Sacramento Family Seeks Damages For Medical Malpractice, Part 9 of 10

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/birth injury case and its proceedings.)


Since the late 1970’s California adopted a comparative fault system for tort liability whereby plaintiff’s recovery in damages can be reduced in proportion to plaintiff’s fault for the injury and defendants became jointly and severally liable for plaintiff’s injury. (Wimberly v. Derby Cycle Corporation (1997) 56 Cal.App.4th 618, 625.) But these comparative fault principles allowed for defendants with virtually no share of fault with the obligation to pay the lion’s share of plaintiff’s damages. (Id. at p. 626.)

In 1986, Proposition 51 was passed by the voters and, as a result, Civil Code section 1431.2 now provides that each defendant shall be liable only for the amount of plaintiff’s “non-economic damages” allocated to that defendant in direct proportion to that defendant’s percentage of fault. (Civ. Code, § 1431.2.)

Since the passage of Proposition 51, there are a few instances where the courts will not apply Proposition 51 to apportion liability among the defendants to reduce a defendant’s liability to plaintiff using comparative fault principles. For example, where there is true vicarious liability between an admitted employer and an employee, the courts will not apply Proposition 51 to reduce the employer’s liability to plaintiff for the employee’s wrongful conduct. (Miller v. Stouffer (1992) 9 Cal.App.4th 70, 84.) The same is true in the permissive user/vehicle owner context. (Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847.)

In those cases, defendant’s liability to plaintiff was not based on defendant’s fault but was purely vicarious and the defendant was not considered an independent tortfeasor. This is not one of those instances because: (1) Dr. Brown is not the employee of Universal Hospital; (2) Ostensible agency requires proof of fault on the part of Universal Hospital; and (3) The principles of subsequent medical treatment under Ash is not derivative, like respondeat superior.

Lastly, certainly the policy reasons behind respondeat superior do not exist in the situation of ostensible agency. (See Part 10 of 10.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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