JORDAN v. LONG BEACH COMMUNITY HOSPITAL (1988)

This medical malpractice action arises from the tragic removal of plaintiff Harry Jordan's healthy left kidney rather than his cancerous right kidney.   Plaintiff Miriam Jordan joined her loss of consortium cause of action with her husband's medical malpractice cause of action.   Plaintiffs proceeded to trial against Dr. Burton Wachs, who performed the surgery on Mr. Jordan, Dr. Marshal Grobert, who assisted Dr. Wachs during surgery, the Grobert–Sawyer Medical Corporation, the employer of Drs. Grobert and Wachs, Dr. William Stanton, who also assisted with the surgery, Dr. Carlton Waters, Mr. Jordan's internist, who supervised Mr. Jordan's presurgery treatment, Long Beach Community Hospital, where the surgery occurred, Robert Odell, the anesthesiologist during surgery, Robert Chaney, a radiologist and Community Radiology Medial Group, Inc., Robert Chaney's employer.¹

The jury found for plaintiffs against defendants Wachs, Grobert, Grobert–Sawyer Medical Group, Stanton and Waters and in favor of the remaining defendants.   It awarded Mr. Jordan $4.5 million in noneconomic damages, $6,600 in past medical expenses, and $97,000 in future medical expenses.   It awarded Ms. Jordan $625,000 in noneconomic damages.   The trial court, purporting to apply the provisions of the Medical Injury Compensation Reform Act (MICRA), reduced both plaintiffs' total collective award of noneconomic damages to $250,000 and ordered defendants to pay “the first $97,000.00 of any [of Mr. Jordan's] future medical expenses not covered by insurance or other collateral source, ․” Plaintiffs then appealed.

During the pendency of the appeal of that judgment, plaintiffs entered into a settlement with Dr. Wachs, Dr. Grobert, the Grobert–Sawyer Medical Group and Dr. Stanton, settling plaintiffs' injury and loss of consortium claim against these defendants, together with any potential wrongful death or survival action which might be brought against them for the total sum of $1.2 million.   The trial court apportioned $205,280 of the $1.2 million, as the amount paid to settle “the underlying medical malpractice case” and found the settlement to be in “good faith.”   Dr. Waters appealed the trial court's apportionment order.   We ordered Dr. Waters' appeal to be consolidated with plaintiffs' appeal.

As a result of the settlement, plaintiffs now prosecute their appeal against Dr. Waters and Long Beach Community Hospital only.

CONTENTIONS

On appeal plaintiffs contend:

1. “The trial court committed reversible error in granting nonsuit on the issue of punitive damages.”

2. “The trial court committed prejudicial error in excluding expert testimony that Waters' conduct constituted a conscious disregard of Mr. Jordan's safety.”

3. “Civil Code § 3333.2, reasonably construed, permits medical malpractice plaintiffs who join their independent causes of action in a single suit against a health care provider to recover up to $250,000 each in noneconomic damages.   The trial court's reduction of plaintiffs' separate recoveries for noneconomic damages to a single undifferentiated sum of $250,000 is reversible error.”

4. “Civil Code § 3333.2, reasonably construed, permits each plaintiff to recover noneconomic damages up to $250,000 multiplied by the number of defendants found liable.”

5. “The trial court committed reversible error in admitting evidence of medicare benefits payable to health care providers rather than directly to Mr. Jordan, and in instructing the jury it could consider such benefits.”

6. “The trial court exceeded its jurisdiction under MICRA, and violated Mr. Jordan's constitutional right to trial by jury, by depriving him of the $97,000 lump sum the jury awarded for his future medical expenses.”

7. “The trial court committed reversible error in refusing plaintiffs' proposed instructions specifically stating the hospital's duty to carefully select its medical staff.”

8. “The trial court committed reversible error in denying disclosure of, and in excluding, evidence relevant to plaintiff's cause of action against the hospital for negligent selection of Wachs as a member of its medical staff.”

9. “Plaintiffs' cause of action against the hospital for negligent selection of Wachs is not an action for professional negligence subject to the Medical Injury Compensation Reform Act.”

10. “Civil Code §§ 3333.1 (collateral source evidence admissible) and 3333.2 ($250,000 limit on noneconomic damages) violate the state and federal due process and equal protection clauses, and the state right to trial by jury.”

FACTS

We begin by summarizing the factual background of this action.   For several days Mr. Jordan noticed blood in his urine.   He then began experiencing great pain when he attempted to urinate.   He and Mrs. Jordan went to the emergency room of Long Beach Community Hospital.   The emergency room staff contacted Dr. Waters, who had been Mr. Jordan's internist for several years, and admitted Mr. Jordan into the hospital.   Dr. Waters examined Mr. Jordan and found that “[t]here is tenderness to deep palpation over the right kidney.”  (Italics added.)   He arranged to have a radiologist x-ray Mr. Jordan's urinary tract.   The radiologist apprised Dr. Waters that he interpreted the x-ray as indicating a “softball-sized tumor in the right kidney ” that was “undoubtedly a carcinoma.”  (Italics added.)   The radiologist also wrote “Neo R [with a circle around the R] kidney” in red on Mr. Jordan's x-ray film jacket to alert other physicians as to the abnormality.

As a result of that diagnosis, Dr. Waters decided to consult a urologist.   He telephoned Dr. Grobert and told him Mr. Jordan had a cancerous growth in his kidney but he could not recall in which kidney.   In turn, Dr. Grobert telephoned his associate Dr. Wachs and left a message requesting him to go to the LBCH to assist with the care of Mr. Jordan.   Dr. Grobert also went to LBCH.   He met Dr. Waters in the hospital's radiology department where they briefly viewed Mr. Jordan's x-ray.   That x-ray had been placed in the view box backwards.   Dr. Waters recognized that the x-ray was in the view box backwards but said nothing about it to Dr. Grobert.²  Dr. Grobert did not recognize the x-ray was reversed and misread it as indicating the tumor was in Mr. Jordan's left kidney.   The two physicians then went to Mr. Jordan's room.   Dr. Grobert briefly examined Mr. Jordan and told him “I think you have a left kidney tumor.”   There is conflicting evidence as to whether Dr. Waters was present when this erroneous diagnosis was made.

Upon his arrival at the hospital, Dr. Wachs also went to the radiology department and viewed the x-ray.   He testified that based on previous conversations with Dr. Grobert he already believed the tumor was on the left side and thus when he viewed the backwards x-ray he focused on the tumor rather than the markings on the film.   Dr. Wachs then went to Mr. Jordan's room and briefly examined him.   He told Drs. Waters and Grobert that “I believe I can palpate a large mass in the patient's left side” and that it would require a left nephrectomy.   A nephrectomy is the surgical removal of a kidney.   Dr. Waters said nothing to correct this error.

That evening Dr. Wachs suggested delaying the surgery in order to perform an angiography, a CT scan or both.   Dr. Waters disagreed.   He suggested “it was late in the game, the anesthesiologist had been called and indeed the O.R. team had been called to ready for surgery.”   Drs. Waters and Grobert both alerted Dr. Wachs that the patient had already been told of the surgery and that it would be difficult to delay it.   Dr. Wachs' reluctance to proceed then disappeared.

Before leaving the hospital for the evening, Dr. Waters made a progress note that Mr. Jordan had a “tumor in his left kidney” and that the operation was scheduled to proceed.  (Italics added.)   At trial he explained this note was the product of fatigue.   Prior to the surgery, Drs. Grobert and Wachs looked at Mr. Jordan's x-ray and once again looked at it backwards confirming their left-kidney misdiagnosis.   Dr. Wachs then placed the x-rays in the operating room view box.   For the third time they were reversed!   With Dr. Wachs acting as chief surgeon, he, Dr. Grobert and a Dr. Stanton performed a radical left nephrectomy in which they removed Mr. Jordan's healthy left kidney and part of his left adrenal gland.   The kidney was sliced and placed in a formalin solution, thereby destroying it so that it could no longer be reimplanted.

Following the surgery, Mr. Jordan had no urinary output.   Upon further examination it was discovered that the wrong kidney had been removed.   Approximately two weeks later, Mr. Jordan underwent another surgery in which 80 percent of his only kidney, the cancerous right kidney, was removed.

DISCUSSION

PLAINTIFFS' APPEAL AS TO DR. WATERSIPUNITIVE DAMAGESAThe Trial Court Abused Its Discretion By Precluding Plaintiffs' Experts From Using The Term “Conscious Disregard” In Their Testimony

 Plaintiffs claim the trial court erred with respect to punitive damages by refusing to allow their expert witnesses to testify whether Dr. Waters' conduct constituted a “conscious disregard” of Mr. Jordan's safety.   The court stated that “conscious disregard” is “a conclusion of law.  [The witnesses] should describe to the jury what they believe was done and not done, said and not said, and leave it up to the jury to decide whether or not it was, ․ conscious disregard or not.”

Whether Dr. Waters acted in “conscious disregard” was one of the ultimate issues of fact to be determined in this case.  Evidence Code section 805 provides:  “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.”   Several cases recognize the admissibility of expert testimony in terms of ultimate facts such as conscious disregard.   For example in Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 924, 148 Cal.Rptr. 389, 582 P.2d 980, the court upheld the trial court's exercise of discretion to allow attorney-experts to testify that the insurance defendant's conduct constituted “bad faith.”   In Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 403, 185 Cal.Rptr. 654, 650 P.2d 1171, certiorari denied (1983) 459 U.S. 1190, 103 S.Ct. 1167, 75 L.Ed.2d 422, the court relied in part upon an expert's conclusion that the defendant acted in conscious disregard as support for the punitive damages award.   Finally, People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709, explains that an expert's opinion is admissible even if that opinion is as to matters within the jurors' common experience as long as it would be of assistance to the jury.

Under the rule embodied in Evidence Code section 805, however, “[u]ltimate issue opinions ․ are not automatically admissible;  the trial judge still has considerable discretion to exclude them if he or she does not think that they will assist the jury.   See, e.g., Schauf v. Southern Cal. Edison Co. (1966) 243 CA2d 450, 456, 52 CR 518, 522.   As explained in People v. Arguello (1966) 244 CA2d 413, 418, 53 CR 245, 248, the court may request that the question be further simplified so that an opinion on the ultimate issue is not required.   If the question cannot be further simplified, however, the opinion is admissible although it calls for an opinion on the ultimate issue.”  (Kennedy, Cal. Expert Witness Guide (Cont.Ed.Bar 1983) § 1.23, p. 24.)

In the case at bench it is difficult to see how plaintiffs, in view of the trial court's rulings, could have further simplified the “conscious disregard” question.   When Dr. John Wilson, one of plaintiffs' physician-experts, testified that defendant Dr. Waters acted in disregard of [plaintiff Mr. Jordan's] safety, the trial judge ultimately ordered that testimony stricken.   On the other hand, over plaintiffs' objection, the trial court allowed Dr. Waters' counsel to cross-examine one of their expert witnesses as to whether defendants were “acting with ill will or malice toward the plaintiff.”   Thus, the trial court inconsistently rejected plaintiffs' effort to simplify their experts' testimony while at the same time allowing defendants to elicit testimony on that ultimate fact.

Moreover, the conscious disregard issue in the present case embodies issues outside of the common experience of lay people, which issues are unlikely to be made more comprehensible by further attempts at simplification.   These issues include:

1. The necessity and effect of viewing x-rays from the proper perspective;

2. The nature and effect of Dr. Waters' insistence that this nonemergency surgery go forward at once against the request of Dr. Wachs for a delay of the surgery for further diagnostic testing—at a time when Dr. Waters was admittedly suffering from fatigue;

3. The propriety of Dr. Waters making medical decisions involving the life and health of the patient while suffering from such fatigue;

4. Whether when before surgery Dr. Waters made a note on plaintiff's hospital chart that “IVP shows a baseball-sized tumor in the left kidney” he was acting in “conscious disregard” (italics added);

5. The medical interrelationships of internists and urologists.

We conclude, therefore, that the trial court abused its discretion in refusing to allow plaintiff's medical experts to testify in terms of the ultimate fact whether Dr. Waters acted in “conscious disregard.”   Due to the central importance of this precluded testimony to a major issue in the case, punitive damages, we conclude that the trial court's abuse of its discretion in this regard constituted prejudicial error.

In view of our holding that the exclusion of the medical experts' testimony in terms of “conscious disregard,” constituted prejudicial error, a new trial is required on the issue of punitive damages.   We therefore need not, and do not, decide whether the trial court erred in refusing to submit to the jury the punitive damages issue as to Dr. Waters on the state of the evidence then before it.

II

APPLICATION OF MICRABThe Trial Court Incorrectly Applied One $250,000 Limit Of Noneconomic Damages to Both Plaintiffs' Independent Claims

 Plaintiffs next contend that the trial court erroneously limited both of them to a single $250,000 limit on their noneconomic damages pursuant to Civil Code section 3333.2 (hereafter section 3333.2).   We agree.

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).”

This “action” consists of Mr. Jordan's claim for medical malpractice and Ms. Jordan's claim for loss of consortium.   The jury's noneconomic damages award was $4.5 million to Mr. Jordan and $625,000 to Ms. Jordan for a total noneconomic damages award to both plaintiffs of $5,125,000.   By apparently interpreting section 3333.2 to provide for one $250,000 limit regardless of the number of plaintiffs and regardless of what the causes of action of each plaintiff were for, the trial court reduced that total award of noneconomic damages to $250,000, i.e., the court reduced each plaintiff's noneconomic damages award to $125,000.

By a parity of reasoning the trial court could as well have reduced the noneconomic damage award to give five unrelated plaintiffs, each of whom suffered distinct medical malpractice injuries due to a common negligent act of a defendant, the sum of $50,000, each, to come up with a total $250,000 noneconomic damage award if they were joined as plaintiffs in “an action.”   We do not believe that was the legislative intent.

We interpret section 3333.2 in light of two fundamental principles of statutory construction.   First, “[c]ourts should construe all provisions of a statute together, significance being given—if possible—to every word, phrase, sentence and part of an act in pursuance of a legislative purpose.”  (Turner v. Board of Trustee (1976) 16 Cal.3d 818, 826, 129 Cal.Rptr. 443, 548 P.2d 1115.)   Second, “statutes [should] not be construed in a manner leading to an absurdity, if they may be construed to achieve justice and common sense.”   (Bank of America v. Cory (1985) 164 Cal.App.3d 66, 75, 210 Cal.Rptr. 351.)

Viewed in light of these principles, we construe section 3333.2 as providing two separate $250,000 limits when, as here, a claim for loss of consortium is joined with a spouse's claim for medical malpractice.

This conclusion is first supported by the language of section 3333.2 itself.   Subdivision (a) provides in part:  “In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses․”  (Italics added.)   This linkage of “action” to “injury” reflects that the Legislature used “action” in reference to a discreet injury caused by a health care provider.   Thus, the provision in subdivision (b) that “[i]n no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000)” must be construed to limit recovery for each discrete injury to separate plaintiffs to $250,000 each.³

 In addition to being supported by the language of the statute this conclusion is also supported by common sense.   In Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408, 115 Cal.Rptr. 765, 525 P.2d 669, the Supreme Court recognized for the first time in California that “each spouse has a cause of action for loss of consortium ․ caused by a negligent or intentional injury to the other spouse by a third party.”   Actions for loss of consortium are wholly independent from the claims of the physically injured spouse.  (Lantis v. Condon (1979) 95 Cal.App.3d 152, 157, 157 Cal.Rptr. 22;  Abellon v. Hartford Ins. Co. (1985) 167 Cal.App.3d 21, 25–26, 212 Cal.Rptr. 852.)   Accordingly, an action for a loss of consortium claim can be maintained independently of the action by the physically injured spouse, although joinder in one action is “the preferred method for asserting a claim of loss of consortium․”  (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at p. 408, fn. 29, 115 Cal.Rptr. 765, 525 P.2d 669.)

Thus, if section 3333.2 were to be construed to provide one $250,000 limit when an action for loss of consortium is joined with an action for medical malpractice that construction would create a great incentive for plaintiffs to maintain separate actions in order for each of them to avail themselves of individual $250,000 limits.   This would directly contravene the policy of this state to discourage multiple actions.  (See Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 Cal.3d 256, 261, 182 Cal.Rptr. 351, 643 P.2d 968.)

 For purposes of section 3333.2, an action for loss of consortium and medical malpractice should be treated no differently than a voluntarily consolidated action.   Each plaintiff in such an action should accordingly be entitled to exactly the same recovery as if he or she had commenced a separate action rather than joining in one action.⁴

Dr. Waters asserts that one $250,000 limit should apply for each “single tortious act” regardless of the number of tort victims and regardless of whether those victims are joined in a single action.  (RB 26) Nothing in section 3333.2, however, suggests its limit could apply to more than one action.   Nor does anything in the legislative history of that section support such a conclusion.   The clear language of the statute is just to the contrary.   It does not apply to more than one action.

Moreover, contrary to Dr. Waters' claim, interpreting section 3333.2 to provide independent $250,000 limits for the two victims of the independent torts of medical malpractice and loss of consortium is not inconsistent with the Legislature's purpose in enacting that section.   In Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665, appeal dismissed 474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 215, the court concluded the $250,000 limit on recovery of noneconomic damages neither violated due process nor equal protection.   In reaching this conclusion the court reasoned the Legislature rationally chose to impose a ceiling on the recovery of noneconomic damages rather than mandating a fixed percentage reduction of those damages.   The rationale was that that ceiling promotes one of the principal goals of the statute which was to stabilize insurance rates by making the size of noneconomic damage awards more predictable.  (Id., at p. 163, 211 Cal.Rptr. 368, 695 P.2d 665.)   Moreover, the Fein court noted that section 3333.2 promotes settlements “by eliminating ‘the unknown possibility of phenomenal awards for pain and suffering that can make litigation worth the gamble.’ ”  (Ibid.)

Neither of these legislative goals would be undermined by interpreting section 3333.2 to provide separate $250,000 limits for individual independent claims of different victims even though joined in a single action.   The measure of noneconomic damages would still be predictable.   The only variable would be the number of individuals who have discrete causes of action as a result of the health care providers' malpractice.   Further, each plaintiff is still limited to a noneconomic recovery of only $250,000, keeping the incentive to settle intact due to the elimination of “the unknown possibility of phenomenal awards for pain and suffering․”  (38 Cal.3d at p. 163, 211 Cal.Rptr. 368, 695 P.2d 665.)   Moreover, the mere fact that the restrictive interpretation of section 3333.2 suggested by Dr. Waters would result in a smaller recovery in medical malpractice actions is not by itself a sufficient basis for concluding that that is the result the Legislature intended when it enacted that section.   Rather, we must conclude that the Legislature intended to accomplish its cost-cutting goal of MICRA in a “ ‘reasonable’ manner” (Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 56, 210 Cal.Rptr. 781, 694 P.2d 1153.)   The interpretation Dr. Waters proposes would not lead to this result.⁵

Finally, although the legislative history of section 3333.2 is silent on the subject, we may and do infer that the Legislature's decision to create a $250,000 ceiling on a plaintiff's recovery of noneconomic damages against a health care provider instead of eliminating such damages altogether, was intended to strike a balance between lowering malpractice insurance premiums while maintaining what it considered to be a reasonable recovery for victims of malpractice.   Clearly slashing that $250,000 in half when a claim for loss of consortium is joined in a single action with a claim for malpractice or when two separate malpractice plaintiffs join in a single action would upset that balance.

The trial court's order collectively reducing both plaintiffs' noneconomic damage award is reversed.   The judgment is modified to award each plaintiff $250,000 in noneconomic damages.

Plaintiffs also contend section 3333.2 permits each plaintiff to recover noneconomic damages up to $250,000 multiplied by the number of defendants found liable.   As explained above, however, section 3333.2 was designed to limit a plaintiff's recovery for each discrete injury.   Contrary to plaintiffs' assertion and regardless of what we may think of the wisdom or fairness of the statute, nothing in the language, legislative history or purpose of section 3333.2, even by reading its subdivisions (a) and (b) together, suggests that the $250,000 limit can be multiplied by the number of health care providers who caused that discrete injury.   Rather, each of those factors point to the opposite conclusion.   We, therefore, reject this contention.

C

Erroneous Admission Of Collateral Source Evidence

 Plaintiffs next contend the trial court prejudicially erred by (1) allowing the introduction of evidence that once Mr. Jordan reached the age of 65 he would be eligible for medicare and (2) instructing the injury that “[i]n determining the amount of damages, plaintiff, Harry Jordan, has or will suffer as a result of the negligence of defendants, you may consider any amounts paid or payable to plaintiff as a result of his injuries, pursuant to the United States Social Security Act, which includes medicare․”

Civil Code section 3333.1 (hereafter section 3333.1) provides:

“(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, ․ 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.”  (Fn. omitted;  italics added.)

This section to some degree abrogates application of the collateral source rule to medical malpractice actions.   That rule provides:  “[I]f an injured party received some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.”   (Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729, 94 Cal.Rptr. 623, 484 P.2d 599.)

In Brown v. Stewart (1982) 129 Cal.App.3d 331, 336–338, 181 Cal.Rptr. 112, the court examined the language and the history of section 3333.1 and concluded that evidence of medi-cal payments were not admissible.   The Brown court reached this conclusion in part because:  “Welfare and Institutions Code section 14124.71 et seq. specifically authorizes the director of the [California Department of Health Services] to recover against third party tortfeasors Medi–Cal payments․”  (Id., at p. 341, 181 Cal.Rptr. 112.)   This statutory authorization was enacted pursuant to mandate of 42 U.S.C. § 1396a(a)(25) which directs the state to “seek reimbursement for [medi-cal] assistance to the extent of ․ liability;  ․”

Since section 3333.1, subdivision (b) specifically purports to prohibit the source of collateral benefits from seeking reimbursement, the Brown court concluded the Legislature could not have intended section 3333.1 to apply to medi-cal payments because the medi-cal provider is specifically authorized by federal law to seek reimbursement.   The court reasoned:  “We cannot presume the Legislature intended to enact a provision in violation of federal supremacy principles, ․” (129 Cal.App.3d at p. 341, 181 Cal.Rptr. 112.) ⁶

The Brown court's reasoning with respect to medi-cal payments is equally true with respect to the medicare payments involved here.  Title 42 of the United States Code section 2651, subdivision (a) provides in pertinent part:  “In any case in which the United States is authorized or required by law to furnish hospital, medical [or] ․ care and treatment ․ to a person who is injured ․ under circumstances creating a tort liability upon some third person ․ to pay damages therefor, the United States shall have a right to recover from said third person the reasonable value of the care and treatment so furnished or to be furnished and shall, as to this right be subrogated to any right or claim that the injured ․ person ․ has against such third person․”

This federal statute permits a medicare provider to seek reimbursement.   It thus directly contravenes section 3333.1, subdivision (b) which expressly purports to prohibit a collateral benefit provider (such as a medicare provider) from seeking reimbursement.   Thus, applying section 3333.1 to medicare benefits would violate the supremacy clause of the United States Constitution.  (U.S. Const., art. VI, cl. 2.)

An alternative basis for the Brown decision was the court's conclusion that section 3333.1 applies only to benefits which are paid directly to the plaintiff.   Since medi-cal payments are payable to the health care provider, the Brown court held section 3333.1 was not applicable to such payments.  (129 Cal.App.3d at p. 337, 181 Cal.Rptr. 112.)   Dr. Waters argues that 42 United States Code section 1395gg(a) which provides that medicare payments “to any provider of services ․ furnished any individual shall be regarded as a payment to such individual” serves to distinguish the medicare payments here involved from the medi-cal payments at issue in Brown.   Since, however, we conclude that the statutory authority of the United States to seek reimbursement for medicare payments by itself precludes application of section 3333.1, we need not discuss the effect of 42 United States Code section 1395gg(a).

We, therefore, conclude the trial court erred in admitting evidence of medicare payments to which Mr. Jordan might eventually be entitled and in instructing the jury that it could consider those potential payments in formulating Mr. Jordan's future economic damages award.

Dr. Waters contends that “even if evidence of medicare benefits was not properly admitted, the trial court's decision was at most harmless error․”  At trial, over plaintiffs' strenuous and repeated objections, defendants (including Dr. Waters) were permitted to offer evidence that medicare would pay for any dialysis or kidney transplant Mr. Jordan might have to undergo.

Dr. Waters argues that Mr. Jordan will never have to undergo dialysis or a kidney transplant and therefore the jury could not have considered Mr. Jordan's potential medicare payments in formulating his $97,000 award for future medical expenses.

That assertion of Dr. Waters is based on his wholesale disregard of the substantial evidence that Mr. Jordan will in fact require dialysis and that there is a chance he will undergo a kidney transplant.

On this record we cannot conclude that the erroneous admission of evidence of medicare payments did not affect the jury's award of Mr. Jordan's future medical expenses by substantially reducing it.   Accordingly, the erroneous admission of that evidence was prejudicial and requires a retrial to determine Mr. Jordan's future medical expenses.  (Evid.Code, § 353.) ⁷

D

Constitutionality of Section 3333.2

 Plaintiffs next launch a series of constitutional attacks on section 3333.2.   Plaintiffs recognize we are bound by the Supreme Court's decision in Fein v. Permanente Medical Group, supra, 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665, upholding that section against due process and equal protection attacks.   However, plaintiffs argue that the $250,000 limit on noneconomic damages deprives them of their right to a jury trial.  (Cal. Const., art. I, § 16.)

Recently, Division Two of this district upheld the constitutionality of section 3333.2 against an identical attack (Yates v. Pollock, supra, 194 Cal.App.3d 195, 200, 239 Cal.Rptr. 383).   It explained its holding in this regard in the following language:

“Plaintiffs' contention that section 3333.2 unconstitutionally abridges the right to a jury trial (Cal. Const., art. 1, § 16) is but an indirect attack upon the Legislature's power to place a cap on damages.   While it is clear section 3333.2 will in some cases result in the recovery of a lower judgment than would have been obtained before the enactment of the statute, it is well established that ‘the Legislature retains broad control over the measure, as well as the timing, of damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and that [it] may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest․’  Fein v. Permanente Medical Group [, supra,] 38 Cal.3d 137, 158 [211 Cal.Rptr. 368, 695 P.2d 665], italics in original;  American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 368–369 [204 Cal.Rptr. 671, 683 P.2d 670 ․].

“While the general propriety of noneconomic damages is ‘firmly imbedded in our common law jurisprudence [citation],’ no California case ‘has ever suggested that the right to recover for such noneconomic injuries is constitutionally immune from legislative limitation or revision.   [Citations.]’  (Fein v. Permanente Medical Group, supra, 38 Cal.3d at pp. 159–160, 211 Cal.Rptr. 368, 695 P.2d 665.)   This being so, plaintiff's challenge must be rejected.”

We believe that Yates correctly states the California law in this respect and accordingly reject plaintiffs' contention in this regard.

III

PLAINTIFFS' APPEAL AS TO DEFENDANT LONG BEACH COMMUNITY HOSPITALAExpert Evidence of LBCH's Negligence Was Necessary

Plaintiffs contend “the trial court committed reversible error in refusing plaintiffs' proposed instructions specifically stating the hospital's duty to carefully select its medical staff.”

 Plaintiffs requested the court to instruct the jury that “it is ․ the duty of a hospital such as defendant—, to use reasonable care in [selecting a competent medical staff] [periodically reviewing the competency of its medical staff].”   The court refused this instruction.   The court also refused plaintiffs' proposed instruction that “A hospital is liable for negligently screening the competence of its medical staff to insure the adequacy of medical care rendered at its facility.”

These instructions were based on Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 183 Cal.Rptr. 156.   In Elam, the court recognized a cause of action against a hospital for “negligently screening the competency of its medical staff to insure the adequacy of medical care rendered to patients at its facility.”  (Id., at p. 346, 183 Cal.Rptr. 156.)

Long Beach Community Hospital (LBCH) does not argue the proposed instructions are incorrect statements of the law.   Instead it claims there was insufficient evidence to support submission of that issue to the jury.

“It is settled that each party to an action has a right to have the jury instructed on all of his theories of the case which are supported by the pleadings and the evidence.   Refusal to give an instruction adequately covering a party's theory which is supported by substantial evidence is inherently prejudicial error.  [Citations.]  In deciding whether a trial court erred in refusing a requested instruction, the evidence should be viewed in a light most favorable to the appellant.”  (Nq v. Hudson (1977) 75 Cal.App.3d 250, 254, 142 Cal.Rptr. 69.)

Defendants claim the Elam instructions were properly refused because the determination whether LBCH negligently evaluated the qualifications of Dr. Wachs in according him staff privileges must be based on expert testimony, which testimony is absent here.

In response, plaintiffs argue that whether LBCH negligently evaluated Dr. Wachs “is not the issue in this case.  [They argue that the] governing body of a hospital bears the responsibility for assuring that its decision relating to medical staff will further the goal of providing high quality patient care.   [Citation.]  No expert testimony as to breach of that duty is necessary where, as here, the evidence permits an inference that the Hospital's governing body did not perform its function at all but merely rubber-stamped the recommendation of the staff committee, ․” (Italics in original, fn. omitted.)

 In making this assertion, however, plaintiffs overlook the fact that to support submission to the jury of an Elam theory, not only must there be evidence of inadequate screening, but there must also be substantial evidence that the hospital negligently accorded staff privileges to a particular physician who then committed malpractice upon the plaintiff.   Stated differently, even if the hospital's screening procedures were generally deficient, a plaintiff cannot recover under Elam so long as the qualifications of the particular treating physician were sufficient to pass muster had those procedures been adequate.   In such a case, the plaintiff will be unable to prove that any deficiency in the hospital's evaluation procedure proximately caused his injuries, since he would have sustained those injuries regardless of the reasonableness of the hospital's evaluation.  (See 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 622, pp. 2903–2904.) ⁸

In the present case we, therefore, must determine whether expert testimony evaluating Dr. Wachs' qualifications was necessary before the issue of whether LBCH negligently allowed Dr. Wachs provisional staff privileges could be submitted to the jury.   This appears to be an issue of first impression in California.⁹  In resolving this issue, however, we are able to draw from the large body of case law defining when expert testimony is necessary to establish negligence in a standard medical malpractice action.

In the medical malpractice area “[o]rdinarily, a doctor's failure to possess or exercise the requisite learning or skill can be established only by the testimony of experts.  [Citations.]  Where, however, negligence on the part of a doctor is demonstrated by facts which can be evaluated by resort to common knowledge, expert testimony is not required since scientific enlightenment is not essential for the determination of an obvious fact.  [Citations.]”  (Lawless v. Calaway (1944) 24 Cal.2d 81, 86, 147 P.2d 604, accord Landeros v. Flood (1976) 17 Cal.3d 399, 410, 131 Cal.Rptr. 69, 551 P.2d 389;  Miller v. Silver (1986) 181 Cal.App.3d 652, 658–659, 226 Cal.Rptr. 479.)

In this case plaintiffs claim that LBCH negligently accorded Dr. Wachs provisional staff privileges is based on their assertion of his “weak educational background,[¹⁰ ] his failure to pass the National Board examination, the state licensing examination (three times), and the written urology board examination, and his lie to Grobert that he had passed the latter, ․”

These factors are not the type a lay juror could evaluate without the aid of expert testimony to determine whether LBCH negligently accorded Dr. Wachs provisional staff privileges.   This is not a case where a physician was suspended from practice for committing repeated flagrant acts of malpractice.   Nor is it a case of a physician practicing without a license.   In either such case, a lay juror drawing from his or her common knowledge would be able to evaluate whether the hospital was negligent in granting that physician staff privileges.

Where, as here, the question turns on where and whether the physician received a proper medical education, or his success rate on certain tests, expert testimony is required to assist the jury in making its determination as to the medical matters involved.   Absent such evidence the trial court did not err in refusing plaintiffs' Elam instructions.   As we next explain, however, the trial court prejudicially abused its discretion by preventing plaintiffs from putting on this requisite expert testimony.

B

The Trial Court Erroneously Excluded Plaintiffs' Expert Witnesses From Testifying On The Elam Issue

 Plaintiffs next contend the trial court erroneously precluded them from submitting expert testimony on the Elam issue.

During the course of trial, plaintiffs sought to question four of their expert witnesses as to whether LBCH negligently accorded Dr. Wachs provisional staff privileges.   Defendants objected to each of these questions on the grounds that they were outside of the scope of the pretrial depositions of the expert-physicians and were thus barred by Code of Civil Procedure section 2037 et seq.¹¹

The trial court sustained defendants' objections as to each of the four experts.   The effect of this order was to preclude plaintiffs from introducing any expert testimony on the Elam issue.

The court concluded that under then extant Code of Civil Procedure section 2037 et seq. as interpreted by Kennemur v. State of California (1982) 133 Cal.App.3d 907, 184 Cal.Rptr. 393, the failure of plaintiffs' experts to testify on the Elam issue during their depositions barred their testimony on that issue at trial.

Former Code of Civil Procedure 2037 et seq. provided the statutory scheme for pretrial disclosure of expert witnesses.¹²  Under those sections, at least 70 days before trial a party was entitled to serve on another party a demand for a list of expert witnesses.   Upon service of such a demand, each party was required to exchange their lists of expert witnesses.  (Former Code Civ.Proc. §§ 2037–2037.2.)

Each party's list of experts was required to include “the general substance of the testimony which the witness is expected to give.”  (Former Code Civ.Proc. § 2037.3.)   Under former Code of Civil Procedure section 2037.5, except as provided in Code of Civil Procedure section 2037.6, upon objection of a party who has served his list of witnesses in compliance with Code of Civil Procedure section 2037.2, “no party required to serve a list of expert witnesses on the objecting party may call an expert witness to testify, except for purposes of impeachment, unless the requirements of Section 2037.3 for that witness have been met.”

In Kennemur v. State of California, supra, 133 Cal.App.3d 907, 184 Cal.Rptr. 393, the court held that the plaintiff's failure to comply with these sections barred her from questioning an expert witness on a critical issue in that case.   There, plaintiff designated one Ted Mitchell as an expert in her action.   In her expert designation plaintiff failed to disclose the general substance of the testimony which Mr. Mitchell was expected to give at trial.  (Id., at p. 912, 184 Cal.Rptr. 393.)   The court reasoned, however, that this failure did not automatically bar Mr. Mitchell from testifying as long as that expert had disclosed his opinion on the subject during deposition.   The court reasoned a disclosure during deposition would render “the statutory noncompliance ․ harmless since [defendant] would have been afforded the opportunity to prepare for cross-examination and rebuttal of Mitchell's opinion.”  (Id., at p. 918, fn. 5, 184 Cal.Rptr. 393.)

This rule did not assist the plaintiff in Kennemur since in his deposition Mr. Mitchell expressly disavowed any opinion on the issue to which plaintiff desired him to testify at trial.   Accordingly, the court concluded that plaintiff's failure to disclose Mitchell's expected testimony either at his deposition or on her expert designation, barred his testimony at trial.

In the present case, the record on appeal does not contain plaintiffs' actual expert designation.   However, from the reporter's transcript we are able to discern that plaintiffs' disclosure of the general substance of their experts' expected testimony was that each would testify to “liability, causation and damages.”   We need not evaluate the propriety of this all-inclusive disclosure, since, at trial LBCH's counsel expressly stated he was not complaining about plaintiffs' witness description but rather was only complaining about the depositions.¹³

This statement by LBCH's counsel in context occurred at page 3208, lines 1 through 16 of the reporter's transcript and is as follows:

“MR. HARNEY:  Your Honor, the Kennemur case, as I understand it, says that you have to disclose under 2037 the substance of the areas to be testified about.   It was not done in that case.   It has been done in this case.

“There was no objection whatsoever to the designation or the description.

“And all of these defense attorneys have done exactly the same thing.   Their witnesses will testify on the subject of liability, causation and damages.   There is no further description.

“I am not aware of any case in this state that requires a further description—

“THE COURT:  I don't think they are complaining about your 2037 description of the witness.

“MR. RUSHFELDT [attorney for LBCH]:  None whatsoever.   It is the depos.”   (Italics added.)

LBCH contends that under Kennemur, plaintiffs' experts' failure to testify on the Elam issue in their depositions precluded them from testifying on that issue at trial.   LBCH's reliance on Kennemur is misplaced.   As explained above, the Kennemur court examined the expert's deposition to determine whether it afforded the defendants adequate notice of the expected substance of his trial testimony only to see whether that deposition testimony rendered harmless the plaintiff's erroneous failure to disclose the substance of his testimony in her expert-witness list.   Nowhere did the Kennemur court suggest that had plaintiff adequately summarized the substance of the experts' expected testimony in her list of experts the trial court could have still limited the expert's trial testimony to the area of their deposition testimony.   Thus, contrary to LBCH's suggestion in its petition for rehearing, the determination of whether plaintiffs' designation of their experts was adequate is the necessary predicate and basis of their reliance on Kennemur.

 As stated above, in this case plaintiffs did summarize the substance of the expected testimony of their experts and LBCH expressly disavowed any objection to those summaries.¹⁴  LBCH has not cited and our research has not revealed any special rule pertaining to expert witnesses which restricts their trial testimony to the issues about which they testified in deposition if plaintiffs' expert witness list has disclosed the substances of the experts' proposed testimony or if there has been a waiver of any defect in their summaries, such as occurred here.¹⁵

Accordingly, we conclude the trial court's refusal to allow plaintiffs' designated experts to testify on the Elam issue because they failed to so testify during their deposition was erroneous.   If LBCH was unduly surprised by the expected testimony of those experts it could have asked to depose those witnesses outside of court hours.   Moreover, if the trial testimony of those experts was inconsistent with their earlier deposition testimony LBCH could have attempted to impeach those experts with that deposition testimony.

LBCH contends that even if the trial court erroneously excluded plaintiffs' experts from testifying, that error was not prejudicial because plaintiffs' counsel made inadequate offers of proof as to what they would testify.   In particular LBCH asserts that plaintiffs' offers failed to indicate those witnesses would testify that LBCH breached the applicable standard of care.   LBCH misperceives the purpose of an offer of proof.  Evidence Code section 354, subdivision (b) codifies the rule that before a party can complain on appeal of an erroneous exclusion of evidence the record must indicate that “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.”   The clear purpose of this rule is to apprise trial judges of why the offered evidence is admissible.  “Where the error consists of the exclusion of admissible evidence [or] the sustaining of an objection thereto ․ ordinarily no further act at trial is required of the appellant as a basis for raising the error on appeal.”  (3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 2043, p. 2002.)

Here, the trial court excluded the subject expert testimony based solely on its interpretation of former Code of Civil Procedure section 2037 et seq.   There was never any question that absent the Code of Civil Procedure section 2037 objection plaintiffs' expert testimony was otherwise admissible.   The questions to which the objections were sustained, the discussions between counsel and the court and plaintiffs' formal offers of proof all fully apprised the court of the admissible nature of the proffered testimony.¹⁶

As explained above, in this case expert testimony was necessary in order for plaintiffs to submit their Elam cause of action to the jury.   The trial court's erroneous refusal to allow plaintiffs to put on any expert testimony on that issue was manifestly prejudicial.   This prejudicial error requires reversal of the judgment for LBCH and a retrial of the case against it on the Elam issue.¹⁷

THE DR. WATERS APPEAL

 Following judgment and during the pendency of this appeal, plaintiffs entered into a settlement with joint judgment debtors Grobert, Grobert & Sawyer Medical Group, Wachs and Stanton for $1.2 million.¹⁸  By the terms of that release plaintiffs executed a release of their claims against the settling defendants and agreed not to prosecute this appeal against them.   Additionally, that agreement settled “any potential future wrongful death actions and/or survival actions which might be brought by the heirs of HARRY JORDAN and/or MIRIAM JORDAN, or their assigns.”   However, the agreement did not designate which portion of the $1.2 million settlement amount was paid to settle this action and which portion was paid to settle the future claims.

The settling defendants then moved the court to rule the settlement was made in good faith.   The sole issue at the hearing on that motion was what portion of the $1.2 million to allocate for settlement of this action.   All parties agreed the apportionment should be based on the pro rata share of the four settling defendants' liability on the judgment.   The settling parties, however, disagreed with Dr. Waters (the sole nonsettling judgment debtor) as to whether that pro rata share should include the $97,000 awarded to Mr. Jordan for future medical expenses.

The court excluded that $97,000 from its allocation agreeing with the settling parties' contention that it might never be paid.   Accordingly, the Court allocated $205,280 (or four-fifths of the judgment minus $97,000) as the amount paid to settle this action.   Dr. Waters appeals.

CONTENTIONS

Dr. Waters contends:  (1) “The trial court improperly failed to apportion any part of the settlement to the jury's award for future medical expenses”;  (2) “the apportionment of the settlement between present and future claims should be modified further to reflect any change in plaintiffs' award which results from plaintiffs' appeal.”

DISCUSSION

ITHE SUBJECT POST–JUDGMENT ORDER IS APPEALABLE

 Code of Civil Procedure section 904.1 provides:  “[A]n appeal may be taken ․ from an order made after a judgment․”  Under this provision the post-judgment order finding the subject settlement to be in good faith is appealable.

Nevertheless, Dr. Grobert devotes a substantial portion of his respondent's brief to argue that the sole avenue of appellate review for an order finding a settlement in good faith is by petition for writ of mandate.   He bases this argument on Code of Civil Procedure section 877.6, subdivision (e) which provides:  “When a determination of the good faith or lack of good faith of a settlement is made, any party aggrieved by the determination may petition the proper court to review the determination by writ of mandate․”  (Italics added.)

 Merely because the Legislature has provided a specific procedure for petitioning for writ of mandate from good faith settlement orders does not make it the exclusive means for seeking appellate review.   Nothing in the language of section 877.6, subdivision (e) suggests the Legislature intended petitions for writ of mandate to be the sole means for appellate review.   In fact, as Dr. Waters points out, “an analysis of the statute by the Assembly Office of Research [provided] ‘a nonsettling defendant is presently free to appeal a determination which dismissed a co-defendant pursuant to a settlement [,] after judgment is entered․  This bill would not affect that right of appeal.’ ” ¹⁹

Moreover, if mandamus were the sole means for seeking appellate review, a party adversely affected by a good faith settlement order might be forever foreclosed from appellate review altogether since a court of appeal has discretion whether to even reach the merits of a petition for writ of mandate.

In sum, we conclude that a petition for writ of mandate is one method, but not the exclusive method for obtaining appellate review of a good faith settlement order.

II

DR. WATERS' APPEAL IS MOOT

None of the parties contest the procedure by which the subject post-judgment settlement was determined to be in “good faith.” ²⁰  Instead, Dr. Waters argues only that the trial court's apportionment of that settlement erroneously deprives him of his contribution rights to the $97,000 in future medical expenses awarded to Mr. Jordan.   Pursuant to Code of Civil Procedure section 875, however, contribution rights arise only “[w]here a money judgment has been rendered jointly against two or more defendants in a tort action․”  Because we reverse that portion of the judgment having to do with the future medical expense which was rendered jointly against Dr. Waters and the settling defendants, any contribution rights Dr. Waters may have had due to that portion of the joint judgment are now moot.   Dr. Waters further contends that we should modify the trial court's apportionment order to reflect any modification of the judgment on appeal in order to preserve his contribution rights.   To the extent, however, that Dr. Waters may in the future have any contribution rights due to our modification of the judgment to increase the award of noneconomic damages, those rights would not accrue until Dr. Waters pays more than his pro rata share of any joint judgment.  (Code Civ.Proc., § 875, subd. (c).)  Thus, the issue whether Dr. Waters gains any rights of contribution due to our modification is not yet ripe for determination.   We, therefore, do not reach the apportionment issues raised by Dr. Waters' appeal.

The appeal of Carlton H. Waters, M.D. is dismissed as moot.

This matter is remanded to the trial court.   The court is directed to (1) modify the judgment to award Harry Jordan $250,000 in noneconomic damages and to award Miriam Jordan $250,000 in noneconomic damages;  (2) in the interest of judicial economy to conduct a new trial in accordance with the views expressed herein, limited to the following issues:  (a) whether plaintiffs are entitled to punitive damages against Carlton H. Waters, M.D.;  (b) the nature, extent and amount of Harry Jordan's future medical expenses;  and (c) plaintiffs' claim that Long Beach Community Hospital negligently afforded staff privileges to Dr. Burton Wachs.

In all other respects the judgment is affirmed.   Plaintiffs shall recover costs as to their appeal.   Each party shall bear its own costs as to Dr. Waters' appeal.

FOOTNOTES

1.   Prior to trial, Dr. Wachs, Dr. Grobert and the Grobert–Sawyer Medical Group admitted that they negligently treated Mr. Jordan.

2.   There are three ways of distinguishing the patient's left and right sides in those x-rays:  a Mitchell marker, which contains an “L” or an “R” and is, and was in this instance, placed on the appropriate side of the film the patient's nameplate which reads backwards when the film is reversed, and the position of certain anatomical structures visible on the film.

3.   The need to read subdivision (b) in light of subdivision (a) is further illustrated by the fact that if its language were to be considered standing alone, the language of subdivision (b) would limit recovery of noneconomic damages in all actions regardless of whether they were for medical malpractice.

4.   In Yates v. Pollock (1987) 194 Cal.App.3d 195, 239 Cal.Rptr. 383, Division Two of this district concluded that in a multiple-plaintiff wrongful death action one $250,000 limit applied to limit the plaintiffs' collective recovery.   The court reasoned:  “The Legislature was obviously aware that ‘case precedent has consistently held “only one action [can] be brought for the wrongful death of a person thereby preventing multiple actions by individual heirs and the personal representative” ․’ and that ‘the cause of action for wrongful death has been consistently characterized as “a joint one, a single one and an indivisible one”․’  [Citations]․”  (Id., at p. 200, 239 Cal.Rptr. 383.)   We need not, and do not, decide whether we agree with Yates for its reasoning is inapplicable to a loss of consortium claim which is independent of and can be brought separately from a malpractice action.   In fact, the reasoning employed in Yates militates against application of a single $250,000 limit here.   In August 1984, the Supreme Court filed its opinion in Rodriquez recognizing that a cause of action for loss of consortium could be maintained independently of the spouse's personal injury claim.   Certainly the Legislature was aware of this when MICRA was proposed in May 1975, just nine months later, and was enacted effective December 1975, just sixteen months later.   Yet, the Legislature did not tailor section 3333.2 to limit such independent claims to a single $250,000 limit.   This is a further indication that the Legislature did not intend to create such a single limit for multiple plaintiffs with discrete damage claims when it enacted section 3333.2.

5.   Were we to assume that separate $250,000 limits in cases such as this would be contrary to the purpose of section 3333.2, we would have to recognize that purpose would be equally undermined if the plaintiffs commenced and maintained separate actions for malpractice, or for malpractice and loss of consortium, in which cases they would each clearly be entitled to separate limits of $250,000 for noneconomic damages.

6.   In his concurring opinion, Justice Blease agreed with the Brown majority's conclusion that applying section 3333.1 to medi-cal would violate the supremacy clause of the United States Constitution inasmuch as federal law specifically authorized medi-cal providers to seek reimbursement.  (Id., at pp. 343, 347, 181 Cal.Rptr. 112.)

7.   Plaintiffs argue if Mr. Jordan's future medical expense award is not reversed because of the erroneous admission of evidence of medicare benefits, that award should be reversed because the trial court erroneously formulated a periodic payment schedule.   Since we conclude the award should be reversed on the medicare issue, we need not, and therefore do not, reach this contention.

8.   In fact, the Elam court reversed the summary judgment which had been granted the hospital in that case in part because there was a factual issue, i.e. “[i]f [the hospital's evaluation] had been made in a careful and proper manner, would the committee have recommended revocation or suspension of [the physician's] staff privileges?”.  (132 Cal.App.3d at p. 348, 183 Cal.Rptr. 156.)

9.   Plaintiffs rely on Johnson v. Misericordia Community Hospital (1981) 99 Wis. 708, 301 N.W.2d 156, for the proposition that expert testimony is only necessary to establish what procedures the hospital should employ to screen doctors and is not necessary to establish whether a particular physician should have been admitted to staff.   However, in Johnson, the court held the plaintiff did not have “the burden of showing that [the physician] was actually incompetent and that the hospital knew or should have known of his incompetence before granting him surgical privileges or before [the subject surgery] ․ The plaintiff was only obliged to prove that [the hospital] did not make a reasonable effort to determine whether [the physician] was qualified to perform orthopedic surgery.”  (Id., 301 N.W.2d at pp. 171–172;  italics in original.)   Under well established principles of California tort law it is not sufficient that plaintiff merely establish the defendant hospital had an inadequate screening procedure.   Instead, the plaintiff must also prove those inadequacies resulted in the admission of the particular physician in question.   Accordingly, the Johnson court's discussion of expert testimony is of no aid to plaintiffs.

10.   Dr. Wachs attended medical school in Guadalajara, Mexico his first two years after which time he transferred to the University of California at Irvine, from which he graduated.

11.   For example when Dr. Leibowitz was questioned in his deposition as to whether he had “any opinion whether the hospital's conduct fell below the applicable standard of practice” he responded:  “I don't know ․ what the hospital's responsibilities are in overseeing a radiology department surgery․  So, no, I don't think I can form an opinion on that.”   In Dr. Wilson's deposition when questioned “[D]o you have any criticism of the decisions to allow Wachs to perform the surgery” he responded “Not that comes to mind.”

12.   Effective July 1, 1987, the civil discovery act of 1986 (Code Civ.Proc., § 2020 et seq.) replaced the discovery statutes which were in effect during the period relevant to this appeal.

13.   In Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1040, 213 Cal.Rptr. 69, we held the plaintiff's summary that its expert-physician would testify “ ‘to the medical care and treatment rendered to plaintiff as well as [his] diagnosis and prognosis of plaintiff's physical condition’ ” was sufficient to comply with former Code of Civil Procedure section 2037.3.

14.   LBCH's failure to object to plaintiffs' all-inclusive witness summary may have been due to the fact they used a similar format for their summaries.   If this is the case, then a determination that plaintiffs' summary was inadequate would have also rendered LBCH's summary inadequate and would have precluded either party from complaining about the other's nondisclosure of an expert.  (Former Code Civ.Proc., § 2037.5;  Sprague v. Equifax, Inc., supra, 166 Cal.App.3d 1012, 1040, 213 Cal.Rptr. 69.)

15.   Generally, under former Code of Civil Procedure section 2034, subdivision (b)(2)(B), upon the disobedience by a party of an order to answer or further answer a deposition question the court was empowered to issue “[a]n order refusing to allow the disobedient party ․ from introducing in evidence ․ items of testimony․”  Nothing in the facts disclosed in the record on appeal gives rise to an indication that the testimony of plaintiffs' experts was or could be restricted under this section.

16.   For example, plaintiffs' counsel represented that Dr. Wilson would testify “on the basis of the facts given to him, that the Long Beach Community Hospital was negligent in allowing Dr. Wachs any kind of temporary, permanent, partial or total surgical privileges.”

17.   Since the trial court's prejudicial exclusion of expert testimony requires reversal on the Elam issue we need not, and therefore do not, reach the following contentions:  LBCH's contention that the jury was adequately instructed on the Elam theory;  plaintiffs' contentions that the trial court erroneously excluded evidence of Dr. Wachs' cocaine use and that his father had been on the hospital's staff for many years.   Moreover, since the record on appeal does not contain any of the pleadings relating to the trial court's order preventing plaintiffs from introducing into evidence Dr. Wachs' applications for admission into the staffs of UCLA Medical Center and St. Mary's Hospital we are unable to review the propriety of that order.Finally, since the trial court never ruled on whether an action against a hospital for negligently admitting a physician to its staff is an action for professional negligence under “MICRA” we decline to render what at this point would be a purely academic opinion on the issue.  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 243, p. 249.)

18.   The settlement agreement in the record is for $900,000.   However, at the hearing concerning the propriety of the settlement it was brought to the court's attention that an additional $300,000 was contributed by Dr. Stanton, bringing the total to $1.2 million.

19.   In contrast to section 877, the Legislature has expressly limited particular orders to review by petitions for writ of mandate, i.e., judicial disqualification orders (Code Civ.Proc., § 170.4, subd. (d) [“The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by writ of mandate․”] );  order granting or denying a motion to expunge a notice of pending action.  (Code Civ.Proc., § 409.4 [“an order granting or denying a motion to expunge a notice of pendency of action ․ shall not be appealable”].)   If the Legislature intended good faith settlement orders to be subject to the same limitations it would have so provided.   It did not.

20.   We note, however, that by its express terms Code of Civil Procedure section 877 applies only to settlements entered into “in good faith before verdict or judgment․”  The better reasoned decisions hold that section, as well as section 877.6, have no application to post-judgment settlements.  (Southern Cal. White Trucks v. Teresinski (1987) 190 Cal.App.3d 1393, 1402, 236 Cal.Rptr. 159;  Halpin v. Superior Court (1971) 14 Cal.App.3d 530, 543, 92 Cal.Rptr. 329, cert. den. 404 U.S. 832, 92 S.Ct. 79, 30 L.Ed.2d 62.)

McCLOSKY, Acting Presiding Justice.

GEORGE and ROTHMAN,* JJ., concur.