d 665.

16.   Business and Professions Code section 6146, a provision of MICRA, limits attorney fees in applicable medical malpractice cases to (1) 40 percent of the first $50,000 recovered, (2) 331/313 percent of the next $50,000, (3) 25 percent of the next $100,000 and (4) 10 percent of any amount exceeding $200,000.

17.   In Flores v. Natividad Medical Center (1987) 192 Cal.App.3d 1106, 238 Cal.Rptr. 24, the Court of Appeal relied on Waters, supra, 40 Cal.3d 424, 220 Cal.Rptr. 666, 709 P.2d 469, in concluding it is not proper to apply the damage cap of section 3333.2 where one of the causes of action is outside the scope of MICRA.

18.   The definition of “professional negligence” in Code of Civil Procedure 364, subdivision (f)(2) is identical to that contained in section 3333.2, subdivision (c)(2).

19.   The Noble court also noted that Code of Civil Procedure section 1295, governing arbitration provisions in medical service contracts, used the term “medical malpractice” to include those medical services that are negligently performed “and those which were ‘unnecessary or unauthorized’ (the traditional grounds for a battery cause of action).”  (191 Cal.App.3d at p. 1193, 237 Cal.Rptr. 38.)   In Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 261, 204 Cal.Rptr. 553 [entire action subject to arbitration], it was held the language of Code of Civil Procedure 1295 goes “beyond mere negligence” and encompasses all theories which might be included in a “medical malpractice” action.   It follows the Legislature intended the term “professional negligence” as used in MICRA, including section 3333.2, to be a more limited one than “medical malpractice.”

20.   Code of Civil Procedure section 425.13, which places restrictions upon claiming punitive damages arising out of the professional negligence of health care providers, was not contained in MICRA.   The statute, in its original form, was added by Statutes of 1987, chapter 1498 (Sen.Bill No. 241 (1987–1988 Reg.Sess.)).   The statute was amended by Statutes of 1988, chapter 1205 (Sen.Bill No. 1420 (1987–1988 Reg.Sess.)).

21.   The jury's finding that Vecchione did not act with malice or fraud for purposes of awarding punitive damages does not equate with a finding that he was merely negligent.

TODD, Acting Presiding Justice.

HUFFMAN and NARES, JJ., concur.