INTENTIONAL
TORT
OF BATTERY NOT GOVERNED
BY MICRA
Perry v. Shaw
The Second Appellate District California Court of Appeal
held in Perry v. Shaw (2001) 01 CDOS 3235 that in a medical
malpractice case, the $250,000 limit on non-economic damages under MICRA
may not apply when the jury also finds the physician liable for battery.
In Perry, the patient sought to surgically remove
excess skin after substantial weight loss.
She specifically refused any breast enlargement procedure.
Nevertheless, the surgeon proceeded with a breast enlargement
procedure along with the skin removal.
The patient sued for negligence and battery, and was awarded
$59,000 for medical expenses and $1.03 million for emotional distress by a
jury that found the surgeon liable for both negligence and battery.
The surgeon argued that the $1.03 million award for non-economic
damages should be reduced to $250,000 under MICRA.
The appellate court held that the $250,000 limit in
MICRA did not apply to reduce awards for intentional torts because the
limit applied to actions based on professional negligence and allowed the
$1.03 million award to stand.
The
court also rejected the surgeon’s efforts to have the jury award
apportioned so that the $250,00 MICRA limit could be applied to that part
of the award for negligence. The court held that the award was for a single element of
damage with two concurrent causes.
