In its opinion filed on September 29, 2016, the Court of Appeal of the State of California Second Appellate District Second Division (“Appellate Court”) held in a California medical malpractice case involving negligently performed gallbladder surgery that the jury must fix a plaintiff’s future earning capacity based on what it is “reasonably probable” she could have earned.
Because the plaintiff in the California medical malpractice case had failed to adduce any evidence to establish that it was “reasonably probable” she could have obtained employment as an attorney or any evidence on the earnings of lawyers, the trial court did not abuse its discretion in determining that the jury’s $730,000 award for lost earning capacity was not supported by substantial evidence.
The Underlying Facts
The plaintiff was a senior at the University of Southern California (USC) in January 2012 and was planning to apply to law school to fulfill her passion to be a human rights lawyer. On February 6, 2012, the plaintiff, who had experienced sharp abdominal pains over the prior few years, had surgery to remove her gallbladder. The surgery was supposed to be minimally invasive by making a small incision in her abdomen, placing a hollow tube into the incision, introducing a small camera and the necessary surgical instruments into her abdomen through the tube, and then conducting the surgery.
While inserting the tube, the defendant surgeon nicked a vein and caused substantial internal bleeding. In order to repair the vein, extract the blood, and remove the plaintiff’s gallbladder, the attending physicians cut a six-inch opening in her abdomen. Although her gallbladder was successfully removed, the more invasive surgery necessitated an additional four weeks in the hospital, including a week in the intensive care unit. The saturation of the plaintiff’s digestive organs in her blood caused adhesions to form on and around those organs, which has resulted in pain, bloating, and dysfunction in her digestive tract.
The plaintiff filed her California medical malpractice lawsuit against the surgeon who nicked her vein and the hospital where the surgery occurred. During the California medical malpractice trial in May 2015, the plaintiff testified that she was able to return to school and graduate from USC in the spring of 2012, despite having to use an electric wheelchair.
The plaintiff applied to and was accepted by four law schools and was to begin classes in the fall of 2013. The plaintiff requested and was granted a medical deferment of her start date.
The plaintiff’s internal medicine expert testified at trial that the plaintiff’s ongoing gastrointestinal problems would likely be with her for the rest of her life and that she will continue to suffer pain, require medical evaluations, require medication, and may at some point require an emergent surgical operation for an acute abdominal event. The plaintiff’s expert further opined that these consequences would certainly impact her lifestyle decisions, including career choice and education.
The California medical malpractice jury returned a special verdict finding that the defendants were negligent and awarded the plaintiff a total of $1,045,000 in damages: $285,000 in past economic loss, $730,000 in future economic loss, $15,000 for past non-economic loss, and $15,000 for future non-economic loss.
In response to post-trial motions filed by the parties, the trial judge stated that there was virtually no evidence to support the jury’s $285,000 award of lost earnings prior to verdict and that the jury’s award of $730,000 for the plaintiff’s loss of earning capacity was speculative and excessive because there was no evidence whatsoever of the compensation earned by graduates of any law school, much less the law school plaintiff chose to attend, or compensation of any attorneys, no matter how experienced. With respect to the jury’s award of non-economic damages, the trial judge concluded that the jury’s meager award of $30,000 total for past and future pain and suffering was grossly inadequate in light of evidence of the excruciating pain she would have to endure on a daily basis for the rest of her life. The defendants appealed.
The Reasonable Probability Standard
The Appellate Court held that the jury must look to the earning capacity of the career choices that the plaintiff had a reasonable probability of achieving. Where the plaintiff is not already fitted and qualified for the career she seeks to use to define her earning capacity, the plaintiff must demonstrate a reasonable probability that she would have become fit and qualified for that career. If she does, the jury will have a reasonable basis of computing what the plaintiff could have earned by looking to what persons in that career can earn.
The Appellate Court stated that using the “reasonable certainty standard” for assessing a plaintiff’s entitlement to loss of earning capacity damages while using the less onerous reasonable probability standard for assessing the extent of those damages dovetails neatly with the venerable principle that where the fact of damages is certain, the amount of damages need not be calculated with absolute certainty. Where a young plaintiff’s injury prevents him or her from pursuing a specific career, courts have generally required some proof that the plaintiff is far along in his or her training or experience. Where she adduces such proof, courts have looked to that career’s earnings to fix lost earning capacity.
The Appellate Court stated that once the jury has determined which career options are reasonably probable for the plaintiff to achieve, the jury values the earning capacity of those careers (1) by the testimony of an expert witness, (2) by the testimony of lay witnesses, including the plaintiff, or (3) by proof of the plaintiff’s prior earnings in that same career.
Nonetheless, the Appellate Court held that the plaintiff in the case it was deciding did not prove she was likely to become fit and qualified to be a lawyer (the plaintiff failed to to adduce evidence on her fitness for any career). Furthermore, absent her injury, the plaintiff would have started law school in the fall of 2013 and would still have been a law student by the time of trial in May 2015. Thus, there was no evidence of lost earnings prior to trial.
The Appellate Court stated that with respect to the prospective loss of earning capacity, the plaintiff presented sufficient evidence that she was reasonably certain to suffer some loss of earning capacity due to the perpetual pain, bloating, and dysfunction of her digestive tract caused by the negligently performed surgery. However, the plaintiff did not introduce evidence establishing a reasonable probability that she could have become qualified and fitted to earn a lawyer’s salary: absent from the record is any evidence of her likelihood of graduating from law school, her likelihood of passing the Bar, or her likelihood of obtaining a job as a lawyer. Plaintiff also adduced no evidence as to what lawyers earn.
Source Licudine v. Cedars-Sinai Medical Center, B268130.
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