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Court of Appeal:
Separate Caps Apply to Wrongful Death, Malpractice Claims
Opinion Says Amendment to Code of Civil Procedure Means Plaintiff’s Claim for Noneconomic Damages Based on Medical Negligence Are Governed by Independent Limitations on Recovery, Allowing for Larger Awards
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal held yesterday that a recent amendment to the Code of Civil Procedure opens the door for separate statutory caps on noneconomic damages to apply to claims for wrongful death and medical malpractice, allowing for larger recoveries by the relatives of decedents claiming medical negligence.
At issue is Code of Civil Procedure §377.34 which, before the amendment at stake in the appeal, precluded damages for a decedent’s “pain, suffering, or disfigurement” in a medical malpractice claim filed by a surviving relative of a decedent who purportedly died due to the negligence of health providers.
Effective Jan. 1, 2022, the section was amended to add subdivision (b), which allows for the recovery of pain and suffering damages in survival actions “filed on or after January 1, 2022, and before January 1, 2026.”
The statutory caps are established in §3333.2 of the Medical Injury Compensation Reform Act of 1975 (“MICRA”), which, as of Jan. 1, 2023, provides for a ceiling of $350,000 on noneconomic damages in medical malpractice claims not involving death and of $500,000 on such recoveries in wrongful death claims asserted by surviving family members.
Subject to certain limitations, the caps apply regardless of the number of healthcare professionals involved.
Complaint Filed
The question arose after Joely Ng filed a complaint against Los Alamitos Medical Center Inc. and physicians Kathleen McMahon, Ahmed Badr, Lihong Wu, and Timnit Tekeste.
In the complaint, Ng alleges that her husband’s feeding tube was replaced in the emergency room of the facility by McMahon, who secured the instrument in the wrong place inside his body. After Ng’s husband was admitted to the hospital, the complaint asserts that Badr, Wu, and Tekeste treated him but failed to perform testing to confirm that the tube was properly installed.
He died three months later after developing sepsis, which Ng contends is attributable to the negligent placement of the tube.
Ng asserts two causes of action against each defendant—wrongful death, filed in her individual capacity, and medical malpractice, filed in the plaintiff’s capacity as the successor in interest to her deceased husband (referred to in the opinion as the “survival claim”).
Noneconomic Damages
In addition to economic damages, Ng seeks noneconomic damages for each claim. For the wrongful death claim, she asserts damages for the loss of her husband’s love, companionship, and care, up to the cap allowed in Civil Code section 3333.2.
For the survival claim, she seeks damages for her husband’s pain and suffering before he died, also subject to the relevant statutory cap.
Los Alamitos Medical Center objected to the complaint’s request for two separate caps for noneconomic damages, arguing that the relevant statutory scheme anticipates that both claims would be subject to a single limit.
The defendant filed a motion to strike from the pleading language following the survival claim saying “[t]his is separate, apart, and in addition to the general damages sought by Kenneth Ng’s widow in the first cause of action….”
Orange County Superior Court Judge Nick A. Dourbetas granted to motion to strike on May 24, 2024, reasoning that because “the wrongful death claim is not separate and distinct from a medical negligence claim, it cannot be…subject to a separate MICRA cap.”
On June 6, 2024, Ng filed a petition for a writ of mandate directing the trial court to vacate the order granting the motion to strike. In an opinion authored by Justice Thomas A. Delaney, and joined in by Acting Presiding Justice Maurice Sanchez and Justice Joanne Motoike, the court granted the petition.
Two MICRA Caps
Delaney wrote:
“At issue here is whether the recent amendment to Code of Civil Procedure section 377.34, which authorizes a decedent’s personal representative or successor in interest to recover noneconomic damages, means a plaintiff can seek two MICRA cap awards (one for…herself and one for the decedent) under Civil Code section 3333.2. We conclude it does. Because a wrongful death claim and a survival claim—even when premised on the same alleged medical malpractice—are separate and distinct claims, a plaintiff suing for both claims can seek to recover two MICRA caps.”
The jurist pointed to jurisprudence which, interpreting the pre-amendment language of §3333.2, held that a husband and wife suing in a single action could each recover up to the MICRA cap on their separate claims—one for negligence and the other for loss of consortium—even though the causes of action both stemmed from the same instance of medical malpractice.
He concluded:
“Pursuant to [case law], the relevant question here is whether a wrongful death claim and a survival claim, stemming from the same alleged incident of medical malpractice, are separate claims such that they are entitled to separate MICRA caps. The answer is yes.”
Distinct Claims
The justice continued:
“A survival claim…is ‘a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event.’….
“In contrast, a wrongful death claim…compensates the heirs of the decedent ‘for the loss of companionship and for other losses suffered as a result of the decedent’s death.’….
“Crucially, a wrongful death claim may not include any damages recoverable as part of a survival claim, and the claims may be tried separately.”
Under these circumstances, he declared that “we conclude [the] court erred in finding the claims were ‘not separate and distinct’ and subject to one MICRA cap.”
The case is Ng v. Superior Court (Los Alamitos Medical Center), 2025 S.O.S. 260.
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