(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
Question: Are medical malpractice plaintiffs eligible to recover prejudgment interest on their jury award when their statutory offer to settle has been rejected?
In this case, not only would the judgment for non-economic damages be reduced from $3.8 million dollars, which in and of itself, is a denial of the right to trial by jury and a nullification of their verdict, as guaranteed both by the by the 6th Amendment to the United States Constitution and the California Constitution.
This unequal treatment is apparent when compared with the non-economic damages allowed by the AIDS Vaccine Victims Compensation Fund (Health and Safety Code Section 121270). Should someone be injured as a result of volunteering to take and AIDS vaccine the statute provides there is a limitation on damages:
Damages for personal injuries, means the direct medical costs for the care and treatment of injuries to any person, including a person entitled to recover damages under Section 377 of the Code of Civil Procedure, proximately caused by an AIDS vaccine, the loss of earnings caused by the injuries, and the amount necessary, but not to exceed five hundred fifty thousand dollars ($550,000), to compensate for noneconomic losses, including pain and suffering caused by the injuries.
MICRA was enacted in 1975 by the California Legislature with a limitation of $250,000. The AIDS Vaccine Victims Compensation Act was enacted by the same California legislature in 1987, just twelve years later, but providing for more than a 100% increase in the amount allowed for non-economic damages: $250,000 versus $550,000.
The foregoing example of disparity in treatment evidences that victims of medical malpractice are subjected to a denial of the equal protection of the laws of this State and of the United States.
Similarly, the right to have a verdict in a medical malpractice case that accounts for inflation is recognized by the court in Nguyen v. Los Angeles County Harbor/UCLA Med. Ctr., (1995), 40 Cal.App.4th 1433 at 1454, where the court stated that counsel is not entitled to interest on attorney fees paid out of plaintiff’s periodic payments in a medical malpractice case, because an inflation factor is built into the periodic payments themselves.
Thus, if there is an inflation factor built into for periodic payments of medical expenses and loss of earnings then there can be no good or constitutional reason not to provide for a similar inflation factor for non-economic damages.
D: PreJudgment Interest Calculation Based On $1,029,050:
Prejudgment interest is calculated from the date of the Section 998 offer date of November 24, 2003, to the date of entry of judgment which is tentatively scheduled for February 4, 2005. [427 days]. The amount of the prejudgment interest is $120,384.75]. The calculations are as shown below.
Should the judgment not be entered on February 4, 2005, then the daily interest rate of [$281.93.] should be added for each day thereafter until entry of judgment.
E. Prejudgment Interest Statute:
Civil Code § 3291 provides in relevant part:
If the plaintiff makes an offer pursuant to Section 998 of the Code of Civil Procedure which the defendant does not accept … and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiffs first offer pursuant to Section 998 of the Code of Civil Procedure which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment. (Civ. Code § 3291.) (See Part 4 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.