MENDEZ BARRIOS v. COMMUNITY HOSPITAL OF SAN GABRIEL (1986)

This is an appeal from a judgment in a medical malpractice case.   The jury, by a nine-to-three vote, awarded a verdict of $5,446,100, divided among damages for medical and nursing care of $1,989,800, lost future earnings of $456,300, and pain and suffering of $3,000,000.

The appeal raises a number of issues, some of which are matters of first impression in California.

1. Did the court correctly allow plaintiff to offer the testimony of an emergency medicine expert, who had no professional experience in the five years before the claimed malpractice, but more than five years experience in the period before he testified at trial?  Health and Safety Code section 1768 (now Health & Saf. Code, § 1799.110) requires experience “within the last five years” in certain medical malpractice actions.   Did the statute even apply in the instant case?

2. Did Civil Code section 3333.2 and its limitation of $250,000 for non-economic damages in medical malpractice cases (such as pain and suffering) apply in a case where the malpractice happened in 1974, the statute became effective in 1975, the complaint was filed in 1978, and the case was tried in February 1984?

3. Did Code of Civil Procedure section 667.7 and its procedure for ordering periodic payments of judgments apply?   If it did, was the court in error in failing to grant defendant's motion for an order directing that the future damages for economic loss (lost earnings, medical and nursing care and training) be paid in periodic installments pursuant to the statute?  Code of Civil Procedure section 667.7 also became effective in 1975.

4. Were damages excessive?

5. Was there court attendant (bailiff) misconduct and jury misconduct requiring reversal?

BACKGROUND

The plaintiff, Brandi Sue Mendez, was five and a half months old at the time of the claimed medical malpractice in April 1974 and ten years old when trial began in February, 1984.   The trial focused essentially on the period Saturday, April 13, to Monday, April 15, 1974.

Brandi was running an elevated temperature on Saturday.   Her mother took her in the evening to the emergency room of defendant Community Hospital of San Gabriel.   There, Brandi was seen by Dr. Linares Johnson, a hospital staff doctor.

Dr. Johnson caused various tests to be performed, ordered some treatment in the emergency room, noted the results in the medical record, concluded that the temperature of 106.5 had dropped substantially in response to medication and cooling baths and sent Brandi home with her mother.   The mother was instructed to administer liquid Tylenol and to telephone the following day.

On Monday morning, Brandi was discovered to be convulsing and was brought back to defendant's emergency room.   Bacterial meningitis was diagnosed.

As a result of the meningitis, Brandi suffered severe and permanent brain damage, leaving her substantially blind, deaf and retarded, with a permanent mental age of approximately five months.

A complaint seeking damages for medical malpractice was filed December 28, 1978, against the hospital and Dr. Johnson.   Dr. Johnson died before trial, and the action was not prosecuted against him.

TRIAL

Plaintiff's first witness at the trial was Dr. Stanley M. Kalter.   Kalter testified as an expert witness with regard to the standard of care for emergency room physicians in 1974.   Defendant citing Health and Safety Code section 1768 objected to his testimony, based upon Kalter's failure to have had five years emergency room experience at the time of the 1974 events.   Defendant argued the statute required such experience in the five years before the act of malpractice.   The court acknowledged the “possible ambiguity” in the five-year requirement, and found that Kalter's experience for more than five years prior to the date of his testimony satisfied the statutory qualifications.

Plaintiff offered testimony from a pediatric neurologist regarding Brandi's future, a programing specialist regarding tasks which Brandi was expected to be able to master with training, an economist, members of the family, and others.   Plaintiff's experts projected a total life span of 79 years.   They projected various economic losses of earnings and expenditures for training therapy and care over the remainder of Brandi's life.

Testimony was offered by defendant to show that Dr. Johnson's treatment on April 13 was consistent with the 1974 standard of care for emergency facilities in hospitals.   Expert testimony also was offered to show that someone with Brandi's present condition was not expected to live more than another ten years.   Defendant offered no evidence on damages.

The jury awarded Brandi $1,989,800 for medical expenditures and care, “past and future,” $456,300 for loss of future earnings, and $3,000,000 for pain and suffering.

Defendant filed a timely motion for new trial.  (Code Civ.Proc., § 656.)   Three weeks after the jury verdict was delivered, defendant filed a motion seeking an order reducing the non-economic (pain and suffering) portion of the judgment, from $3,000,000 to $250,000 pursuant to Civil Code section 3333.2, and an amendment to the judgment calling for payment of that portion of the judgment which is applicable to economic loss damages expected to be suffered over a period of time after the trial (medical and nursing costs and lost future earnings), to be paid on a periodic basis over some unspecified period of time.   All of defendant's motions were denied, and this appeal followed timely.

HEALTH AND SAFETY CODE SECTION 1768

In March 1977 the Legislature undertook consideration of a “Good Samaritan” law dealing with emergency care.

Vigorous lobbying by various interested groups ensued.   In the process, a proposal was made 13 months after the matter first was introduced, to give doctors working in emergency care facilities a level of protection in malpractice cases not available to any other doctors.   The proposal eventuated into Health and Safety Code section 1768.

Health and Safety Code section 1768, subdivision (c), as adopted provides as follows:

“In any action for damages involving a claim of negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department.   For purposes of this section, ‘substantial professional experience’ shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in general acute care hospital emergency departments in the same or similar localities where the alleged negligence occurred.” 1

Kalter graduated from medical school in the same year as the claimed malpractice occurred, 1974.   It is undisputed that at the time of his testimony in February 1984, he could claim substantial professional experience for more than the preceding five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department.

Plaintiff contends that Health and Safety Code section 1768 did not apply to this case because it requires a “claim of negligence against a physician.”   Here, plaintiff argues she went to trial only against a hospital, and no five year experience requirement applied.²

In all cases of malpractice, other than medical malpractice, the parties may offer any person who qualifies by knowledge, whether through practical experience or reading, as an expert witness on standard of care.  (Brown v. Colm (1974) 11 Cal.3d 639, 114 Cal.Rptr. 128, 522 P.2d 688.)   But with the adoption of Health and Safety Code section 1768, only five years of required job experience would be sufficient in an emergency room malpractice case falling within the scope of the statute.

Defendant urges that Health and Safety Code section 1768 was intended to repeal the holding in Brown v. Colm, supra.   In that case, the Supreme Court held that it was error to exclude from testifying as an expert a doctor who was admitted to practice “several years” after the malpractice.  (Id., at p. 641, 114 Cal.Rptr. 128, 522 P.2d 688.)   The testimony offered and rejected was as to the standard of care at the time of the malpractice.   The witness qualified by making “an exhaustive study of virtually all the available medical literature on the subject.”  (Id., at p. 642, 114 Cal.Rptr. 128, 522 P.2d 688.)   The trial court had ruled that the expert had to show actual practice of medicine during the time in question.   We find nothing in the legislative history or the statute to demonstrate an intent to overrule Brown v. Colm in whole or in part.

When a legislative enactment deprives citizens of rights, the statute should be construed narrowly, absent a clear expression of intention that the loss of rights is to be effected broadly.

In Brown v. Colm, the Supreme Court rejected the qualification, by contemporaneous occupational experience argument, because “there is little likelihood that plaintiff could have secured any expert witness qualified to testify as to the standard of care prevalent in a similar community for a particular operation, notably uncommon in nature, performed 23 years prior to the trial.   The pragmatic result of excluding Dr. Blodgett's expert testimony was to totally insulate the defendant from responsibility for his alleged act of negligence.  [Citation.]”  (Id., at pp. 644–645, 114 Cal.Rptr. 128, 522 P.2d 688.)

 It is our view that the statute was enacted to induce doctors to be forthcoming in emergency cases by giving them the assurance that they could not be found negligent except on testimony of experienced physicians.   The statute's purpose is thus served.   We are not inclined to interpret the statute to insulate hospitals as well, absent a clear legislative enactment.³

The Legislature could have clearly given the acute care general hospital which furnishes emergency facilities the evidentiary insulation it gave to doctors.   It did not do so.

Clearly under this line of reasoning, Dr. Kalter was qualified to testify.   We conclude, however, that Health and Safety Code section 1768 did not here apply.

“RETROACTIVITY” AND CODE OF CIVIL PROCEDURE SECTION 667.7 AND CIVIL CODE SECTION 3333.2

The asserted negligence of defendant took place in April 1974.   Trial occurred in February, 1984.  Civil Code section 3333.2 which calls for a limit of $250,000 on non-economic damages and Code of Civil Procedure section 667.7, which deals with judgment for non-economic future damages in periodic payments in a medical malpractice case became effective September 24, 1975, and operative December 12, 1975.

Defendant's motion to reduce the jury's award of $3,000,000 for pain and suffering to $250,000, and to “amend” the judgment to allow defendant to pay the damages awarded for future economic loss or expense (medical, training, earnings never to be received) totalling $2,446,100 in periodic installments was denied.⁴

Plaintiff contended the new statutes applied only to negligence committed after the effective date of the new laws, and that plaintiff's damage rights “vested” in 1974, not to be disturbed by the Legislature.

Both Civil Code section 3333.2 and Code of Civil Procedure section 667.7 are part of the Medical Injury Compensation Reform Act of 1975 (MICRA).   The leading cases on the subject of MICRA are Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665, and American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 363, 204 Cal.Rptr. 671, 683 P.2d 670.

Neither opinion discusses retroactivity for the obvious reason that the asserted malpractice in each case occurred after MICRA had become effective.

“It is a well-settled principle that every statute will be construed to operate prospectively, absent clear statutory language otherwise.”  (M Restaurants, Inc. v. San Francisco Local Joint Exec. Bd. Culinary etc. Union (1981) 124 Cal.App.3d 666, 673, 177 Cal.Rptr. 690.)

“[L]egislative changes do not apply retroactively unless the Legislature expresses its intention that they should do so.”  (Wilke & Holzheiser, Inc. v. Dept. of Alcohol Bev. Control (1966) 65 Cal.2d 349, 371, 55 Cal.Rptr. 23, 420 P.2d 735.)

The foregoing is cited by plaintiff as the rule applicable, but it is a rule that has been unequivocally rejected in various cases involving damages, including both American Bank & Trust Co. v. Community Hospital, and Fein v. Permanente Medical Group, supra.

Two appellate districts have been called upon to consider the retroactivity of another of the MICRA statutes, Civil Code section 3333.1, which abolished the collateral source rule and allowed payments received by the claimant from third persons to be considered in reduction of a judgment for economic losses.

In Bolen v. Woo (1979) 96 Cal.App.3d 944, 158 Cal.Rptr. 454, the Fifth District reasoned as follows:

“Because there is no explicit language in the statute making it retroactive and because there is every indication that the Legislature intended otherwise, we hold that Civil Code section 3333.1 should be applied prospectively only.”  (Id., at p. 959, 158 Cal.Rptr. 454.)

In Robinson v. Pediatric Affiliates Medical Group, Inc., (1979) 98 Cal.App.3d 907, 159 Cal.Rptr. 791, Division 2 of this district reached the same conclusion against “retroactivity.”

Both decisions are grounded in the asserted policy against retroactive changes in liability quoted above and legislative reliance on the opinion of the Legislative Counsel of the Legislature that cited New York law “ ‘would be followed in this state.’ ”  (Bolen v. Woo, supra, 96 Cal.App.3d at p. 958, 158 Cal.Rptr. 454.)

Both courts assumed the Legislature was aware of the opinion, understood it, and the Bolen court reasoned “that it nonetheless enacted session [sic] 3333.1 without any mention of its retroactivity.”  (Ibid.)⁵

Arguably, the reasoning in Bolen and Robinson applies to the instant case, insofar as the cases rely on the alleged policy against retrospective application of “liability” statutes.   But when the legislative opinion and underlying California cases are read, it becomes clear that retroactivity is misunderstood, leading to opinions which reflect misapplications of language.⁶

It has been the law in California for more than 100 years that when the Legislature changes the law regarding the measure of damages and related matters, such as interest on judgments, the change impacts on suits then pending even though the operative facts occurred and the right to recovery arose before the legislative enactment.

In White v. Lyons (1871) 42 Cal. 279, a suit for accounting growing out of conversion, the conversions apparently happened in 1863 and 1864.   The statute then provided for prejudgment interest at ten percent per annum in applicable cases.   In March 1868, the Legislature reduced the rate to seven percent.   Trial was held November 1868, and plaintiff was awarded judgment, including interest at ten percent from the date of each conversion to the date of judgment.   The Supreme Court held that when the March 1868 enactment became effective, it reduced the rate of interest to which plaintiff was entitled.⁷

The doctrine became clearer seven years later, in Tulley v. Tranor (1878) 53 Cal. 274.   After the cause of action arose but before trial, the Legislature amended Civil Code section 3336 by deleting from damages awardable for conversion, “highest market value of the property at any time between the conversion and the verdict.”  (Id., at p. 278.)   The only measure remaining was value at time of conversion.   The trial court admitted evidence of value after the taking and gave judgment using such measure.   Reversed.  Plaintiff argued a vested right in the alternative measure of damages.   Citing Kent's Commentaries, the court said “we can see no reason why it should be so held [that the Legislature cannot change rules of damages], even if it should be made to appear in a particular case that the plaintiff would not recover as much as he would have done had the former rule been continued.”  (Id., at p. 280.)

The following cases illustrate further:  Feckenscher v. Gamble (1938) 12 Cal.2d 482, 85 P.2d 885 (fraud suit;  “After the completion of the transaction and before the trial of the case, the measure of damages was changed by the legislature by an amendment and the new measure was in effect at the date of the trial.”  (Id., at p. 499, 85 P.2d 885);  specifically, the Legislature did away with the benefit of bargain measure of damages and substituted actual loss;  held:  no vested right to old measure and damages were recomputed by the Supreme Court.);  Stout v. Turney (1978) 22 Cal.3d 718, 150 Cal.Rptr. 637, 586 P.2d 1228 (fraud case;  “Although the fraudulent acts here in question took place prior to 1971, it is clear that the amended version of section 3343, which was in effect at the time of trial, is here applicable.  [Citations.]”   (Id., at p. 727, 150 Cal.Rptr. 637, 586 P.2d 1228);  the effect of the statutory change was to require the plaintiff to show out-of-pocket loss in order to be entitled to recovery for fraud in a property transaction, thus limiting the plaintiff's right to recovery);  American Bank & Trust Co. v. Community Hospital, supra;  “It is well established that a plaintiff has no vested property right in a particular measure of damages, and that the Legislature possesses broad authority to modify the scope and nature of such damages.”  (Id., 36 Cal.3d at p. 368, 204 Cal.Rptr. 671, 683 P.2d 670.)   Fein v. Permanente Medical Group, supra;  “As our language in American Bank itself suggests, our past cases make clear 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 the Legislature may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest.”  (Id., 38 Cal.3d at p. 158, 211 Cal.Rptr. 368, 695 P.2d 665;  emphasis in original.)

“A statute does not operate retroactively merely because some of the facts or conditions upon which its application depends came into existence before the enactment.  [Citations.]   Thus, application of a statute effecting a change in ‘procedure’ or ‘remedy’ to pending litigation is not violative of the principle of presumed nonretroactivity even though the event giving rise to the cause of action antedated the statute.  [Citations.]”  (Coast Bank v. Holmes (1971) 19 Cal.App.3d 581, 593–594, 97 Cal.Rptr. 30.)

Plaintiff cites In re Marriage of Buol (1985) 39 Cal.3d 751, 218 Cal.Rptr. 31, 705 P.2d 354, as supporting her theory of nonretroactivity.   But in that case, the Supreme Court ruled the statute in question, which was adopted after the trial and while the case was on appeal, deprived the wife of a “vested property right without due process of law.”  (Id., at p. 763, 218 Cal.Rptr. 31, 705 P.2d 354;  emphasis added.)  (Cf., Fein v. Permanente Medical Group, supra, on damage claims and non-vesting.)

In Buol, the court defined vested property right for purpose of the case as “property rights that are not subject to a condition precedent.”  (Id., at p. 757, fn. 6, 218 Cal.Rptr. 31, 705 P.2d 354.)   Plaintiff argues her rights were fully vested before the enactment of MICRA since they were subject to no condition precedent.   She ignores two hurdles before her “vested” right was quantified, prevailing on liability and prevailing on damages.

In Buol, the plaintiff had a contract and a judgment recognizing and enforcing the contract.   The statute would have ousted her from her judgment and made her contract unenforceable, if applied retroactively, as the Legislature had mandated.

Robinson v. Pediatric Affiliates Medical Group, Inc., supra, cites two cases which might appear to be contrary to Tulley v. Tranor and its progeny.   They are Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 182 P.2d 159 and DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 18 Cal.Rptr. 369, 367 P.2d 865, and they are entirely consistent with Tulley.⁸

 We conclude Civil Code section 3333.2 properly could be invoked in the instant case without violating any rule of “non-retroactivity.”

 Insofar as Code of Civil Procedure section 667.7 is concerned, however, neither liability nor the amount of damages nor right of recovery was or is affected.   The statute deals only with a procedure by which the superior court is to “enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds fifty thousand dollars ($50,000) in future damages.”

Giving the judgment debtor or creditor ⁹ the right to ask for a periodic payment order, and directing the trial court to grant such application, unless special circumstances such as those in Fein or American Bank are found, does not modify liability.   It merely sets the stage for modification of the judgment, which otherwise is all due and payable from entry.  (Code Civ.Proc., § 683.010.)

No reason appears why Code of Civil Procedure section 667.7 should not apply to the instant case under the rule of Tulley v. Tranor, et al.

In Fein v. Permanente Medical Group, supra, the jury awarded $63,000 to plaintiff for “future medical expenses” and $700,000 “for wages lost in the future as a result of the reduction in plaintiff's life expectancy.”  (Id., 38 Cal.3d at p. 145, 211 Cal.Rptr. 368, 695 P.2d 665.)   Although the trial court “formally rejected defendant's motion for a periodic payment order, its judgment did provide for the periodic payment of the damages which the jury awarded for plaintiff's future medical expenses, directing the defendant to pay such damages ‘as [they] are incurred up to the amount of $63,000.’ ”  (Id., at p. 156, 211 Cal.Rptr. 368, 695 P.2d 665.)   As to the $700,000, however, the court concluded that if the portion of the judgment applicable to lost future earnings had been ordered “paid periodically over the time period when the loss was expected to be incurred, the damages would have been paid in their entirety after plaintiff's expected death, and thus—if the life expectancy predictions were accurate—plaintiff would not have received any of this element of damages.”  (Ibid.;  emphasis in original.)

The court went on to chide the defendant at page 157, 211 Cal.Rptr. 368, 695 P.2d 665 that “had it raised the periodic payment issue in a timely fashion so that the jury could have made special findings on that question, there might well be a strong argument that the dependents' share of the lost years' earnings should be subject to periodic payment.”   Because no such apportionment was made by the jury, the Supreme Court concluded the trial court properly denied the application for periodic payment of the $700,000 portion of the judgment.

THE ISSUE OF PERIODIC PAYMENTS

The allocation of the verdict in the subject case was as follows:

“$1,989,800 for the reasonable value of medical, hospital and nursing care past and future;

“$456,300 for the present cash value of earning capacity reasonably certain to be lost in the future;

“$3,000,000 for pain, suffering, discomfort, fears, anxiety, and other mental and emotional distress.”

The amount apportioned for medical, hospital, and nursing care is personal to plaintiff for her care during her lifetime.   Her family therefore suffers no economic cost for such care after plaintiff's death.   This is contrasted with her predicted lost earnings, which are lost to Brandi's dependents, if any, after her death.¹⁰

But the verdict herein said the $1,989,800 covers care, “past and future.”   Absent any express apportionment by the jury or the trial court of such sum between past and future expenses, can this court make such apportionment or divine a basis for such apportionment from the record herein?

Plaintiff cites no evidence in the record, nor has the court been able to find any, of medical, hospital, or nursing care or training expense prior to trial.   But the record is crystal clear that the entirety of the $1,989,800 awarded was based on data regarding post-trial costs estimated by plaintiff's professional experts.

Plaintiff presented three expert witnesses to establish her claims for special damages, other than pain and suffering.   The special damages consisted of costs of medical and nursing care, together with costs of training plaintiff to assume some physical support for her life, and future earnings which plaintiff might have been expected to earn, had she not suffered the injuries presented.

Physician Andrea Morrison testified that having survived for ten years after the damage was done by the meningitis, Brandi had a life expectancy of “normal, or close to normal.”

Doctor of Educational Psychology and Special Education, Jeanne Heyerick, testified about plaintiff's physical condition, the kind of care she would require, the scope of training which could avail her, and the costs of such care and training on an annual basis.   Doctor of Philosophy in Economics, Raymond Schultz, extrapolated Heyerick's cost estimates into total costs over plaintiff's actuarial life span and then reduced such figures based upon present value.

In other words, Heyerick expressed opinion as to out-of-pocket costs to take care of plaintiff into the indefinite future.   Schultz projected that plaintiff would live to age 79 (she was over 10 at the time of trial), using actuarial tables without regard to plaintiff's physical condition and any medical predictions which might be made on account thereof.   Schultz then added an inflation factor, totaled the results of his calculations and reduced such totals based upon present value methodology to determine how much money plaintiff would have to receive at the time of the analysis to yield the gross amounts calculated.

Schultz testified to four separate calculations.

1. He assumed a healthy plaintiff would work for 40 years and calculated the present value of the earnings she would have received, had she been able to work, at $456,300.

2. Accepting Heyerick's training and program costs, he calculated the present value of such costs to be $492,600 assuming the total of 79 years of life expectancy.

3. In the area of care, two different approaches were suggested by Heyerick and used for calculation by Schultz.   In the first such approach, it was assumed plaintiff would have 24-hour-a-day care until she was 22 years old.   The age was chosen because Heyerick projected plaintiff might be able to live in a residential care facility beginning with such age.   The present value of the cost of full time attendant care to age 22 was determined to be $720,900.

4. Using Heyerick's estimate of cost for residential care from age 22 to 79, Schultz calculated the present value of such cost to be $776,300.

The total of Schultz's version of the present values of the three future care and training circumstances, i.e., $492,600, $720,900, and $776,300 is $1,989,800.   The jury verdict allocated by the jury to medical and nursing care and training “past and future” is $1,989,800.

Similarly, the jury allocation in the verdict for loss of future earnings is identical with Schultz' computation, $456,300.

Defendant contends that Code of Civil Procedure section 667.7 was enacted precisely for this kind of case, in which all of the economic loss portions of the award, out-of-pocket expenses to be paid to third parties for the benefit of plaintiff, and loss of earnings which plaintiff could have been expected to receive, are “future damages” within the express provisions of the statute.   Code of Civil Procedure section 667.7, subdivision (a), provides as follows:

“In any action for injury or damages against a provider of health care services, a superior court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds fifty thousand dollars ($50,000) in future damages.” 11

Our Supreme Court has acknowledged that the Legislature has reversed the “windfall” effects of future damages applicable to pain and suffering and future medical care.   Before the statute, if the plaintiff-judgment creditor died without having spent the entirety of her lump-sum award, her heirs were perceived to receive a windfall, judgment proceeds awarded for medical or other expenses applicable to the late judgment creditor, without having to bear such expenses.  Code of Civil Procedure section 667.7 “contemplated that a defendant's continuing liability for future damages other than damages for loss of future earnings would be subject to termination on the plaintiff's death” (American Bank & Trust Co. v. Community Hospital, supra, 36 Cal.3d at p. 368, fn. 8, 204 Cal.Rptr. 671, 683 P.2d 670) and that the periodic payment provision “clearly does operate to reduce the amount of damages ultimately recovered.”  (Fein v. Permanente Medical Group, supra, 38 Cal.3d at p. 158, fn. 14, 211 Cal.Rptr. 368, 695 P.2d 665.)

In American Bank, supra, the plaintiff was suffering from a malignancy.   She was injured while in the defendant hospital.   Her suit was concerned with those injuries and not with the malignancy or its prognosis.   The tumor was of such a type that “reportedly results in death within one year in 95 percent of all cases.”  (Id., 36 Cal.3d at p. 364, 204 Cal.Rptr. 671, 683 P.2d 670.)   The jury rendered a general verdict of $198,069.88 in favor of plaintiff.   After the verdict was returned, defendant raised the periodic payment issue for the first time, moving for an order for periodic payment of future damages under Code of Civil Procedure section 667.7.  (Id., at p. 365, 204 Cal.Rptr. 671, 683 P.2d 670.)   The trial court found the statute to be unconstitutional and denied the motion.   While the appeal was pending, the plaintiff died and the bank took over as her personal representative.

The Supreme Court found the statute constitutional but upheld the trial court's determination regarding defendant's request.   Because of the defendant's failure to raise the periodic payment issue before the verdict, “plaintiff was deprived of the opportunity to seek additional special verdicts to guide the structuring of a periodic payment schedule.”  (Id., at p. 378, 204 Cal.Rptr. 671, 683 P.2d 670.)   But since “it seems reasonable to assume that at least the bulk of the damages would have been attributed either to past damages or to the period of time which plaintiff survived ․ the interests of justice would be best served by upholding the trial court's lump sum award.”  (Ibid.)

The Supreme Court could have said the post-verdict request for an order for periodic payments came too late and could not be considered by the trial court for such reason.   It did not.

Then came Craven v. Crout (1985) 163 Cal.App.3d 779, 209 Cal.Rptr. 649.   In Craven, the jury rendered a verdict in three parts, medical expenses, future medical expenses of $1,500,000, and general damages.   Fifty-five days after judgment was entered on the verdict, defendant moved for an order for periodic payments under Code of Civil Procedure section 667.7.   Six months after the judgment was entered on the verdict, the trial court issued an order for periodic payments, calling for $600,000 of the future medical expense award to be paid over nine-and-a-half years.

The First District Court writing Craven ruled the trial court had no power to “change the judgment” once the judgment was entered.   It reasoned that judgment must be entered within 24 hours after the verdict is rendered.  (Code Civ.Proc., § 664.)   It ruled the power to act under Code of Civil Procedure section 667.7 had evaporated before the request was made.

The Legislature did give trial courts express power to change or modify or alter the judgment in enacting Code of Civil Procedure section 667.7.   The Legislature ordered trial courts (mandatory versus discretionary per Fein) to enter a judgment for periodic payments if the award equals or exceeds $50,000 in future damages, as such damages are defined.   The amount of the judgment remains the same before and after the Code of Civil Procedure section 667.7 order, subject, of course, to the addition of a contingency that the injured plaintiff must survive the term of payments to reap what once came in a lump-sum.

While the total amount of the judgment is the same, an unquestionable economic advantage is given to the judgment debtor.   That is, no authority need be cited for the proposition that the economic advantage from retention of the use of the undisbursed judgment can be substantial, separate and apart from the investment opportunity allegedly arising from the decrease in required reserves, (American Bank & Trust Co. v. Community Hospital, supra, 36 Cal.3d at pp. 372–373, 204 Cal.Rptr. 671, 683 P.2d 670) and the defense-oriented gambling aspect of the deferral.   The court has the power to substitute new judgment creditors (dependents).   And under subdivision (c), those unpaid portions allocable to pain and suffering and medical expenses might never have to be paid if the judgment creditor fails to survive the payment term, and the judgment will be reduced as to such unpaid damages long after judgment was entered.

Franck v. Polaris E–Z Go Div. of Textron, Inc. (1984) 157 Cal.App.3d 1107, 204 Cal.Rptr. 321 illustrates the economic effect of periodic payments.   In that case, plaintiff was injured in a snowmobile accident.   She sued the seller, owner, driver and manufacturer of the vehicle.   Before trial, plaintiff settled with the owner and driver for $215,000 and with the seller for $2500, for a total of $217,500, leaving only the manufacturer as a defendant.

The $215,000 was payable $25,000 in cash with the balance of $190,000 payable under a structured settlement over 17 years, 1983 to 2000.   The $2500 was payable entirely in cash.

The insurer of the owner and driver had issued a policy with liability limits of $100,000.   After paying the $25,000 cash down payment, it used the $75,000 balance of the policy proceeds to purchase an annuity that would finance the $190,000.

At trial against the manufacturer, plaintiff recovered an award of $300,000.   The dispute on appeal centered, in part, on the application of the settlements in reduction of the $300,000 judgment.  (Code Civ.Proc., § 877.)   Defendant contended for reduction in the sum of $217,500.   Plaintiff argued for reduction based on the present cash value of the $190,000, plus full credit for the cash payments of $27,500.   Plaintiff won.

“Plaintiff has obtained a judgment of $300,000;  therefore she presently is entitled to recover that amount.   It is simple economics that money received by plaintiff in the year 2000 is not worth as much as the same amount of money if she received it today.   If we discount the award by the total amount of future payments ($190,000), in the year 2000 plaintiff will have received a total amount of money that is presently worth less than $300,000.   Only by discounting the future payments to their present cash value and reducing the award by that amount will plaintiff receive the recovery to which she presently is entitled.”  (Id., at p. 1117, 204 Cal.Rptr. 321;  emphasis in original.)

While not directly in point, Franck illustrates the economic benefit to the judgment debtor of an order for periodic payments, even without regard to the potential windfall to the debtor should the plaintiff fail to survive the full schedule of payments.

“Any [award for] [finding of] future pecuniary loss must be only for its present cash value.”   So says BAJI No. 14.70.  (2 California Jury Instructions—Civil, 7th ed. 1986.)   This approved form instruction defines present cash value and offers to the jury the use of the present cash value table which is Appendix B in the text at page 334 of volume 2.

The instruction contemplates the jury will receive evidence with regard to the gross sum of the future pecuniary loss awarded to the plaintiff, and that the jury will use the table to reduce such sum to present cash value which “will, of course, be less than the amount you find to be the loss of such future benefits.”  (Ibid.)

In the instant case, plaintiff's economist totaled the future damage claims and discounted them to present cash value.   The jury was given BAJI No. 14.70.   The jury award precisely matched the economist's figures entitling plaintiff to argue that her recovery was discounted drastically because of the long life she expects to endure, 68 plus years.

Now, defendant asks that the judgment be amended to call for periodic payments, presumably over the 68 years of life which the actuarial table projects for plaintiff, as to the care and training award, and over the 40-year term identified by Schultz as to the lost earnings award.   The economic effect of such periodic payments is to reduce the judgment, as the court explained in Franck, supra, by first instructing the jury to discount the gross amount of damages to its present cash value, and then to discount it a second time by ordering the judgment paid over 40 or 68 years.

Had defendant sought periodicizing before the judgment, perhaps it might have been permissible for the court to withhold BAJI No. 14.70 and to allow the jury to deliberate without regard to present cash value.   Of course, such consideration might have required defendant to announce its intention before plaintiff's economist testified and reduced the damage evidence by discounting for present cash value.

The vehicle for compensating plaintiff for the double discount effected by defendant's request for periodic payments is interest on the judgment.  Code of Civil Procedure section 685.020, subdivision (a) calls for interest on judgments.   The current rate is ten percent per annum under Code of Civil Procedure section 685.010.

“[A]ny final judgment for money bears interest at the legal rate from the date of entry.   This is so regardless of whether or not the original claim was liquidated or unliquidated, in contract or in tort.  [Citations.]   Interest also continues during an appeal.  [Citation.]”  (Dixon Mobile Homes, Inc. v. Walters (48 Cal.App.3d 964, 975, 122 Cal.Rptr. 202.)

Code of Civil Procedure section 667.7 makes no mention of, and, therefore, does not prohibit, interest on the judgment.   We see no reason for the application of Code of Civil Procedure section 685.020, subdivision (a), to be withheld from the periodic payment judgments.¹²

All three categories of damage itemized in the jury's verdict constitute “future damages” within the meaning of the statute and are otherwise subject to periodic payment thereunder.

Craven v. Stout, supra, suggested a careful defendant must ask, or indicate an intention to ask, for a periodic payment order before the case is submitted to the jury or it must make such request immediately upon announcement of the verdict and couple the request with an application for a stay of judgment, in order to enable the court to ascertain or divine the breakdown of the verdict between “future damages” and other damages.  (Obviously, in a court trial, the judge will know how he or she reached the amount of judgment and how much, if anything, constitutes “future damages.”)

Defendant contends that a request at either stage, before the case goes to the jury or immediately upon receipt of the verdict, is “necessarily blind,” an unfortunate choice of words in the circumstances of this case.   Appellant argues that a defendant is entitled to wait for the verdict so as not to have to contemplate the possibility of losing before the jury returns.   That is, of course, the situation as to all damage instructions given to a jury in an unbifurcated trial.   Further, the defendant is not prejudiced by having to announce to the court and jury an intention to seek a periodic payment order as to future damages, if any, awarded in excess of $50,000.

But when would defendant be required to make such announcement?   Would such position require that the jury not calculate economic damages at present cash value?   Would BAJI No. 14.70 not be used?   Would the discard of BAJI No. 14.70 require plaintiff's economist to testify in actual dollar terms only, without discounting them for present cash value, preventing the jury from hearing and comparing both calculations?   If the economist's testimony is to be impacted, does defendant have to announce before the economist testifies, or before plaintiff offers the first witness, or before opening arguments to the jury?

Suppose the economist testifies only as to gross dollars of cost without discount and the verdict is based thereon.   Does the court have to order periodic payments even if they would not be appropriate under American Bank, supra, and Fein, supra?

The entirety of a medical malpractice damage judgment bears interest from entry on the whole of the principal even if periodic payments are ordered,¹³ unless it can be said the effect of the periodic payment order is to render the judgment one payable in installments under Code of Civil Procedure section 685.020, subdivision (b).   In the latter event, no interest would be due on the judgment as a whole, but only on each periodic payment as it came due.

Code of Civil Procedure section 685.020, subdivision (b), appears to have been crafted for marital and child support awards.¹⁴  Other judgments may be payable from the date of their entry in installments as well.

But the application of Code of Civil Procedure section 667.7 is optional with the parties.   The judgment is awarded in a lump sum.   Whether notice of application or intention to apply for a periodic payment order is given before or after the verdict is rendered, the judgment is in a single amount, not payable in lesser or partial payments until and unless a motion is made by one of the parties, and the trial court rules that 667.7 applies and orders periodic payments.

 Accordingly, we hold that, notwithstanding a periodic payment order, interest accrues on the entire amount of unpaid judgment and not merely on payments as they come due.

EXCESSIVE DAMAGES

 Defendant attacked three areas of damages awarded by the jury.   It argues that the training and programing costs are not supported by evidence showing the training is feasible for someone of Brandi's admitted diminished mental and physical capacity.   It argues further that computing such damages on a life expectancy of 68 remaining years was erroneous because the evidence did not support the likelihood Brandi will live that long.   Finally, it contends that the $3,000,000 award for pain and suffering was excessive because defendant is confident the five-month-old baby in the ten-year-old girl's body is content and feeling no pain.

Defendant's contentions are without merit.

Dr. Andrea Morrison, a pediatric neurologist, examined and observed Brandi in the doctor's office.   She testified that having survived for some ten years after the meningitis wracked her body, Brandi's life expectancy was “normal, or close to normal” insofar as longevity was concerned.   Defendant offered evidence that Brandi was not expected to live more than another ten years.

Dr. Jean Heyerick specializes in working with developmentally disabled individuals in the areas of occupational therapy, physical and rehabilitative therapy.

Heyerick spent five hours with Brandi at the latter's home.   Based upon the doctor's experience, professionally and with Brandi, she expressed the opinion Brandi would benefit from “extensive quality therapy.”

Defendant's experts may have disagreed with plaintiff's witnesses.   But there was credible evidence presented which supported the jury's awards.   If indeed the plaintiff lives for 68 years, the costs of care can be expected to be enormous.

Defendant also challenged the $3,000,000 award for pain and suffering as excessive.   Since we conclude that Civil Code section 3333.2 requires reduction of the pain and suffering portion of the judgment to $250,000, a sum which is certainly not excessive, we need not deal further with this contention.

“When the verdict is examined in light of the catastrophic injuries suffered by respondent, together with the evidence relating to the extent and amount of his special damages, it is apparent that the verdict is not so large as to suggest any element of passion or prejudice in its composition.   It is, in fact, well within the range of the credible evidence.”  (Henninger v. Southern Pacific Co. (1967) 250 Cal.App.2d 872, 884, 59 Cal.Rptr. 76.

“[I]t is not the function of a reviewing court to interfere with a jury's award of damages unless it is so grossly disproportionate to any reasonable limit of compensation warranted by the facts that it shocks the court's sense of justice and raises a presumption that it was the result of passion and prejudice.  [Citation.]   The amount of the verdict must be viewed in the light of the evidence before the trial court.  [Citation.]   The trial court, in denying a motion for new trial, found that the verdict was not excessive.”  (Leming v. Oilfields Trucking Co. (1955) 44 Cal.2d 343, 358–359, 282 P.2d 23, quoting from Johnston v. Long (1947) 30 Cal.2d 54, 76, 181 P.2d 645.)

No legal basis is presented for a determination that any of the damages attacked is excessive in law.

COURT ATTENDANT MISCONDUCT

Los Angeles Superior Court does not employ bailiffs in civil trial departments.   Instead, the court employs the services of persons designated as attendants for the service needs normally handled by bailiffs.

Defendant contends the trial court's attendant received a request from the jury for rereading of the testimony of defendant's key emergency medicine expert and cowed the jury into abandoning its request.   In so doing, it is alleged the attendant deprived defendant of its rights under Code of Civil Procedure sections 613 and 614.

In support of its motion for new trial, defendant submitted declarations of four jurors, three of whom had voted against the verdict and constituted the three person dissent.   Juror number 9 (L) declared that shortly after the jury began its deliberations, questions rose regarding the testimony of defense witness Dr. Pierog on the issue of liability.   According to the juror, the foreperson rang for the attendant and told the attendant the jury wished to have the testimony in question read to it.   The declarant goes on to assert that the attendant sneered at the jury's lack of significant recall, said the reading of testimony was up to the judge who would not be “very happy about this” and was discouraging.   The declarant concluded that the jurors felt intimidated and abandoned their request.   She stated, also, that having been cowed by the attendant, the jury made no further request for testimony even though the jurors differed in their notes regarding testimony and interpretations thereof.

In response, the attendant submitted her own declaration shortly before the hearing on the motion for new trial.   In the declaration, she stated she received the oral request, told the jurors the request had to be in writing, provided the foreperson with a copy of the appropriate form on which to make the request, and heard nothing further from the jury.   The attendant's declaration does not state whether she told the judge of the oral request.

Defendant points with supposed horror to the attendant's failure to deny the evidence offered by the one complaining juror.   It is noteworthy that although defendant presents four juror declarations in support of the new trial motion, only one declaration concerns itself with the court attendant and the request for rereading.

 Defendant also argues that the trial court could not even consider the attendant's declaration because it was filed untimely, more than ten days after defendant's complete motion for new trial.  (Cf., Code Civ.Proc., § 659a.)   The trial court ordered the declaration filed as a court exhibit as of the date of the hearing, which the court had the power to do.

There is no question that if the juror were believed and the attendant disbelieved, the facts would constitute a violation of Code of Civil Procedure sections 613 and 614.  Code of Civil Procedure section 613 prohibits a court officer, without a court order, from communicating with the jury except to ask them if they have reached a verdict.  Code of Civil Procedure section 614 provides that after the jurors have retired for deliberations, they may require the court officer to conduct them into court wherein information required by them must be given in the presence of or after notice to the parties or counsel.   The jury had the right to communicate with the judge through the attendant any request under Code of Civil Procedure section 614.

 On the motion for a new trial because of alleged attendant misconduct, the court had before it conflicting declarations regarding the conduct under attack.   Determination of credibility of the declarants was within the sound discretion of the court.   Absent a clear abuse of discretion, the trial court's ruling will not be disturbed.  (Wagner v. Doulton (1980) 112 Cal.App.3d 945, 169 Cal.Rptr. 550.)   We find no such abuse of discretion here.

JURY MISCONDUCT

Defendant identifies three areas of alleged jury misconduct as supporting reversal.   They are discussion by jurors of insurance, adding damages to cover attorney's fees and failure of the same nine jurors to agree to each element of the judgment.

Defendant submitted declarations from four of the jurors, Nos. 9 (L), 11 (H), 2 (W), and 4 (D).   Plaintiff submitted no evidence from any of the jurors.

 Juror 9 named five jurors, all of whom voted in favor of the verdict, as having discussed insurance “at various times.”   She quotes juror 10 (B) as saying “an insurance company is going to pay anyway, so what's the difference what amount we come up with because they're going to pay it.”   She quoted juror No. 5 (G) as saying “ ‘Yes, the insurance company is going to pay, and it makes no difference you know what the liability is, because they're the ones who are responsible, so let them pay.’ ”   She also quoted juror 5 as participating in the debate over Brandi's potential life span saying “ ‘It doesn't make any difference what we decide, because if she dies, all the money is going back to the insurance company anyway.’ ”

Juror 11 declared No. 10 “was also very adamant that we include enough money for pain and suffering to pay the plaintiff's attorney fees.”   She went on to state that No. 7 and “one or two other jurors repeated the need to include enough for attorney fees․   However, [No. 10] continued to hold out for 3.3 million, the original figure she had proposed, and she continued to talk about the need for sufficient money to cover the attorney fees between at least five of the ten votes which were taken for pain and suffering.   Finally, at $3,000,000, nine of the jurors agreed on this amount for pain and suffering.”

Juror 11 also cited No. 7 as the authority for the proposition that “a shortened life expectancy was not an issue as any money awarded and not expended at the time of the plaintiff's death, would be returned to the insurance company.”

Juror 2 confirmed the substance of juror 11's declaration on the matters of alleged reversion to the insurance company, and the argument advanced by number 10 for a large pain and suffering award because “the attorneys would get a big chunk of the award.”

Finally, juror No. 4 confirmed the discussion about the reversion to the insurance company and confessed “this did affect my thinking and I raised my vote to $3,000,000 for pain and suffering as a result of these discussions․   I decided it was better to be safe than sorry for I wanted to be certain that there was enough money to take care of Brandie [sic] the rest of her life.”

She also confirmed the discussion of attorney's fees.  “It was continually mentioned that out of the award has got to come legal fees.  [No. 9] would say, ‘you can't bring that up,’ but even though everyone knew better, they still continued to talk about it.   I considered the discussion about insurance more than talk about legal fees when I raised my vote.”

Insofar as discussion of insurance on a general basis is concerned, Justice Allen W. Ashburn said it well in a related connection almost 28 years ago in Causey v. Cornelius (1958) 164 Cal.App.2d 269, 330 P.2d 468.   He commented on the effect of insurance company public relations campaigns to educate the public as to the impact of “high” jury verdicts on the cost of their insurance policies.   His reasoning is in the footnote below.¹⁵

Insurance companies cannot campaign publicly about medical malpractice crises, and joint and several “deep pocket” judgments and liability crises and other commercial difficulties, and legislative successes related thereto such as MICRA, and then complain when jurors parrot, correctly or incorrectly, what they have read or heard or seen.

The undisputed discussions about attorney's fees and the relationship of such discussions to the jury award of $3,000,000 for pain and suffering raise echoes of the recent decision by this court in Tramell v. McDonnell Douglas Corp. (1984) 163 Cal.App.3d 157, 209 Cal.Rptr. 427.   In Tramell we reviewed the declaration from the foreperson of the jury in which “a discussion dealing with the specifics of attorney fees, including percentages,” was reported.  (Id., at p. 172, 209 Cal.Rptr. 427.)   We cited the determination by the trial court “that there was an extensive discussion among the jurors evidencing an implied agreement to inflate their verdict to compensate for attorney's fees and taxes.”  (Id., at pp. 172–173, 209 Cal.Rptr. 427.)

In Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 185 Cal.Rptr. 654, 650 P.2d 1171, the Supreme Court reviewed at length a litany of alleged jury misconduct.   We need not repeat herein the discussion of Evidence Code section 1150, subdivision (a), about probing the mental processes of the jurors, or People v. Hutchinson (1969) 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132, interpreting Evidence Code section 1150 or Krouse v. Graham (1977) 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022, which we also discussed at length in Tramell.   But one aspect of the Hasson decision is especially relevant in the instant case.

In Hasson, the Supreme Court was satisfied that inattentiveness was proven but it declined to reverse the judgment unless prejudice from juror misconduct could be shown.   It pointed out that while there was a presumption of prejudice arising from such misconduct, the presumption could be rebutted by proof.  (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 416, 185 Cal.Rptr. 654, 650 P.2d 1171.)

The Supreme Court concluded Ford would have lost anyway and that no prejudice resulted from the misconduct.   It recognized that minds of jurors can wander and scolded the jurors for such conduct.

 Since it is clear from defendant's evidence that the attorney's fee discussion impacted only on the pain and suffering portion of the award, and that portion of the award is being reduced by almost 92 percent, we find no prejudice remains from the questionable jury conduct.

 Several of the juror declarations agree that jurors 2 and 3 (S) switched positions in the balloting.   Juror 3 voted for liability but against the $3,000,000 award for pain and suffering.   Juror 2 voted against liability but for the pain and suffering award.   Juror 3 was one of the nine votes for liability.   Juror 2 was one of the nine votes for the $3,000,000 award.

The jurors were polled after the verdict was delivered in open court.   No. 3 announced that he voted in favor of the verdict, which verdict enumerated separately the three elements of damage awarded, while No. 2 announced she voted against the verdict.

While these facts do not ascend to the quality of the confused comparative negligence cases beginning with Juarez v. Superior Court (1982) 31 Cal.3d 759, 183 Cal.Rptr. 852, 647 P.2d 128, it is clear from defendant's evidence in the case before us that three-fourths of the jurors, including number 3, found defendant to be negligent.  Juarez recognized that dissenting jurors may then participate in apportioning liability in accordance with the premise of negligence already found.  (31 Cal.3d at p. 768.)

No basis for reversal based on juror conduct is shown.

RULING

We therefore order as follows:

1. Pursuant to the provisions of Civil Code section 3333.2, the pain and suffering portion of the award is reduced by $2,750,000 to the statutory maximum of $250,000, and the judgment is reduced accordingly.

2. The matter is remanded to the superior court with instructions to make an order for periodic payments of the “economic loss” portion of the judgment, namely the awards for lost earnings and medical, nursing and training expenses.

As modified, the judgment is affirmed.   The case is remanded to the trial court for further proceedings in accordance with this opinion.   Each party shall bear her or its costs.

FOOTNOTES

FOOTNOTE.  

1.   Health and Safety Code section 1768 was repealed in 1983 and replaced by Health and Safety Code section 1799.110, which appears to be identical with its predecessor.   The published legislative intent for the 1983 enactment states it was intended to be a “recompilation of existing law.”   There are no reported cases under either the 1978 or 1983 version.   For convenience, we will refer to Health and Safety Code section 1768, although it was not in effect at the time of trial, as the parties did at trial and in their briefs.

2.   Dr. Linares Johnson had died prior to the trial, and the action was not prosecuted as to him.

3.   Among other lacunae in the statute is the question of liability arising from negligence of others than doctors in emergency facilities.   It is unrealistic to interpret the statute as calling for one measure of proof in a suit against a hospital if there is doctor negligence and another measure if the negligence is by a paramedic or nurse.

4.   Defendant advises it did not include the pain and suffering award in the request for the periodic payment order, because it expected the amount to be reduced to $250,000 and chose not to seek the order as to the reduced sum.

5.   The Legislative Counsel's opinion is dated September 12, 1975.   It is of questionable value in determining legislative intent for several reasons.First, and foremost, it ignored 100 years of California law.   It told the Legislature that “California has not expressly ruled on the question ․ [of] statutes imposing limitation on damages.”  (13 Journal of the Assembly, 1975–1976, pp. 374–376.)   We will discuss such cases later in this opinion.Second, it relied on foreign law which differed from California law.Third, it appears that it could not have been relied upon because it was delivered after Assembly Bill 1 had been approved by both houses of the Legislature.Assembly Bill 1, which enacted substantially all of MICRA as we know it, cleared both houses on September 8 and was sent to the Governor on September 11, 1975, the day before the date of the opinion.  (Vol. 2, Assembly Final History 1975–1976.)Fourth, the MICRA package of laws enacted in Assembly Bill 1 was modified by Senate Bill 24 adopted during the same extraordinary session of the 1975–76 Legislature.   Senate Bill 24 made numerous technical changes in Assembly Bill 1, and contained an urgency provision so that MICRA took effect immediately “as an urgency statute.”Thus, section 11 of Senate Bill 24 stated as follows:“This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect.   The facts constituting such necessity are:“There is a crisis in health care in California because of the inability of many physicians and surgeons to secure malpractice insurance which may cause many of them to leave the private practice of medicine.   To help solve this problem, it is imperative that this act take effect immediately.”  (Statutes of Calif., 1975–1976, ch. 2, p. 4007.)Civil Code section 3333.2 and Code of Civil Procedure section 667.7, clearly were included in the urgency and immediate effect provisions.But the legislative opinion on which plaintiff relies refers only to Assembly Bill 1, and not to Senate Bill 24, and makes no mention of the urgency declaration.

6.   An expert in matters other than medical malpractice and statutory interpretation recommended against retroactivity as follows:  “Don't look back.   Something might be gaining on you.”   This speaker was Leroy (Satchel) Paige, as quoted in Bartlett's Familiar Quotations, 14th ed. 1968, page 1048a.

7.   In Robinson v. Pediatric Affiliates Medical Group, Inc., supra, the court cited White v. Lyons as a case of “statute modifying rate of interest not to be applied retroactively because to do so would impair rights accrued under prior statute.”  (Id., at p. 912.)   But White v. Lyons illustrates the confusion in the use of the concepts of retroactive and prospective, since the interest rate reduction as of a date prior to trial was implemented from that date forward (prospectively) but at a trial eight months later (retroactively).   If White had been resolved as was Robinson, the judgment would have been affirmed without change.

8.   The explanation for Aetna is that the post-injury, but pre-hearing, change in the law “imposes a new or additional liability.”  (Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at p. 395, 182 P.2d 159.)   Thus, at the date of the injury, the law called for the employee to receive temporary or permanent disability payment, but not both.   After the injury, the law was changed to allow payment for both permanent and temporary disability, if the temporary payment exceeded 25 percent of the permanent payment.   The increase in potential award was an increase in exposure, which may be viewed as an increase in “liability,” and not to be applied in cases pending at the date of the statutory change, although the Supreme Court suggested otherwise in the quotation from the Fein opinion, 38 Cal.3d page 158, 211 Cal.Rptr. 368, 695 P.2d 665, set forth earlier in this section.DiGenova is a case in which the subsequent statutory enactment created a penalty not in existence at the time of the underlying action.   Plaintiff school teacher had been convicted in 1945 of “vagrancy;  lewd.”   In 1952 the Education Code was amended to prohibit employment in public schools of persons convicted of certain sex offenses including plaintiff's crime.When the court concluded that “no provision of a statute is retroactive unless expressly so declared” (Id., 57 Cal.2d at pp. 176–177, 18 Cal.Rptr. 369, 367 P.2d 865), it is clear the after-the-fact penalty led to the result and the basis for the ruling was the increase in “liability” as to the wrongdoer.

9.   Code of Civil Procedure section 667.7 allows the judgment creditor to apply for an order of periodic payments, too.   It is not impossible that periodic payments might be sought by plaintiffs in some cases.

10.   Civil Code section 206 provides it is the duty of the father, the mother, and the children of any person in need who is unable to maintain himself by work, to maintain such person to the extent of their ability.   Legally, Brandi might be called upon to support her parents, to the end that one or both could become judgment creditors in the instant case should Brandi die before the lost earnings portion of the award has been paid in full.

11.   Following the opening sentence which is quoted in the text of the opinion, the balance of the statute provides as follows in relevant part:“In entering a judgment ordering the payment of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments which will compensate the judgment creditor for such future damages․“(b)(1) The judgment ordering the payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made.   Such payments shall only be subject to modification in the event of the death of the judgment creditor.“․“(c) However, money damages awarded for loss of future earnings shall not be reduced or payments terminated by reason of the death of the judgment creditor, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to his death.   In such cases the court which rendered the original judgment, may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this subdivision.“(d) Following the occurrence or expiration of all obligations specified in the periodic payment judgment any obligation of the judgment debtor to make further payments shall cease․“(e) As used in this section:“(1) ‘Future damages' includes damages for future medical treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and suffering of the judgment creditor.“(2) ‘Periodic payments' means the payment of money or delivery of other property to the judgment creditor at regular intervals.“․“(f) It is the intent of the Legislature in enacting this section to authorize the entry of judgments in malpractice actions against health care providers which provide for the payment of future damages through periodic payments rather than lump-sum payments.   By authorizing periodic payment judgments, it is the further intent of the Legislature that the courts will utilize such judgments to provide compensation sufficient to meet the needs of an injured plaintiff and those persons who are dependent on the plaintiff for whatever period is necessary while eliminating the potential windfall from a lump-sum recovery which was intended to provide for the care of an injured plaintiff over an extended period who then dies shortly after the judgment is paid, leaving the balance of the judgment award to persons and purposes for which it was not intended.   It is also the intent of the Legislature that all elements of the periodic payment program be specified with certainty in the judgment ordering such payments and that the judgment not be subject to modification at some future time which might alter the specifications of the original judgment.”

12.   Code of Civil Procedure section 685.020, subdivision (b), provides:  “Unless the judgment otherwise provides, if a money judgment is payable in installments, interest commences to accrue as to each installment on the date the installment becomes due.”Code of Civil Procedure section 685.020 was adopted in 1982.   The Law Revision Commission comment accompanying the statute explains that subdivision (b) “codifies the rule concerning accrual of interest on support judgments payable in installments and extends the rule to other judgments payable in installments.  [Citation.]   The introductory clause of subdivision (b) also recognizes that in certain circumstances, the court may have the authority to order that interest accrues from the date of entry of a judgment rendered in an amount certain but payable in installments.”  (Deering's California Codes, Code Civ.Proc., § 661 to § 711, 1986 Supp. p. 12.)Code of Civil Procedure section 667.7 does not, however, provide for installment payments, but for periodic payments to the original judgment creditor, and as to the future lost earnings, “to the persons to whom the judgment creditor owed a duty of support as provided by law, immediately prior to her death.”   Thus, the duty of the judgment tortfeasor to pay periodic payments, as distinguished from installment payments can completely terminate as early as the day of his death, even if death occurs the day after the periodic payment order is made, with the judgment debtor being freed of any obligation to pay any further payments.   That is not characteristic of installment payment.

13.   Before the impact of Code of Civil Procedure section 667.7 was felt, in the usual tort cases, defendant satisfied the judgment once the appeals had been exhausted so as to avoid execution of the judgment.   Payment of the principal plus accrued interest avoided concern about when and how much to pay.  Code of Civil Procedure section 667.7 invites an entirely new area of disputation.

14.   Code of Civil Procedure section 685.020 is part of The Enforcement of Judgments Law recommended by the California Law Revision Commission in 1980.  (15 L.R.C. 2001.)In its discussion of the accrual of interest on money judgments payable in installments, the Commission cited two family law cases as its only illustrations.  (Id., at p. 2033.)Earlier in its report, in discussing the period of enforceability of judgments, the Commission broadcast a confusing signal as to what is “a money judgment payable in installments.”   Thus, it explained that what is now Code of Civil Procedure section 683.030 “codifies case law holding that the time for enforcement of each installment begins to run from the time the installment falls due.”  (Id., at pp. 2029–2030.)   The footnote, No. 11, illustrating such judgments, cites Code of Civil Procedure section 667.7 and its periodic payment provision as one of five examples of installment judgments.In Kenney v. Los Feliz Investment Co., Ltd. (1932) 121 Cal.App. 378, 384–385, the court consulted three different dictionaries in trying to define “installment.”  “An installment means a part of a greater amount and is a word only fitly used in connection with an ascertained amount,” it concluded, and we agree.Thus, the accrual of interest provision of Code of Civil Procedure section 685.020, subdivision (b), applies to support awards, but not to judgments payable in periodic payments.

15.   He called for “a reappraisal of this insurance bugaboo.   Under familiar forms of liability insurance policies, the defense of an action against the insured is wholly controled by the insurer;  it selects and pays the attorneys, picks the witnesses, determines whether to compromise the case, retains the right to call upon the assured for such assistance as it wants, bars him from otherwise intervening in the conduct of the case, through its own attorneys and agents conducts the trial throughout, likewise conducts any appeal and pays any final judgment up to the amount of the coverage ․ [but] as soon as the subject of insurance is mentioned in the evidence, many defense lawyers ․ move for a mistrial [in order] that the jurors must not know who the real defendant is.   While this has been going on in the court house, certain insurance companies in recent years have waged a campaign in the Saturday Evening Post and in Life magazine [printed periodicals of yesteryear] designed to reach one out of three potential jurors (more than 70,000,000 persons in all), urging them to be conservative in their verdicts when serving as jurors—to carry into the jury room the thought of insurance and to consider the impact of large verdicts upon their own insurance premiums.”  (Id. 164 Cal.App.2d at pp. 276–277, 330 P.2d 468.)   Plus ca change, plus c'est la meme chose, the more that changes, the more it's the same thing.

SHIMER, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

WOODS, P.J., and McCLOSKY, J., concur.