The Court of Appeal of the State of California Fourth Appellate District Division Three (“California Appellate Court”) on January 13, 2020 upheld a nursing malpractice arbitration award against a nurse and her employer in the total amount of $6,069,139.72, consisting noneconomic damages of $250,000, past medical expenses of $668,742, future medical expenses of $4,000,000 payable over seven years, future lost wages of $1,023,542, also payable over seven years, and a cost award of $126,855.72.
The Underlying Facts
The plaintiff was born with congenital respiratory problems that required her to be intubated and otherwise cared for medically. The plaintiff alleged that on October 6, 2015, while she was a patient of the nurse and her employer, the nurse “negligently respond[ed] to [the plaintiff’s] medical condition, in particular the failure to timely reinsert a tracheotomy tube to insure that [the plaintiff] received adequate oxygen,” and that “[a]s a direct and proximate result of defendants’ negligence, [the plaintiff] suffered a severe brain injury.” The plaintiff, through her guardian ad litem (her mother), sought damages to compensate for “physical pain, mental suffering, loss of enjoyment of life, physical impairment, disfigurement, inconvenience, grief, anxiety, emotional distress, medical expenses (past and future), attendant care, home care, loss of earnings capacity, loss of ability to provide household services, and rehabilitation expenses.”
Four months after filing her nursing negligence medical malpractice complaint, the plaintiff moved to compel arbitration of the case based on an arbitration agreement between the plaintiff’s mother and the nurse’s employer, which motion was granted. During the arbitration proceedings, the plaintiff’s expert testified that the plaintiff’s estimated life expectancy was 35 years, and the defendants’ expert testified the plaintiff’s life expectancy was estimated to be two years or less.
At the conclusion of the arbitration proceedings, the arbitration panel agreed unanimously on the issue of liability but disagreed on damages. The decision was left to the neutral arbitrator, who determined that the plaintiff had an additional life expectancy of 5 to 7 years.
The trial court affirmed the arbitration award, and both parties appealed.
California Appellate Court Opinion
The California Appellate Court held: “In the absence of any showing that [the plaintiff’s] three-month delay in seeking arbitration was prejudicial to [the defendant employer], we cannot conclude the trial court erred by denying [the defendant employer’s] assertion that [the plaintiff] waived her right to arbitrate.”
The California Appellate Court further held: “[The defendant nurse] argues the court erred by confirming the arbitration award against her because she was not a signatory to the arbitration agreement, and thus could not be compelled to arbitrate. However, as the trial court explained, [the defendant nurse] waived that claim by failing to raise it in opposition to the petition to arbitrate and by then participating fully in the arbitration without ever objecting on that basis.”
With regard to the periodic payments issue, the California Appellate Court held: “Here, there is nothing in the parties’ agreement that prohibits the arbitrators from ordering periodic payments. To the contrary, the agreement states “that the provisions of California law applicable to the healthcare providers shall apply to the disputes with this arbitration agreement.” The agreement therefore strongly suggests an intention to preserve the parties’ statutory rights that would otherwise be available in a medical negligence case that was tried in court. Because the arbitrators were not restricted by the agreement in their choice of remedies, it was incumbent on [the defendant nurse] to demonstrate some other reason why the arbitrators would be affirmatively prohibited from ordering periodic payments. She has failed to do so. We therefore reject her claim of error.”
In responding to the plaintiff’s argument that the trial court erred by failing to correct the award to eliminate the provision for periodic payments of her future earnings award (arguing that the award makes no sense because the plaintiff will only be 10 years old at the end of the seven-year payment period, and thus the payment schedule bears no relationship to the timing of her presumed future loss of earnings), the California Appellate Court stated: “Because it is a substantive ruling, it makes no difference that it might be legally incorrect. As we have already explained, we do not have the power to review an arbitration award based on errors of fact or law, in the manner we would if the judgment had resulted from a trial in the superior court. We consequently find no error in the trial court’s refusal to correct the award in the manner [the plaintiff] requested.”
Source Borges v. Advanced Specialty Care, LLC, CA4/3.
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